SEPARATION AGREEMENT AND RELEASE AND WAIVER OF CLAIMS
Exhibit
10.1
SEPARATION
AGREEMENT AND RELEASE
AND
WAIVER OF CLAIMS
This SEPARATION AGREEMENT AND
RELEASE (the “Agreement”) made this 3rd day
of November, 2009, by and between XXXXX X. XXXXXXX, XX.
(hereinafter referred to as “Employee”) and WESBANCO BANK, INC., a West
Virginia banking corporation (hereinafter referred to as “Bank”).
W I T N E
S S E T H
WHEREAS, the Employee has been employed
by Bank as a Regional President; and,
WHEREAS, Bank and Employee desire to
have a written agreement stating the terms applicable to the Employee’s
separation from employment, and resolving and settling any and all actual or
possible differences, disputes, or claims between them, including, but not
limited to, those arising from or relating to the employment relationship and
the separation of that relationship; and
NOW, THEREFORE, for and in
consideration of the premises and mutual promises and agreements contained
herein, together with other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, it is mutually agreed as
follows:
1. Separation from
Employment. Employee agrees to separate from employment
effective October 27, 2009, as a result of the elimination of his
position.
2. Consideration.
(a) Bank
agrees to pay to Employee nine (9) months of salary, more specifically, One
Hundred Sixty-four Thousand Four Hundred Twenty-three Dollars and Fifteen Cents
($164,423.15) gross pay, less payroll withholdings, on or about seven (7)
days after execution of the Agreement.
(b) Bank
agrees to pay for its share of health insurance premiums for nine (9) months of
continued health coverage. During this period, Employee must pay his
co-premium for his coverage. Employee must tender a check for the
appropriate amount made payable to WesBanco Bank, Inc., c/o Xxxxxxx Xxxxxxx, at
WesBanco Bank, Inc., Xxx Xxxx Xxxxx, Xxxxxxxx,
XX 00000. The check must be received no later than the
first day of each month. If the Employee does not pay his portion of
the premium required for this medical coverage, the coverage will
end. If Employee becomes re-employed during this nine (9) month
period and is eligible for health insurance benefits with his new employer,
Employee must immediately inform Employer.
Thereafter, if eligible, the Employee
may continue health insurance coverage at his own cost as a result of the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”).
3. Other
Benefits. Bank will pay the Employee all other benefits to
which the Employee is entitled under applicable benefit programs. The
Employee further acknowledges that he has been provided with such information as
he deems necessary to determine his rights, if any, under Bank’s various
employee benefit plans and policies.
4. Outplacement Services
– Bank will provide and pay for outplacement services to Career Curve for senior
level services to include at a minimum, coaching, utilization of on-line
services, marketing plan, résumé and interview preparation. Bank will
pay up to Five Thousand Dollars ($5,000.00) to Career Curve for such services in
order for Employee to secure a position.
5. Release of
Claims. In consideration of the foregoing, the Employee hereby
agrees to release and waive any and all claims or demands (whether known or
unknown) which currently exist, arising out of, or connected with, Employee’s
employment with Bank and the separation of his employment, including, but not
limited to, all matters in law, in equity, in contract (oral or written, express
or implied), or in tort, (excluding Workers’ Compensation and any claim for
employee benefits to which Employee is entitled as of the last day of Employee’s
active employment under the express terms of the employee benefit plan) against
Bank, any of its parents, subsidiaries, and affiliates or predecessors in
interest and any employee benefit plan sponsored by any of them, and the
officers, employees, directors, shareholders, fiduciaries and agents of any of
them, along with the successors, assigns and heirs of any of the foregoing
persons or entities (collectively referred to as the “Releasees”) arising from
Employee’s separation from employment. It is specifically understood
and agreed between the Employee and Bank that this release and waiver includes
any claims or rights to which the Employee may have been entitled and
specifically encompass claims arising under any and all federal, state, or local
statutory or common laws including, but not limited to, claims arising under any
public policy or contract, or any statutory, tort or common law, or any
provision of state, federal or local law including, but not limited to, those
under the laws of the States of West Virginia, Ohio and Pennsylvania, including,
but not limited to, the West Virginia Human Rights Act; X.Xx. Code § 5-11-1,
et seq.; the Ohio Civil
Rights Commission; the Pennsylvania Human Relations Act; the Codified Ordinances
of the City of Wheeling; the Americans with Disabilities Act; Title VII of the
Civil Rights Act of 1964, as amended; the Fair Labor Standards Act of 1938; the
Civil Rights Act of 1866; Equal Pay Act of 1963; the Civil Rights Act of 1991;
Xxxxx 00, Xxxxxx Xxxxxx Code, Sections 1981-1988; the Rehabilitation Act of
1973; the Vietnam Era Veteran’s Readjustment Act of 1986; the Family and Medical
Leave Act; the West Virginia Wage Payment and Collection Act; West Virginia
Minimum Wage and Maximum Hours Act; the Age Discrimination and Employment Act of
1967; the Older Worker Benefits Protection Act; the Employee Retirement Income
Security Act of 1974; all as amended; Title 41 of the Ohio Revised Code,
specifically Chapter 4112; Title 47 of the Pennsylvania Statutes, specifically
Chapter 17; and Chapter 21 of the West Virginia Code.
However, the parties acknowledge that
the Employee is not waiving any rights or claims that may arise after this
Agreement is executed; provided, however, that the Employee shall be precluded
from recovering for the future effects of discrimination or other actions or
inactions which occurred or should have occurred prior to this
Agreement. Additionally, the Employee waives and releases any right
he may have to recover any damages resulting from any action or suit instituted
on his behalf by the Equal Employment Opportunity Commission, the Ohio Civil
Rights Commission, the West Virginia Human Rights Commission, or other fair
employment practices agencies.
6. Employee’s
Rights. The Employee specifically acknowledges that on
the
3rd day
November, 2009, officials of Bank presented him with this Agreement, thereby
informing him of the amounts to which he was entitled upon separation from his
employment and explained to him that, in addition to those amounts, Bank would
provide the consideration stated herein if, and only if, the Employee (i)
executes this Agreement and releases and waives any and all claims he might have
against the Releasee as defined herein; (ii) does not revoke this Agreement, as
described below; and (iii) otherwise strictly abides by the terms of this
Agreement. The Employee further acknowledges that he has been advised
by Bank that he (i) has the right to consult an attorney of his own choice; (ii)
has a minimum of 21 days to consider this document before signing it; and (iii)
has seven days after he signs this Agreement within which to revoke it, and that
the Agreement shall not become effective or enforceable until seven days
following the date of the Employee’s signature.
The toll free telephone number of the
West Virginia State Bar’s Lawyer Information Referral Service is
0-000-000-0000. The toll free telephone number of the Ohio State Bar
Association is 1-800-282-6556. The toll free telephone number of the
Pennsylvania Bar Lawyer Referral Service is 1-800-692-7375.
The Employee specifically recognizes
that, by signing this Agreement, he is waiving any rights to receive any
remedial or monetary relief, including without limitation, back pay, front pay,
emotional distress damages, reinstatement, damages for injury to reputation,
pain and suffering or loss of future income, or punitive damages as a
consequence of any charge or complaint filed with the Equal Employment
Opportunity Commission, the Ohio Civil Rights Commission, the West Virginia
Human Rights Commission, or any similar state or federal agency.
Excluded
from this Separation Agreement and Release and Waiver of Claims are
my claims which cannot be waived by law, including but not limited to the
right to file a charge with or participate in an investigation conducted by
certain government agencies. I do, however, waive my right to any
monetary recovery should any agency pursue any claims on my behalf. I
represent and warrant that I have not filed any complaint, charge, or lawsuit
against Bank with any governmental agency and/or any court.
In
addition, I agree never to xxx Bank in any forum for any claim covered by the
above release and waiver language, except that I may bring a claim under the
ADEA to challenge this Separation Agreement and Release and Waiver of
Claims. If I violate this Separation Agreement and Release and Waiver
of Claims by suing Bank, other than under ADEA, I shall be liable to Bank for
its reasonable attorney’s fees and other litigation costs and expenses incurred
in defending against such a suit.
7. No Admission of
Liability. The parties agree that this Agreement and the offer
to enter into this Agreement are not, and shall not be construed in any way as,
or deemed to be, an admission by the Bank or any of the Releasees of any act of
wrongdoing or admission of liability or responsibility at any time or in any
manner whatsoever. The parties further agree that this Agreement may
not be used in any action between the Employee and the Bank or any of the
Releasees, other than for the enforcement of this Agreement or as evidence of a
waiver by the Employee.
8. Program Not to Benefit
Others. The parties acknowledge that the Employee’s right to
the separation pay settlement described herein shall be determined exclusively
under the provisions stated herein, and this Agreement is not intended to, and
does not, create rights for the benefit of any other employee or
person.
9. Business
Planning. Employee recognizes that, as a matter of business
planning, Bank routinely reviews and evaluates various proposals for changes in
compensation, retirement, and severance programs, as well as proposals for
special exit incentive programs. Employee further recognizes that some of
the proposals, if adopted and finally implemented, might be more advantageous or
less advantageous than the Agreement presently being offered to Employee.
Unless and until such changes are formally announced by Bank, no one is
authorized to give assurances that such changes will or will not occur.
Employee understands that Bank may adopt new or modified Agreements in the
future that, depending on his individual circumstances, may be more or less
advantageous to Employee than the benefit provided under this Agreement.
Employee should not expect or assume that any such new or modified Agreement or
benefits will be extended on a retroactive basis if Employee leaves employment
pursuant to this Agreement.
10. Final and Binding
Agreement. The Employee agrees and recognizes that this
Agreement is final and binding when signed by the Employee, subject only to the
Employee’s revocation right as described in Paragraph 6 above.
11. Confidentiality of
Agreement. The Employee hereby acknowledges and understands
that the existence and terms of this Agreement are confidential. The
Employee further acknowledges that neither the Employee nor the Employee’s
attorneys or agents shall reveal to anyone, directly or indirectly, the
existence of any or all of the terms contained within this Agreement, without
prior consent of Bank except (i) where expressly required by law; or (ii) as
expressly provided herein. The Employee further agrees to promptly
provide written notice to Bank of the Employee’s receipt of any subpoena or
other legal process which would require the disclosure of information under this
Agreement. The confidentiality provisions of this paragraph shall not
apply to the Employee’s spouse, attorneys, or tax preparers.
12. Non-Disparagement. The
Employee agrees not to make any disparaging or negative remarks, either orally
or in writing, regarding Bank or any other Releasee concerning acts occurring
before the signing of this Agreement or relating to this Agreement and the
matters alleged therein. The Employee further agrees to direct his
agents, attorneys, or any other person acting on his behalf to refrain from
making such comments.
13. Remedies. In
the event of a breach or threatened breach of all or part of Paragraphs 11 and
12 of this Agreement, the Employee agrees that Bank shall be entitled to
injunctive relief and all other remedies available at law or in equity in a
court of competent jurisdiction to remedy any such breach or threatened
breach. The Employee hereby acknowledges that damages alone would be
inadequate and insufficient as a remedy for any such breach or threatened
breach. The Employee further agrees that the covenants contained in
Paragraphs 11 and 12 and the remedies contained in this Paragraph 13, shall
survive the termination of this Agreement.
14. References. If
any inquiry about the Employee is made to Bank as a reference for future
employment or for other purposes, Bank agrees that it shall state that it will
provide the Employee’s dates of employment, job titles and job descriptions, in
accordance with Bank’s existing personnel policies. Further, Bank,
including its respective officers, directors, agents, servants, or employees or
any of their successors or assigns, shall not make any disparaging or negative
remarks, either orally or in writing, regarding the Employee concerning any acts
which occurred before the signing of this Agreement or relating to this
Agreement. The Employee agrees to direct all inquiries concerning his
employment and the separation thereof to the Executive Vice President of Human
Resources at Bank.
15. Unemployment
Compensation. As additional consideration for this Agreement,
Bank agrees that it will not contest any claim filed by the Employee for
unemployment compensation with respect to the Employee’s separation from
employment described herein.
16. Voluntary
Agreement. The Employee expressly warrants and represents to
Bank as part of the consideration expressed herein that, before executing this
Agreement, he has fully informed himself of its terms, contents, and conditions,
and represents that in making this settlement he has had the opportunity to
obtain the benefit of the advice of counsel of his choosing and no promise or
representation of any kind or character has been made to him by Bank, or by
anyone acting on their behalf, except as is expressly stated in this
Agreement. The Employee acknowledges that he has relied solely and
completely upon his own judgment and, if he has so elected, the advice of
counsel and other advisors in making this settlement, and that he fully and
completely understands both the terms of the settlement and the release; that he
fully understands it is a full, complete and final release, and that the payment
and other consideration set forth in this Agreement are all the consideration to
be conferred upon him in accordance with the parties’ agreement regarding the
settlement of the matters described herein. The Employee further
represents that he has read this Agreement in its entirety and that he
understands all of its terms and enters into and signs this Agreement knowingly
and voluntarily, with full knowledge of its significance, and not as a result of
any threat, intimidation, or coercion on the part of any person or
entity.
17. Counterparts. This
Agreement shall be executed in two counterparts, each of which shall be deemed
an original and together shall constitute one and the same document, with one
counterpart being delivered to each party.
18. Entire
Agreement. This Agreement supersedes all other oral and
written agreements between the parties hereto as to the matters herein and
contains all of the covenants and agreements between the parties with respect to
the employment of the Employee by Bank, the separation thereof, and the matters
provided herein. The Employee acknowledges that, in executing this
Agreement, he has not relied on any representation or statement not set forth
herein. This Agreement may not be modified except in a writing,
signed by the Employee and Bank. This Agreement shall be binding on
all of the Employee’s heirs, representatives, successors, and
assigns. The Employee shall not assign any rights or obligations
under this Agreement, without the written consent of Bank. The
Employee further represents that he has read this Agreement in its entirety and
that he understands all of its terms and enters into and signs this Agreement
knowingly and voluntarily, with full knowledge of its significance, and not as a
result of any threat, intimidation or coercion on the part of the Bank or any
Releasee.
19. Law Governing
Agreement. This Agreement shall be governed by and construed
in accordance with the laws of the State of West Virginia, excepting such
State’s choice of law provisions, and except as otherwise preempted by the
Employee Retirement Income Security Act of 1974 or other applicable federal
law.
20. Waiver of Breach Not Deemed
Continuing. The waiver of or by any party of a breach or
violation of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach or violation.
21. Construction and
Severability. The parties agree that, in all cases, the
language of this Agreement shall be construed as a whole, according to its fair
meaning, and not strictly for or against either of the
parties. Furthermore, in the event that one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, Bank shall have the option to enforce
the remainder of this Agreement or to cancel it.
22. Disclosure of Employment
Information. Upon execution of an authorization for the
release of information concerning the Employee’s employment to any prospective
employer, the Bank will disclose the Employee’s dates of employment, including
hire date and separation date; positions; and duties. Additionally,
if requested by Employee, Bank will provide a separate letter to Employee’s
prospective employer indicating that Employee separated from employment as a
result of the elimination of his position. No other employment
information will be provided to any prospective employer.
23. Return of Bank’s
Property. Employee avers that he has previously returned and
delivered to Bank all of Bank’s property in the Employee’s possession or
control.
24. KSOP
Payout. The Employee is entitled to the vested balance of his
KSOP account, as required by the summary plan description given his effective
separation date of October 27, 2009. The payment of the Employee’s
deferral, matching and rollover accounts will be made as soon as
administratively feasible after the Employee receives final payment from the
Bank. Payout is also dependent upon receipt of all completed forms
from the Employee.
Payment will be made in the form of
WesBanco stock, cash, or any combination thereof. The portion of the
Employee’s account vested in shares of WesBanco stock may be distributed in
whole shares of stock and cash in lieu of fractional shares of
stock. The pay out can be made as a distribution to the Employee, a
direct transfer or roll-over into a tax sheltered vehicle, or a combination of
the two. A minimum of 20% Federal Income Tax Withholding is mandated
if a distribution is made directly to the Employee.
25. Confidentiality of
Proprietary Information. You understand and agree that even
after your separation from employment, you are required to maintain the
confidentiality of all proprietary information and knowledge acquired by you
during your employment with Bank, which belongs to Bank or its customers, and
which has not been published, disseminated, or otherwise become a matter of
general public knowledge. You agree that you will not disclose or
make use of such information, whether with respect to Bank’s or its customers’
business, operations, finances, customers, employees or otherwise, and whether
in written form or committed to memory.
26. Transition. Employee
will make every effort to ensure a smooth transition, and agrees to cooperate
with Bank and to provide all necessary information regarding the status of
operations, the location of relevant materials, and any other relevant
information related to Employee’s responsibilities with Bank of which Bank
should be aware or which Bank may request, now or at any later
time.
27. Employee
Cooperation. As a free and voluntary act, Employee also
further agrees after Employee’s separation to cooperate at Bank’s expense with
any investigations or lawsuits involving Bank on matters where Employee had
specific knowledge or responsibility. Employee will not assist or
provide information in any litigation against Bank except as required under law
or formal legal process after timely notice is provided to Bank to allow Bank to
take legal action with respect to the request for information or
assistance. Nothing in this Agreement shall restrict or preclude
Employee from, or otherwise influence Employee in testifying fully and
truthfully in legal or administrative proceedings against Bank, as required by
law or formal legal process.
28. Tax
Liability. Employee is exclusively liable for the payment of
any federal, state, city, or other taxes that may be due as a result of the
separation payment received by Employee; provided, however, that Bank shall pay
all federal, state and local amounts withheld from payments to Employee and all
of their employment taxes at the time normally paid by Bank on Employee’s salary
in connection with the consideration payable to Employee pursuant to this
Agreement. Except for the foregoing obligation of Bank hereunder,
Employee shall indemnify, hold harmless, and unconditionally release Bank from
any payment of taxes or penalties, if any, that may be required of Employee as a
result of any consideration paid by Bank to Employee pursuant to this
Agreement.
29. Headings. Headings
are inserted for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
30. Termination or Modification
of Benefits. The Employee understands and agrees that nothing
in this Agreement shall affect the Bank’s reserved right to terminate or amend
in whole or in part, in any manner whatsoever and with respect to the Employee
or any other active or former employee or any group thereof, any employee
benefit plan which is presently or which may be offered to the Bank’s
employees.
IN WITNESS WHEREOF, each of the parties
hereto has executed this SEPARATION AGREEMENT AND RELEASE AND WAIVER OF CLAIMS
as of the day and year first written above.
Executed this 6th
day of November ,
2009.
/s/ Xxxxx X. Xxxxxxx,
Xx.
XXXXX X. XXXXXXX, XX.
WESBANCO
BANK, INC., a West Virginia
banking corporation
By /s/Xxxx X. Xxxxx
Xx.
Its EVP-HR
(SEAL)
ATTEST:
_________________________
STATE OF
OHIO,
COUNTY OF
Fairfield ,
TO-WIT:
I, Xxxxxxxx
Xxxxxx , a notary public in and for said State do
certify that XXXXX X. XXXXXXX,
XX., whose name is signed to the writing annexed hereto, bearing the date
of 6th
day of
November ,
2009, has this day acknowledged the same before me in my said
county.
/s/ Xxxxxxxx
Xxxxxx _
Notary Public
My
commission expires:
April 1,
2011
(Notarial
Seal)
STATE OF
WV ,
COUNTY OF
Ohio ,
TO-WIT:
The foregoing instrument was
acknowledged before me this 9th
day of November ,
2009, by Xxxx X.
Xxxxx , EVP-HR of
WESBANCO BANK, INC., a
West Virginia banking corporation, on behalf of the corporation.
/s/ Xxxxxx X.
Xxxxxx
Notary Public
My
commission expires:
June 13,
2018
(Notarial
Seal)
