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Exhibit 10.4
FIRST COMMUNITY BANCSHARES, INC. AND AFFILIATES
EXECUTIVE RETENTION PLAN
AND AGREEMENT
THIS PLAN AND AGREEMENT is made and entered into this ______day of
____________, ______, by and between First Community Bancshares, Inc., a
corporation, organized and existing under the laws of the State of Nevada,
(hereinafter, collectively with its affiliates, referred to as the "Company"),
and ______________________________, an Executive of the Company (hereinafter
referred to as the "Executive").
WHEREAS, the Executive has faithfully served the Company and it is the
consensus of the Board of Directors (hereinafter referred to as the "Board"),
that the Executive's services have been of exceptional merit, in excess of the
compensation paid and an invaluable contribution to the profits and position of
the Company in its field of activity. The Board further believes that the
Executive's experience, knowledge of corporate affairs, reputation and industry
contacts are of such value, and the Executive's continued services so essential
to the Company's future growth and profits, that it would suffer severe
financial loss should the Executive terminate his service with the Company.
WHEREAS, the Board has adopted this First Community Bancshares, Inc..
Executive Retention Plan and Agreement (hereinafter referred to as the
"Retention Plan and Agreement") and it is the desire of the Company and
Executive to enter into this plan and agreement by which the Company will agree
to make certain payments to the Executive upon the Executive's retirement or
disability and to the Executive's beneficiary(ies) in the event of the
Executive's death.
WHEREAS, it is the intent of the parties hereto that this Retention
Plan and Agreement be considered an unfunded arrangement maintained primarily to
provide supplemental retirement benefits for the Executive, and to be considered
a non-qualified benefit plan for purposes of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The Executive is fully advised of
the Company's financial status and has had substantial input in the design and
operation of this benefit plan.
NOW THEREFORE, in consideration of services the Executive has performed
in the past and those to be performed in the future, and based upon the mutual
promises and covenants herein contained, the Company and the Executive agree as
follows:
I. DEFINITIONS
A. Effective Date:
The Effective Date of the Plan shall be ____________________.
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B. Plan Year:
Any reference to the "Plan Year" shall mean a calendar year
from January 1st to December 31st.
C. Retirement Date:
Retirement Date shall mean retirement from service with the
Company which becomes effective on the first day of the
calendar month following the month in which the Executive
reaches age sixty two (62) or such later date as the Executive
may actually retire.
D. Termination of Service:
Termination of Service shall mean the Executive's voluntary
resignation or the Company's discharge of the Executive, in
either case, prior to Normal Retirement Age, death or
disability.
E. Pre-Retirement Account:
A Pre-Retirement Account shall be established as a liability
reserve account on the books of the Company for the benefit of
the Executive. Prior to the Executive's Termination of Service
or the Executive's Retirement, whichever event shall first
occur, or Prior to the Executive's Retirement Date, such
liability reserve account shall be increased or decreased each
Plan Year, until the aforestated event occurs, by the Index
Retirement Benefit. For further reference on the definition(s)
as set forth herein, please see Exhibit "A" attached hereto.
Said Exhibit "A" is referred to herein for illustrative
purposes only. The Company does not promise any amounts as set
forth in Exhibit "A".
F. Index Retirement Benefit:
The Index Retirement Benefit for each Executive in the
Retention Plan for each Plan Year shall be equal to the excess
(if any) of the Index for that Plan Year over the Cost of
Funds Expense for that Plan Year. For further reference on the
definition(s) as set forth herein, please see Exhibit "A"
attached hereto. Said Exhibit "A" is referred to herein for
illustrative purposes only. The Company does not promise any
amounts as set forth in Exhibit "A".
G. Index:
The Index for any Plan Year shall be the aggregate annual
after-tax income from the life insurance contract(s) described
hereinafter as defined by FASB Technical Bulletin 85-4. This
Index shall be applied as if such
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insurance contract(s) were purchased on the Effective Date of
the Executive Plan.
Insurance Company:
Policy Form:
Policy Name:
Insured's Age and Sex:
Riders:
Ratings:
Option:
Face Amount:
Premiums Paid:
Number of Premium Payments:
Purchase Date:
If such contracts of life insurance are not purchased or are
subsequently surrendered or lapsed, then the Bank shall
receive annual policy illustrations that assume the
above-described policies were purchased or had not
subsequently been surrendered or lapsed, which illustration
will be received from the respective insurance companies and
will indicate the increase in policy values for purposes of
calculating the amount of the Index.
In either case, references to the life insurance contracts are
merely for purposes of calculating a benefit. The Bank has no
obligation to purchase such life insurance and, if purchased,
the Executives and their beneficiary(ies) shall have no
ownership interest in such policy and shall never have a
greater interest in the benefits under this Retention Plan and
Agreement than that of an unsecured creditor of the Bank.
H. Opportunity Cost:
The Opportunity Cost for any Plan Year shall be calculated by
taking the sum of the amount of premiums for the life
insurance policies described in the definition of "Index" plus
the amount of any after-tax benefits paid to any Executive
pursuant to the Retention Plan and Agreement (Paragraph II
hereinafter) plus the amount of all previous years after-tax
Opportunity Costs, and multiplying that sum by the Average
Opportunity Cost. For further reference on the definition(s)
as set forth herein, please see Exhibit "A" attached hereto.
Said Exhibit "A" is referred to herein for illustrative
purposes only. The Company does not promise any amounts as set
forth in Exhibit "A".
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I. Change of Control:
For purposes of this Retention Plan and Agreement, change of
control shall mean the purchase or other acquisition by any
person, entity or group of persons, within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934 (the
"Act"), or any comparable successor provision, of beneficial
ownership within the meaning of Rule 13(d)(3) promulgated
under the Act, within any twelve month period, of 30 percent
or more of the outstanding shares of common stock of First
Community Bancshares, Inc. (the "Holding Company"); or the
approval by the stockholders of the Holding Company of a
reorganization, merger, consolidation, share exchange or
similar transaction pursuant to which persons who were
stockholders of the Holding Company immediately prior to the
effective date of such transaction do not, immediately after
such date, own more than 60 percent of the combined voting
power entitled to vote generally in the election of directors
of the surviving or successor corporation; or a liquidation or
dissolution of the Holding Company; or the sale of all or
substantially all of its assets.
J. Normal Retirement Age:
Normal Retirement Age shall mean the date on which the
Executive attains age sixty-two (62).
K. Average Opportunity Cost:
Average Opportunity Cost is the average annual after tax cost
of interest-bearing deposit liabilities computed on a calendar
year basis.
L. For Cause:
The term for "cause" shall mean the commission of acts or
omissions by the executive which constitute fraud, dishonesty,
excessive absenteeism without approval of the employer
(provided such absenteeism is not caused by disability), a
criminal act involving the person or property of others or the
public generally, gross neglect of duty resulting in
substantial loss to the employer or any affiliate, or willful
failure to carry out reasonable and legal duties and
responsibilities consistent with his duties. If a dispute
arises as to discharge for "cause", such dispute shall be
resolved by arbitration as set forth in this Retention Plan
and Agreement.
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II. INDEX BENEFITS
A. Retirement Benefits:
An Executive who remains employed by the Company until the
Normal Retirement Age shall be entitled to receive the balance
in the Pre-Retirement Account in one hundred twenty (120)
equal monthly installments commencing thirty (30) days
following the Executive's retirement. In addition to these
payments and commencing in conjunction therewith, the Index
Retirement Benefit, if any, for each Plan Year subsequent to
the Executive's retirement, and including the remaining
portion of the Plan Year following said retirement, shall be
paid to the Executive until the Executive's death.
B. Termination of Employment:
No benefits will be paid to the Executive or his
beneficiary(ies) in the event of termination of employment for
any reason other than the retirement, disability or death of
the Executive or pursuant to Article IV, hereinafter.
C. Death:
Should the Executive die prior to having received the balance
of the Pre-Retirement Account payable to the Executive under
the terms of this Retention Plan, the unpaid balance shall be
paid in a lump sum to the individual or individuals the
Executive may have designated in writing and filed with the
Company. In the absence of any effective designation of
beneficiary(ies), the unpaid balance shall be paid as set
forth herein to the duly qualified executor or administrator
of the Executive's estate. Said payment due hereunder shall be
made the first day of the second month following the death of
the Executive.
D. Death Benefits:
Except as set forth above, there is no death benefit provided
under this Agreement.
III. RESTRICTION UPON FUNDING
The Company shall have no obligation to set aside, earmark or entrust
any fund or money with which to pay its obligations under this
Retention Plan and Agreement. The Executive, his/her beneficiary(ies),
or any successor in interest shall be and remain simply a general
creditor of the Company in the same manner as any other creditor having
a general claim for matured and unpaid compensation.
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The Company reserves the absolute right, at its sole discretion, to
either fund the obligations undertaken by this Retention Plan and
Agreement or to refrain from funding the same and to determine the
extent, nature and method of such funding. Should the Company elect to
fund this Retention Plan, in whole or in part, at no time shall any
Executive be deemed to have any lien nor right, title or interest in or
to any specific funding investment or to any assets of the Company.
If the Company elects to invest in a life insurance, disability or
annuity policy upon the life of the Executive, then the Executive shall
assist the Company by freely submitting to a physical exam and
supplying such additional information necessary to obtain such
insurance or annuities.
IV. TERMINATION OF SERVICE AFTER A CHANGE OF CONTROL
If the Executive suffers a Termination of Service, other than for
cause, during the twelve months prior to a Change in Control, or at
anytime thereafter, (unless the Executive voluntarily terminates his
employment within 90 days following the effective date of the change in
control), then the Executive shall receive all benefits provided for in
this Retention Plan and Agreement upon death (if applicable),
disability or attaining Normal Retirement Age, as if the Executive had
been continuously employed by the Company until such event.
V. COMPETITION AFTER TERMINATION OF SERVICE
No benefits shall be payable if, at anytime within three (3) years
following the Executive's Termination of Service or Retirement, the
Executive, without the prior written consent of the Company, engages
in, becomes interested in, directly or indirectly, as a sole
proprietor, as a partner in a partnership, or as a substantial
shareholder in a corporation, or becomes associated with, in the
capacity of employee, director, officer, principal, agent, trustee or
in any other capacity whatsoever, any enterprise conducted in the
trading area (within a 50 mile radius from the Company's main office
and 25 miles from any branch office) of the business of the Company,
which enterprise is, or may be deemed to be, competitive with any
business carried on by the Company as of the date of the Executive's
Termination of Employment or retirement.
VI. SOLICITATION AFTER TERMINATION OF EMPLOYMENT
No benefits shall be payable if, at anytime within five (5) years
following the Executive's Termination of Service or Retirement, the
Executive, without prior written consent of the Company, solicits any
employee of the Company for the purpose of hiring such employee away
from the Company. Likewise, no benefits shall be payable if, during
such five year period, the Executive, without the prior written consent
of the Company, solicits any entity or person that was a customer of
the Company within twelve months prior to such termination for the
purpose of obtaining such customer's business relationship.
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VII. MISCELLANEOUS
A. Alienability and Assignment Prohibition:
Neither the Executive, nor the Executive's surviving spouse,
nor any other beneficiary(ies) under this Retention Plan shall
have any power or right to transfer, assign, anticipate,
hypothecate, mortgage, commute, modify or otherwise encumber
in advance any of the benefits payable hereunder nor shall any
of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owed by the
Executive or the Executive's beneficiary(ies), nor be
transferable by operation of law in the event of bankruptcy,
insolvency or otherwise. In the event the Executive or any
beneficiary attempts assignment, commutation, hypothecation,
transfer or disposal of the benefits hereunder, the Company's
liabilities hereunder shall forthwith cease and terminate.
B. Binding Obligation of the Bank and any Successor in Interest:
The Company shall not merge or consolidate into or with
another bank or holding company or sell substantially all of
its assets to another bank, firm or person until such bank,
firm or person expressly agrees, in writing, to assume and
discharge the duties and obligations of the Company under this
Retention Plan. This Retention Plan shall be binding upon the
parties hereto, their successors, beneficiaries, heirs and
personal representatives.
C. Amendment or Revocation:
It is agreed by and between the parties hereto that, during
the lifetime of the Executive, this Retention Plan may be
amended or revoked at any time or times, in whole or in part,
by the mutual written consent of the Executive and the
Company.
D. Gender:
Whenever in this Retention Plan and Agreement words are used
in the masculine or feminine gender, they shall be read and
construed as in the masculine or feminine gender, whenever
they should so apply.
E. Effect on Other Bank Benefit Plans:
Nothing contained in this Retention Plan and Agreement shall
affect the right of the Executive to participate in or be
covered by any qualified or non-qualified pension,
profit-sharing, group, bonus or other supplemental
compensation or fringe benefit plan constituting a part of the
Company's existing or future compensation structure.
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F. Headings:
Headings and subheadings in this Retention Plan and Agreement
are inserted for reference and convenience only and shall not
be deemed a part of this Retention Plan and Agreement.
G. Applicable Law:
The validity and interpretation of this Retention Plan and
Agreement shall be governed by the laws of the Commonwealth of
Virginia.
H. 12 U.S.C. Section 1828(k):
Any payments made to the Executive pursuant to this Retention
Plan and Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. Section
1828(k) or any regulations promulgated thereunder.
I. Partial Invalidity:
If any term, provision, covenant, or condition of this
Retention Plan and Agreement is determined by an arbitrator or
a court, as the case may be, to be invalid, void, or
unenforceable, such determination shall not render any other
term, provision, covenant, or condition invalid, void, or
unenforceable, and the Retention Plan and Agreement shall
remain in full force and effect notwithstanding such partial
invalidity.
J. Employment:
No provision of this Retention Plan and Agreement shall be
deemed to restrict or limit any existing employment agreement
by and between the Company and the Executive, nor shall any
conditions herein create specific employment rights to the
Executive nor limit the right of the Employer to discharge the
Executive with or without cause. In a similar fashion, no
provision shall limit the Executive's rights to voluntarily
sever the Executive's employment at any time.
K. Exhibit A:
For further reference on the definition(s) as set forth
herein, please see Exhibit "A" attached hereto. Said Exhibit
"A" is referred to herein for illustrative purposes only. The
Company does not promise any amounts as set forth in Exhibit
"A".
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VIII. ERISA PROVISION
A. Named Fiduciary and Plan Administrator:
The "Named Fiduciary and Plan Administrator" of this Retention
Plan and Agreement shall be First Community Bank, N.A., until
its resignation or removal by the Board. As Named Fiduciary
and Plan Administrator, the Bank shall be responsible for the
management, control and administration of the Retention Plan
and Agreement. The Named Fiduciary may delegate to others
certain aspects of the management and operation
responsibilities of the Retention Plan and Agreement including
the employment of advisors and the delegation of ministerial
duties to qualified individuals.
B. Claims Procedure and Arbitration:
In the event a dispute arises over benefits under this
Retention Plan and Agreement and benefits are not paid to the
Executive (or to the Executive's beneficiary(ies) in the case
of the Executive's death) and such claimants feel they are
entitled to receive such benefits, then a written claim must
be made to the Named Fiduciary and Plan Administrator named
above within sixty (60) days from the date payments are
refused. The Named Fiduciary and Plan Administrator shall
review the written claim and if the claim is denied, in whole
or in part, they shall provide in writing within sixty (60)
days of receipt of such claim its specific reasons for such
denial, reference to the provisions of this Retention Plan and
Agreement upon which the denial is based and any additional
material or information necessary to perfect the claim. Such
written notice shall further indicate the additional steps to
be taken by claimants if a further review of the claim denial
is desired. A claim shall be deemed denied if the Named
Fiduciary and Plan Administrator fail to take any action
within the aforesaid sixty-day period.
If claimants dispute the benefit denial based upon completed
performance of this Retention Plan and Agreement or the
meaning and effect of the terms and conditions thereof, then
claimants may submit the dispute to an Arbitrator for final
arbitration. The Arbitrator shall be selected by mutual
agreement of the Company and the claimants. The Arbitrator
shall operate under any generally recognized set of
arbitration rules. The parties hereto agree that they and
their heirs, personal representatives, successors and assigns
shall be bound by the decision of such Arbitrator with respect
to any controversy properly submitted to it for determination.
Where a dispute arises as to the Company's discharge of the
Executive for "Cause", such dispute shall likewise be
submitted to arbitration as above-described; and the parties
hereto agree to be bound by the decision thereunder.
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IN WITNESS WHEREOF, the parties hereto acknowledge that each has
carefully read this Retention Plan and Agreement and executed the original
thereof on the ______ day of _________, ______, and that, upon execution, each
has received a conforming copy.
FIRST COMMUNITY BANCSHARES, INC.
BLUEFIELD, VIRGINIA
BY:____________________________________
CHAIRMAN OF THE BOARD OF DIRECTORS
BY:____________________________________
EXECUTIVE
____________________________________
WITNESS
____________________________________
WITNESS
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BENEFICIARY DESIGNATION FORM
FOR THE EXECUTIVE
RETENTION PLAN AND AGREEMENT
PRIMARY DESIGNATION:
NAME ADDRESS RELATIONSHIP
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SECONDARY (CONTINGENT) DESIGNATION:
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All sums payable under the Executive Retention Plan and Agreement, by reason of
my death, shall be paid to the Primary Beneficiary, if he, she or they survive
me, and if no Primary Beneficiary shall survive me, then to the Secondary
(Contingent) Beneficiary.
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SIGNATURE OF PARTICIPANT DATE
