EXHIBIT 10.2
AMENDED AND
RESTATED
CHANGE IN CONTROL AGREEMENT
TABLE
OF CONTENTS
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.
|
|
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.
|
|
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.
|
|
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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11
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7.2.
|
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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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12
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9.2.
|
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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.
|
|
12
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9.5.
|
|
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.
|
|
13
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9.8.
|
|
13
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9.9.
|
|
14
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9.10.
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14
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AMENDED AND
RESTATED
CHANGE IN CONTROL
AGREEMENT
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:
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(a)
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"Agreement" means this Change in Control
Agreement, as the same may be amended from time to time in
accordance with Section 9.9 herein.
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(b)
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"Bank"
means Wesbanco Bank, Inc., a West Virginia banking corporation, or
any successor thereto as provided in Article 8
herein.
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(c)
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"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.
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(d)
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"Beneficial Owner" shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act.
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(e)
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"Beneficiary" means the persons or entities
designated or deemed designated by the Executive pursuant to
Section 9.2 herein.
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(f)
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"Board"
means the Board of Directors of Wesbanco, Inc.
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(g)
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"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:
|
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(i)
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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
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(ii)
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The
Employee’s continuing inattention to, neglect of, or
inability to perform, the duties to be performed under this
Agreement, or
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(iii)
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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)
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The
deliberate and intentional engaging by the Employee in gross
misconduct which is materially and demonstrably injurious to the
Bank.
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(h)
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"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:
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(i)
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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
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(ii)
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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
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(iii)
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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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- 3 -
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.
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(i)
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"Code"
means the Internal Revenue Code of 1986, as
amended.
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(j)
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"Company"
means Wesbanco, Inc., a West Virginia bank holding company, or any
successor thereto as provided in Article 8
herein.
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(k)
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"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.
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(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.
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(m)
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"Effective Date of Termination" means the date
on which a Qualifying Termination occurs which triggers the payment
of Severance Benefits hereunder.
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(n)
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"Exchange
Act" means the Securities Exchange Act of 1934, as
amended.
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(p)
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"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:
|
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(i)
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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)
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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;
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(iii)
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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;
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(iv)
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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
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(v)
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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.
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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.
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(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.
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(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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- 5 -
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(s)
|
"Severance Benefits" means the payment of
severance compensation as provided in Section 2.4
herein.
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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 Execut
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