EXHIBIT 10.26
SEVERANCE AGREEMENT BETWEEN
XXXXXX X. XXXXXX AND
COMMUNITY BANCSHARES, INC AND COMMUNITY BANK
151
STATE OF ALABAMA
COUNTY OF XXXXXX
THIS AGREEMENT made and entered into on this the 9th day of January,
2002, by and between XXXXXX X. XXXXXX, XX., 000 XXXXXXXXX. XXXXX XXXXX, XX
00000, hereinafter known as and referred to as "party of the first part" and
COMMUNITY BANCSHARES, INC., A DELAWARE CORPORATION, AND COMMUNITY BANK, AN
ALABAMA BANKING CORPORATION, X.X. Xxx 0000, Xxxxxxxxxxxx, XX 00000, hereinafter
known and referred to as "parties of the second part":
WITNESSETH
WHEREAS, the party of the first part is presently serving as Vice
Chairman and Senior Executive Vice President and General Counsel and a member of
the Board of Directors of Community Bancshares, Inc., and as Senior Executive
Vice President and a member of the Board of Directors of Community Bank; and
WHEREAS, the party of the first part and the parties of the second part
desire to enter into an agreement providing for payment of severance
compensation and other severance benefits to the party of the first part by the
parties of the second part following the retirement of the party of the first
part as an officer, director and general counsel.
NOW, THEREFORE, in consideration of the retirement of the party of the
first part as an officer, director and general counsel of the parties of the
second part, the party of the first part and the parties of the second part
mutually agree to a severance package in favor of the party of the first part as
follows:
1. Community Bank, an Alabama banking corporation, will pay to
the party of the first part the sum of SIX HUNDRED THOUSAND
AND NO/100 DOLLARS ($600,000.00) in two equal annual
installments, the first annual installment of THREE HUNDRED
THOUSAND AND NO/100 DOLLARS ($300,000.00) being due and
payable on the eighth day after the execution of this
Agreement and a second and final annual installment of THREE
HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) on the 8th
day of January, 2003.
2. The party of the first part, having filed his election for
retirement benefits with the parties of the second part on the
26th day of December, 2001, the party of the first part shall
commence drawing his retirement benefits on the 1st day of
February, 2002 from both the Defined Benefit Plan and the
Benefit Restoration Plan of the parties of the second part.
3. The party of the first part shall be allowed to remain as a
participant on the Blue Cross-Blue Shield of Alabama health
insurance program of the parties of the second part until such
time as he can be covered under Medicare Plans A & B and
C-Plus by Blue Cross-Blue Shield of Alabama which is expected
to be on or about the 1st day of February, 2002.
Page 151
4. The party of the first part and the parties of the second part
will simultaneously with the execution of this Agreement enter
into a separate Stock Purchase Agreement.
5. The parties of the second part shall purchase the 2001
Cadillac Seville presently leased by the parties of the second
part for the use and benefit of the party of the first part,
and the parties of the second part shall deliver said
automobile and a certificate of title thereto to the party of
the first part free and clear of all liens, encumbrances and
outstanding ownership of rights.
6. The party of the first agrees that he shall be available for
consultations with respect to the business affairs of the
parties of the second part during the calendar years 2002 and
2003, and be available to render advice and provide assistance
on matters requested of him by senior management and the Board
of Directors of the parties of the second part in matters
affecting the parties of the second part. Without limiting the
generality of the foregoing, the party of the first part
agrees that he shall be available for consultation with
respect to the issuance of title insurance binders and
policies as well as the stock transfer function of the parties
of the second part.
7. The parties recognize that the indemnification provisions of
the Certificate of Incorporation and/or By-laws of Community
Bancshares, Inc. and the Articles of Incorporation and/or
By-laws of Community Bank (the "corporate documents") will
govern the right of the party of the first party to be
indemnified after the date of his retirement for acts and
omissions occurring prior to his retirement. In addition, the
parties of the second part acknowledge that the party of the
first part will be entitled to indemnification pursuant to
their respective corporate documents for actions taken or
omitted by the party of the first party in his capacity as a
consultant during the term of this Agreement.
8. The benefits, rights and privileges in favor of the party of
the first part under this Agreement shall survive the death of
the party of the first part in favor of the personnel
representative of the Estate of the party of the first part.
9. The benefits, rights and privileges in favor of the party of
the first part under this Agreement shall not be affected by
the sale of the parties of the second part or any agreement to
sell by the parties of the second part of any or all of its
business assets, including the sale or agreement to sell stock
ownerships possessed by the parties of the second part, or
either of them.
10. This Agreement and the contents thereof shall be presented to
and approved by the respective Boards of Directors of the
respective parties of the second part by appropriate corporate
resolutions.
11. In exchange for and in consideration of the promises,
covenants and agreements set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the party of the first part, on
behalf of himself and his heirs and personal representatives,
agrees to release and forever discharge the parties of the
second part and their respective officers, directors, agents
and employees from any and all suits, claims, charges, causes
of action, rights, demands, damages, costs, expenses or
attorneys' fees, which he now has or may hereafter have
against one or more of them on account of, connected with or
growing out of any aspect of his employment with the parties
of the second part or termination thereof, including, but not
limited to, any claims, rights or demands arising out of any
oral or written contractual relationship; any local, state or
federal regulation or law, including, but not limited to, (1)
the Civil Rights Act of 1991, (2) the Civil
Rights Act of 1964, (3) the Civil Rights Act of 1866, (4) the
Age Discrimination in Employment Act (ADEA), (5) the Equal Pay
Act, (6) the National Labor Relations Act, (7) the Fair Labor
Standards Act, (8) the Employee Retirement Income Security Act
(ERISA), (9) the Americans with Disabilities Act (ADA), (10)
the Workers Adjustment and Retraining Notification Act (WARN),
(11) the Consolidated Omnibus Budget Reconciliation Act
(COBRA), (12) the Veterans' Reemployment Rights Act, (13) the
Alabama Age Discrimination Act, (14) any Workers Compensation
claims, (15) the Family Medical Leave Act (FMLA), and (16) and
other federal or state statutory or common law theory of
liability or damages.
12. It is understood that this Agreement does not constitute an
admission by the parties of the second part of any violation
of any federal, state or local law, ordinance, administrative
regulation or case or common law theory of liability or
damage.
13. The party of the first part agrees that he will refrain from
publicly or privately engaging in any negative, harassing or
disparaging remarks or conduct toward the parties of the
second part or their directors, management or employees. Upon
proof of violation or breach of this Agreement, the parties of
the second part shall immediately seek repayment of any
compensation or monies paid to the party of the first part set
forth in this Agreement. Exercise of this right by the parties
of the second part shall in no way limit the right of the
parties of the second part to seek all legal and equitable
damages and/or remedies arising out of the party of the first
part's breach of any provision of this Agreement.
14. The party of the first part waives all claims or rights to
employment or re-employment with the parties of the second
part.
15. The terms and provisions of this Agreement and the enforcement
thereof shall be governed by the laws of the State of Alabama.
16. By his signature below, the party of the first part
acknowledges that he has carefully read and understands this
Agreement and has entered into it knowingly and voluntarily
intending to be bound by its terms. The party of the first
part further acknowledges that he has been given at least
forty-five (45) days to review and consider this Agreement and
has been advised to consult with his attorney before signing
it. The party of the first part understands that he may revoke
the acceptance of this Agreement within seven (7) days of such
acceptance (which acceptance is indicated by the his signature
below). If the party of the first part chooses to revoke such
acceptance, he understands he must do so in writing to Xxxxxx
Xxxxx, Vice President of Human Resources. The party of the
first part understands that this Agreement will not be
effective until the seven day revocation period has passed.
The party of the first part understands that his acceptance of
the consideration stated above and his execution of this
Agreement are intended to bar any and all disputes arising out
of his employment with the parties of the second part or the
termination of such employment.
IN WITNESS WHEREOF, Xxxxxx X. Xxxxxx, Xx. as party of the first part,
has hereunto set his hand and signature on the day, month and year first above
written, and Community Bancshares, Inc., a Delaware corporation, and Community
Bank, an Alabama banking corporation, as parties of the second part, acting by
and through their respective Chairmans of Board of Directors, has caused this
Agreement to be executed for and as the act of Community Bancshares, Inc. and
Community Bank on the day, month and year first above written.
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxx, Xx.
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WITNESS XXXXXX X. XXXXXX, XX. - PARTY OF THE
FIRST PART
COMMUNITY BANCSHARES, INC., A
DELAWARE CORPORATION - PARTY OF THE
SECOND PART
ATTEST: BY: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
--------------------------------------
CHAIRMAN OF ITS BOARD
OF DIRECTORS
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
BOARD SECRETARY
COMMUNITY BANK, AN ALABAMA
BANKING CORPORATION - PARTY OF THE SECOND
PART
ATTEST: BY: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
--------------------------------------
CHAIRMAN OF ITS BOARD OF
DIRECTORS
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
BOARD SECRETARY
