EXHIBIT (10) n.
AMENDMENT TO SETTLEMENT AGREEMENT
This Agreement is made as of May 6, 1998 between First Community Financial
Group ("FCFG"), First Community Bank ("Bank"), and Xxxxxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxxxx (collectively, "Xxxxxxx").
BACKGROUND
The parties entered into a Settlement Agreement in August, 1997, a copy of
which is attached as Exhibit A. Since entering into the Settlement Agreement,
disputes have arisen between the parties which they desire to resolve by
entering into this Amendment to the Settlement Agreement.
TERMS
The Settlement Agreement is hereby supplemented and amended as follows.
1. Concurrently with execution of this Amendment, Xxxxxxx shall execute a
Stock Purchase and Sale Agreement in the form attached as Exhibit B. The
Stock Purchase and Sale Agreement obligates Xxxxxxx to exercise the stock
options described in paragraph 5 of the Settlement Agreement and sell the
stock underlying the options to certain officers and directors of FCFG and
the Bank.
2. From and after the date of this Amendment, Xxxxxxx promises not to attend
any annual meeting of the Bank, either personally or by proxy, and promises
not to exercise any voting rights as to the shares of FCFG stock he
presently owns or which he will hereafter acquire upon exercise of his
stock options. Xxxxxxx also promises not to exercise any other rights he
may have as a shareholder of FCFG.
3. Xxxxxxx agrees that except to the extent that he must exercise the stock
options described above to perform the attached Stock Purchase and Sale
Agreement, he will not acquire record or beneficial ownership of any shares
of FCFG.
4. Xxxxxxx acknowledges that if he breaches paragraphs 13, 14, or 22 of the
Settlement Agreement, FCFG and Bank are likely to suffer significant injury
and damage which would be very difficult if not impossible to quantify.
FCFG and Bank acknowledge that if either of them breach paragraph 22 of the
Settlement Agreement, Xxxxxxx is also likely to suffer significant injury
and damage which would be very difficult if not impossible to quantify.
Consequently, from and after the date of this Amendment, if Xxxxxxx takes
any action which breaches paragraphs 13, 14, or 22 of the Settlement
Agreement or FCFG or Bank takes any action which breaches paragraph 22 of
the Settlement Agreement, the breaching party shall pay the non-breaching
party liquidated damages of $25,000 per occurrence within ten (10) days
after the breach is established.
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5. If one of the parties believes another has breached paragraphs 13, 14, or
22, such party shall notify the party alleged to have breached in writing
that a breach has occurred and describe the breach with specificity. If
the party alleged to have breached fails to pay the liquidated damages
amount within ten (10) days of receipt of this notice, the parties agree to
submit any such disputes to binding arbitration before a single arbitrator
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Either party may commence the arbitration. If
the parties are unable to agree upon an arbitrator, the arbitrator shall be
appointed by the American Arbitration Association. The parties agree that
the substantially prevailing party in arbitration shall be entitled to
recover its/their costs and reasonable attorneys' fees from the other
party(ies).
6. Bank and FCFG release Xxxxxxx, and Xxxxxxx releases Bank and FCFG from any
claims they have or may have against one another for breach of the
Settlement Agreement on or before the date of this Amendment, whether known
or unknown. By executing this Amendment, neither party admits or
acknowledges that it has breached the Settlement Agreement.
7. Each party shall pay one-half of the cost of the April 21, 1998 mediation
and bear its own attorney's fees and other costs.
8. Except as amended herein, the Settlement Agreement remains in full force
and effect, including but not limited to the confidentiality provisions
which shall apply to this Amendment. If FCFG determines that it must file
this Amended Settlement Agreement with the SEC, Xxxxxxx agrees that such
filing will not breach the Settlement Agreement and that FCFG need not
seek Confidential Treatment of this Amended Settlement Agreement from the
SEC.
FIRST COMMUNITY BANK
Date: May 11, 1998 By /s/ Xxx X. Xxxxxxx
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Its CEO
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FIRST COMMUNITY FINANCIAL GROUP
Date: May 11, 1998 By /s/ Xxx X. Xxxxxxx
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Its CEO
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Date: May 6, 1998 /s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
Date: May 6, 1998 /s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
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