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EXHIBIT 10.7
WESBANCO BANK, INC.
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made this ________ day of _______________, 2000, by
and between WESBANCO BANK, INC., a state-chartered commercial bank located
in Wheeling, West Virginia (the "Company") and _____________________ (the
"Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide salary continuation benefits to the Executive.
The Company will pay the benefits from its general assets.
AGREEMENT
The Executive and the Company agree as follows:
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Change of Control" shall be deemed to have occurred as of the first
day that any one or more of the following conditions shall have been
satisfied, followed by Termination of Employment within the time period
hereinafter specified:
(a) Final regulatory approval is obtained for any Person (other
than those Persons in control of the Company as of the Effective Date,
or other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company), becomes the
Beneficial Owner, directly or indirectly, or securities of the Company
representing twenty percent (20%) or more of the combined voting power
of the Company's then outstanding securities; or
(b) 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 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
(c) Final regulatory approval is obtained with respect to: (A) a
plan of complete liquidation of the Company; or (B) an agreement for
the sale or disposition of all or substantially all the Company's
assets; or (C) a merger, consolidation, or reorganization of the
Company with or involving any other corporation, other than a merger,
consolidation, or reorganization that would result in the voting
securities of the Company 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 such surviving entity) outstanding
immediately after such merger, consolidation, or reorganization.
However, in no event shall a Change of Control be deemed to have occurred,
with respect to the Executive, if the Executive is part of a purchasing group
which consummates the Change of Control 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 of Control by a majority of the non-employee
continuing Directors of the Company, as applicable).
The occurrence of a Change of Control as defined above shall also then be
followed within three (3) years by the Executive's Termination of Employment
for reasons other than death, Disability or retirement.
1.2 "Code" means the Internal Revenue Code of 1986, as amended.
1.3 "Disability" means, if the Executive is covered by a Company
sponsored disability policy, total disability as defined in such policy
without regard to any waiting period. If the Executive is not covered by
such a policy, Disability means the Executive suffering a sickness, accident
or injury which, in the judgment of a physician satisfactory to the Company,
prevents the Executive from performing substantially all of the Executive's
normal duties for the Company. As a condition to
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receiving any Disability benefits, the Company may require the Executive to
submit to such physical or mental evaluations and tests as the Company's
Board of Directors deems appropriate.
1.4 "Early Termination" means the Termination of Employment before
Normal Retirement Age for reasons other than death, Disability, Termination
for Cause or following a Change of Control.
1.5 "Early Termination Date" means the month, day and year in which
Early Termination occurs.
1.6 "Effective Date" means ____________________________.
1.7 "Normal Retirement Age" means the Executive's 65th birthday.
1.8 "Normal Retirement Date" means the later of the Normal Retirement
Age or Termination of Employment.
1.9 "Plan Year" means a twelve-month period commencing on _____________
and ending on ________________ of each year. The initial Plan Year shall
commence on the effective date of this Agreement.
1.10 "Salary" means the annual remuneration the Executive receives as
base salary, but before deductions authorized by the Executive or required by
law to be withheld from the Executive by the Company such as income taxes or
Social Security taxes.
1.11 "Termination for Cause" See Section 5.2.
1.12 "Termination of Employment" means that the Executive ceases to be
employed by the Company for any reason whatsoever other than by reason of a
leave of absence, which is approved by the Company. For purposes of this
Agreement, if there is a dispute over the employment status of the Executive
or the date of the Executive's Termination of Employment, the Company shall
have the sole and absolute right to decide the dispute.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Upon Termination of Employment on or
after the Normal Retirement Age for reasons other than death, the Company
shall pay to the Executive the benefit described in this Section 2.1 in lieu
of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section
2.1 is $__________ (________________________ Dollars).
2.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Executive's Normal Retirement Date. The annual benefit shall be paid
to the Executive for 10 years.
2.2 Early Termination/Retirement Benefit. Upon Early
Termination/Retirement, the Company shall pay to the Executive the benefit
described in this Section 2.2 in lieu of any other benefit under this
Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
Early Termination/Retirement Annual Benefit set forth in Schedule A for
the Plan Year ending immediately prior to the Termination of Employment,
determined by vesting the Executive in 100 percent of the Accrual
Balance. Any increase in the annual benefit under Section 2.1.1 shall
require the recalculation of this benefit on Schedule A.
2.2.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following Normal
Retirement Age. The annual benefit shall be paid to the Executive for
10 years. The Company, in its sole and absolute discretion, may begin
annual payments or make a lump sum payment of this benefit at any time,
calculating the present value of said benefit using a discount rate
equal to the 10-Year U.S. Treasury Bill rate and monthly compounding.
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2.3 Disability Benefit. If the Executive terminates employment due to
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.3 in lieu of any other
benefit under this Agreement.
2.3.1 Amount of Benefit. The annual benefit under this Section
2.3 is the Disability Annual Benefit set forth in Schedule A for the
Plan Year ending immediately prior to the date in which the Termination
of Employment occurs, determined by vesting the Executive in the Normal
Retirement Benefit. Any increase in the annual benefit under Section
2.1.1 would require the recalculation of this benefit on Schedule A.
2.3.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following Normal
Retirement Age. The annual benefit shall be paid to the Executive for
10 years.
2.4 Change of Control Benefit. Upon a Change of Control, the Company
shall pay to the Executive the benefit described in this Section 2.4 in lieu
of any other benefit under this Agreement.
2.4.1 Amount of Benefit. The annual benefit under this Section
2.4 is the Change of Control Annual Benefit set forth in Schedule A
for the Plan Year ending immediately prior to the date in which
Termination of Employment occurs, determined by vesting the Executive
in the Normal Retirement Benefit. Any increase in the annual benefit
under Section 2.1.1 would require the recalculation of this benefit on
Schedule A.
2.4.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following Normal
Retirement Age. The annual benefit shall be paid to the Executive for
10 years.
Article 3
Death Benefits
3.1 Death Benefit. If the Executive dies while in the active service
of the Company, the Company shall pay to the Executive's beneficiary the
benefit described in the Split Dollar Agreement and Endorsement attached as
Addendum A between the Company and the Executive in lieu of any other benefit
payable hereunder. The Company shall not pay a death benefit under this
Section 3.1 if the Executive is entitled to a Lifetime Benefit under Article 2.
3.2 Death During Benefit Period. If the Executive dies after any
Lifetime Benefit payments have commenced under this Agreement but before
receiving all such payments, the Company shall pay the remaining benefits
to the Executive's beneficiary at the same time and in the same amounts
they would have been paid to the Executive had the Executive survived and no
death benefit shall be payable under this Article 3.
3.3 Death After Termination of Employment But Before Benefit Payments
Commence. If the Executive is entitled to any Lifetime Benefit payments under
this Agreement, but dies prior to the commencement of said benefit payments,
the Company shall pay the benefit payments to the Executive's beneficiary
that the Executive was entitled to prior to death except that the benefit
payments shall commence on the first day of the month following the date of
the Executive's death.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The Executive
may revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
accepted by the Company during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the
beneficiary predeceases the Executive, or if the Executive names a spouse
as beneficiary and the marriage is subsequently dissolved. If the Executive
dies without a valid beneficiary designation, all payments shall be made to
the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The Company may require
proof of incapacity, minority or guardianship as it may deem appropriate
prior to distribution of the benefit. Such distribution shall completely
discharge the Company from all liability with respect to such benefit.
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Article 5
General Limitations
5.1 Excess Parachute Payment. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement to the extent the benefit would create an excise tax under the
excess parachute rules of Section 280G of the Code.
5.2 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement if the Company terminates the Executive's employment for:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor involving
moral turpitude; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law
or significant Company policy committed in connection with the
Executive's employment and resulting in an adverse effect on the
Company.
5.3 Suicide or Misstatement. The Company shall not pay any benefit
under this Agreement if the Executive commits suicide within two years after
the date of this Agreement, or if the Executive has made any material
misstatement of fact on any application for life insurance purchased by the
Company thereby precluding coverage under any policies of insurance
contemplated hereunder.
Article 6
Claims and Review Procedures
6.1 Claims Procedure. The Company shall notify any person or entity
that makes a claim under this Agreement (the "Claimant") in writing, within
90 days of Claimant's written application for benefits, of his or her
eligibility or noneligibility for benefits under the Agreement. If the
Company determines that the Claimant is not eligible for benefits or full
benefits, the notice shall set forth (1) the specific reasons for such denial,
(2) a specific reference to the provisions of the Agreement on which the
denial is based, (3) a description of any additional information or material
necessary for the Claimant to perfect his or her claim, and a description of
why it is needed, and (4) an explanation of this Agreement's claims review
procedure and other appropriate information as to the steps to be taken if
the Claimant wishes to have the claim reviewed. If the Company determines
that there are special circumstances requiring additional time to make a
decision, the Company shall notify the Claimant of the special circumstances
and the date by which a decision is expected to be made, and may extend the
time for up to an additional 90 days.
6.2 Review Procedure. If the Claimant is determined by the Company
not to be eligible for benefits, or if the Claimant believes that he or she
is entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition
for review with the Company within 60 days after receipt of the notice issued
by the Company. Said petition shall state the specific reasons which the
Claimant believes entitle him or her to benefits or to greater or different
benefits. Within 60 days after receipt by the Company of the petition, the
Company shall afford the Claimant (and counsel, if any) an opportunity to
present his or her position to the Company verbally or in writing, and the
Claimant (or counsel) shall have the right to review the pertinent documents.
The Company shall notify the Claimant of its decision in writing within the
60-day period, stating specifically the basis of its decision, written in a
manner calculated to be understood by the Claimant and the specific provisions
of the Agreement on which the decision is based. If, because of the need for
a hearing, the 60-day period is not sufficient, the decision may be deferred
for up to another 60 days at the election of the Company, but notice of this
deferral shall be given to the Claimant.
Article 7
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
Article 8
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Company, nor does it interfere with the Company's right to
discharge the Executive. It also does not require the Executive to remain
an employee nor interfere with the Executive's right to terminate employment
at any time.
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8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
8.4 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets
to another company, firm, or person unless such succeeding or continuing
company, firm, or person agrees to assume and discharge the obligations of
the Company under this Agreement. Upon the occurrence of such event, the
term "Company" as used in this Agreement shall be deemed to refer to the
successor or survivor company.
8.5 Tax Withholding. The Company shall withhold any taxes that
are required to be withheld from the benefits provided under this Agreement.
8.6 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of West Virginia, except to the extent
preempted by the laws of the United States of America.
8.7 Unfunded Arrangement. The Executive and any designated beneficiary
are general unsecured creditors of the Company for the payment of benefits
under this Agreement. The benefits represent the mere promise by the Company
to pay such benefits. The rights to benefits are not subject in any manner
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors. Any insurance on the Executive's
life is a general asset of the Company to which the Executive and beneficiary
have no preferred or secured claim, however, any insurance policy may be held
in the Wesbanco Bank, Inc. Rabbi Trust dated _________________________, and
subject to the terms and conditions of said trust.
8.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive as to the subject matter hereof. No
rights are granted to the Executive by virtue of this Agreement other than
those specifically set forth herein.
8.9 Administration. The Company shall have powers which are necessary
to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting for the
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
8.10 Named Fiduciary. The Company shall be the named fiduciary and plan
administrator under this Agreement. It may delegate to others certain aspects
of the management and operational responsibilities including the employment of
advisors and the delegation of ministerial duties to qualified individuals.
IN WITNESS WHEREOF, the Executive and the Company have signed this
Agreement.
EXECUTIVE: COMPANY:
WESBANCO BANK, INC.
_____________________________ By ________________________________
Title _________________________________