AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
EXHIBIT
10.2
AMENDED
AND RESTATED
Section
Page
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Article
1.
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Definitions
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2
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Article
2.
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Severance
Benefits
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6
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2.1.
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Right
to Severance Benefits
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6
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2.2.
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Services
During Certain Events
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6
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2.3.
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Qualifying
Termination
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6
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2.4.
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Description
of Severance Benefits
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7
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2.5.
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Termination
for Total and Permanent Disability
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7
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2.6.
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Termination
for Retirement or Death
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8
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2.7.
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Termination
for Cause or by the Executive Other Than for Good Reason
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8
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2.8.
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Notice
of Termination
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8
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2.9.
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Effectiveness
of Agreement
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8
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Article
3.
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Form
and Timing of Severance Benefits
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8
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3.1.
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Form
and Timing of Severance Benefits
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8
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3.2.
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Withholding
of Taxes
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9
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Article
4.
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Tax
Limitation Provision
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9
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4.1.
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Limitation
on Termination Payment
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9
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Article
5.
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The
Company’s and the Bank’s Payment Obligation
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10
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5.1.
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Payment
Obligations Absolute
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10
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5.2.
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Contractual
Rights to Benefits
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10
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Article
6.
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Term
of Agreement
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10
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Article
7.
|
Legal
Remedies
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11
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7.1.
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Arbitration
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11
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7.2.
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Payment
of Legal Fees
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11
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Article
8.
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Successors
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11
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Article
9.
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Miscellaneous
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12
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9.1.
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Employment
Status
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12
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9.2.
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Beneficiaries
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12
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9.3.
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Entire
Agreement; Superseding Effect
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12
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9.4.
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Gender
and Number
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12
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9.5.
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Notices
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12
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9.6.
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Execution
in Counterparts
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13
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9.7.
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Conflicting
Agreements
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13
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9.8.
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Severability
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13
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9.9.
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Modification
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14
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9.10.
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Applicable
Law
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14
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AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT is made and entered into as
of
this __ day of July, 2005 by and among WESBANCO, INC., a West Virginia bank
holding company (hereinafter referred to as the "Company"); and WESBANCO BANK,
INC., a West Virginia banking corporation and a wholly-owned subsidiary of
the
Company (hereinafter referred to as the "Bank");
and___________________(hereinafter referred to as the "Executive").
W
I T N E
S S E T H:
WHEREAS,
the Board of Directors of the Company and the Board of Directors of the Bank
have approved the Company and the Bank entering into change in control
agreements with certain key executives of the Company and the Bank;
WHEREAS,
the Executive is a key executive of the Company and the Bank;
WHEREAS,
the Board of the Company and the Board of the Bank each believes that, should
the possibility of a Change in Control Event of the Company and/or the Bank
arise, it is imperative that the Company and the Bank be able to rely upon
the
Executive to continue in his position, and that the Company and the Bank be
able
to receive and rely upon his advice, if they request it, as to the best
interests of the Company, the Bank, and their shareholders without concern
that
he might be distracted by the personal uncertainties and risks created by the
possibility of a Change in Control Event;
WHEREAS,
should the possibility of a Change in Control Event arise, in addition to the
Executive’s regular duties, he may be called upon to assist in the assessment of
such possible Change in Control Event, advise management and the Board of the
Company and the Board of the Bank as to whether such Change in Control Event
would be in the best interests of the Bank, the Company, and their shareholders,
and to take such other actions as the Boards determine to be appropriate;
and
WHEREAS,
the Executive, the Company and the Bank are parties to a Change in Control
Agreement dated as of September 1, 1999 intended to address the foregoing
concerns and, in light of the adoption of Section 409A of the Code (as defined
below) and the publication of guidance thereunder, the parties wish to amend
and
restate the Change in Control Agreement in its entirety to cause the terms
and
conditions to comply with Section 409A of the Code; and
WHEREAS,
the Executive, the Company, and the Bank desire that the terms of this Agreement
shall act as a supplement to the benefits under the Executive’s Employment
Agreement; and
WHEREAS,
it is intended by the parties hereto that the benefits under the terms of this
Change in Control Agreement shall supersede and replace the termination benefits
under the Executive’s Employment Contract in the event of a termination or
severance of his employment subsequent to a Change in Control Event;
and
NOW
THEREFORE, to assure the Company and the Bank that they will have the continued
dedication of the Executive and the availability of his advice and counsel
notwithstanding the possibility, threat, or occurrence of a Change in Control
Event of the Company and/or the Bank, and to induce the Executive to remain
in
the employ of the Company and the Bank, and for other good and valuable
consideration, the Company, the Bank, and the Executive, intending to be legally
bound, agree as follows:
Article
1.
Definitions
Whenever
used in this Agreement, the following terms shall have the meanings set forth
below when the initial letter of the word is capitalized:
| (a) |
"Agreement"
means this Change in Control Agreement, as the same may be amended
from
time to time in accordance with Section 9.9
herein.
|
| (b) |
"Bank"
means Wesbanco Bank, Inc., a West Virginia banking corporation, or
any
successor thereto as provided in Article 8
herein.
|
| (c) |
"Base
Salary" means the salary of record paid by the Company and/or the
Bank to
the Executive as annual salary, excluding amounts received under
incentive
bonus and option plans, whether or not
deferred.
|
| (d) |
"Beneficial
Owner" shall have the meaning ascribed to such term in Rule 13d-3
of the
General Rules and Regulations under the Exchange
Act.
|
| (e) |
"Beneficiary"
means the persons or entities designated or deemed designated by
the
Executive pursuant to Section 9.2
herein.
|
| (f) |
"Board"
means the Board of Directors of Wesbanco,
Inc.
|
| (g) |
"Cause"
shall be determined by the Board of the Company and the Board of
the Bank,
in exercise of good faith and reasonable judgment, and shall mean
the
occurrence of any one or more of the
following:
|
| (i) |
An
act of dishonesty, willful disloyalty or fraud by the Employee that
the
Bank determines is detrimental to the best interests of the Bank;
or
|
| (ii) |
The
Employee’s continuing inattention to, neglect of, or inability to perform,
the duties to be performed under this Agreement,
or
|
| (iii) |
Any
other breach of the Employee’s covenants contained herein or of any of the
other terms and provisions of this Agreement;
or
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| (iv) |
The
deliberate and intentional engaging by the Employee in gross misconduct
which is materially and demonstrably injurious to the
Bank.
|
| (h) |
"Change
in Control Event" shall be deemed to have occurred as of the first
day
that any one or more of the following conditions shall have been
satisfied:
|
| (i) |
Final
regulatory approval is obtained for any Person (other than those
Persons
in control of the Company and/or the Bank, as applicable, as of the
Effective Date, or other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company and/or the
Bank,
as applicable, or a corporation owned directly or indirectly by the
stockholders of the Company and/or the Bank, as applicable, in
substantially the same proportions as their ownership of stock of
the
Company and/or the Bank), becomes the Beneficial Owner, directly
or
indirectly, of securities of the Company and/or the Bank, as applicable,
representing thirty five percent (35%) or more of the combined voting
power of the Company’s (or the Bank’s, as applicable) then outstanding
securities; or
|
| (ii) |
During
any period of two (2) consecutive years (not including any period
prior to
the execution of this Agreement), individuals who at the beginning
of such
period constitute the Board of the Company (and any new Director,
whose
election by the Company’s stockholders or the Bank’s stockholders, as
applicable, was approved by a vote of at least two-thirds (2/3) of
the
Directors then still in office who either were Directors at the beginning
of the period or whose election or nomination for election was so
approved), cease for any reason to constitute a majority thereof;
or
|
| (iii) |
Final
regulatory approval is obtained with respect to: (A) a plan of complete
liquidation of the Company or the Bank; or (B) an agreement for the
sale
or disposition of all or substantially all the Company’s or the Bank’s
assets; or (C) a merger, consolidation, or reorganization of the
Company
and/or the Bank with or involving any other corporation, other than
a
merger, consolidation, or reorganization that would result in the
voting
securities of the Company or the Bank (as applicable) outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity), at least fifty percent (50%) of the combined voting power
of the
voting securities of the Company or the Bank (as applicable) (or
such
surviving entity) outstanding immediately after such merger,
consolidation, or reorganization.
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However,
in no event shall a Change in Control Event be deemed to have occurred, with
respect to the Executive, if the Executive is part of a purchasing group which
consummates the Change in Control Event transaction. The Executive shall be
deemed "part of a purchasing group" for purposes of the preceding sentence
if
the Executive is an equity participant in the purchasing company or group
(except for: (i) passive ownership of less than three percent (3%) of the stock
of the purchasing company; or (ii) ownership of equity participation in the
purchasing company or group which is otherwise not significant, as determined
prior to the Change in Control Event by a majority of the non-employee
continuing Directors of the Company, as applicable).
Notwithstanding
the foregoing, no event or combination of events shall constitute a Change
in
Control Event if or to the extent such event or events would not constitute
a
Change in Control Event under Section 409A of the Code or the guidance published
thereunder as then in effect.
| (i) |
"Code"
means the Internal Revenue Code of 1986, as
amended.
|
| (j) |
"Company"
means Wesbanco, Inc., a West Virginia bank holding company, or any
successor thereto as provided in Article 8
herein.
|
| (k) |
"Disability"
means the inability of the Executive due to mental or physical defect
or
disease to perform the services required of the Executive in the
position
he or she held prior to the manifestation of that defect or
disease.
|
| (l) |
"Effective
Date" means September 1, 1999 for the Change in Control Agreement
and for
the Change in Control Agreement as amended and restated is the date
this
Agreement is approved by the Company’s Board, or such other date as the
Company’s Board shall designate in its resolution approving this
Agreement.
|
| (m) |
"Effective
Date of Termination" means the date on which a Qualifying Termination
occurs which triggers the payment of Severance Benefits
hereunder.
|
| (n) |
"Exchange
Act" means the Securities Exchange Act of 1934, as
amended.
|
| (o) |
"Executive"
means
|
| (p) |
"Good
Reason" means, without the Executive’s express written consent, the
occurrence after a Change in Control Event of the Company or the
Bank of
any one or more of the following:
|
| (i) |
The
assignment of the Executive to duties materially inconsistent with
the
Executive’s authorities, duties, responsibilities, and status (including
offices, titles, and reporting requirements) as an officer of the
Company
and/or the Bank, or a reduction or alteration in the nature or status
of
the Executive’s authorities, duties, or responsibilities from those in
effect as of ninety (90) days prior to the Change in Control Event,
other
than an insubstantial and inadvertent act that is remedied by the
Company
and/or the Bank promptly after receipt of notice thereof given by
the
Executive, and other than any such alteration which is consented
to by the
Executive in writing;
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| (ii) |
The
Company’s requiring the Executive to be based at a location in excess of
thirty-five (35) miles from the location of the Executive’s principal job
location or office immediately prior to the Change in Control Event;
except for required travel on the Company’s and/or the Bank’s business to
an extent substantially consistent with the Executive’s present business
obligations;
|
| (iii) |
A
reduction by the Company or the Bank of the Executive’s Base Salary by at
least ten percent (l0%) from that in effect on the Effective
Date;
|
| (iv) |
The
failure of the Company or the Bank to obtain a satisfactory agreement
from
any successor to the Company or the Bank to assume and agree to perform
the Company’s and the Bank’s obligations under this Agreement, as
contemplated in Article 8 herein;
and
|
| (v) |
Any
purported termination by the Company or the Bank of the Executive’s
employment that is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 2.8 herein, and for purposes
of
this Agreement, no such purported termination shall be
effective.
|
The
Executive’s right to terminate employment for Good Reason shall not be affected
by the Executive’s incapacity due to physical or mental illness. The Executive’s
continued employment shall not constitute consent to, or a waiver of rights
with
respect to, any circumstance constituting Good Reason herein.
| (q) |
"Person"
shall have the meaning ascribed to such term in Section 3(a)(9) of
the
Exchange Act and used in Sections 13(d) and 14(d) thereof, including
a
"group" as defined in Section 13(d). The term Person shall not include
the
Company or the Bank, any executive officer or Director of the Company,
the
Bank, or a subsidiary of the Company or Bank, or a group controlled
by
such Directors or executive officers, or any employee benefit plan
of the
Company, the Bank, or a subsidiary of the Company or Bank; provided,
however, that the term Person shall include any individual who is
a
Director on the Effective Date, and who as of the Effective Date
beneficially owned five percent (5%) or more of the voting shares
of
common stock of the Company, or a group controlled by such a
Director.
|
| (r) |
"Qualifying
Termination" means any of the events described in Section 2.3 herein,
the
occurrence of which triggers the payment of Severance Benefits
hereunder.
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| (s) |
"Severance
Benefits" means the payment of severance compensation as provided
in
Section 2.4 herein.
|
Article
2.
Severance
Benefits
2.1. Right
to Severance Benefits.
Subject
to Section 2.9 herein, the Executive shall be entitled to receive from the
Company and the Bank, jointly and severally, Severance Benefits as described
in
Section 2.4 herein, if a Change in Control Event of the Company and/or the
Bank
has occurred and if, within twenty-four (24) calendar months thereafter, the
Executive’s employment with the Company and/or the Bank shall end for any reason
specified in Section 2.3 herein as being a Qualifying Termination.
The
Executive shall not be entitled to receive Severance Benefits if he is
terminated for Cause, or if his employment with the Company ends due to death,
Disability, retirement (as defined under the then established rules of the
Company’s tax-qualified retirement plan), or due to a voluntary termination of
employment by the Executive without Good Reason.
2.2. Services
During Certain Events.
In the
event a Person begins a tender or exchange offer, solicits proxies from
shareholders of the Company and/or the Bank, or takes other steps seeking to
effect a Change in Control Event, the Executive agrees that he will not
voluntarily leave the employ of the Company or the Bank and will render services
until such Person has abandoned or terminated his or its efforts to effect
a
Change in Control Event, or, if later, until twenty-four (24) months after
a
Change in Control Event has occurred; provided, however, that the Company and
the Bank may terminate the Executive for Cause at any time, and the Executive
may terminate his employment any time after the Change in Control Event for
Good
Reason.
2.3. Qualifying
Termination.
The
occurrence of any one or more of the following events within twenty-four (24)
calendar months after a Change in Control Event of the Company or the Bank
shall
trigger the payment of Severance Benefits to the Executive under this
Agreement:
| (a) |
An
involuntary termination of the Executive’s employment with the Company or
the Bank without Cause;
|
| (b) |
A
voluntary termination of the Executive’s employment with the Company or
the Bank for Good Reason;
|
| (c) |
A
successor company fails or refuses to assume the Company’s and the Bank’s
obligations under this Agreement, as required by Article 8 herein;
or
|
| (d) |
The
Company, the Bank, or any successor company breaches any of the provisions
of this Agreement.
|
For
purposes of this Agreement, a Qualifying Termination shall not include a
termination of employment by reason of death, Disability, or retirement (as
such
term is defined under the
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then-established
rules of the Company’s tax-qualified retirement plan), a voluntary termination
without Good Reason, or an involuntary termination for Cause.
2.4. Description
of Severance Benefits.
Subject to Section 2.9 herein, in the event that the Executive becomes
entitled to receive Severance Benefits, as provided in Sections 2.1 and 2.3
herein, and subject to the limits set forth in Article 4 herein, the Company
and/or the Bank shall pay to the Executive and provide him with total Severance
Benefits equal to the following:
| (a) |
An
amount equal to three (3) times the highest rate of the Executive’s annual
Base Salary in effect at any time up to and including the Effective
Date
of Termination.
|
| (b) |
An
amount equal to three (3) times the greater of: (i) the Executive’s
average annual bonus earned over the most recent three (3) bonus
plan
years ending prior to the Effective Date of Termination; or (ii)
the
Executive’s bonus established for the annual bonus plan year in which the
Executive’s Effective Date of Termination
occurs.
|
| (c) |
An
amount equal to the Executive’s unpaid Base Salary and accrued vacation
pay through the Effective Date of
Termination.
|
| (d) |
A
continuation of all medical benefits pursuant to plans under which
the
Executive and/or the Executive’s family is eligible to receive medical
benefits and/or coverage as of the effective date of the Change in
Control
Event. These benefits shall be provided by the Company and/or the
Bank to
the Executive immediately upon the Effective Date of Termination
and shall
continue to be provided for eighteen (18) months from the Effective
Date
of Termination. Such benefits shall be provided to the Executive
at the
same coverage level as in effect as of the Executive’s Effective Date of
Termination. The Company and/or the Bank shall pay the full cost
of such
continued benefits, except that the Executive shall bear any portion
of
such cost as is required to be borne by key executives of the Company
and/or the Bank generally at the time of such Change in Control
Event.
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The
medical benefits described in this Subsection 2.4(d) shall continue for eighteen
(18) months following the Effective Date of Termination; provided, however,
that
such benefits shall be discontinued prior to the end of the eighteen (18) month
period to the extent, but only to the extent, that the Executive receives
substantially similar benefits from a subsequent employer, as determined by
the
Company or the Bank.
The
obligation of the Company and the Bank to provide the Executive with the
Severance Benefits described herein shall be joint and several. Regardless
of
how the Company and the Bank apportion the responsibility for satisfying the
obligations set forth herein, the total Severance Benefits payable to the
Executive shall equal the amounts set forth in this Article 2, as limited by
Article 4 herein.
2.5. Termination
for Total and Permanent Disability.
Following a Change in Control Event, if the Executive’s employment is
terminated with the Company or the Bank due to
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Disability,
the Executive shall receive his Base Salary and accrued vacation through the
Effective Date of Termination, at the rate then in effect, plus all other
amounts to which the Executive is entitled under any employment contract or
any
compensation plans of the Company and the Bank, at the time such payments are
due, and otherwise the Executive’s benefits shall be determined in accordance
with the Company’s and the Bank’s retirement, insurance, and other applicable
plans and programs then in effect.
2.6. Termination
for Retirement or Death.
Following a Change in Control Event, if the Executive’s employment with
the Company or the Bank is terminated by reason of his retirement (as defined
under the then established rules of the Company’s tax-qualified retirement
plan), or death, the Executive (or his Beneficiary) shall receive his Base
Salary and accrued vacation through the Effective Date of Termination, at the
rate then in effect, plus all other amounts to which the Executive is entitled
under any compensation plans of the Company and the Bank, at the time such
payments are due, and otherwise the Executive’s benefits shall be determined in
accordance with the Company’s and the Bank’s retirement, survivor’s benefits,
insurance, and other applicable programs then in effect.
2.7. Termination
for Cause or by the Executive Other Than for Good Reason.
Following a Change in Control Event, if the Executive’s employment is
terminated either: (i) by the Company or the Bank for Cause; or
(ii) by the Executive other than for Good Reason, the Company and/or
the
Bank shall pay the Executive his full Base Salary and accrued vacation through
the Effective Date of Termination, at the rate then in effect, plus all other
amounts to which the Executive is entitled under any employment contract or
any
compensation plans of the Company and the Bank, at the time such payments are
due, and the Company and the Bank shall have no further obligations to the
Executive under this Agreement.
2.8. Notice
of Termination.
Any termination by the Company or the Bank for Cause or by the Executive
for Good Reason shall be communicated by Notice of Termination to the other
party. For purposes of this Agreement, a "Notice of Termination" shall mean
a
written notice which shall indicate the specific termination provision in this
Agreement relied upon, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated.
2.9. Effectiveness
of Agreement.
Notwithstanding any provision of this Agreement to the contrary, this
Agreement and any payments, benefits or rights of the Executive as provided
herein are subject to Section 18(k) of the Federal Deposit Insurance Act, as
amended, and any applicable regulations thereunder.
Article
3.
Form
and Timing of Severance Benefits
3.1. Form
and Timing of Severance Benefits.
Except as limited by Article 4 herein, the Severance Benefits described
in
Sections 2.4(a), 2.4(b), and 2.4(c) herein shall be paid in cash to the
Executive in a single lump sum as soon as practicable following the Effective
Date of Termination, but in no event beyond thirty (30) days from such
date.
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3.2. Withholding
of Taxes.
The Company and/or the Bank, as applicable, shall withhold from any
amounts payable under this Agreement all federal, state, city, or other taxes
as
legally shall be required.
Article
4.
Tax
Limitation Provision
4.1. Limitation
on Termination Payment.
| (a) |
Determination
of Termination Payment Limit. Notwithstanding any other provision
of this
Agreement, if any portion of the Severance Benefits or any other
payment
under this Agreement, or under any other agreement with or plan of
the
Company or the Bank (in the aggregate "Total Payments") would constitute
an åexcess parachute payment,æ then the payments to be made to the
Executive under this Agreement shall be reduced or extended over
an
installment period such that the value of the aggregate Total Payments
that the Executive is entitled to receive shall be One Dollar ($1.00)
less
than the maximum amount which the Executive may receive without becoming
subject to the tax imposed by Section 4999 of the Code, or which
the
Company and the Bank may pay without loss of deduction under Section
280G(a) of the Code. For purposes of this Agreement, the terms åexcess
parachute paymentæ and åparachute paymentsæ shall have the meanings
assigned to them in Section 280G of the Code, and such åparachute
paymentsæ shall be valued as provided
therein.
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| (b) |
Procedure
for Establishing Limitation on Termination Payment. Within twenty
(20)
days following delivery of the Notice of Termination (as described
in
Section 2.8 herein) or notice by the Company or the Bank to
the
Executive of its belief that there is a payment or benefit due the
Executive which will result in an "excess parachute payment" as defined
in
Section 280G of the Code, the Executive, the Company, and the Bank,
at the
Company’s and the Bank’s expense, shall obtain the opinion of the
Company’s principal outside accounting firm (the "Accounting Firm"), which
sets forth: (i) the amount of the Executive’s "annualized includible
compensation for the base period" (as defined in Code Section 280G(d)(1));
(ii) the present value of the Total Payments; and (iii) the amount
and
present value of any "excess parachute payment." Such opinion shall
be
binding upon the Company, the Bank, and the
Executive.
|
In
the
event that such opinion determines that there would be an "excess parachute
payment," the Severance Benefits hereunder or any other payment determined
by
such accounting firm to be includible in Total Payments shall be reduced or
eliminated as specified by the Executive in writing delivered to the Company
and
the Bank within ten (10) days of his receipt of such opinion, or, if the
Executive fails to so notify the Company and the Bank, then as the Company
or
the Bank, as applicable, shall reasonably determine, so that under the basis
of
calculations set forth in such opinion, there will be no "excess parachute
payment."
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The
provisions of this Section 4.1(b), including the calculations, notices, and
opinion provided for herein, shall be based upon the conclusive presumption
that
any compensation earned prior to the Effective Date of Termination by the
Executive pursuant to the Company’s and the Bank’s compensation programs (if
such compensation would have been paid in the future in any event, even though
the timing of payment thereof is triggered by the Change in Control Event)
is
reasonable.
Article
5.
The
Company’s and the Bank’s Payment Obligation
5.1. Payment
Obligations Absolute.
Except as otherwise provided in the last sentence of Section 2.4(d)
herein, the Company’s and the Bank’s obligation to make the payments and the
arrangements provided for herein shall be absolute and unconditional, and shall
not be affected by any circumstance, including, without limitation, any offset,
counterclaim, recoupment, defense, or other right which the Company or the
Bank
may have against the Executive or any other party. All amounts payable by the
Company and the Bank hereunder shall be paid without notice or demand. Each
and
every payment made hereunder by the Company and the Bank shall be final, and
neither the Company nor the Bank shall seek to recover all or any part of such
payment from the Executive or from whomsoever may be entitled thereto, for
any
reasons whatsoever.
The
Executive shall not be obligated to seek other employment in mitigation of
the
amounts payable or arrangements made under any provision of this Agreement,
and
the obtaining of any such other employment shall in no event effect any
reduction of the Company’s or the Bank’s obligations to make the payments and
arrangements required to be made under this Agreement, except to the extent
provided in Section 2.4(d) herein.
5.2. Contractual
Rights to Benefits.
This
Agreement establishes and vests in the Executive a contractual right to the
benefits to which he is entitled hereunder. However, nothing herein contained
shall require or be deemed to require, or prohibit or be deemed to prohibit,
the
Company or the Bank to segregate, earmark, or otherwise set aside any funds
or
other assets, in trust or otherwise, to provide for any payments to be made
or
required hereunder.
Article
6.
Term
of Agreement
6.1 Subject
to Section 2.9 herein, this Agreement shall commence on the Effective Date
and
shall continue in effect for three (3) full years, the last day of which shall
be the "Expiration Date." However, at the end of such three-year period and,
if
extended, at the end of each additional year thereafter, the term of this
Agreement shall be extended automatically for one (1) additional year, unless
the Company or the Bank delivers written notice three (3) months prior to the
end of such term, or extended term, to the Executive, that the Agreement will
not be extended. In such case, the Agreement will terminate at the end of the
term, or extended term, then in progress.
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However,
in the event a Change in Control Event occurs during the original or any
extended term, this Agreement will remain in effect for the longer of: (i)
twenty-four (24) months beyond the month in which such Change in Control Event
occurred; or (ii) until all obligations of the Company and the Bank hereunder
have been fulfilled, and until all benefits required hereunder have been paid
to
the Executive or other party entitled thereto.
Article
7.
Legal
Remedies
7.1. Arbitration.
Any controversy or claim arising out of or relating to this Agreement
or
the breach thereof (including the arbitrability of any controversy or claim),
shall be settled by arbitration in the City of Wheeling in accordance with
the
laws of the State of West Virginia by three (3) arbitrators, one of whom shall
be appointed by the Company or the Bank, as applicable, one by the Executive,
and the third of whom shall be appointed by the first two arbitrators. If the
first two arbitrators cannot agree on the appointment of a third arbitrator,
then the third arbitrator shall be appointed by the American Arbitration
Association. The arbitration shall be conducted in accordance with the rules
of
the American Arbitration Association, except with respect to the selection
of
arbitrators which shall be as provided in this Section 7.1. The cost of any
arbitration proceeding hereunder shall be borne equally by the Company or the
Bank, as applicable, and the Executive. The award of the arbitrators shall
be
binding upon the parties. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
7.2. Payment
of Legal Fees.
In the event that it shall be necessary or desirable for the Executive
to
retain legal counsel and/or incur other costs and expenses in connection with
the enforcement of any or all of his rights under this Agreement, and provided
that the Executive substantially prevails in the enforcement of such rights,
the
Company or the Bank, as applicable, shall pay (or the Executive shall be
entitled to recover from the Company or the Bank, as the case may be) the
Executive’s reasonable attorneys, fees, costs and expenses in connection with
the enforcement of his rights including the enforcement of any arbitration
award.
Article
8.
Successors
8.1 The
rights of the Company and the Bank hereunder shall run in favor of the Company
and the Bank, and their respective successors, assigns, nominees, or other
legal
representatives. Termination of the Executive’s employment shall not operate to
relieve him of any remaining obligations hereunder, and all such obligations
are
binding upon his heirs, executors, administrators, or other legal
representatives. The Company and the Bank shall require any successor (whether
direct or indirect by purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation, or otherwise) to all or a
significant portion of the assets of the Company or the Bank, as the case may
be, by agreement in form and substance satisfactory to the Executive, expressly
to assume and agree to perform this Agreement in the same manner and to the
same
extent that the Company or the Bank, as the case may be, would be required
to
perform if no such succession had taken place. Regardless of whether such
agreement is executed, this Agreement shall be binding upon any successor in
accordance with
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the
operation of law and such successor shall be deemed the "Company" or the "Bank,"
as the case may be, for purposes of this Agreement.
Article
9.
Miscellaneous
9.1. Employment
Status.
The Executive, the Company, and the Bank acknowledge that, except as
may
be provided under any other agreement between the Executive and the Company
or
the Bank, the employment of the Executive by the Company and the Bank is
"at
will," and, except as set forth in Section 2.2 herein, prior to the effective
date of a Change in Control Event, may be terminated by either the Executive,
the Company, or the Bank, at any time. Upon a termination of the Executive’s
employment prior to the effective date of a Change in Control Event, there
shall
be no further rights under this Agreement; provided, however, that if such
an
employment termination shall arise in connection with, or in anticipation of,
a
Change in Control Event, then the Executive’s rights shall be the same as if the
termination had occurred within two (2) years following a Change in Control
Event.
9.2. Beneficiaries.
The
Executive may designate one or more persons or entities as the primary and/or
contingent Beneficiaries of any Severance Benefits owing to the Executive under
this Agreement. Such designation must be in the form of a signed writing
acceptable to the Board of Directors of the Company or the Board of the Bank,
as
applicable. The Executive may make or change such designation at any
time.
9.3. Entire
Agreement; Superseding Effect.
This
Agreement contains the entire understanding of the Company, the Bank, and the
Executive with respect to the subject matter hereof. In particular, to the
extent of any conflict between the terms of this Amended and Restated Change
in
Control Agreement and any employment agreement to which the Executive, the
Company and the Bank are parties, the terms of this Amended and Restated Change
in Control Agreement shall completely replace and supersede the terms of the
Executive’s employment agreement.
In
addition and subject to Article 4, the payments provided for under this
Agreement in the event of the Executive’s termination of employment shall be in
lieu of any severance benefits payable under any severance plan, program, or
policy of the Company and the Bank to which he might otherwise be
entitled.
9.4. Gender
and Number.
Except
where otherwise indicated by the context, any masculine term used herein also
shall include the feminine; the plural shall include the singular, and the
singular shall include the plural.
9.5. Notices.
All
notices, requests, demands, and other communications hereunder must be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed within the continental United States by first-class certified mail,
return receipt requested, postage prepaid, to the other party, addressed as
follows:
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| (a) |
if
to the Company:
|
Wesbanco,
Inc.
Xxx Xxxx Xxxxx
Xxxxxxxx, XX
00000
| (b) |
if
to the Bank:
|
Wesbanco
Bank, Inc.
Xxx
Xxxx
Xxxxx
Xxxxxxxx,
XX 00000
| (c) |
if
to Executive:
|
Addresses
may be changed by written notice sent to the other party at the last recorded
address of that party.
9.6. Execution
in Counterparts.
This
Agreement may be executed by the parties hereto in counterparts, each of which
shall be deemed to be original, but all such counterparts shall constitute
one
and the same instrument, and all signatures need not appear on any one
counterpart.
9.7. Conflicting
Agreements.
The
executive hereby represents and warrants to the Company and the Bank that his
entering into this Agreement, and the obligations and duties undertaken by
him
hereunder, will not conflict with, constitute a breach of, or otherwise violate
the terms of, any other employment or other agreement to which he is a party,
except to the extent any such conflict, breach, or violation under any such
agreement has been disclosed to the Company’s Board and the Bank’s Board in
writing in advance of the signing of this Agreement.
9.8. Severability.
In the
event any provision of this Agreement shall be held illegal or invalid for
any
reason, the illegality or invalidity shall not affect the remaining parts of
the
Agreement, and the Agreement shall be construed and enforced as if the illegal
or invalid provision had not been included. Further, the captions of this
Agreement are not part of the provisions hereof and shall have no force and
effect.
Notwithstanding
any other provision of this Agreement to the contrary, the Company and the
Bank
shall have no obligation to make any payment to the Executive hereunder to
the
extent, but only to the extent, that such payment is prohibited by the terms
of
any final order of a Federal or state court or regulatory agency of competent
jurisdiction; provided, however, that such an order shall not affect, impair,
or
invalidate any provision of this Agreement not expressly subject to such
order.
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9.9. Modification.
No
provision of this Agreement may be modified, waived, or discharged unless such
modification, waiver, or discharge is agreed to in writing and signed by the
Executive and by a member of the Company’s Board or the Bank’s Board, as
applicable, or by the respective parties, legal representatives or
successors.
9.10. Applicable
Law.
To the
extent not preempted by the laws of the United States, the laws of the
Commonwealth of Pennsylvania shall be the controlling law in all matters
relating to this Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
WESBANCO,
INC.
By
____________________________________
Title
_______________________________
WESBANCO
BANK, INC.
By
__________________________________
Title
_____________________________
________________________________
EXECUTIVE
