EXHIBIT
10.1
TRANSITION AGREEMENT AND RELEASE
AND WAIVER
OF CLAIMS
This TRANSITION AGREEMENT AND RELEASE (the
“Agreement”) made effective this 30th day of September,
2008, by and between KRISTINE N. MOLNAR (hereinafter
referred to as “Employee”) and WESBANCO, INC. ,
a West Virginia corporation (hereinafter referred to as
“WesBanco”).
W I T N E S S E T H
WHEREAS, the Employee has been employed by WesBanco as an executive
officer; and,
WHEREAS, WesBanco and Employee desire to have a written agreement
stating the terms applicable to the Employee’s transition
from full time to part time employment, and resolving and settling
any and all actual or possible differences, disputes, or claims
between them, including, but not limited to, those arising from or
relating to the transition in their employment relationship;
and
NOW, THEREFORE, for and in consideration of the premises and mutual
promises and agreements contained herein, together with other good
and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, it is mutually agreed as follows:
1. Transition
from Full Time to Part Time Employment . Employee agrees to
voluntarily separate from full-time employment effective as of the
close of September 30, 2008 and to transition to part time
employment under the terms of the Consulting Agreement made
effective on October 1, 2008 (the “Consulting
Agreement”).
2.
Consideration .
(a) WesBanco agrees
to pay to Employee salary, more specifically, Four Hundred
Fifty-two Thousand Fifty-two Dollars and Nine Cents ($452,052.09)
gross pay, less payroll withholdings, on or about seven
(7) days after execution of the agreement.
3. Other
Benefits . WesBanco will pay the Employee all other benefits to
which the Employee is entitled under applicable benefit programs,
this Agreement, and the Consulting Agreement. The Employee further
acknowledges that she has been provided with such information as
she deems necessary to determine her rights, if any, under
WesBanco’s various employee benefit plans and policies. (See
attached Schedule A).
WesBanco and the Employee mutually agree that the Standard
Employment Agreement dated January 2, 1998, will terminate as
of the effective date of this Transition Agreement and Release and
Waiver of Claims. WesBanco and the Employee mutually agree that the
Amended and Restated Change in Control Agreement dated
November 22, 2005, will terminate as of the effective date of
this Transition Agreement and Release and Waiver of Claims.
WesBanco and the Employee mutually agree that the Employee’s
participation in the WesBanco, Inc. Key Executive Incentive Bonus
and Option Plan dated May 16, 2007, will terminate effective
as of the execution of the Transition Agreement and Release and
Waiver of Claims. WesBanco and the Employee mutually agree that the
Employee is not entitled to retain her rights in accordance with
the terms and conditions of the Key Executive Incentive Bonus and
Option Plan, except for any options granted to Employee prior to
the date of this Agreement and for any long term incentive bonus
payments previously deferred and payable in accordance with the
schedule attached hereto as Schedule B. The two thousand
(2,000) options granted to the Employee on May 21, 2008,
shall vest on December 31, 2008, as if the Employee were
continuing full-time employment. Furthermore, WesBanco and the
Employee mutually agree that this
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Agreement shall have no
effect upon the Life Insurance Agreement dated July 1, 2003,
between WesBanco Bank, Inc. and the Employee; thus, the death
benefit of Twenty-five Thousand Dollars ($25,000.00) shall remain
in full force and effect.
WesBanco and the Employee mutually agree that the Amended and
Restated Salary Continuation Agreement dated November 22, 2005
(the “SERP Agreement”) will continue and the Employee
will be entitled to supplemental benefits over and above the
benefits provided to Employee under WesBanco’s Defined
Benefit Pension Plan.
Under the terms of the SERP Agreement, Employee is entitled to a
vested accrued benefit more particularly described on Schedule C,
attached hereto and made a part hereof. The parties hereby mutually
agree to continue the SERP Agreement during the term of the
Consulting Agreement (as hereinafter defined) so that Employee
shall continue to accrue additional benefits in accordance with the
schedule shown on Schedule C for each year of service provided
under the Consulting Agreement as if Employee had not terminated
full-time employment with Wesbanco. Thus, for purposes of
determining the benefit due Employee under the terms of the SERP
contract, the parties agree that the benefit to which she will be
entitled at age sixty-five (65) will be the amount set forth
in Schedule C for the plan year ending immediately prior to the
termination date of the Consulting Agreement determined by vesting
the executive in 100% of the accrual balance as shown on the
schedule. Thus, if the Consulting Agreement continues through
December, 2016, Employee shall be entitled to a benefit amount of
Forty Thousand Dollars ($40,000.00) per year payable for ten
(10) consecutive years, as provided under the terms and
conditions of said SERP Agreement.
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4. Release of
Claims . In consideration of the foregoing, WesBanco and
Employee hereby mutually and reciprocally agree to release and
waive any and all claims or demands (whether known or unknown)
which currently exist, arising out of, or connected with,
Employee’s full time employment with WesBanco and the
termination of Employee’s full time employment, including,
but not limited to, all such matters in law, in equity, in contract
(oral or written, express or implied), or in tort, (excluding
Workers’ Compensation and any such claim for employee
benefits to which Employee is entitled as of the last day of
Employee’s active full time employment under the express
terms of the employee benefit plan) against Employee, WesBanco, any
of its parents, subsidiaries, and affiliates or predecessors in
interest and any employee benefit plan sponsored by any of them,
and the officers, employees, directors, shareholders, fiduciaries
and agents of any of them, along with the successors, assigns and
heirs of any of the foregoing persons or entities (collectively
referred to as the “Releasees”) arising from
Employee’s Standard Employment Agreement or voluntary
resignation from full time employment. It is specifically
understood and agreed between the Employee and WesBanco that this
release and waiver includes any such rights or such claims to which
the Employee may have been entitled under the Fair Labor Standards
Act of 1938; the Civil Rights Act of 1866; Equal Pay Act of 1963;
Title VII of the Civil Rights Act of 1964, as amended; the Age
Discrimination in Employment Act of 1967, as amended; the Employee
Retirement Income Security Act of 1974; Title 41 of the Ohio
Revised Code, specifically Chapter 4112; Title 47 of the
Pennsylvania Statutes, specifically Chapter 17; Chapter 21 of the
West Virginia Code; W.Va. Code § 5-11, et seq. ; the
Rehabilitation Act of 1973; the Civil Rights Act of 1991; the
Vietnam Era Veterans Readjustment Assistance Act of 1974; the Older
Worker Benefit Protection Act; the Americans with Disabilities Act,
and all other federal, state and local law claims, whether
statutory or common law,
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including, but not
limited to, those under the laws of the States of West Virginia,
Ohio and Pennsylvania, including, but not limited to, the West
Virginia Human Rights Act, W.Va. Code § 5-11-1, et seq
., the Ohio Civil Rights Commission, and the Pennsylvania Human
Relations Act. However, the parties acknowledge that the Employee
is not waiving any rights or claims that may arise after this
Agreement is executed; provided, however, that the Employee shall
be precluded from recovering for the future effects of
discrimination or other actions or inactions which occurred or
should have occurred prior to this Agreement. The parties further
acknowledge that Employee is not waiving or releasing any right or
claim under this Agreement, the Consulting Agreement, or any right
that she may have or accrue as a participant in any benefit plan
and/or as a result of her continuation of employment in a part time
capacity following her entry into this Agreement. Additionally, the
Employee waives and releases any right she may have to recover any
damages resulting from any action or suit instituted on her behalf
by the Equal Employment Opportunity Commission, the Ohio Civil
Rights Commission, the West Virginia Human Rights Commission, or
other fair employment practices agencies based upon a claim she is
waiving and releasing under this Agreement.
Excluded from this Transition Agreement and Release and Waiver of
Claims (in addition to claims that may arise after this Agreement
is executed, as provided above) are claims and rights which cannot
be waived by law, including but not limited to the right to file a
charge with or participate in an investigation conducted by certain
government agencies. Employee does, however, waive her right to any
monetary recovery should any agency pursue any claims which she has
waived and released in this Section 4 on her behalf. Employee
represents and warrants that she has not filed any complaint,
charge, or lawsuit against WesBanco with any governmental agency
and/or any court.
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In
addition, Employee agrees never to sue WesBanco in any forum for
any claim she has waived and released under this Section 4,
except that she may bring a claim waived and released under this
Section 4 under the ADEA to challenge this Transition
Agreement and Release and Waiver of Claims. If she violates this
Transition Agreement and Release and Waiver of Claims by suing
WesBanco for a claim waived and released under this Section 4,
other than such a claim under ADEA, Employee shall be liable to
WesBanco for its reasonable attorney’s fees and other
litigation costs and expenses incurred in defending against such a
suit.
5. Non-Compete
Agreement . Employee agrees that for twenty-seven
(27) months after separating from full time employment with
WesBanco for any reason not, directly or indirectly, to accept
employment with, act as a consultant to, or otherwise perform
services that are substantially the same or similar to those for
which the Employee was compensated by WesBanco (this comparison
will be based on job-related functions and responsibilities and not
on job title), for any business that is within a radius of fifty
(50) miles of the City of Wheeling, which directly competes
with any business in which WesBanco or any related or affiliated
company (1) is engaged on the date the Employee separates from
full time employment with WesBanco for any reason, (2) was
engaged at any time within twenty-seven (27) months preceding
the date the Employee terminates full time employment with WesBanco
for any reason, or (3) in Employee’s kno
