EXHIBIT 10.7
EMPLOYMENT, CONSULTING AND NON-COMPETITION AGREEMENT
THIS AGREEMENT, made this ____ day of __________, 2004, by and between
WESBANCO, INC., a West Virginia corporation, party of the first part
(hereinafter called "Wesbanco") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, of Springfield, Ohio,
party of the second part (hereinafter called "Executive").
WHEREAS, Executive has heretofore served as the Chief Executive Officer of
Western Ohio Financial Corporation ("WOFC") for a significant number of years
and in that capacity has established significant contacts and relationships with
customers of WOFC and its subsidiaries, as well as with banking institutions in
markets served by WOFC, and
WHEREAS, WOFC and Wesbanco have executed an Agreement and Plan of Merger
dated the ___ day of March 2004, (the "Merger Agreement"), providing for the
acquisition of the company by Wesbanco and the merger of WOFC's operating
subsidiaries with and into existing entities of Wesbanco (the "Merger"); and
WHEREAS, WOFC covers Executive under the Western Ohio Financial Corporation
Deferred Compensation Plan (the "Deferred Plan"); and
WHEREAS, WOFC and Executive have determined that it is in their mutual best
interests to amend the Deferred Plan; and
WHEREAS, Wesbanco and WOFC recognize Executive's ability to contribute to
the smooth integration of WOFC into the Wesbanco group following the Merger and
desire to provide for the continued full-time employment of Executive for a
period of one year after the Merger and to provide that he will consult with
Wesbanco and refrain from competing with or soliciting for business the
customers or employees of Wesbanco for an additional two year period after the
Merger and to make certain changes in Executive's employment arrangements with
WOFC that Executive and WOFC should enter into this employment agreement (this
"Agreement");
NOW, THEREFORE, THIS AGREEMENT WITNESETH: That for and in consideration of
the mutual promises and covenants hereinafter contained, the parties hereto do
hereby agree as follows:
1. EMPLOYMENT PERIOD. Wesbanco agrees to employ Executive as its Market
President for the Springfield market ("Market President"), and Executive agrees
to work in the employ of Wesbanco, subject to the terms and conditions of this
Agreement, for the period commencing on the Effective Time (as defined in the
Merger Agreement) (the "Effective Date") and ending on the one year anniversary
of the Effective Date (the "Employment Period"). After the Employment Period,
the Executive shall refrain from competing with Wesbanco and shall be available
for consultations with the Chief Executive Officer of Wesbanco on reasonable
notice as described in Section 4(a)(ii) and 4(b) below. The parties agree that
the position of Market President is a position that requires substantial skill,
training and knowledge generally and more particularly of the operations,
employees, customers and the banking market in the Springfield, Ohio area where
Executive will be employed and that the annual compensation set forth in Section
2(b) is reasonable
compensation in light of those requirements. The parties also acknowledge that
the Executive will be supervised in his performance of these duties by senior
management of Wesbanco and that, as supervised, his position will be different
and his job description will be changed and reduced accordingly.
2. TERMS OF EMPLOYMENT WITH WESBANCO.
(a) Position and Duties.
(i) During the Employment Period, and excluding any periods of
vacation and sick leave to which Executive is entitled under the policies
of Wesbanco giving credit, for these purposes, to Executive for his years
of service with WOFC, Executive shall devote his full business time and
attention to the business of Wesbanco as conducted in the Springfield
market and to the successful integration of the then former WOFC into the
business and operations of Wesbanco, including, but not limited to the
preservation of the reputation, customers and employees of WOFC as the
reputation, customers and employees of Wesbanco, and such other tasks and
duties that are commensurate with Executive's title, status, skills and
experience, that may, from time to time, be assigned by the Board of
Directors of Wesbanco (the "Board"), and are consistent with the tasks and
duties performed by Executive prior to the Effective Date.
(ii) Executive's employment duties with Wesbanco shall be
performed substantially at the site of WOFC's offices and branches in the
Springfield, Ohio, market, excepting such business meetings with Wesbanco
managers in Wheeling, West Virginia, on reasonable notice, and meetings of
the Wesbanco Board of Directors as shall be deemed appropriate by Wesbanco.
Wesbanco shall continue to provide Executive with office, secretarial and
other administrative support that is substantially comparable to that in
effect prior to the Effective Date. All expenditures in connection with
Executive's performance of his duties shall be reimbursed in accordance
with Wesbanco's regular policy, including, but not limited to, costs and
expenses incurred in attending meetings in Wheeling, West Virginia.
(iii) Executive may devote reasonable time to activities such as
supervision of personal investments and activities involving professional,
charitable, educational, religious and similar types of activities,
speaking engagements and membership on other boards of directors, provided
such activities do not interfere in any material way with the business of
Wesbanco. The time involved in such activities shall not be treated as
vacation time. Executive shall be entitled to keep any amounts paid to him
in connection with such activities (e.g., director fees and honoraria).
(b) Compensation. During the Employment Period, Executive shall
receive an annual base salary ("Base Salary") of at least $299,550. The Base
Salary shall be payable in periodic installments in accordance with the Wesbanco
payroll practices applicable to senior executives of Wesbanco.
(c) Benefits. During the Employment Period, Executive shall continue
to receive employee benefits and perquisites comparable to those that Executive
received prior to
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the Effective Date hereof. Wesbanco shall provide or cause to be provided death
and disability benefits with respect to the Executive as follows:
(i) Death Benefit. In the event the Executive dies prior to the
third anniversary of the Effective Time, Wesbanco shall pay directly from
the general assets of Wesbanco or cause to be paid through a policy of life
insurance purchased for such purpose by Wesbanco (but not including any
group-term life insurance provided as an employee benefit in accordance
with company policy) or a combination of the foregoing, in each case as
determined by Wesbanco, to the surviving spouse of Executive promptly after
Wesbanco receives notice of Executive's death, a death benefit in a lump
sum cash amount equal to $550,000 less the aggregate amount of all payments
made to the Executive under Sections 2 and 4 of this Agreement prior to the
date of his death.
(ii) Disability Benefit. If Executive becomes Disabled (as
defined below) prior to the third anniversary of the Effective Time,
Wesbanco shall pay directly from its general assets or through a policy of
disability insurance purchased by Wesbanco for such purpose (but not
including any long-term disability insurance provided as an employee
benefit in accordance with company policy) or a combination of the
foregoing, in each case as determined by Wesbanco, a disability benefit
equal in aggregate amount to $550,000 less the aggregate amount of all
payments made to the Executive under Sections 2 and 4 of this Agreement
prior to the date of his Disability. For purposes of this Agreement,
"Disability" shall mean the inability of Executive to provide services
under this Agreement for reasons relating to a physical or mental injury,
disease or condition as determined by a physician selected by Executive.
The date of the Disability as determined by such physician shall be the
"Disability Effective Date". Disability benefits shall be paid in
twenty-four monthly installments with each installment paid on the first
business day of the month and equal to the disability benefit determined
under the first sentence of this subsection (ii) divided by 24.
3. TERMINATION OF EMPLOYMENT.
(a) Date of Termination. "Date of Termination of Employment" shall be
(i) if Executive's employment is terminated by Wesbanco for any reason, the date
of receipt of the Notice of Termination or any other date specified by Wesbanco
in such Notice of Termination; (ii) if Executive's employment is terminated by
Executive's resignation, the date of receipt of the Notice of Termination; and
(iii) if Executive's employment is terminated by reason of death or Disability,
the Date of Termination shall be the date of death of Executive or the
Disability Effective Date, as the case may be.
(b) Death or Disability. Executive's employment and consulting
obligations shall terminate automatically upon Executive's death.
(c) Resignation. Executive may terminate his employment and his
consulting obligations by resigning, provided that he gives Wesbanco at least 10
days prior written notice. If the Executive resigns without Good Reason,
Wesbanco will owe Executive only amounts earned or accrued through the date of
such resignation.
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(d) Notice of Termination. Any termination by Wesbanco or by Executive
shall be communicated by Notice of Termination to the other party hereto given
in accordance with Section 15(a).
4. OBLIGATIONS OF THE PARTIES UPON EMPLOYMENT TERMINATION.
(a) Obligations of Wesbanco.
(i) If Executive's employment If Executive's employment and/or
consulting obligations terminate for reason of his death or Disability,
Wesbanco shall pay or cause to be paid the Death Benefit or the Disability
Benefit, as the case may be. If the Executive's employment shall terminate
for any reason other than Cause or a resignation for Good Reason (as such
terms are defined below) during the Employment Period, Wesbanco shall pay
to Executive in a lump sum in cash within 10 days: (A) all Base Salary that
would have been payable to Executive during the Employment Period, (B) any
unreimbursed business expenses incurred by Executive on Wesbanco's behalf,
(C) any unpaid accrued vacation, and (D) any other amounts required to be
paid under any benefit plan or program in which Executive participates or
any other amounts mandated by law.
(ii) Beginning on the Effective Date, Wesbanco shall pay
Executive (hereinafter referred to as "Non-Compete and Consulting Fees") in
an amount equal to $10,000.00 per month for 25 months on the first business
day of each such month.
(iii) To the extent not theretofore paid or provided, Wesbanco
shall timely pay or provide to Executive any other amounts or benefits
required to be paid or provided or that Executive is eligible to receive
under any plan, program, policy or practice or other contract or agreement
of Wesbanco and its affiliated companies through the Date of Termination of
Employment.
(iv) Executive shall be entitled to be reimbursed his reasonable
and necessary business expenses incurred in connection with any consulting
services to be performed hereunder.
(b) Obligations of Executive. In addition to the Non-Competition and
Confidentiality obligations set forth in Sections 5 and 6, if Executive's
employment terminates for any reason other than death, Disability, Cause or
Resignation for Good Reason, Executive shall provide consulting services to
Wesbanco until the three year anniversary of the Effective Date. Executive shall
render consulting services at such times and in such places as are mutually
agreeable and with reasonable notice. It is the intention of the parties hereto
that following the Date of Termination of Employment and through the three year
anniversary of the Effective Date, Executive shall perform services hereunder as
an independent contractor and the consulting arrangement hereunder shall not
constitute an employment relationship, nor shall Executive be considered an
employee of Wesbanco for any purpose after the Date of Termination of
Employment.
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(c) Cause. For purposes of this Agreement, "Cause" shall mean the
conviction of executive of a felony or a determination by the Board of Wesbanco
made in good faith after the Executive and counsel are afforded an opportunity
to address the Board of Wesbanco on the matter that the Executive has engaged in
embezzlement, defalcation or other act constituting theft as the term theft is
generally understood involving the funds of Wesbanco.
(d) Good Reason. For purposes of this Agreement, "Good Reason" shall
mean during the Employment Period: (1) a requirement that the Executive be based
at any place other than Springfield, Ohio or at a location that is within a
commuting distance of 40 miles or less from the Executive's residence, except
for reasonable travel on Wesbanco business; (2) a material demotion of the
Executive from his position as Market President; (3) a reduction in the
Executive's salary or a material adverse change in the Executive's perquisites
benefits, contingent benefits or vacation, other than as part of an overall
program applied uniformly and with equitable effect to all members of the senior
management of Wesbanco; (4) a material permanent increase in the required hours
of work or the workload of the Executive, unrelated to the transition activities
in the Springfield market; or (5) any action by Wesbanco removing or purporting
to remove him from the office of the Market President.
5. NONCOMPETITION. Without the prior written consent of Wesbanco, Executive
will not, during the Employment Period and any period thereafter during which
Wesbanco is paying Non-Compete and Consulting Fees under Section 4(a)(ii),
directly or indirectly, (i) engage in, or be employed in an executive capacity
by or render executive, consulting or other services to any person, firm,
corporation or association engaged in the banking business in the State of Ohio
and which maintains an office within a radius of fifty (50) miles of the City of
Springfield, or (ii) render any services or give any advice similar to the
services and advice required to be rendered by Executive to Wesbanco hereunder,
or (iii) solicit any current or future customers or employees of Wesbanco by, or
on behalf of, a firm or organization described in subsection (i) above.
6. CONFIDENTIAL AND PROPRIETARY INFORMATION. Without the prior written
consent of Wesbanco, Executive shall not, directly or indirectly, divulge to any
person, or use for his own benefit, any confidential or proprietary information
relating to the business affairs, customers or methods of operation of Wesbanco
acquired by him prior to the effective dates of this Agreement or concerning the
business, affairs, customers or acquisition candidates of Wesbanco, acquired by
him during his previous employment with Wesbanco or during the performance of
his duties hereunder, it being the intent of Wesbanco and Executive to restrict
Executive from disseminating or using any information which is unpublished and
not readily available to the general public. Notwithstanding the foregoing,
Executive shall be authorized to disclose confidential information (i) as may be
required by law or legal process after providing Wesbanco with prior written
notice and an opportunity to respond to such disclosure request and seek
protection for such confidential information (unless such notice is prohibited
by law); (ii) in any civil or criminal proceeding after providing Wesbanco with
prior written notice and an opportunity to seek protection for such confidential
information; and (iii) with the prior written consent of Wesbanco.
7. DISTRIBUTION FROM AND AMENDMENT OF DEFERRED PLAN. Contemporaneous with
the execution of this Agreement, (a) Executive shall be paid the full amount of
his account balance under the Western Ohio Financial Corporation Deferred
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Compensation Plan, and (b) Executive and Wesbanco shall execute the amendment of
the Western Ohio Financial Corporation Deferred Compensation Plan attached
hereto as Exhibit A.
8. FULL SETTLEMENT. Except as provided for in Sections 5 and 6, Wesbanco's
obligation to pay the Base Salary and Consulting Fees provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action that Wesbanco may have against Executive or others. In no event shall
Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to Executive under any of the provisions of
this Agreement, and such amounts shall not be reduced whether or not Executive
obtains other employment.
9. INDEMNIFICATION AND INSURANCE. Wesbanco will indemnify and hold harmless
Executive for all costs, liability and expenses (including reasonable attorneys'
fees) during the Employment Period and following Executive's Date of
Termination, for all acts and omissions of Executive that relate to Executive's
employment with WOFC, Wesbanco or any of their affiliates, to the maximum extent
permitted by law. Executive shall be entitled to coverage under the directors'
and officers' liability coverage maintained by Wesbanco, as in effect from time
to time, to the same extent as senior executive officers and directors of
Wesbanco, during the Employment Period and following Executive's Date of
Termination.
10. GROSS-UP PAYMENT BY WESBANCO. In the event that any payment, benefit or
distribution by or on behalf of Wesbanco to or for the benefit of Executive
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section) (the "Payments") is determined to be an
"excess parachute payment" pursuant to Code Section 280G or any successor or
substitute provision of the Code, with the effect that the Executive is liable
for the payment of the excise tax described in Code Section 4999 or any
successor or substitute provision of the Code (the "Excise Tax"), then Wesbanco
shall pay to Executive an additional amount (the "Gross-Up Payment") such that
the net amount retained by Executive, after deduction of any Excise Tax on the
Total Payments and any federal, state and local income and employment taxes and
Excise Tax on the Gross-Up Payment, shall be equal to the Total Payments.
(a) All determinations required to be made under this Section, and the
assumptions to be utilized in arriving at such determination, shall be made by
the certified public accounting firm used for auditing purposes by Wesbanco
immediately prior to Executive's employment termination (the "Accounting Firm"),
which shall provide detailed supporting calculations both to Wesbanco and
Executive. Wesbanco shall pay all fees and expenses of the Accounting Firm. Any
determination by the Accounting Firm shall be binding upon Wesbanco and
Executive, except as provided in subparagraph (b) below.
(b) As a result of the uncertainty in the application of Code Sections
280G and 4999 at the time of the initial determination by the Accounting Firm
hereunder, it is possible that the Internal Revenue Service ("IRS") or other
agency will claim that a greater or lesser Excise Tax is due. In the event that
the Excise Tax is finally determined to be less than the amount taken into
account hereunder in calculating the Gross-Up Payment, Executive shall repay to
Wesbanco, at the time that the amount of such reduction in Excise Tax is finally
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determined, the portion of the Gross-Up Payment attributable to such reduction
(plus that portion of the Gross-Up Payment attributable to the Excise Tax and
federal, state and local income and employment taxes imposed on the Gross-Up
Payment being repaid by Executive to the extent that such repayment results in a
reduction in Excise Tax and/or a federal, state or local income or employment
tax deduction) plus interest on the amount of such repayment at 120% of the rate
provided in Code Section 1274(b)(2)(B). In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder in calculating the
Gross-Up Payment (including by reason of any payment the existence or amount of
which cannot be determined at the time of the Gross-Up Payment), Wesbanco shall
make an additional Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by the Executive with respect to such
excess) at the time that the amount of such excess is finally determined.
Executive and Wesbanco shall each reasonably cooperate with the other in
connection with any administrative or judicial proceedings concerning the
existence or amount of liability for Excise Tax with respect to the Total
Payments. Wesbanco shall pay all fees and expenses of Executive relating to a
claim by the IRS or other agency.
11. DELEGATION OF DUTIES, ASSIGNMENT OF RIGHTS, AND AMENDMENT. Executive
may not delegate the performance of any of his obligations or duties except as
to such duties as may be performed by employees of the holding company or its
affiliate banks in the ordinary course of their duties, nor assign any rights
hereunder without the prior written consent of Wesbanco. Any such purported
delegation or assignment in the absence of such written consent shall be void.
This Employment Agreement cannot be altered or otherwise amended except pursuant
to an instrument in writing signed by each of the parties hereto.
12. GOVERNING LAW AND ENTIRE AGREEMENT. This Employment Agreement shall be
construed and governed in accordance with the laws of the State of West
Virginia, contains the entire agreement between the parties with respect to the
services contemplated herein, and supercedes all previous commitments in writing
between Wesbanco and the Executive.
13. INSURANCE. During the Employment Period, Wesbanco shall provide health
insurance benefits to Executive and his spouse under the Wesbanco health benefit
arrangements as applicable to executive employees of Wesbanco and as in effect
from time to time. After the Employment Period and for a period of two years,
Wesbanco shall reimburse Executive (or his surviving spouse) the amount paid by
the Executive (or surviving spouse as the case may be) as premiums for Medicare
Part B insurance (or a successor provision of Medicare).
14. MEMBERSHIP ON THE BOARD OF DIRECTORS. To the extent required under the
Merger Agreement, Executive shall be appointed to a position as a member of the
Board of Directors of Wesbanco Bank, Inc. to serve for a minimum period of one
(1) year.
15. MISCELLANEOUS.
(a) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
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If to Executive:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Wesbanco:
Wesbanco, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee. In lieu of personal notice or deposit
in the U.S. mail, a party may give notice by confirmed telegram, telex or fax,
which shall be effective upon receipt.
(b) All reasonable costs and expenses (including fees and
disbursements of counsel) incurred by Executive in seeking to interpret this
Agreement or enforce rights pursuant to this Agreement shall be paid on behalf
of or reimbursed to Executive promptly by the Company, if Executive is
successful in any respect in asserting such rights.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) Executive's or Wesbanco's failure to insist upon strict compliance
with any provision of this Agreement or the failure to assert any right
Executive or Wesbanco may have hereunder, including, without limitation.
(e) This Agreement shall be null and void, ab initio, and of no
further effect if the Merger Agreement is terminated before the Effective Time.
(f) The parties may execute this Agreement in one or more
counterparts, all of which together shall constitute but one Agreement.
IN WITNESS WHEREOF, Executive has hereunto set Executive's hand and,
pursuant to the authorization from its Board of Directors, Wesbanco has caused
these presents to be executed in its name on its behalf, all as of the day and
year first above written.
WESBANCO, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
BY /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
ITS President
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EXHIBIT A
AMENDMENT OF THE
WESTERN OHIO FINANCIAL CORPORATION
DEFERRED COMPENSATION PLAN
This First Amendment to Western Ohio Financial Corporation Deferred
Compensation Plan is entered into this ___ day of __________, 2004, between
Western Ohio Financial Corporation, a Delaware corporation (the "Company") and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Executive").
WITNESSETH THAT:
WHEREAS, the Company and the Executive desire to amend the Western Ohio
Financial Corporation Deferred Compensation Plan (the "Plan") for ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ only;
NOW, THEREFORE, pursuant to Section 11 of the Plan, and by virtue of the
authority granted to the undersigned officer of the Company by the Company's
Board of Directors, it is hereby agreed by and between the parties, for good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, to amend the Plan, effective as of the date indicated above, by
substituting the following for Section 5D of the Plan, for ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
only:
"D. Payment Upon Change in Control. Notwithstanding any provisions
contained elsewhere in this Plan, a Participant's Deferred Compensation Account
shall be distributed to him, in a single lump sum payment, within five (5)
business days following his termination of service with the Employer after the
occurrence of a Change in Control. In the event that, pursuant to Section 10,
the Employer establishes a trust to pay benefits under the Plan, within ten (10)
days following a Change in Control, the Employer must make contributions to that
trust in an amount that will allow the trust to fully satisfy all benefit
obligations under the Plan. Each Plan Year thereafter the Employer shall be
required to make additional contributions to the trust in amounts that will
allow the trust to continue to fully satisfy all benefit obligations under the
Plan. If, upon a change in Control, the Employer had not established a trust to
pay benefits under the Plan, within five (5) days following such Change in
Control, the Employer shall establish such a trust and make all contributions
(upon the Change in Control and for future years) as required under the previous
provisions of this Section 5 D."
* * * * *
IN WITNESS WHEREOF, Executive has hereunto set Executive's hand and,
pursuant to the authorization from its Board of Directors, Wesbanco has caused
these presents to be executed in its name on its behalf, all as of the day and
year first above written.
WESBANCO, INC.
__________________________________
BY______________________________ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ITS __________________________