|
Exhibit 10.2 EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
made and entered into as of the 16th day of December, 2008 by and
between DAVID D. BROWN , hereinafter referred to as
"Employee," and FIRST COMMUNITY BANCSHARES, INC.,
hereinafter referred to as "the Corporation." WITNESSETH
WHEREAS , Employee currently
serves as the Corporation’s Chief Financial Officer; and
WHEREAS , in order to ensure
that Employee’s terms of employment comply with
Section 409A of the Internal Revenue Code of 1986, as amended,
and to formalize the Corporation’s employment of Employee in
the manner herein provided. NOW,
THEREFORE, in consideration of the mutual covenants herein set
forth, Employee and the Corporation do agree to terms of employment
as follows: 5. Employment
and Term . The Corporation hereby hires Employee, and
Employee hereby agrees to continue to serve as its Chief Financial
Officer, or in such other position(s) as Executive Management of
the Company shall from time to time assign to Employee, with such
duties as normally associated with these positions. Employee shall
also serve in such additional offices for the subsidiaries and
affiliates of the Corporation as its Board of Directors may
specify. The term of this Agreement shall be for a period of two
(2) years effective January 1, 2009.
6. Compensation and
Benefits .
(a)
Base Salary. Employee’s base salary shall not be less
than $135,000.00, subject to adjustment on each anniversary date of
this Agreement. The base salary shall be paid biweekly during the
term hereof, and if applicable, during the severance pay period,
less all customary withholding.
(b)
Incentive Compensation . Employees shall be awarded
incentive compensation, if any, in an amount determined appropriate
by the Corporation; provided, however, such incentive compensation
shall not encourage the Employee to take unnecessary and excessive
risks that threaten the value of the Corporation. In addition, as
provided in the Emergency Economic Stabilization Act
§111(b)(2)(B), incentive compensation paid to Employee shall
be subject to recovery or "clawback" by the Corporation if the
payments were based on materially inaccurate financial statements
or any other materially inaccurate performance metric criteria.
(c)
Vacation. Employee shall be entitled to vacation of four
(4) weeks per year during the term of this Agreement. In the
event Employee does not use all four (4) weeks each year, the
same rules that apply to all other employees should be followed.
(d)
Benefits. Employee shall be entitled to participate, on the
same basis as other members of senior management, in all employee
welfare, retirement and/or pension benefit plans that the
Corporation establishes and makes available.
7. Termination for
Cause . The Corporation may terminate the employment of
Employee prior to the expiration of the term or any renewals, upon
Employee’s death, upon the Corporation’s determination
that he suffers from a permanent disability, or for "Cause" as set
forth in this Section.
(a)
Death . Employee’s employment shall terminate
automatically upon his death. Upon his death, the Corporation shall
pay Employee’s estate his base salary through the end of the
month in which his death occurs. Employee’s estate and heirs
will be entitled to apply for and receive whatever plan benefits
might be in place at the time of his death. Further,
Employee’s eligible dependents shall have the right to
continue their health insurance coverage as permitted by COBRA.
(b)
Permanent Disability . If, as a result of Employee’s
incapacity due to an accident or physical or mental illness,
Employee is substantially unable to perform his duties for six (6)
consecutive months, or for an aggregate of 200 days during any
period of twelve (12) consecutive months, and remains
incapable of performing such duties at the end of such six
(6) or twelve (12) month period, then the Corporation shall
have the right to terminate Employee’s employment for
"permanent disability" before the end of the applicable term.
Employee’s right to continued compensation and benefits shall
end on the date set for termination, subject to Employee’s
right to apply for and receive, if deemed qualified, those benefits
that may be provided to participants in any disability plans and
policies sponsored by the Corporation. Further, Employee (and his
eligible dependents) shall be entitled to continue to participate
in the Corporation’s health insurance plans as permitted by
COBRA or as permitted by applicable Corporation plan provisions, at
Employee’s expense.
(c) "
Termination for Cause " shall mean the termination of
Employee’s employment prior to the expiration of the term or
any renewal term by the Corporation as a result of a finding by the
Board of any of the following: (i) Employee has knowingly and
intentionally engaged in an act or omission, or series of actions,
deemed by the Corporation to be fraudulent or unlawful;
(ii) any knowing and material breach of this Agreement by
Employee; (iii) any knowing and material violation by Employee
of corporate policies and procedures that result in damage to the
business or reputation of the Corporation or its
subsidiaries’ business, including without limitation policies
prohibiting discrimination, harassment and/or retaliation;
(iv) Employee engaging in a criminal act involving the
property or persons associated with the Corporation (other than a
minor traffic offense) or involving behavior determined by the
Board to be substantially detrimental to the Corporation’s
best interests; (v) excessive absenteeism by Employee without
proper authorization; (vi) Employee’s intentional
failure to follow the directions of the Employee’s supervisor
or a continued failure to perform assigned duties, which is not
cured within twenty-one (21) days after written notice thereof
is given to Employee; or (viii) Employee is grossly neglectful
of duties resulting in a substantial injury to the Corporation
which is not cured within twenty-one (21) days after written
notice thereof is given to Employee. In the event the Corporation
terminates Employee’s employment for "Cause," then
Employee’s right to receive any further compensation or
benefits from the Corporation shall cease immediately as of the
date of termination. 8.
Termination Without Cause . In the event the
Corporation terminates Employee’s employment for any reason
other than set forth in Section 3, or if the Corporation gives
notice of non-renewal under Section 12, then the Corporation
shall pay Employee severance in the form of continuing to pay his
base salary and to provide benefits of like kind such that he will
receive an amount equal to his total base compensation for the
greater of eighteen (18) months or the balance of the existing
term of this Agreement, as it may be renewed from time to time
pursuant to Section 12. Nonetheless, if the Corporation terminates
the employment of Employee under this Section within two years
after a Change of Control (defined below), then the Employee shall
receive the benefits provided by Section 6 in lieu of this
Section. 5. Voluntary
Termination by Employee . Except in the case of a voluntary
termination for Good Reason after a "Change of Control" as defined
in Section 6 below, in the event that Employee terminates his
employment of his own volition prior to the expiration of the term
of this Agreement and any renewals thereof, then Employee shall be
limited to the same rights and benefits as provided in connection
with a Termination for Cause under Section 3(a) above.
7. Change of Control
. If within two (2) years after a Change of Control
Employee’s employment ends either because (i) the
Corporation terminates Employee’s employment without Cause
under Section 4, or (ii) Employee elects to terminate his
employment with the Corporation by way of a Termination for Good
Reason, then the Corporation shall (subject to the provisions of
Section 6 hereof) immediately pay Employee severance in the
form of a lump sum payment in the amount of 2.0 times
Employee’s base salary as in effect on the date of
termination
(a) "
Change of Control " shall mean a change in the ownership of
the Corporation, a change in the effective control of the
Corporation, or a change in the ownership of a substantial portion
of the assets of the Corporation, consistent with and interpreted
in accordance with Internal Revenue Code Section 409A and the
regulations issued thereunder.
(b)
" Termination For Good Reason " means Employee’s
termination of his employment with the Corporation as a result of
(i) a significant and material reduction in his duties,
authorities, or reporting responsibilities, without
Employee’s prior consent; (ii) the Corporation commits a
knowing and material breach of this Agreement, including without
limitation, reducing Employee’s Base Salary or failing to
provide Employee with the compensation and benefits provided for by
Sections 2(c)-(d); (iii) the Corporation changes the
Employee’s geographic work location to a location greater
than fifty (50) miles from the Employee’s work location
on the date of a Change of Control. Notwithstanding the foregoing,
no event described in the preceding sentence shall give rise to a
Termination for Good Reason unless Employee first gives the
Corporation notice that such an event has occurred within the
ninety (90) days immediately following the occurrence of such
event, and the Corporation fails to cure the breach within fifteen
(15) business days of such notice.
7. Tax Issues. To
the extent that any amount of pay or benefits provided to Employee
under this Agreement would cause Employee to be subject to an
excise tax under Sections 280G and 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), and after taking
into consideration all other amounts payable to Employee under
other plans, programs, policies, and arrangements, then the amount
of pay and benefits provided under this Agreement and all other
plans, programs, policies and arrangements shall be reduced to the
extent necessary to avoid imposition of any such excise tax.
Payments and benefits under this Agreement shall be reduced first.
Payments and benefits shall be reduced in the following order of
priority (i) first from cash compensation, (ii) next from
equity compensation, then (iii) pro-rated among all remaining
payments. 8. Loyalty
Obligations . Employee agrees that the following
obligations ("Loyalty Obligations") shall apply in consideration of
Employee’s employment by or continued employment with the
Corporation:
(a)
Confidential Information .
(i)
Corporation Information . At all times during the term of
Employee’s employment and thereafter, Employee shall hold in
strictest confidence, and not use (except for the benefit of the
Corporation and to fulfill Employee’s employment obligations)
or disclose to any person, business or other entity, without
authorization of the Board of Directors of the Corporation, any
Confidential Information of the Corporation or its subsidiary and
affiliated entities (jointly and severally, "Related Entities"). "
Confidential Information " means any proprietary
information, technical or financial data, trade secrets or know-how
regarding the Corporation and/or Related Entities or their internal
operations and plans that is treated as confidential by the
Corporation and/or Related Entities that is not generally known by
persons not employed by the Corporation, and that is not otherwise
available to the public by lawful and proper means. Confidential
Information includes, but is not limited to, strategic plans and
forecasts; product or service plans or research; products, services
and customer lists; marketing research, plans and/or forecasts;
compilations and databases of business or marketing information
that are developed by or for the Corporation; budget and/or
financial information; customer contact, account and mailing
information; pricing, costs or profitability analysis; sales and
marketing techniques and programs; incentive compensation plans;
account information (including loan terms, expiration or renewal
dates, fee schedules and commissions); software, access codes,
passwords, databases and source codes; inventions; processes,
formulas, designs, drawings or engineering information; hardware
configuration, and all other financial or other business
information or systems of the Corporation and the Related Entities,
as well as information regarding the employees of the Corporation
and the Related Entities.
(ii)
Third Party Information . Employee recognizes that the
Corporation and Related Entities have received and in the future
will receive information from third parties that the third party
considers to be confidential or proprietary information and which
is, or may b
|
