WAIVER AGREEMENT
Exhibit
10.2
THIS WAIVER AGREEMENT,
hereinafter referred to as “Waiver” made and entered into on this 16th day of
December, 2010, to be effective January 1, 2011 by and between XXXX X. XXXXXX, hereinafter
referred to as “Employee,” and FIRST COMMUNITY BANCSHARES, INC.,
hereinafter referred to as “the Corporation” (both of whom together are
referred to herein as the “Parties”) to a specific clause of the “AMENDED AND RESTATED EMPLOYMENT
AGREEMENT”, hereinafter referred to as “Agreement”, originally entered
into by the Parties as of the 16th day of
December, 2008 and to a specific clause of the “FIRST COMMUNITY BANCSHARES, INC. and
AFFILIATES EXECUTIVE RETENTION PLAN”, hereinafter referred to as the
“SERP”, which became effective January 1, 2005.
WITNESSETH
WHEREAS, Section 2 of the
Agreement, entitled “Compensation and Benefits”, stipulates that a
portion of the annual adjustment to the Employee’s base salary is to be
comprised of “(i) an increase equivalent to the base salary times the annual
percentage increase in the Consumer Price Index for the preceding twelve months
…”; and
WHEREAS, the parities
acknowledge that despite such annual increase in the Consumer Price Index
(“CPI”) no adjustment to the Employee’s base salary has occurred;
and
WHEREAS, the SERP was designed
so that the Corporation could provide the Employee an annual retirement benefit
equal to a maximum of thirty-five percent (35%) of “Final Average Compensation”
(as defined in the SERP) with payments to commence after a separation from
service coupled with reaching “normal” or “early retirement” age and further “subject
to a maximum benefit of $80,000 per calendar year” as specifically set
forth in the last clause of “ARTICLE 4 – NORMAL RETIREMENT” under Paragraph 4.2
(a) (1) of the SERP; and
WHEREAS, the Employee has
requested that the Corporation consider waiving the maximum benefit provisions
in the SERP, which waiver would result in retaining the maximum benefit at
thirty-five percent (35%) of “Final Average Compensation”, but eliminating or
waiving the provision that would otherwise limit the maximum benefit to no more
than $80,000 per calendar year; and
WHEREAS, the Corporation has,
in turn, requested that the Employee waive any and all rights under the
Agreement to any increase in base salary based upon increases in the CPI whether
such increases in the CPI occurred previously or might occur prospectively;
NOW, THEREFORE, in
consideration of the mutual covenants herein set forth and for other good and
valuable consideration, the Parties do hereby agree as follows:
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1.
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The
Corporation does hereby agree to amend the SERP to eliminate the
limitation on the Employee’s annual retirement benefit to a maximum of
$80,000 per calendar year.
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2.
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The
Employee does hereby agree to and does hereby waive his contractual right
to that portion of any past, present or future adjustment to the
Employee’s base salary calculated upon an annual increase in the CPI and
further agrees that by signing below he and the Corporation are amending
his employment agreement to incorporate such
waiver.
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In
Witness whereof, the parties hereby acknowledge that each has carefully read
this Waiver Agreement and they do hereby agree to be bound by its terms and have
executed this Waiver Agreement as set forth hereinabove and that upon execution
of this document, the Parties shall have a conforming copy for their permanent
records.
This
Waiver Agreement is entered into on the date first above written with an
effective date of January 1, 2011, but for purposes of complying with Internal
Revenue Code Section 409A only the SERP is effective as of January 1,
2005.
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Corporation:
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Employee:
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First
Community Bancshares, Inc.
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Xxxx
X. Xxxxxx
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By:
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/s/ Xxxxxxx X. Xxxxxxxx, XX
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By:
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/s/ Xxxx X.
Xxxxxx
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