EMPLOYMENT AND CHANGE-OF-CONTROL AGREEMENT
Exhibit 10.26
THIS EMPLOYMENT AND CHANGE-OF-CONTROL AGREEMENT (“Agreement”) made as of the 1st day of
November, 2007, by and between CENTRA BANK, INC., a West Virginia corporation (“Employer”), and
Xxxx X. Xxxxx (“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, and
Employee is willing to make his or her 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 or her, 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 or her 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, to have such
duties and responsibilities as are commensurate with such position. Employee hereby accepts and
agrees to such employment, subject to the general supervision and pursuant to the orders, advice,
and direction of Employer and its Board of Directors. Employee shall perform such duties as are
customarily performed by one holding such position in other same or similar businesses or
enterprises as that engaged in by Employer, and shall also additionally render such other services
and duties as may be reasonably assigned to him or her 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 terminate on August 15, 2009.
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 $92,000.00,
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 or
her 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 or her spouse where there is a legitimate business reason for his or
her spouse to accompany him or her) in connection with the performance of his or her 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.
4. Termination.
a. Termination of Employment. Except for Just Cause, in the event that Employee
shall suffer a termination of employment by Employer or a material change in title, position,
status, pay or benefits, location of employment or authority or duties, the Employee shall be
entitled to receive two year’s compensation, including base salary for purposes of benefit
calculation, and customary and usual incentives and bonuses (based on the average of the incentives
and bonuses paid to Employee during or for the previous two full years, or if less than two full
years the amount of said incentives and bonuses so paid divided by two, 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 two (2) years. 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, except
on an occurrence of a Change of Control as provided for in Section 4(d) and a voluntary termination
by Employee following a material change in title, position, status, pay or benefits, location of
employment or authority or duties by Employer without Just Cause.
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 two years. 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.
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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 or her duties with the Employer to the Employer’s reasonable
satisfaction (other than any such failure resulting from Employee’s 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, or (vi) a material breach by Employee of this
Agreement or any employment agreement with Employer. 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 24 months 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 Section 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
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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 shareholders is approved by a
vote of at least a majority of the directors still in office who were directors at the beginning of
such two-year 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 immediately prior thereto continuing to
represent (either by remaining 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 or
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.
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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 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 or she is not required to report any
Excise Tax on his federal income tax return. All fees, costs and expenses (including, but not
limited
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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 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
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defined in Treas. Reg. 1.409A 1(n) and including a “separation from service for good reason” as
defined in Treas. Reg. 1.409A i(n)(2) 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
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 described in 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 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.
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 or her 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
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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. Joinder by Centra Financial and CFC. Centra Financial and CFC join into this
Agreement to evidence their consent to the terms hereof.
7. 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:
To Employer:
Corporate Secretary
Centra Bank, Inc.
000 Xxxxx Xxxxxx Xxxxx
P. O. Xxx 000
Xxxxxxxxxx, XX 00000-0000
Centra Bank, Inc.
000 Xxxxx Xxxxxx Xxxxx
P. O. Xxx 000
Xxxxxxxxxx, XX 00000-0000
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with a copy to:
Corporate Secretary
Centra Financial Holdings, Inc.
Centra Financial Corporation — Morgantown, Inc.
000 Xxxxx Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
Centra Financial Holdings, Inc.
Centra Financial Corporation — Morgantown, Inc.
000 Xxxxx Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
To Employee:
Xxxx X. Xxxxx
0000 Xxxxxx Xxx Xxxx
Xxxxxxxxxx, XX 00000
0000 Xxxxxx Xxx Xxxx
Xxxxxxxxxx, XX 00000
Notices given in person or by overnight courier service shall be deemed given when delivered to the
address required by this Section 8(d), and notices given by mail shall be deemed given three 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 Bank under this Agreement. This
Agreement shall be binding upon the parties hereto, their successors, beneficiaries, heirs and
personal representatives.
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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. |
||||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
| President and CEO | ||||
| CENTRA FINANCIAL HOLDINGS, INC. |
||||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
| President and CEO | ||||
| CENTRA FINANCIAL CORPORATION-MORGANTOWN, INC. |
||||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
| President and CEO | ||||
| EMPLOYEE: |
||||
| /s/ Xxxx X. Xxxxx | ||||
| Xxxx X. Xxxxx | ||||
| Senior Vice President | ||||
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