EXHIBIT 10.9
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SECOND AMENDED SEVERANCE PLAN CLARIFICATION AGREEMENT
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THIS AGREEMENT, made and entered into as of this 26th day of
February, 2002, by and between AMERICAN BANCORPORATION, an Ohio corporation
with its office and principal place of business located in St. Xxxxxxxxxxx,
OH (hereinafter referred to as "American"), and XXXXXX X. XxXXXXX, party of
the second part (hereinafter referred to as "Employee"), and WESBANCO, INC.,
a West Virginia corporation (hereinafter referred to as "Wesbanco").
WHEREAS, the Employee is currently serving as the Chief Executive
Officer of American and is a beneficiary of that certain Severance Plan
adopted by American pursuant to action of its Board of Directors taken on
the 21st day of April, 1998, and
WHEREAS, American and Wesbanco have entered into negotiations concerning
the possible acquisition of American and desire to clarify certain provisions
of the said Severance Plan in conjunction with the continued employment of
Employee, and
WHEREAS, the parties hereto executed earlier versions of this Agreement
dated February 22, 2001, and November 30, 2001, and a letter of understanding
dated February 20, 2001, which they hereby revoke and substitute the
following therefore.
WITNESSETH THAT: In consideration of the mutual promises and
undertakings hereinafter set forth, and the parties intending to be legally
bound hereby, covenant and agree as follows:
1. Notwithstanding the provisions of said Severance Plan
as set forth in the Minutes of the Board of Directors meeting dated April 21,
1998, of American, the parties hereto acknowledge their understanding that
they did not intend to trigger Excise Tax under Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), and, accordingly, that the
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present value of any annuity payment or lump sum that may be paid to the
Employee because of a change in control of the company shall be less than
2.99 times the Employee's "Base Amount" as such term is defined in Section
280G(b)(3) of the Code taking into account all other payments under Section
208G(b)(2)(A). The "Base Amount" is the average includable compensation
for the past five (5) years (1997-2001) and American has calculated the Base
Amount to be Three Hundred Twenty-four Thousand Four Hundred Five Dollars
($324,405.00).
2. The parties hereby acknowledge and agree that the Employee
shall be paid a monthly annuity, pre-tax, of a program and company approved
by him of Eight Thousand One Hundred Dollars ($8,100.00) per month for life
with a minimum term certain of twelve (12) years in full satisfaction of the
benefit due Employee under the Severance Plan of American, which annuity
shall commence within thirty (30) days of the closing of said merger.
Employee shall pay all income tax attributable to receipt of such annuity
payments.
3. Employee agrees that the benefits to be provided hereunder
shall be in lieu of any other benefit to which Employee might have been
entitled under the terms of the Severance Plan adopted by the Board of
Directors of American at its meeting of April 21, 1998, under the heading
"Severance Plan".
4. The parties agree that they intend by this amendment to avoid
the imposition of any excise tax under Section 280G for all payments made to
Employee. The parties acknowledge that calculations demonstrating the
inapplicability of the excise tax under Section 280G have been performed for
Wesbanco by Ernst & Young and the parties have had an opportunity to review
such calculations. However, the parties agree that in the event such an
excise tax is assessed, after exhaustion of all remedies applicable thereto,
Wesbanco will reimburse Employee for any excise tax (including interest,
penalties and costs). Employee
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acknowledges that the payment of such excise tax will be deemed to be
additional compensation to him and taxable as ordinary income and Employee
will bear any income tax consequences by reason of the reimbursement of any
such excise tax.
WITNESS the following signatures:
AMERICAN BANCORPORATION
By /s/ Xxxxx X. Xxxxxxxx
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Its President
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/s/ Xxxxxx X. XxXxxxx
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XXXXXX X. XxXXXXX
WESBANCO, INC.
By /s/ Xxxx X. Xxxxxxx
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Its President
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