EXHIBIT 10.2
Employment Contract dated December 23, 2002 between First West
Virginia Bancorp, Inc. and Xxxxxxx X. Xxxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made in triplicate on this 23rd day of December, 2002,
by and between FIRST WEST VIRGINIA BANCORP, INC., a West Virginia corporation,
(hereinafter, "Bancorp"), and XXXXXXX X. XXXXXX, (hereinafter, "Executive")
W I T N E S S E T H:
WHEREAS, Executive is presently an employee of Bancorp pursuant to an
Employment Agreement dated December 21, 2001;
WHEREAS, Bancorp and Executive are desirous of continuing the
employment relationship between them upon the terms and conditions set forth
herein;
WHEREAS, Bancorp and Executive desire to enter into this Agreement and
rescind and terminate all prior employment agreements or other understandings
between them.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and conditions herein contained, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. EMPLOYMENT
Bancorp does hereby employ Executive as its Executive Vice President,
Chief Operating Officer and Treasurer and Executive does hereby accept the
employment as Executive Vice President, Chief Operating Officer and Treasurer of
Bancorp upon the terms herein set forth. The parties agree that as of the date
of this Agreement, the previous employment agreement between them dated December
21, 2001 is rescinded, terminated and no longer binding between them.
Executive shall exercise (subject to the control of the Board of
Directors and Stockholders) a general supervision of the affairs of Bancorp and
its subsidiaries and shall devote her full business time and attention to the
business and affairs of Bancorp and its subsidiaries and use her best efforts to
promote the interests of Bancorp and its subsidiaries.
Executive shall discharge her duties faithfully and to the best of her
ability, and generally shall perform all duties incident to the office or
offices, and such other duties as may be assigned to her by the Board of
Directors.
Executive shall hold such other office or offices in Bancorp or its
subsidiaries as the Board of Directors may elect or appoint her to and perform
the duties of such offices.
2. TERM
Executive's employment hereunder shall be effective January 1, 2003
and shall continue for a term of three (3) years thereafter, unless earlier
terminated as provided herein.
3. COMPENSATION
In consideration for all services to be rendered by Executive to
Bancorp and any of its subsidiaries:
(a) Bancorp shall cause to be paid to Executive a salary of no less
than $95,000.00 per annum for a period of three (3) years commencing January 1,
2003, payable in equal monthly installments. Prior to the first anniversary and
second anniversary hereof, the Board of Directors shall review Executive's
salary and make such adjustments in the rate thereof as it shall deem
appropriate. All references herein to compensation to be paid to Executive are
to the gross amounts thereof which are due hereunder. Bancorp shall cause to be
deducted therefrom all taxes which may be required to be deducted or withheld
under any provision of the law (including but not limited to Social Security
payments and income tax withholding) now in effect or which may become effective
anytime during the term of this Agreement. In addition to such salary, Executive
shall be eligible to receive discretionary bonuses which may be granted by
Bancorp, but which have been and at all times will remain in the discretion of
the Employer. Executive may also participate in any health insurance benefit
(including medical and major medical insurance), deferred compensation benefit,
accident and disability insurance benefit or other benefits as may be offered to
other employees of Bancorp and which may become effective anytime during the
term of this Agreement.
4. TERMINATION
In the event of termination of the employment of Executive by Bancorp
for any reason other than a cause defined below, Executive shall be entitled to
the full compensation provided by this Agreement. In the event of termination of
the employment of Executive by Bancorp for a cause
defined below or in the event of termination of employment by the Executive for
any cause, including her death or disability which renders her unable to perform
the material duties of her employment, her compensation shall cease on the
effective date of such termination. As used herein, the term "cause" shall mean:
(a) A willful and intentional act of Executive intended to injure or
having the effect of injuring the reputation, business or business relationship
of Bancorp or its subsidiary businesses;
(b) Any breach of any covenant contained in this Agreement by
Executive;
(c) Repeated or continuous failure, neglect or refusal to perform by
Executive of her duties hereunder;
(d) Commission by Executive of any act or any failure by Executive to
act involving serious criminal conduct or moral turpitude or which reflects
materially and adversely on Bancorp or its subsidiary businesses.
Except for termination for cause and the expiration of the term of
this Agreement, each party agrees to provide the other with a minimum of thirty
(30) days' written notice of the termination of this Agreement.
5. EXTENT OF SERVICES
The parties mutually agree that Executive is a key employee who is
vital to the success of Bancorp's operations and who has received and will
continue to receive confidential information and trade secrets of the Bancorp
and its subsidiary businesses in the course of her employment. Executive shall
devote her entire time, attention, and energies to the business of the Bancorp
and shall not during the term of this Agreement be engaged in any other business
activity, whether or not such business activity is pursued for gain, profit, or
other pecuniary advantage; but such provision shall not be construed as
preventing Executive from making private investments in such form or manner as
will not require any services or material commitments of time on the part of the
Executive.
6. CONFIDENTIAL INFORMATION
Executive recognizes and acknowledges that Bancorp has maintained, and
continues to maintain and use, commercially valuable proprietary and
confidential information, including without limitation, trade secrets, customer
lists, customer financial information and analysis of customers, which
information is vital to the success of Bancorp's business. Executive recognizes
and acknowledges that she has had and will continue to have access to such
information, and Executive acknowledges that all such information are valuable,
special and unique assets of Bancorp's business. Executive is aware that such
information is confidential and if used competitively against Bancorp, would
result in material disadvantage to Bancorp. Executive agrees that during the
term of employment she will neither disclose without the advance consent of
Bancorp any such confidential information to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever, except
pursuant to judicial process of which Bancorp shall have notice, nor shall she
in any manner utilize the same to the disadvantage of Bancorp or its subsidiary
businesses.
In the event of termination of employment, for any reason, Executive
shall surrender to Bancorp, immediately, and as a prior condition to receiving
any amount of compensation payable herein, if any, all such information, whether
in tangible or electronic form, including in the case of electronically stored
information, all copies of the diskettes or other media on which such
information may be stored, and Executive shall certify upon request that she has
retained none of such information, in any form.
7. INSURANCE
Bancorp, in its sole discretion, may apply for insurance in its own
name and for its own benefit covering Executive for life, medical or disability
insurance, in any amount deemed advisable and Executive shall have no right,
title or interest therein. Executive shall submit to any required examination
and shall execute and assign and/or deliver such application and policies
necessary to effectuate such insurance coverage.
8. COVENANT NOT TO COMPETE
Executive agrees that at no time during the term of this Agreement and
for a period of two (2) years immediately following the termination of this
Agreement by any party for any reason, will Executive, individually or on behalf
of any person or corporation other than Bancorp or its subsidiary businesses,
own manage, operate, control, be employed, participate in or be connected in any
manner with the ownership, management, operation or control of any business
engaged in the rendering of any banking or non-banking service now or hereafter
provided by Bancorp or its subsidiary businesses within a thirty-five (35) mile
radius of Bancorp's principal office located in Wheeling, West Virginia.
Notwithstanding the foregoing, if Executive terminates her employment
within thirty (30) days following a Change of Control, this paragraph 8 shall be
deemed null and void so long as Executive is otherwise not then in default of
any portion of this Agreement.
A Change of Control is defined as:
(a) the acquisition by any person or group outside the present
Directors and their beneficial ownership of twenty percent
(20%) or more of the stock of Bancorp subsequent to the date
of this Agreement;
(b) the approval of Bancorp of an agreement for the merger of
Bancorp into another corporation not controlled by Bancorp;
(c) the entry by Bancorp into an Agreement for the sale of
substantially all of the assets of Bancorp to a third party;
or
(d) the approval by stockholders of a plan of liquidation of
Bancorp.
9. NOTICES
All notices, requests, demands and other communication hereunder shall
be in writing, and shall be deemed to have been duly given if personally
delivered or mailed:
(a) If to Executive, addressed to her at 00000 Xxxxxxxxxx Xxxxx, Xx.
Xxxxxxxxxxx, Xxxx 00000;
(b) If to Corporation, addressed to: First West Virginia Bancorp, Inc.
Attention: Chairperson, Personnel and Salary Committee, X.X. Xxx 0000, Xxxxxxxx,
Xxxx Xxxxxxxx 00000, or to such other place as either party may notify the other
in writing.
10. CONSTRUCTION OF AGREEMENT
This Agreement was executed by the parties in accordance with and be
governed and interpreted in accordance with the laws of West Virginia.
11. BENEFITS AND BURDENS
This Agreement shall inure to the benefit of and be binding on
Bancorp, its successors and assigns, and any corporation with which Bancorp may
merge or consolidate or to which Bancorp may sell substantially all of its
business and assets, and shall inure to the benefit of and be binding on
Executive, her executor, administrators, heirs and legal representatives. Since
Executive's duties and services hereunder are special, personal and unique in
nature, Executive may not transfer, sell or otherwise assign her rights,
obligations or benefits under this Agreement. The waiver by Bancorp of any
breach of this Agreement by Executive shall not operate or be construed as a
waiver of any subsequent breach by the Executive.
12. ENTIRE AGREEMENT
This Agreement contains the entire Agrement between the parties
relating to the subject matter hereof and supersedes all previous discussions,
negotiations and agreements between the parties, whether written or oral, with
respect to the subject matter hereof. This Agreement cannot be modified, altered
or amended except by a writing, signed by both parties.
13. SEVERABILITY
If any provision of this Agreement shall be held to be invalid or
unenforceable, such provision shall be fully severale and shall not affect or
impair the validity or enforceability of the remaining provisions of this
Agreement which shall continue to bind the parties hereto. In lieu of that
severable provision or provisions, a new provision shall be inserted which is as
close to the intent of severed provision as may be permitted by law but which is
still valid and fully enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
triplicate as of the year and date first above written.
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
FIRST WEST VIRGINIA BANCORP, INC.
BY: /s/ Xxxxx X. Xxxxx
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ITS CHAIRMAN OF THE BOARD
