EXHIBIT 10-8
EMPLOYMENT AND CHANGE-OF-CONTROL AGREEMENT
THIS EMPLOYMENT AND CHANGE-OF-CONTROL AGREEMENT ("Agreement") made
as of the 15th day of August, 2003, by and between CENTRA BANK, INC., a West
Virginia corporation ("Employer"), and Xxxxx X. Xxxxxx ("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 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 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 the day next
preceding the second anniversary of
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the date hereof, except for the provisions of Subsection 4(d), which
will survive the term of this Agreement and shall be for a term of two (2) years
(Change-of-Control Term). The Change-of-Control Term will be automatically
extended for one month, on each monthly anniversary date after the date hereof,
that Employee is employed by Employer.
3. COMPENSATION; OTHER BENEFITS.
a. For all services rendered by Employee to Employer under
this Agreement, Employer shall pay to Employee, for the one-year period
beginning on the date hereof, an annual salary of $89,600.00, 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. After the first year following the date hereof, 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. Employees annual salary, as it may be adjusted from
time to time, will be his '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, and to receive all
benefits, perquisites and emoluments for which executive officers of Employer
generally are eligible under any plan or program now or hereafter established
and maintained by Employer, including group hospitalization, health, dental
care, life insurance, travel or accident insurance, disability plans,
tax-qualified or non-qualified pension, savings, thrift, profit-sharing, bonus
and incentive plans, deferred compensation plans, sick-leave plans, and
executive incentive compensation plans, including, without limitation, capital
accumulation programs and stock purchase plans. Employee shall be entitled to
four (4) weeks of vacation per year.
c. Employer shall pay or reimburse Employee for all reasonable
travel and other expenses incurred by Employee (and his spouse where there is a
legitimate business reason for his spouse to accompany him) in connection with
the performance of his 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,
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location of employment or authority or duties, the Employee shall be entitled to
receive two years' 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. 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:
(i) as provided for in Section 4(d) or (ii) 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 annually 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.
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 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
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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 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
two-year 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
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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.
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 is not required to report any Excise Tax
on his federal income tax return. All fees, costs and expenses (including, but
not limited to the costs of retaining experts) of the Accounting Firm shall be
borne by Employer. 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
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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.
5. OTHER EMPLOYMENT. Employee shall devote all of his 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 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, and their agreement to be
bound by, the terms hereof. CFC further agrees to employ Employee as its Senior
Vice President during all times that Employee is Senior Vice President of
Employer, with compensation to Employee to be made by Employer until such time
as Employer, Employee, CFC, and Centra Financial agree to the contrary.
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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
with a copy to:
Corporate Secretary
Centra Financial Holdings, Inc.
000 Xxxxx Xxxxxx Xxxxx
P. O. Xxx 000
Xxxxxxxxxx, XX 00000-0000
To Employee:
Xx. Xxxxx X. Xxxxxx
000 Xxxxxx 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.
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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.
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
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