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EXHIBIT 10.2
Employment Contract dated December 28, 1999 between First West
Virginia Bancorp, Inc. and Xxxxxxx X. Xxxxxx
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EMPLOYMENT AGREEMENT
THIS AGREEMENT, made in duplicate on this 28th day of December,
1999, 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 January 1, 1999;
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 and Executive does hereby accept the employment as Executive Vice
President 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them dated 1-1-99 is rescinded, terminated and no longer binding between them.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 his full business time and attention to
the business and affairs of Bancorp and its subsidiaries and use his best
efforts to promote the interests of Bancorp and its subsidiaries.
Notwithstanding the foregoing, Executive may sit on such boards of directors
and participate in such other activities other than the business and affairs
of Bancorp and its subsidiaries as may be approved by Bancorp.
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Executive shall discharge his duties faithfully and to the best of
his ability, and generally shall perform all duties incident to the office or
offices, and such other duties as may be assigned to him 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 him to and perform
the duties of such offices.
2. TERM
Executive's employment hereunder shall be effective January 1, 2000
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 $84,000.00 per annum for a period of three (3) years commencing
January 1, 2000, payable in equal bi-weekly 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
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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 his death or disability which renders him unable to perform
the material duties of his employment, his 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 his 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.
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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 his employment. Except as
detailed in paragraph 1 hereof, Executive shall devote his 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 analyses of customers,
which information is vital to the success of Bancorp's business. Executive
recognizes and acknowledges that he 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 he 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 he in any manner utilize the same to the disadvantage of
Bancorp or its subsidiary businesses.
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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 he 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.
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Notwithstanding the foregoing, if Executive terminates his
employment within one (1) year 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
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 him at 0 Xxxxxxxxxx Xxxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx Xxxxxxxx 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.
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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, his 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 his
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 Agreement 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 severable 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
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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/
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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
This document prepared by:
Xxxxxxx X. Xxxxxx, Esquire
X.Xx. State Bar I.D. #4800
Herndon, Morton, Xxxxxxx & Xxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000
(000) 000-0000
