Exhibit 10.8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), dated this __ day of __________
2003, by and between X.X. XXXXXX XXXXX (the Executive"), and FIRST COMMUNITY
BANK, N.A. (the "Bank").
W I T N E S S E T H
WHEREAS, Executive has been employed by The CommonWealth Bank ("The
CommonWealth Bank"), as its President and Chief Executive Officer;
WHEREAS, First Community Bancshares, Inc. (the "Corporation"), has
agreed to acquire The CommonWealth Bank and to merge it with and into the Bank,
and has made the Executive entering into this Agreement a condition to closing
such acquisition;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, Executive and the Bank do agree to the terms of employment as follows:
1.RELINQUISHMENT OF ENTITLEMENTS UNDER PRIOR EMPLOYMENT AGREEMENT. The
Executive hereby agrees to relinquish all amounts that may be due and owing
under the Employment Agreement between Executive and The Commonwealth Bank dated
July 25, 1995, including, without limitation, any such amounts that may
otherwise result from the consummation of the transactions contemplated by the
Agreement and Plan of Merger between the Corporation, the Bank and The
Commonwealth Bank dated January 24, 2002.
2. DEFINITIONS. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) AFFILIATE. Affiliate of any person or entity means any
stockholder or person or entity controlling, controlled by under common control
with such person or entity, or any director, officer or key executive of such
entity or any of their respective relative. For purposes of this definition,
"control", when used with respect to any person or entity, means the power to
direct the management and policies of such person or entity, directly or
indirectly, whether through ownership of voting securities, by contracting or
otherwise; and the terms "controlling" and "controlled" have meanings that
correspond to the foregoing.
(b) BASE SALARY. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(c) CAUSE. Termination of the Executive's employment for "Cause"
shall mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
(d) CHANGE IN CONTROL. "Change in Control" shall mean the occurrence
of any of the following events subsequent to the date of this Agreement: (i) the
acquisition of control of the Corporation or the Bank as defined in the Change
in Bank Control Act of 1978, as
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amended, 12 U.S.C. ss. 1842(3), or any successor to such sections; (ii) an event
that would be required to be reported in response to Item 1(a) of Form 8-K or
Item 6(e) of Schedule 14A of Regulation 14A pursuant to the Securities Exchange
Act of 1934, as amended ("Exchange Act"), or any successor thereto, whether or
not any class of securities of the Corporation is registered under the Exchange
Act; (iii) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Corporation, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 25% or more of the
combined voting power of the Corporation's then outstanding securities; (iv) the
sale or other disposition of all or substantially all of the assets of the
Corporation or the transfer by the Corporation of greater than 25% of the voting
securities of the Corporation; or (v) during any period of three consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Corporation cease for any reason to constitute at least a
majority thereof unless the election, or the nomination for election by
stockholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) COMPETING BUSINESS. Competing Business shall mean any business,
enterprise or other entity that as one of its businesses or activities, is
engaged in the business of banking (including, without limitation, the
acceptance of deposits and the making of loans) or a permitted non-banking
activity in which the Bank is directly or indirectly engaged within the counties
of Chesterfield, Henrico and Hanover and the City of Richmond in the
Commonwealth of Virginia.
(g) CONFIDENTIAL AND PROPRIETARY INFORMATION. Confidential and
Proprietary Information shall mean any and all (i) confidential or proprietary
information or material not in the public domain about or relating to the
business, operations, assets or financial condition of the Bank or any Affiliate
of the Bank or any of the Banks' or any such Affiliate's trade secrets; and (ii)
information, documentation or material not in the public domain by virtue of any
action by or on the part of the Executive, the knowledge of which gives or may
give the Bank or any Affiliate of the Bank an advantage over any person not
possessing such information. For purposes hereof, the term Confidential and
Proprietary Information shall not include any information or material (i) that
is known to the general public other than due to a breach of this Agreement by
the Executive or (ii) was disclosed to the Executive by a person who the
Executive did not reasonably believe was bound to a confidentiality or similar
agreement with the Employers.
(h) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination is
given or as specified in such Notice.
(i) DISABILITY. Termination by the Bank of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment
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which qualifies the Executive for disability benefits under the applicable
long-term disability plan maintained by the Bank or, if no such plan applies,
which would qualify the Executive for disability benefits under the Federal
Social Security System.
(j) GOOD REASON. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive based on:
(i) Without the Executive's express written consent, a material
adverse change made by the Bank which would reduce the
Executive's functions, duties or responsibilities as
Executive Vice President of the Bank and Chief Executive
Officer of Eastern Virginia of the Bank.
(ii) Without the Executive's express written consent, a
reduction by the Bank in the Executive's Base Salary as the
same may be increased from time to time;
(iii) Without the Executive's express written consent, the Bank
requires the Executive to be based anywhere other than at a
location more than twenty-five miles from Richmond,
Virginia, except for required travel on business of the
Bank to an extent substantially consistent with the
Executive's present business travel obligations; or
(iv) Any purported termination of the Executive's employment for
Disability which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph (l)
below.
(k) IRS. IRS shall mean the Internal Revenue Service.
(l) NOTICE OF TERMINATION. Any purported termination of the
Executive's employment by the Bank for any reason, including without limitation
for Cause or Disability, or by the Executive for any reason, including without
limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days after such Notice of Termination is given, except in
the case of the Bank's termination of Executive's employment for Cause, which
shall be effective immediately; and (iv) is given in the manner specified in
Section 11 hereof.
3. TERM OF EMPLOYMENT.
(a) The Bank hereby employs the Executive as Executive Vice
President of the Bank and Chief Executive Officer of Eastern Virginia of the
Bank, and the Executive hereby accepts said employment and agrees to render such
services to the Bank, on the terms and conditions set forth in this Agreement.
The term of employment under this Agreement shall be
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for a term of two years, commencing on the date of this Agreement, unless such
term is extended as provided in this Section 3. Prior to the second annual
anniversary of the date first above written and each annual anniversary
thereafter, the Board of Directors of the Bank shall consider, review (with
appropriate corporate documentation thereof, and after taking into account all
relevant factors, including the Executive's performance) and, if appropriate,
explicitly approve a one-year extension of the remaining term of this Agreement.
After the expiration of the initial two-year term, the term of this Agreement
shall continue to extend each year if the Board of Directors so approves such
extension, unless the Executive gives written notice to the Bank of the
Executive's election not to extend the term, with such notice to be given not
less than sixty (60) days prior to any such anniversary date. If the Board of
Directors elects not to extend the term, it shall give written notice of such
decision to the Executive not less than sixty (60) days prior to any such
anniversary date. If any party gives timely notice that the term will not be
extended, then this Agreement shall terminate at the conclusion of its remaining
term. References herein to the term of this Agreement shall refer both to the
initial term and successive terms.
(b) During the term of this Agreement, the Executive shall perform
such executive services for the Bank as may be consistent with his titles and
from time to time assigned to him by the Bank's Board of Directors.
(c) In the event of a Change in Control, the term of this Agreement
shall automatically be extended for a term of two years beginning on the
effective date of the Change in Control. After the expiration of the two-year
term, the term of this Agreement may be renewed for successive one-year terms as
provided in paragraph (a) above.
4. COMPENSATION AND BENEFITS.
(a) The Bank shall compensate and pay the Executive for his services
during the term of this Agreement at a minimum base salary of $150,000 per year
("Base Salary"), which may be increased from time to time in such amounts as may
be determined by the Board of Directors of the Bank and may not be decreased
without the Executive's express written consent. In addition to his Base Salary,
the Executive shall be entitled to receive during the term of this Agreement
such bonus payments as may be determined by the Board of Directors of the Bank
solely in its discretion.
(b) During the term of this Agreement, the Executive shall be
entitled to participate in and receive the benefits of any pension or other
retirement benefit plan, profit sharing, stock option, employee stock ownership,
or other plans, benefits and privileges given to employees and executives of the
Corporation, to the extent commensurate with his then duties and
responsibilities as fixed by the Board of Directors of the Corporation.
(c) During the term of this Agreement, the Executive shall be
entitled to take six (6) weeks of paid annual vacation in accordance with the
Bank's established policies. The Executive shall not be entitled to receive any
additional compensation from the Bank for failure to take a vacation, nor shall
the Executive be able to accumulate unused vacation time from one year to the
next, except to the extent authorized by the Board of Directors of the Bank.
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(d) In the event the Executive's employment is terminated due to
Disability, the Bank shall provide continued life, medical, dental and
disability in an amount and to the extent consistent with the Bank's established
policies.
5.EXPENSES. The Bank shall reimburse the Executive or otherwise provide
for or pay for all reasonable expenses incurred by the Executive in furtherance
of or in connection with the business of the Bank, including, but not by way of
limitation, traveling expenses, subject to such reasonable documentation and
other limitations as may be established by the Board of Directors of the Bank.
If such expenses are paid in the first instance by the Executive, the Bank shall
reimburse the Executive therefor.
6. TERMINATION.
(a) The Bank shall have the right, at any time upon prior Notice of
Termination, to terminate the Executive's employment hereunder for any reason,
including, without limitation, termination for Cause or Disability, and the
Executive shall have the right, upon prior Notice of Termination, to terminate
his employment hereunder for any reason.
(b) In the event that (i) the Executive's employment is terminated
by the Bank for Cause, (ii) the Executive dies or (iii) the Executive terminates
his employment hereunder other than for Disability or Good Reason, the Executive
shall have no right pursuant to this Agreement to compensation or other benefits
for any period after the applicable Date of Termination or death other than for
Base Salary accrued through the Date of Termination or death.
(c) In the event that the Executive's employment is terminated as a
result of Disability during the term of this Agreement, the Executive shall
receive his salary for a period of ninety (90) days from the Date of
Termination.
(d) In the event that (i) the Executive's employment is terminated
by the Bank for other than Cause, Disability, or the Executive's death or (ii)
such employment is terminated by the Executive (a) due to a material breach of
this Agreement by the Bank, which breach has not been cured within fifteen (15)
days after a written notice of non-compliance has been given by the Executive to
the Bank, or (b) for Good Reason, then the Bank shall, subject to Section 6
hereof, if applicable:
(A) pay to the Executive, a cash severance amount equal to the
Executive's Base Salary as in effect immediately prior to the Date of
Termination, multiplied by two years ("Severance Pay"). Such Severance
Pay shall be paid in monthly installments beginning with the first
business day of the month following the Date of Termination and
continuing for two (2) years; and
(B) maintain and provide for a period ending at the earlier of
(i) the second anniversary of the Date of Termination or (ii) the date
of the Executive's full-time employment by another employer, at no cost
to the Executive, the Executive's continued participation in all group
insurance, life insurance, health and accident, disability and other
employee benefit plans, programs and arrangements in which the
Executive was entitled to participate immediately prior to the Date of
Termination (other than any stock
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option or other stock compensation plans or bonus plans of the
Corporation), provided that in the event that Executive's participation
in any such plan, program or arrangement is barred, the Bank shall
arrange to provide Executive with benefits substantially similar to
those Executive was entitled to receive under such plans, programs and
arrangements prior to the Date of Termination.
(e) In receiving any payments pursuant to this Section 6, the Executive
shall not be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to the Executive hereunder, and such
amounts shall not be reduced or terminated whether or not the Executive obtains
other employment.
7.LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the payments
and benefits pursuant to Section 6 hereof, either alone or together with other
payments and benefits which the Executive has the right to receive from the
Bank, would constitute a "parachute payment" under Section 280G of the Code, the
payments and benefits payable by the Bank pursuant to Section 6 hereof shall be
reduced, in the manner determined by the Executive, by the amount, if any, which
is the minimum necessary to result in no portion of the payments and benefits
payable by the Bank under Section 6 being non-deductible to the Bank pursuant to
Section 280G of the Code and subject to the excise tax imposed under Section
4999 of the Code. The determination of any reduction in the payments and
benefits to be made pursuant to Section 6 shall be based upon the opinion of
independent counsel selected by the Bank's independent public accountants and
paid by the Bank. Such counsel shall be reasonably acceptable to the Bank and
the Executive; shall promptly prepare the foregoing opinion, but in no event
later than thirty (30) days from the Date of Termination; and may use such
actuaries as such counsel deems necessary or advisable for the purpose. Nothing
contained herein shall result in a reduction of any payments or benefits to
which the Executive may be entitled upon termination of employment under any
circumstances other than as specified in this Section 7, or a reduction in the
payments and benefits specified in Section 6 below zero.
8. RESTRICTIONS RESPECTING COMPETING BUSINESSES, CONFIDENTIAL
INFORMATION, ETC.
(a) The Executive acknowledges and agrees that by virtue of the
Executive's position and involvement with the business and affairs of the Bank,
the Executive will develop substantial expertise and knowledge with respect to
all aspects of the Banks' business, affairs and operations and will have access
to all significant aspects of the business and operations of the Bank and to
Confidential and Proprietary Information.
(b) The Executive hereby covenants and agrees that, during the term of
employment and thereafter, unless otherwise authorized by the Bank in writing,
the Executive shall not, directly or indirectly, under any circumstance: (i)
disclose to any other person or entity (other than in the regular course of
business of the Bank) any Confidential and Proprietary Information, other than
pursuant to applicable law, regulation or subpoena or with the prior written
consent of the Bank; (ii) act or fail to act so as to impair the confidential or
proprietary nature of any Confidential and Proprietary Information; (iii) use
any Confidential and Proprietary Information other than for the sole and
exclusive benefit of the Bank; or (iv) offer or agree to, or cause or assist in
the inception or continuation of, any such disclosure, impairment or use of any
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Confidential and Proprietary Information. Following the term of employment, the
Executive shall return all documents, records and other items containing any
Confidential and Proprietary Information to the Bank (regardless of the medium
in which maintained or stored).
(c) The Executive covenants and agrees that while the Executive is
employed by the Bank and for one (1) year after the Executive ceases to be
employed by the Bank for any reason, other than the termination of his
employment after the Bank has elected not to renew this Agreement as provided in
Section 3(a), the Executive shall not, directly or indirectly, manage, operate
or control, any Competing Business or, directly or indirectly, induce or
influence any customer or other Person that has a business relationship with the
Bank, or any Affiliate of the Bank, to discontinue or reduce the extent of such
relationship; provided that in the case of a termination of the Executive, the
Bank continues to pay any amounts owing to the Executive pursuant to Section
6(d) hereof. For purposes of this Agreement, the Executive shall be deemed
directly or indirectly interested in a business if he is engaged or interested
in that business as a stockholder, director, officer, or executive, agent,
partner, individual proprietor, consultant, advisor or otherwise, but not if the
Executive's interest is limited solely to the ownership of not more than 5% of
the securities of any class of equity securities of a corporation or other
person whose shares are listed or admitted to trade on a national securities
exchange or are quoted on Nasdaq or a similar means if Nasdaq is no longer
providing such information.
(d) While the Executive is employed by the Bank and for one (1) year
after the Executive ceases to be employed by the Bank, the Executive shall not,
directly or indirectly, solicit to employ for himself or others any employee of
the Bank or any Affiliate of the Bank as of the date of the termination of the
Executive's employment with the Bank, or to solicit any such employee to leave
such employee's employment or join the employee of another, then or at a later
time.
(e) The parties agree that nothing in this agreement shall be construed
to limit or negate the common law of torts, confidentiality, trade secrets,
fiduciary duty and obligations where such laws provide the Bank with any
broader, further or other remedy or protection than those provided herein.
(f) Because the breach of any of the provisions of this Section 8 will
result in immediate and irreparable injury to the Bank for which the Bank will
not have an adequate remedy at law, the Bank shall be entitled, in addition to
all other rights and remedies, to seek a degree of specific performance of the
restrictive covenants contained in this Section 8 and to a temporary and
permanent injunction enjoining such breach, without posting bond or furnishing
similar security.
9. WITHHOLDING. All payments required to be made by the Bank hereunder
to the Executive shall be subject to the withholding of such amounts, if any,
relating to tax and other payroll deductions as the Bank may reasonably
determine should be withheld pursuant to any applicable law or regulation.
10. ASSIGNABILITY. The Bank may assign this Agreement and its rights
and obligations hereunder in whole, but not in part, to any corporation, bank or
other entity with or into which the Bank may hereafter merge or consolidate or
to which the Bank may transfer all
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or substantially all of its assets, if in any such case said corporation, bank
or other entity shall by operation of law or expressly in writing assume all
obligations of the Bank hereunder as fully as if it had been originally made a
party hereto, but may not otherwise assign this Agreement or its rights and
obligations hereunder. The Executive may not assign or transfer this Agreement
or any rights or obligations hereunder.
11. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the signature page hereto. Any notice,
request, demand or other communication delivered or sent in the manner aforesaid
shall be deemed given or made (as the case may be) upon the earliest of (a) the
date it is actually received, (b) the business day after the day on which it is
delivered by hand, (c) the business day after the day on which it is properly
delivered to Federal Express (or a comparable overnight delivery service), or
(d) the third business day after the day on which it is deposited in the United
States mail. The Bank or the Executive may change its address by notifying the
other party of the new address in any manner permitted by this Section 11.
12. AMENDMENT; WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Bank to sign on its
behalf. No waiver by any party hereto at any time of any breach by any other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
13. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the Commonwealth of
Virginia.
14. NATURE OF OBLIGATIONS. Nothing contained herein shall create or
require the Bank to create a trust of any kind to fund any benefits which may be
payable hereunder, and to the extent that the Executive acquires a right to
receive benefits from the Bank hereunder, such right shall be no greater than
the right of any unsecured general creditor of the Bank.
15. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. REGULATORY PROHIBITION. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise,
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are subject to and conditioned upon their compliance with Section 18(k) of the
Federal Deposit Insurance Act (12 U.S.C.ss.1828(k)) and the regulations
promulgated thereunder, including 12 C.F.R. Part 359. Furthermore, following
such termination for Cause, the Executive will not, directly or indirectly,
participate in the affairs or the operations of the Bank.
19. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the Bank and the Executive with respect to the matters agreed to herein.
All prior agreements between the Bank and the Executive with respect to the
matters agreed to herein are hereby superseded and shall have no force or
effect.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
FIRST COMMUNITY BANK, NATIONAL ASSOCIATION
Address: By: _____________________________
Xxxx X. Xxxxxx
One Community Place Executive Vice President
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
EXECUTIVE
Address: By: _____________________________
X. X. Xxxxxx Xxxxx
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