UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, DC  20549


FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) June 5, 2013 ( May 30, 2013)

LOGO

WesBanco, Inc.
 (Exact name of registrant as specified in its charter)


West Virginia
000-08467
55-0571723
(State or other jurisdiction
(Commission File Number)
(IRS Employer
of incorporation)
 
Identification No.)


1 Bank Plaza, Wheeling, WV
26003
(Address of principal executive offices)
(Zip Code)

 
 

Registrant's telephone number, including area code        (304) 234-9000

Former name or former address, if changed since last report   Not Applicable


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))


Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(e) Change in Control Agreement

On May 30, 2013, WesBanco, Inc. (“WesBanco”) and WesBanco Bank, Inc. (the “Bank”), entered into a change in control agreement with Jonathan D. Dargusch, Executive Vice President Wealth Management.  The agreement is for a term of three years, with automatic one year extensions.  The agreement sets forth certain terms and conditions upon the occurrence of a “change in control.”  Absent a “change in control,” the agreement does not require WesBanco or the Bank to retain the executive in its employ or to pay any specified level of compensation or benefits.
The agreement provides that if a change in control of WesBanco or the Bank which employs the employee occurs, WesBanco or the Bank will be obligated to either continue to employ the executive during the time period starting upon the occurrence of a change in control and ending two years thereafter (the “Term of Employment”) or provide severance as per the agreement.
            If, during the Term of Employment, the executive is discharged by WesBanco or the Bank without cause or resigns for good reason, then the executive shall receive a lump sum payment equal to two times (i) the highest rate of the executive’s annual base salary in effect prior to the date of termination, and (ii) the greater of the executive’s average annual bonus over the most recent two years ending prior to the date of termination, or the executive’s bonus established for the annual bonus plan year in which the date of termination occurs. If the executive is terminated during the Term of Employment for any reason other than cause, then for a period of 18 months from the date of termination, the executive and/or the executive’s family will continue to receive insurance and health care benefits as of the effective date of the change in control, subject to reduction to avoid duplication with benefits of a subsequent employer.  Under a superseding clause in the agreement, in the event of a termination or severance of the executive's employment subsequent to a change in control event, benefits under the agreement will supersede and replace the benefits under the executive’s employment contract, hereinafter described.
Generally, and subject to certain exceptions, a “change in control” is deemed to occur if (a) final regulatory approval is obtained for a party to acquire securities of WesBanco or the Bank representing 20% or more of the combined voting power of WesBanco or the Bank then outstanding securities; (b) during any two consecutive years, there is a significant change in WesBanco’s or the Bank’s Board of Directors not approved by the incumbent Board; or (c) final regulatory approval is obtained for a plan of complete liquidation or dissolution or sale of all or substantially all of WesBanco’s or the Bank’s assets or certain significant reorganizations, mergers and similar transactions involving WesBanco or the Bank.
If an excise tax under Section 4999 of the Internal Revenue Code applies to these payments, WesBanco will either pay the executive a reduced amount as a lump sum or over an extended period of years such that the net present value of such payments would not cause an excise tax to become due.
A copy of the change in control agreement entered into with Mr. Dargusch is attached hereto and filed as Exhibit 10.1.  The foregoing description of the change in control agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the agreement.

(e) Amended and Restated Employment Agreement

On May 30, 2013, WesBanco and the Bank, entered into an amended and restated employment agreement with Mr. Dargusch, to amend the employment agreement dated March 3, 2011 by converting the original term from a fixed term of three years to a revolving three year term beginning on June 1, 2013 and to update the compensation payable thereunder at a salary not less than $226,352.80 per year plus any increases granted thereafter.
In the event that the Bank terminates the amended and restated employment agreement other than for cause, death, or by mutual agreement, Mr. Dargusch shall receive an amount equal to the greater of six months of base salary at his then current base rate, or the base salary that would have been received had he continued to be employed throughout the end of the then existing term of employment.  Generally, and subject to certain possible adjustments, if the agreement is terminated due to death, a death benefit will be paid equal to six months of base salary.
A copy of the amended and restated employment agreement entered into with Mr. Dargusch is attached hereto and filed as Exhibit 10.2.  The foregoing description of the amended and restated employment agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the agreement.



Item 9.01 Financial Statements and Exhibits

d)  
Exhibits:

10.1 – Change in Control Agreement by and between WesBanco, Inc., WesBanco Bank, Inc., and Jonathan D. Dargusch.
10.2 – Amended and Restated Employment Agreement by and between WesBanco, Inc., WesBanco Bank, Inc., and Jonathan D. Dargusch.



 
 

SIGNATURE
 
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


 
WesBanco, Inc.
 
(Registrant)
   
Date:  June 5, 2013
  /s/ Robert H. Young
 
Robert H. Young
 
Executive Vice President and
 
Chief Financial Officer

 
 







 



CHANGE IN CONTROL AGREEMENT
JONATHAN D. DARGUSCH










 


Table of Contents
Section
 
Page
Article 1. Definitions
2
Article 2. Severance Benefits
6
 
2.1. Right to Severance Benefits
6
 
2.2. Services During Certain Events
6
 
2.3. Qualifying Termination
6
 
2.4. Description of Severance Benefits
7
 
2.5. Termination for Total and Permanent Disability
7
 
2.6. Termination for Retirement or Death
8
 
2.7. Termination for Cause or by the Executive Other Than for Good Reason
8
 
2.8. Notice of Termination
8
 
2.9. Effectiveness of Agreement
8
Article 3. Form and Timing of Severance Benefits
8
 
3.1. Form and Timing of Severance Benefits
8
 
3.2. Withholding of Taxes
9
Article 4. Tax Limitation Provision
9
 
4.1. Limitation on Termination Payment
9
Article 5. The Company’s and the Bank’s Payment Obligation
10
 
5.1. Payment Obligations Absolute
10
 
5.2. Contractual Rights to Benefits
10
Article 6. Term of Agreement
10
Article 7. Legal Remedies
11
 
7.1. Arbitration
11
 
7.2. Payment of Legal Fees
11
Article 8. Successors
11
Article 9. Miscellaneous
12
 
9.1. Employment Status
12
 
9.2. Beneficiaries
12
 
9.3. Entire Agreement; Superseding Effect
12
 
9.4. Gender and Number
12
 
9.5. Notices
12
 
9.6. Execution in Counterparts
13
 
9.7. Conflicting Agreements
13
 
9.8. Severability
13
 
9.9. Modification
13
 
9.10. Applicable Law
13

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CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT is made and entered into as of this 30th day of May, 2013 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 JONATHAN D.  DARGUSCH (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 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:
 
(a)  
“Agreement” means this Change in Control Agreement, as the same may be amended from time to time in accordance with Section 9.9 herein.
 
(b)  
“Bank” means Wesbanco Bank, Inc., a West Virginia banking corporation, or any successor thereto as provided in Article 8 herein.
 
(c)  
“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.
 
(d)  
“Beneficial Owner” shall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
 
(e)  
“Beneficiary” means the persons or entities designated or deemed designated by the Executive pursuant to Section 9.2 herein.
 
(f)  
“Board” means the Board of Directors of Wesbanco, Inc.
 
(g)  
“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:
 
(i)  
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
 
(ii)  
The Employee’s continuing inattention to, neglect of, or inability to perform, the duties to be performed under this Agreement, or
 
(iii)  
Any other breach of the Employee’s covenants contained herein or of any of the other terms and provisions of this Agreement; or
 
(iv)  
The deliberate and intentional engaging by the Employee in gross misconduct which is materially and demonstrably injurious to the Bank.
 
(h)  
“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:
 
(i)  
Final regulatory approval is obtained for any Person (other than those Persons in control of the Company and/or the Bank, as
 
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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 twenty percent (20%) or more of the combined voting power of the Company’s (or the Bank’s, as applicable) then outstanding securities; or
 
(ii)  
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
 
(iii)  
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.
 
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).
 
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(i)  
 “Code” means the Internal Revenue Code of 1986, as amended.
 
(j)  
“Company” means Wesbanco, Inc., a West Virginia bank holding company, or any successor thereto as provided in Article 8 herein.
 
(k)  
“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.
 
(l)  
“Effective Date” means the date this Agreement is approved by the Company’s Compensation Committee, or such other date as the Company’s Board shall designate in its resolution approving this Agreement, and upon execution by the Executive.
 
(m)  
“Effective Date of Termination” means the date on which a Qualifying Termination occurs which triggers the payment of Severance Benefits hereunder.
 
(n)  
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
(o)  
“Executive” means Jonathan D. Dargusch.
 
(p)  
“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:
 
(i)  
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;
 
(ii)  
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;
 
(iii)  
A reduction by the Company or the Bank of the Executive’s Base Salary by at least ten percent (10%) from that in effect on the Effective Date;
 
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(iv)  
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
 
(v)  
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.
 
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.
 
(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.
 
(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.
 
(s)  
“Severance Benefits” means the payment of severance compensation as provided in Section 2.4 herein.
 
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.
 
-5-
 
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 Executive agrees that he will not voluntarily leave the employ of the Company or the Bank and will render services until such Person has abandoned or terminated his or its efforts to effect a Change in Control Event, or, if later, until twenty-four (24) months after a Change in Control Event has occurred; provided, however, that the Company and the Bank may terminate the Executive for Cause at any time, and the Executive may terminate his employment any time after the Change in Control Event for Good Reason.
 
2.3.   Qualifying Termination .  The occurrence of any one or more of the following events within twenty-four (24) calendar months after a Change in Control Event of the Company or the Bank shall trigger the payment of Severance Benefits to the Executive under this Agreement:
 
(a)  
An involuntary termination of the Executive’s employment with the Company or the Bank without Cause;
 
(b)  
A voluntary termination of the Executive’s employment with the Company or the Bank for Good Reason;
 
(c)  
A successor company fails or refuses to assume the Company’s and the Bank’s obligations under this Agreement, as required by Article 8 herein; or
 
(d)  
The Company, the Bank, or any successor company breaches any of the provisions of this Agreement.
 
For purposes of this Agreement, a Qualifying Termination shall not include a termination of employment by reason of death, Disability, or retirement (as such term is defined under the then-established rules of the Company’s tax-qualified retirement plan), a voluntary termination without Good Reason, or an involuntary termination for Cause.
 
2.4.   Description of Severance Benefits .  Subject to Section 2.9 herein, in the event that the Executive becomes entitled to receive Severance Benefits, as provided in Sections 2.1 and 2.3 herein, and subject to the limits set forth in Article 4 herein, the Company and/or the Bank shall pay to the Executive and provide him with total Severance Benefits equal to the following:
 
(a)  
An amount equal to two (2) times the highest rate of the Executive’s annual Base Salary in effect at any time up to and including the Effective Date of Termination.
 
(b)  
An amount equal to two (2) times the greater of:  (i) the Executive’s average annual bonus earned over the most recent two (2) bonus plan years ending prior to the Effective Date of Termination; or (ii) the Executive’s bonus established for
 
- 6 -
 
the annual bonus plan year in which the Executive’s Effective Date of Termination occurs.
 
(c)  
An amount equal to the Executive’s unpaid Base Salary and accrued vacation pay through the Effective Date of Termination.
 
(d)  
A continuation of all medical benefits pursuant to plans under which the Executive and/or the Executive’s family is eligible to receive medical benefits and/or coverage as of the effective date of the Change in Control Event.  These benefits shall be provided by the Company and/or the Bank to the Executive immediately upon the Effective Date of Termination and shall continue to be provided for eighteen (18) months from the Effective Date of Termination.  Such benefits shall be provided to the Executive at the same coverage level as in effect as of the Executive’s Effective Date of Termination.  The Company and/or the Bank shall pay the full cost of such continued benefits, except that the Executive shall bear any portion of such cost as is required to be borne by key executives of the Company and/or the Bank generally at the time of such Change in Control Event.
 
The medical benefits described in this Subsection 2.4(d) shall continue for eighteen (18) months following the Effective Date of Termination; provided, however, that such benefits shall be discontinued prior to the end of the eighteen (18) month period to the extent, but only to the extent, that the Executive receives substantially similar benefits from a subsequent employer, as determined by the Company or the Bank.
 
The obligation of the Company and the Bank to provide the Executive with the Severance Benefits described herein shall be joint and several.  Regardless of how the Company and the Bank apportion the responsibility for satisfying the obligations set forth herein, the total Severance Benefits payable to the Executive shall equal the amounts set forth in this Article 2, as limited by Article 4 herein.
 
2.5.   Termination for Total and Permanent Disability .  Following a Change in Control Event, if the Executive’s employment is terminated with the Company or the Bank due to Disability, the Executive shall receive his Base Salary and accrued vacation through the Effective Date of Termination, at the rate then in effect, plus all other amounts to which the Executive is entitled under any employment contract or any compensation plans of the Company and the Bank, at the time such payments are due, and otherwise the Executive’s benefits shall be determined in accordance with the Company’s and the Bank’s retirement, insurance, and other applicable plans and programs then in effect.
 
2.6.   Termination for Retirement or Death .  Following a Change in Control Event, if the Executive’s employment with the Company or the Bank is terminated by reason of his retirement (as defined under the then established rules of the Company’s tax-qualified retirement plan), or death, the Executive (or his Beneficiary) shall receive his Base Salary and accrued vacation through the Effective Date of Termination, at the rate then in effect, plus all other amounts to which the Executive is entitled under any compensation plans of the Company and
 
- 7 -
 
the Bank, at the time such payments are due, and otherwise the Executive’s benefits shall be determined in accordance with the Company’s and the Bank’s retirement, survivor’s benefits, insurance, and other applicable programs then in effect.
 
2.7.   Termination for Cause or by the Executive Other Than for Good Reason .  Following a Change in Control Event, if the Executive’s employment is terminated either:  (i) by the Company or the Bank for Cause; or (ii) by the Executive other than for Good Reason, the Company and/or the Bank shall pay the Executive his full Base Salary and accrued vacation through the Effective Date of Termination, at the rate then in effect, plus all other amounts to which the Executive is entitled under any employment contract or any compensation plans of the Company and the Bank, at the time such payments are due, and the Company and the Bank shall have no further obligations to the Executive under this Agreement.
 
2.8.   Notice of Termination .  Any termination by the Company or the Bank for Cause or by the Executive for Good Reason shall be communicated by Notice of Termination to the other party.  For purposes of this Agreement, a “Notice of Termination” shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated.
 
2.9.   Effectiveness of Agreement .  Notwithstanding any provision of this Agreement to the contrary, this Agreement and any payments, benefits or rights of the Executive as provided herein are subject to Section 18(k) of the Federal Deposit Insurance Act, as amended, and any applicable regulations thereunder.
 
Article 3.
Form and Timing of Severance Benefits
 
3.1.   Form and Timing of Severance Benefits .  Except as limited by Article 4 herein, the Severance Benefits described in Sections 2.4(a), 2.4(b), and 2.4(c) herein shall be paid in cash to the Executive in a single lump sum as soon as practicable following the Effective Date of Termination, but in no event beyond thirty (30) days from such date.
 
3.2.   Withholding of Taxes .  The Company and/or the Bank, as applicable, shall withhold from any amounts payable under this Agreement all federal, state, city, or other taxes as legally shall be required.
 
Article 4.
Tax Limitation Provision
 
4.1.   Limitation on Termination Payment .
 
(a)  
Determination of Termination Payment Limit.  Notwithstanding any other provision of this Agreement, if any portion of the Severance Benefits or any other payment under this Agreement, or under any other agreement with or plan of the
 
- 8 -
 
Company or the Bank (in the aggregate “Total Payments”) would constitute an “excess parachute payment,” then the payments to be made to the Executive under this Agreement shall be reduced or extended over an installment period such that the value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1.00) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code, or which the Company and the Bank may pay without loss of deduction under Section 280G(a) of the Code.  For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code, and such “parachute payments” shall be valued as provided therein.
 
(b)  
Procedure for Establishing Limitation on Termination Payment.  Within twenty (20) days following delivery of the Notice of Termination (as described in Section 2.8 herein) or notice by the Company or the Bank to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code, the Executive, the Company, and the Bank, at the Company’s and the Bank’s expense, shall obtain the opinion of the Company’s principal outside accounting firm (the “Accounting Firm”), which sets forth:  (i) the amount of the Executive’s “annualized includible compensation for the base period” (as defined in Code Section 280G(d)(1)); (ii) the present value of the Total Payments; and (iii) the amount and present value of any “excess parachute payment.”  Such opinion shall be binding upon the Company, the Bank, and the Executive.
 
In the event that such opinion determines that there would be an “excess parachute payment,” the Severance Benefits hereunder or any other payment determined by such accounting firm to be includible in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Company and the Bank within ten (10) days of his receipt of such opinion, or, if the Executive fails to so notify the Company and the Bank, then as the Company or the Bank, as applicable, shall reasonably determine, so that under the basis of calculations set forth in such opinion, there will be no “excess parachute payment.”
 
The provisions of this Section 4.1(b), including the calculations, notices, and opinion provided for herein, shall be based upon the conclusive presumption that any compensation earned prior to the Effective Date of Termination by the Executive pursuant to the Company’s and the Bank’s compensation programs (if such compensation would have been paid in the future in any event, even though the timing of payment thereof is triggered by the Change in Control Event) is reasonable.
 
Article 5.
The Company’s and the Bank’s Payment Obligation
 
5.1.   Payment Obligations Absolute .  Except as otherwise provided in the last sentence of Section 2.4(d) herein, the Company’s and the Bank’s obligation to make the payments and the arrangements provided for herein shall be absolute and unconditional, and shall not be affected
 
- 9 -
 
by any circumstance, including, without limitation, any offset, counterclaim, recoupment, defense, or other right which the Company or the Bank may have against the Executive or any other party.  All amounts payable by the Company and the Bank hereunder shall be paid without notice or demand.  Each and every payment made hereunder by the Company and the Bank shall be final, and neither the Company nor the Bank shall seek to recover all or any part of such payment from the Executive or from whomsoever may be entitled thereto, for any reasons whatsoever.
 
The Executive shall not be obligated to seek other employment in mitigation of the amounts payable or arrangements made under any provision of this Agreement, and the obtaining of any such other employment shall in no event effect any reduction of the Company’s or the Bank’s obligations to make the payments and arrangements required to be made under this Agreement, except to the extent provided in Section 2.4(d) herein.
 
5.2.   Contractual Rights to Benefits .  This Agreement establishes and vests in the Executive a contractual right to the benefits to which he is entitled hereunder.  However, nothing herein contained shall require or be deemed to require, or prohibit or be deemed to prohibit, the Company or the Bank to segregate, earmark, or otherwise set aside any funds or other assets, in trust or otherwise, to provide for any payments to be made or required hereunder.
 
Article 6.
Term of Agreement
 
6.1           Subject to Section 2.9 herein, this Agreement shall commence on the Effective Date and shall continue in effect for three (3) full years, the last day of which shall be the “Expiration Date.”  However, at the end of such three-year period and, if extended, at the end of each additional year thereafter, the term of this Agreement shall be extended automatically for one (1) additional year, unless the Company or the Bank delivers written notice three (3) months prior to the end of such term, or extended term, to the Executive, that the Agreement will not be extended.  In such case, the Agreement will terminate at the end of the term, or extended term, then in progress.
 
However, in the event a Change in Control Event occurs during the original or any extended term, this Agreement will remain in effect for the longer of:  (i) twenty-four (24) months beyond the month in which such Change in Control Event occurred; or (ii) until all obligations of the Company and the Bank hereunder have been fulfilled, and until all benefits required hereunder have been paid to the Executive or other party entitled thereto.
 
Article 7.
Legal Remedies
 
7.1.   Arbitration .  Any controversy or claim arising out of or relating to this Agreement or the breach thereof (including the arbitrability of any controversy or claim), shall be settled by arbitration in the City of Wheeling in accordance with the laws of the State of West Virginia by three (3) arbitrators, one of whom shall be appointed by the Company or the Bank, as applicable,
 
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one by the Executive, and the third of whom shall be appointed by the first two arbitrators.  If the first two arbitrators cannot agree on the appointment of a third arbitrator, then the third arbitrator shall be appointed by the American Arbitration Association.  The arbitration shall be conducted in accordance with the rules of the American Arbitration Association, except with respect to the selection of arbitrators which shall be as provided in this Section 7.1.  The cost of any arbitration proceeding hereunder shall be borne equally by the Company or the Bank, as applicable, and the Executive.  The award of the arbitrators shall be binding upon the parties.  Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
 
7.2.   Payment of Legal Fees .  In the event that it shall be necessary or desirable for the Executive to retain legal counsel and/or incur other costs and expenses in connection with the enforcement of any or all of his rights under this Agreement, and provided that the Executive substantially prevails in the enforcement of such rights, the Company or the Bank, as applicable, shall pay (or the Executive shall be entitled to recover from the Company or the Bank, as the case may be) the Executive’s reasonable attorneys, fees, costs and expenses in connection with the enforcement of his rights including the enforcement of any arbitration award.
 
Article 8.
Successors
 
8.1           The rights of the Company and the Bank hereunder shall run in favor of the Company and the Bank, and their respective successors, assigns, nominees, or other legal representatives.  Termination of the Executive’s employment shall not operate to relieve him of any remaining obligations hereunder, and all such obligations are binding upon his heirs, executors, administrators, or other legal representatives.  The Company and the Bank shall require any successor (whether direct or indirect by purchase, merger, reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise) to all or a significant portion of the assets of the Company or the Bank, as the case may be, by agreement in form and substance satisfactory to the Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company or the Bank, as the case may be, would be required to perform if no such succession had taken place.  Regardless of whether such agreement is executed, this Agreement shall be binding upon any successor in accordance with the operation of law and such successor shall be deemed the “Company” or the “Bank,” as the case may be, for purposes of this Agreement.
 
Article 9.
Miscellaneous
 
9.1.   Employment Status .  The Executive, the Company, and the Bank acknowledge that, except as may be provided under any other agreement between the Executive and the Company or the Bank, the employment of the Executive by the Company and the Bank is “at will,” and, except as set forth in Section 2.2 herein, prior to the effective date of a Change in Control Event, may be terminated by either the Executive, the Company, or the Bank, at any time.  Upon a termination of the Executive’s employment prior to the effective date of a Change in Control Event, there shall be no further rights under this Agreement; provided, however, that
 
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if such an employment termination shall arise in connection with, or in anticipation of, a Change in Control Event, then the Executive’s rights shall be the same as if the termination had occurred within two (2) years following a Change in Control Event.
 
9.2.   Beneficiaries .  The Executive may designate one or more persons or entities as the primary and/or contingent Beneficiaries of any Severance Benefits owing to the Executive under this Agreement.  Such designation must be in the form of a signed writing acceptable to the Board of Directors of the Company or the Board of the Bank, as applicable.  The Executive may make or change such designation at any time.
 
9.3.   Entire Agreement; Superseding Effect .  This Agreement contains the entire understanding of the Company, the Bank, and the Executive with respect to the subject matter hereof.  In particular, to the extent of any conflict between the terms of this Change in Control Agreement and any employment agreement to which the Executive, the Company and the Bank are parties, the terms of this Change in Control Agreement shall completely replace and supersede the terms of the Executive’s employment agreement.
 
In addition and subject to Article 4, the payments provided for under this Agreement in the event of the Executive’s termination of employment shall be in lieu of any severance benefits payable under any severance plan, program, or policy of the Company and the Bank to which he might otherwise be entitled.
 
9.4.   Gender and Number .  Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine; the plural shall include the singular, and the singular shall include the plural.
 
9.5.   Notices .  All notices, requests, demands, and other communications hereunder must be in writing and shall be deemed to have been duly given if delivered by hand or mailed within the continental United States by first-class certified mail, return receipt requested, postage prepaid, to the other party, addressed as follows:
 
(a)  
if to the Company:
 
Wesbanco, Inc.
 
One Bank Plaza
 
Wheeling, WV  26003
 
(b)  
if to the Bank:
 
Wesbanco Bank, Inc.
One Bank Plaza
Wheeling, WV 26003

(c)  
if to Executive:
 
Jonathan D. Dargusch
525 W. College Street
Granville, OH  43023
 
 
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Addresses may be changed by written notice sent to the other party at the last recorded address of that party.
 
9.6.   Execution in Counterparts .  This Agreement may be executed by the parties hereto in counterparts, each of which shall be deemed to be original, but all such counterparts shall constitute one and the same instrument, and all signatures need not appear on any one counterpart.
 
9.7.   Conflicting Agreement .  The executive hereby represents and warrants to the Company and the Bank that his entering into this Agreement, and the obligations and duties undertaken by him hereunder, will not conflict with, constitute a breach of, or otherwise violate the terms of, any other employment or other agreement to which he is a party, except to the extent any such conflict, breach, or violation under any such agreement has been disclosed to the Company’s Board and the Bank’s Board in writing in advance of the signing of this Agreement.
 
9.8.   Severability .  In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.  Further, the captions of this Agreement are not part of the provisions hereof and shall have no force and effect.
 
Notwithstanding any other provision of this Agreement to the contrary, the Company and the Bank shall have no obligation to make any payment to the Executive hereunder to the extent, but only to the extent, that such payment is prohibited by the terms of any final order of a Federal or state court or regulatory agency of competent jurisdiction; provided, however, that such an order shall not affect, impair, or invalidate any provision of this Agreement not expressly subject to such order.
 
9.9.   Modification .  No provision of this Agreement may be modified, waived, or discharged unless such modification, waiver, or discharge is agreed to in writing and signed by the Executive and by a member of the Company’s Board or the Bank’s Board, as applicable, or by the respective parties, legal representatives or successors.
 
9.10.   Applicable Law .  To the extent not preempted by the laws of the United States, the laws of the State of West Virginia shall be the controlling law in all matters relating to this Agreement.
 
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.
 
WESBANCO, INC.


By  /s/ Paul M. Limbert                                                             
Title  President     
 
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WESBANCO BANK, INC.


By  /s/ Paul M. Limbert                                                              
Title  President                                               
 
 
/s/ Jonathan D. Dargusch
       JONATHAN D. DARGUSCH, EXECUTIVE


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AMENDED AND RESTATED EMPLOYMENT AGREEMENT

THIS AGREEMENT , made and entered into this 30th day of May, 2013, by and between WESBANCO BANK, INC. , hereinafter referred to as "Bank" and JONATHAN D. DARGUSCH , hereinafter referred to as "Employee", and WESBANCO, INC., a West Virginia corporation, hereinafter referred to as "Wesbanco".
WHEREAS, Employee is serving as an executive officer of the Bank as of the date hereof pursuant to an Employment Agreement dated the 3 rd day of March, 2011, providing for a specific term of three (3) years (the “Agreement”), and
WHEREAS, the Bank wishes to assure itself of the Employee's full time employment and continuing services in an executive capacity and, therefore, the parties desire to amend and restate said Agreement by converting the term from a fixed term of three (3) years to a revolving term and to update the compensation payable thereunder, all as hereinafter set forth.
WITNESSETH THAT:   In consideration of the mutual promises and undertakings hereinafter set forth, the parties hereto agree as follows:
1.             OFFER OF EMPLOYMENT .   The Bank agrees to, and hereby does, continue the employment of Employee at Bank in an executive capacity.  In that capacity, Employee shall be answerable to the Board of Directors of the Bank and such other officers of Wesbanco, the parent company of the Bank, as the Board of Directors of Wesbanco shall direct.  Employee shall perform such duties, compatible with his employment under the Agreement, as the Bank, and Wesbanco, from time to time may assign to him.
2.             COMPENSATION .   As compensation for the performance of the services specified in Paragraph (1) and the observance of all of the provisions of this Agreement, the Bank agrees to pay Employee, and Employee agrees to accept, the following amounts and benefits during his term of employment:
           (A)           Salary at a rate to be determined by the Board of Directors of the Bank, with notice to be given to employee in April of each calendar year, but in no event shall Employee's salary be less than Two Hundred Twenty-Six Thousand Three Hundred Fifty-Two Dollars and Eighty Cents ($226,352.80) per year, plus any increases granted by the Board of Directors after the date hereof, and payable in equal biweekly installments; and
           (B)           Such other miscellaneous benefits and perquisites as the Bank provides to its executive employees generally.
3.             ACCEPTANCE OF EMPLOYMENT .   Employee accepts the employment provided for herein, at the salary set forth above, and agrees to devote his talents and best efforts to the diligent, faithful, and efficient discharge of the duties of his employment, and in furtherance of the operations and best interests of Bank, and observe and abide by all rules and regulations promulgated by Bank for the guidance and direction of its employees and the conduct of its business, operations, and activities.
4.             TERM OF AGREEMENT .   The employment term provided for herein shall consist of a revolving period of three years, with the initial term beginning on the 1 st day of June, 2013, and ending on the 31 st day of May, 2016.  The term of this Agreement shall automatically be extended on each anniversary of the beginning date of the term hereof for an additional one year, thereby creating a new three year term, unless written notice of termination hereof is given
 
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by either party at least ninety (90) days prior to the anniversary date of the beginning date of this Agreement.  Any such notice of non-renewal shall not affect the continuation of the term of this Agreement existing at the time of such non-renewal.
5.             CONFIDENTIALITY .   Employee agrees that such information concerning the business, affairs, and records of Bank as he may acquire in the course of, or as incident to, his   employment hereunder, shall be regarded and treated as being of a confidential nature, and that he will not disclose any such information to any person, firm, or corporation, for his own benefit or to the detriment of Bank, during the term of his employment under this Agreement or at any time following the termination thereof.
6.             MISCELLANEOUS BENEFITS .   This Agreement is not intended, and shall not be deemed to be in lieu of any rights, benefits, and privileges to which Employee may be entitled as an Employee of Bank under any retirement, pension, profit sharing, insurance, hospital, bonus, vacation, or other plan or plans which may now be in effect or which may hereafter be adopted by Bank, it being understood that Employee shall have the same rights and privileges to participate in such plans and benefits, as any other employee, during the period of his employment.
            7.             BINDING EFFECT .   This Agreement shall inure to the benefit of and be binding upon Bank's successors and assigns, including, without limitation, any company or corporation which may acquire substantially all of Bank's assets or business, or with, or into which Bank may be merged or otherwise consolidated.
8.             TERMINATION .   The Employee's employment hereunder shall terminate upon the earliest to occur of any one of the following:
 
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(A)           The expiration of the initial term of this Agreement, or any extended term of this Agreement by  written notice of termination as provided in Paragraph (4) hereof; or
           (B)           By the Bank for cause, after thirty (30) days written notice to Employee.  Cause for purposes of this Agreement shall mean as follows:
(i)           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
(ii)           The Employee's continuing inattention to, neglect of, or inability to perform, the duties to be performed under this Agreement, or
(iii)           Any other breach of the Employee's covenants contained herein or of any of the other terms and provisions of this Agreement, or
(iv)           The deliberate and intentional engaging by the Employee in gross misconduct which is materially and demonstrably injurious to the Bank.
(C)           Employee shall have the right to terminate this Agreement and his active employment hereunder at any time upon ninety (90) days written notice to the Bank.
(D)           Upon the death of Employee, this Agreement shall automatically terminate.
 
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9.               EFFECT OF TERMINATION .   In the event of a termination of this Agreement, Employee shall be paid the following severance benefits, payable promptly after the date of termination of his employment, in the following manner:
(A)           In the event that this Agreement is terminated by the death of Employee, this Agreement shall be deemed to have been terminated as of the date of such death except, however, that Bank shall pay to the surviving spouse of Employee, or in lieu thereof, to Employee's estate, an amount equal to six months of the base salary at his then current base rate, provided, however, that if such death occurs within six months of the normal retirement date as provided by the Bank's defined benefit pension plan, or after such normal retirement date, so that a pension  distribution or benefit is payable to the surviving spouse of Employee, such payment shall be reduced to an amount equal to one month of the base salary at his then current base rate.
(B)           In the event that this Agreement is terminated by Employee and Bank by mutual agreement, then Bank shall pay such severance benefits, if any, as shall have been agreed upon by Bank and Employee.
(C)           In the event that Bank attempts to terminate this Agreement, other than for cause, death of Employee, or by mutual agreement with Employee, in addition to any other rights or remedies which Employee may have, Employee shall receive an amount equal to the greater of (i) six months of base salary at his then current base rate, or (ii) the base salary Employee would have received had he continued to be employed pursuant to this Agreement throughout the end of the then existing term of employment hereunder.
 
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(D)           In the event Bank termin ates this Agreement for cause, no severance benefits shall be payable hereunder.
10.             ENTIRE UNDERSTANDING; AMENDMENT .   This Agreement supersedes all previous agreements between Employee and Bank and contains the entire understanding and agreement between the parties with respect to the subject matter hereof, and cannot be amended, modified, or supplemented in any respect except by a subsequent written agreement executed by both parties.
11.             APPLICABLE LAW . This Agreement shall be governed by and construed in accordance with the laws of the State of West Virginia.
12.             CERTAIN OBLIGATIONS OF WESBANCO .   While the parties acknowledge that certain provisions of this Agreement may be unenforceable in some respects against the Bank, pursuant to applicable banking law, it is nonetheless the intention of the parties to create pursuant to this Agreement a valid employment for a definite term with specified benefits.  As an inducement for Employee and Bank to enter into this Agreement whereby Employee would be employed by Bank for a definite term, Wesbanco hereby undertakes the independent, separate and unconditional obligation to Employee to pay all amounts which are or may become due to Employee under this Agreement as set forth herein, regardless of the status of the direct or indirect enforceability or validity of Bank's obligation to pay any or all such amounts as may be due hereunder to Employee; provided, however, that for purposes of this Paragraph 12, Wesbanco shall be obligated to the Employee for any bonuses or any increases in base salary in excess of the rate of ­­­­­­­­­­­­­­­­­­­­­­­Two Hundred Twenty-Six Thousand Three Hundred Fifty-Two Dollars and Eighty Cents ($226,352.80)  per annum only to the extent that it has consented to such bonuses or increases. Wesbanco also acknowledges that it may or may not be entitled to indemnification
 
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 or contribution from Bank or to be subrogated to the claim of Employee hereunder for any payments Wesbanco may make to Employee; and Wesbanco hereby specifically waives any rights it may otherwise have to indemnification or contribution from Bank or to be subrogated to the claim of Employee hereunder in the event that such payments as are made by Wesbanco would be unenforceable or invalid for any reason against Bank.
13.             MISCELLANEOUS .   The invalidity or unenforceability of any term or provision of this Agreement as against any one or more parties hereto, shall not impair or effect the other provisions hereof or the enforceability of said term or provision against the other parties hereto, and notwithstanding any such invalidity or unenforceability, each term or provision hereof shall remain in full force and effect to the full extent consistent with law.
IN WITNESS WHEREOF , Bank and Wesbanco have caused these presents to be signed and their corporate seals to be hereto affixed, and Employee has hereto affixed his signature, at Wheeling, WV, as of the day and year first above written.

WESBANCO BANK, INC.


By /s/ Paul M. Limbert
Its President
(SEAL)


ATTEST:

/s/ Linda M. Woodfin
        Secretary


 
                                                                                                 /s/ Jonathan D. Dargusch (SEAL)
JONATHAN D. DARGUSCH

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WESBANCO, INC.


By /s/ Paul M. Limbert
Its President


(SEAL)



ATTEST:

/s/ Linda M. Woodfin
         Secretary

 
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