Exhibit 10.o
SEVERANCE AND NONCOMPETITION AGREEMENT
This AGREEMENT is made and entered into as of December 29,
1995, by and between FIRST BANCORP, a North Carolina corporation
(the "Company"), and XXXXXXX X. XXXXXX ("Xxxxxx").
STATEMENT OF PURPOSE
Meisky has been employed by the Company as Regional President
for the High Point Region pursuant to an Employment and
Noncompetition Agreement dated August 26, 1994 between Meisky and
the Company (the "Employment Agreement"). Meisky is terminating
his employment with the Company as of December 29, 1995 and
agreeing not to compete with the Company for the term described
herein. In consideration for his service to the Company and its
subsidiaries (references herein to the "Company" shall be deemed to
refer to the Company and its subsidiaries, unless the context
requires otherwise), as well as for the additional and further
agreements hereunder, the Company has agreed to provide to Meisky
a severance package according to the terms set forth below. The
Employment Agreement is terminated as of the date hereof.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable
consideration, the Company and Meisky hereby agree as follows:
1. Date of Termination. Meisky's employment with the
Company and its subsidiaries is hereby terminated as of December
29, 1995, (the "Termination Date") and Meisky hereby tenders his
resignation from any positions he now has with the Company and its
subsidiaries, including as an officer, director or member of any
advisory boards or committees, all such resignations to be
effective as of the Termination Date.
2. Regular Severance Payment. The Company will pay to
Meisky his regular salary at the current rate (and will reimburse
him for customary and reasonable expenses incurred on behalf of the
Company or its subsidiaries, all in accordance with the Company's
policies) through the Termination Date. All payments under this
paragraph will be subject to applicable deductions and withholding
under federal and state law.
3. Accrued Vacation Pay. Meisky acknowledges that he is not
entitled to any vacation pay as of the date hereof. Meisky shall
not be eligible to accrue additional vacation days after the
Termination Date.
4. Additional Severance Payment. In addition to the amounts
set forth in paragraphs 2 and 3 above, but subject to paragraph 18
hereof and to Meisky's full compliance with the terms of this
Agreement including the conditions set forth below, the Company
shall pay to Meisky (a) a lump sum payment in the amount of
$125,000 payable not later than January 2, 1996, and (b) periodic
payments at a rate equal to $130,000 per year from the Termination
Date until August 26, 1999, payable at such times and in accord
with the regular payroll practices of the Company for its salaried
executive employees. All amounts paid under this paragraph 4 shall
be subject to and reduced by any applicable federal and state
withholding taxes.
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5. Life Insurance Policies. The Company will relinquish its
right to be reimbursed for premiums paid under the Split Dollar
Agreement involving life insurance on Meisky's life, and ownership
of the life insurance policy covered by the Split Dollar Agreement
and all obligations relating thereto, including future payment of
premiums, will be transferred to Meisky. In addition, ownership of
the life insurance policy on the life of Meisky in the principal
face amount of $300,000, acquired by the Company in the merger
between First Bank and Central State Bank, including the cash value
thereof, will be transferred to Meisky, along with all obligations
relating thereto, including the future payment of premiums. These
transfers and payments will be accomplished within sixty (60) days
of the date hereof.
6. Benefit Plans and Fringe Benefits. Except as provided
below, as of the Termination Date provided in paragraph 1 herein,
Meisky shall not have the right to participate in or receive any
benefit under any employee benefit plan of the Company or any of
its subsidiaries, any fringe benefit plan of the Company, or any
other plan, policy or arrangement of the Company providing benefits
or perquisites to employees of the Company generally or
individually; provided, however, that Meisky shall be entitled (i)
to exercise his right to continued coverage under the Company's
medical benefit plan as provided by COBRA (and with respect to
which the Company will provide Meisky with a separate notice as
required by COBRA); and (ii) to elect the payment of benefits to
which he is entitled under any employee pension benefit plan of the
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Company as provided under the terms of any such plan. (In
accordance with this paragraph 6(ii), Meisky elects to receive all
retirement funds derived from the Central State Bank pension fund
which was acquired by the Company by previous merger. The Company
agrees to pay said retirement funds to Meisky as reasonably as
practicable in a manner reasonably acceptable to Meisky's tax
advisory.) Provided, further, but subject to paragraph 18 hereof,
if Meisky elects continued medical insurance coverage pursuant to
the terms of COBRA, the Company will pay COBRA premiums on behalf
of Meisky until the earlier of (i) Meisky obtaining other
employment pursuant to which Meisky is eligible for medical
insurance coverage, (ii) Meisky obtaining other medical insurance
or (iii) the date ninety (90) days after the Termination Date. The
payments of the COBRA amounts described in this paragraph by the
Company are conditional upon Meisky's compliance with all
conditions to receipt of severance payments specified in paragraph
4 above.
7. Stock Appreciation Rights. On the Termination Date, the
Company will grant to Meisky stock appreciation rights equivalent
to 2,000 shares of the Company's common stock, subject to the terms
described and in the form of the Memorandum attached hereto as
Exhibit B. Notwithstanding anything to the contrary herein or in
Exhibit B, the maximum compensation to be paid to Meisky for such
stock appreciation rights will be $40,000. All rights to receive
stock appreciation rights under the Employment Agreement are hereby
terminated.
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8. Noncompetition. From the Termination Date until August
26, 1999, Meisky agrees as follows:
(i) Except as otherwise provided in this paragraph 8,
Meisky shall not, directly or indirectly, promote, be employed by,
participate or engage in any activity or business which is in
competition with the business of the Company, or any of its
subsidiaries and affiliated companies, including acting, either
singly or jointly or as agent for, or as an employee of, any person
or persons, firm or corporation which directly or indirectly (as a
director, shareholder or investor, partner, lessor, lessee,
proprietor, principal agent, independent contractor,
representative, consultant or otherwise), within the counties in
which the Company, its subsidiaries or affiliates have offices or
are located and doing business on the date hereof. Ownership by
Executive of 5% or less of the outstanding capital stock of any
corporation which is actively publicly traded will not be a
violation of this covenant;
(ii) Meisky covenants that he will not employ or assist
others by active solicitation to recruit and employ employees of
the Company or any of the Company's subsidiaries or affiliate
companies without the written consent of the Company; and
(iii) Except as otherwise provided in this paragraph 8,
Meisky agrees that he will not, directly or indirectly, on behalf
of himself or any third party, make any sales contacts with, or
actively solicit business from any customer of the Company or its
subsidiaries or affiliate companies, for any products or services
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competitive with those offered by the Company or its subsidiaries
or affiliated companies within counties in which the Company, its
subsidiaries or affiliates have offices or are located and doing
business on the date hereof.
Provided, however, that it shall not constitute a violation of
this paragraph 8 for Meisky to perform services for a purchaser of
or successor to the business of First Bank Insurance Services, Inc.
in the operation of an insurance agency only. It is further
understood that the Company and Meisky may in good faith enter into
such future agreement as may be mutually acceptable to them
providing for the brokerage of loans by Meisky under which Meisky
would be compensated by the Company for services rendered to the
Company, and Meisky's performance under such an agreement would not
constitute a breach of the covenants contained in this paragraph 8.
The Company's obligations under paragraphs 4 through 7 hereof
are expressly conditioned upon Meisky's strict compliance with the
provisions of this paragraph 8.
9. Disclosure of Confidential Information. Meisky
acknowledges that, during the course of his employment with the
Company, he has been afforded access to extensive confidential and
proprietary information of the Company. For purposes of this
paragraph, "confidential and proprietary information" shall mean
information not generally known or available to the public that was
created by, disclosed or made available to Meisky in the course of
his employment by the Company.
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Meisky covenants and agrees that from and after the date
hereof, for a period of five (5) years, he will not disclose any
confidential and proprietary information to any person, firm,
corporation, association or other entity for any reason or purpose
or for the benefit of any person, firm, corporation or other
entity, without the Company's prior written consent. Meisky
acknowledges that a violation of this covenant is a material breach
of this Agreement.
10. Return of Company Property. Meisky agrees to return
immediately to the Company keys, identification cards and security
pass cards, as well as all originals and copies of all documents,
software or any other materials or property relating to his
employment or obtained or created in the course of his employment.
Meisky further represents, as a material inducement for the Company
to enter into this Agreement, that he has not retained in his
possession any such software, documents or other materials in
machine or human readable form, including on any disc, tape or
hard-drive of any computer owned or possessed by Meisky. It is
agreed, however, that the Company will transfer to Meisky the
office furniture (desk, chairs, tables, lamps, accessories and
framed pictures) being used by Meisky in his High Point office.
11. Public Statements and Reference. Meisky agrees not to
make any public statements, written or oral, regarding his
departure from the Company's employment except as may be approved
by the Company in advance, and further agrees not to take any
action that would or might disrupt, impair or affect adversely the
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Company, or its employees, officers or directors, or place the
Company or such individuals in any negative light.
12. Non-Disparagement. Meisky agrees that he shall not in
any way, directly or indirectly, in public, in private, to any
employee of the Company or to any other person, criticize or
disparage the performance, competency or ability of the Company,
its subsidiaries or affiliated companies, or the officers,
directors, employees or agents of any of them at any time after the
execution of this Agreement. Meisky acknowledges that a breach of
this covenant will release the Company from its obligations under
paragraphs 4 through 7 hereof. In the event an allegation arises
concerning a breach of Meisky's covenant as set forth in paragraph
12, the allegations concerning said breach shall be investigated by
a committee composed of the Company's President (Xxxxx X. Xxxxxx),
Executive Vice President (Xxxx Xxxxxxx), Chairman of the Board
(Xxxx Xxxxxx) and director Xxxxxx Xxxxxxxx, and said committee
shall determine whether the alleged breach is material before the
Company is released from its obligations under paragraphs 4 through
7 hereof. The Company agrees that it will respond to all inquiries
regarding employment of Meisky in a positive manner consistent with
his performance record at the Company since his date of hire.
13. Remedies. Meisky hereby acknowledges that the remedies
at law for any breach of the covenants and obligations contained in
this Agreement will be inadequate and that, in the event of a
breach or a threatened breach of any of the provisions of this
Agreement, the Company shall be entitled to preliminary restraining
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orders, injunctions or such equitable remedies as may be
appropriate, in addition to all other remedies available to the
Company. In addition, Meisky agrees that a breach by him of any of
the covenants and agreements contained herein shall be deemed a
breach of all such covenants and agreements and shall entitle the
Company, among other things, to cease payments under paragraph 4
hereof and take such steps as may be necessary to recover payments
previously made to Meisky under paragraph 4 hereof.
14. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of North
Carolina.
15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company, its successors and assigns and
Meisky and his heirs and legal representatives. This Agreement and
the rights hereunder may not be assigned by Meisky.
16. Severability. If, for any reason, any provision of this
Agreement is held invalid, such invalidity shall not affect any
other provision of this Agreement not held so invalid, and each
such other provision shall to the full extent consistent with law
continue in full force and effect. If any provision of this
Agreement shall be held invalid in part, such invalidity shall in
no way affect the rest of such provision not held so invalid and
the rest of such provision, together with all other provisions of
this Agreement, shall to the full extent consistent with law
continue in full force and effect. Provided, that if Meisky's
execution of the Release and Waiver attached hereto as Exhibit A
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is, for any reason, declared null and void, Meisky shall reimburse,
indemnify and hold harmless the Company for any and all payments
made to him or for his benefit under the provisions of paragraphs 4
through 7 of this Agreement.
17. Voluntary Agreement. Meisky hereby represents that he
has carefully read and completely understands the provisions of
this Agreement and that he has entered into this Agreement
voluntarily.
18. Further Conditions. The obligations of the Company set
forth in paragraphs 4 through 7 hereof are conditional upon
Meisky's execution no later than January 19, 1996 of a Release and
Waiver in the form attached hereto as Exhibit A, as well as his
failure to revoke the same following the expiration of seven days
following such execution. In the event that Meisky fails to
execute such Release and Waiver within such time or revokes the
execution thereof within seven days following such execution
thereof, the Company's obligations under paragraphs 4 through 7
shall terminate, and Meisky shall be obligated to repay all
payments made by the Company to Meisky under paragraphs 4 through
7
19. Litigation Assistance. Meisky agrees to cooperate with
and provide assistance to the Company and its legal counsel in
connection with any litigation (including arbitration or
administrative hearings) or investigation affecting the Company, in
which -- in the reasonable judgment of the Company's counsel --
Meisky's assistance or cooperation is needed. Meisky shall, when
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requested by the Company, provide testimony or other assistance and
shall travel at the Company's request in order to fulfill this
obligation. Provided, however, that, in connection with such
litigation or investigation, the Company shall attempt to
accommodate Meisky's schedule, shall provide him with reasonable
notice in advance of the times in which his cooperation or
assistance is needed, and shall reimburse Meisky for any reasonable
expenses incurred in connection with such matters, as well as for
any actual lost wages suffered (minimum $300 per day) as a result
from absence from employment.
20. Admissions. Meisky acknowledges that the payment by the
Company of the severance benefits described herein is made in good
faith and shall never for any purpose be considered an admission of
liability on the part of the Company, by whom liability is
expressly denied, and no past or present wrongdoing on the part of
the Company shall be implied by such payment.
21. Entire Agreement. This Agreement contains the entire
agreement between the Company and Meisky and supersedes all prior
agreements relating to the subject matter hereof (including the
Employment Agreement), and may be changed only by a writing signed
by the parties hereto. Any and all prior representations,
statements and discussions regarding the subject matter of this
Agreement have been merged into and/or replaced by the terms of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or caused this Agreement to be duly executed by their
authorized representatives, under seal and with the intent that
this Agreement shall constitute a sealed instrument, as of the
day and year first above written.
FIRST BANCORP
ATTEST: [Corporate Seal] By: /s/ Xxxxx X. Xxxxxx
[ of ] ------------------------
[First Bancorp ] Xxxxx X. Xxxxxx, President
By: Xxxx X. Xxxxxxx
----------------------
_________ Secretary
WITNESS: /s/ Xxxxxxx X. Xxxxxx (SEAL)
---------------------------
By: Xxxxx Xxxxxxx Xxxxxxx X. Xxxxxx
----------------------
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Exhibit A
RELEASE AND WAIVER OF CLAIMS
NOTE: THIS RELEASE AND WAIVER NEED NOT BE EXECUTED BY MEISKY
UNTIL JANUARY 19, 1996, BUT MUST BE EXECUTED BY THE CLOSE OF
BUSINESS THAT DAY TO ACTIVATE THE OBLIGATIONS OF THE COMPANY SET
FORTH IN PARAGRAPHS 4 THROUGH 7 OF THE SEVERANCE AND NONCOMPETITION
AGREEMENT DATED DECEMBER 29, 1995 (the "SEVERANCE AGREEMENT").
As consideration for the payments specified in the Severance
Agreement, Xxxxxxx X. Xxxxxx ("Xxxxxx") for himself, his heirs,
executors, administrators and assigns, releases and forever
discharges First Bancorp ("the Company"), its predecessors,
successors, affiliates and subsidiaries (including without
limitation First Bank) and their agents, officers, employees,
directors and attorneys, from and waives any and all rights with
respect to all manner of claims, actions, causes of action, suits,
judgments, rights, demands, debts, damages, or accountings of
whatever nature, legal, equitable or administrative, whether the
same are now known or unknown, which he ever had, now has or may
claim to have, upon or by reason of the occurrence of any matter,
cause or thing whatsoever up to the date of this Agreement,
including without limitation: (i) any claim whatsoever (whether
under federal or state statutory or common law) arising from or
relating to his employment or changes in his employment
relationship with the Company, including his separation,
termination or resignation therefrom, (ii) all claims and rights
for additional compensation or benefits of whatever nature,
including vacation, bonus, sick leave, severance, stock options,
deferred compensation, health or medical benefits, group life
insurance, disability or other benefits, except as may be provided
for in the Severance Agreement; and (iii) all claims and rights
whatsoever under any employment agreement with the Company.
THIS RELEASE AND WAIVER SPECIFICALLY INCLUDES, BUT IS NOT
LIMITED TO, MEISKY'S WAIVER AND RELEASE OF EMPLOYMENT
DISCRIMINATION RIGHTS AND CLAIMS ARISING UNDER THE FEDERAL AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED. It also
includes any claim for breach of contract, implied or express,
impairment of economic opportunity, intentional or negligent
infliction of emotional distress, wage or benefit claim, prima
facie tort, defamation, libel, slander, negligent termination,
wrongful discharge, or any other tort, whether intentional or
negligent, or any claim or cause of action known or unknown under
Title VII of the Civil Rights Act of 1964, the Civil Rights Acts of
1866, 1871, or 1991, the Employee Retirement Income Security Act,
the Americans With Disabilities Act of 1993, all as amended, or any
other federal, state, county or municipal statute or ordinance
relating to any condition of employment or employment
discrimination. In the event that any government or government
agency files or processes a charge or action on behalf of Meisky
against the Company, Meisky hereby waives any and all right that he
may have to recover in any proceeding arising therefrom. Provided,
however, this Release shall not (i) include any claims relating to
the obligations created by the Severance Agreement, (ii) operate to
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release Meisky's ownership of any common stock of the Company or
Meisky's rights to exercise any matured or vested stock options
pursuant to the terms thereof, (iii) affect Meisky's vested and
accrued rights as a participant in the Company's pension plans,
(iv) affect any rights or claims that may arise out of events
occurring after the date this Release and Waiver is signed, (v)
release the Company from, nor waive Meisky's rights with respect
to, the Company's obligation, if any, to defend and indemnify him
in accordance with the provisions of the Company's bylaws or (vi)
prevent Meisky from obtaining reimbursement of business expenses
incurred prior to the date of the Severance Agreement which are
otherwise subject to reimbursement pursuant to the terms of the
Company's policies.
CERTIFICATE
X. Xxxxxx agrees and certifies that he has read this Release
and Waiver and that he fully understands its provisions.
X. Xxxxxx agrees and certifies that he voluntarily enters
into this Release and Waiver, which is a legal and binding
contract, and that he has agreed to terminate his employment with
the Company voluntarily.
X. Xxxxxx acknowledges that his waiver of rights and claims
under this Release and Waiver includes a waiver of rights and
claims under the Federal Age Discrimination in Employment Act of
1967, as amended, and that such waiver and the waiver and release
of all other rights and claims contemplated by this Release and
Waiver are made knowingly and voluntarily.
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D. This Release and Waiver must be accepted by Meisky no
later than January 19, 1996. Meisky acknowledges that he has been
given a period of at least twenty-one (21) days to consider this
Release and Waiver and to consult with his attorney, accountant,
tax advisor, spouse or other persons prior to making a decision to
sign this Release and Waiver. Meisky acknowledges that the Company
has not pressured or coerced him to execute this Release and Waiver
prior to the expiration of 21 days from the date it was furnished
to him and that any decision to execute this Release and Waiver
prior to such time is done freely and voluntarily. Meisky
certifies that the Company has advised him in writing to consult
with an attorney regarding the legal consequences of this Release
and Waiver.
X. Xxxxxx understands and acknowledges that he has seven (7)
days from the date he signs this Release and Waiver to change his
mind and revoke it by delivering a signed written statement to the
Company, notifying the Company of his wish to revoke this Release
and Waiver.
This Release and Waiver is hereby signed, under seal, by
Meisky, this 2nd day of January, 1996.
/s/ Xxxxxxx X. Xxxxxx (SEAL)
---------------------------
Xxxxxxx X. Xxxxxx
WITNESS
By: Xxxxx Xxxxxxx
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EXHIBIT B
TO SEVERANCE AND NONCOMPETITION AGREEMENT
MEMORANDUM OF STOCK APPRECIATION RIGHTS
This Memorandum evidences rights granted to XXXXXXX X. XXXXXX
("Xxxxxx") with respect to the increase in value of shares of
the common stock of First Bancorp ("Bancorp").
1. Stock Appreciation Rights. Bancorp hereby grants to
Meisky 2,000 Stock Appreciation Rights. For purposes of this
Agreement, a "Stock Appreciation Right" means the right to receive,
upon exercise of the right, the amount (if any) by which the Market
Value of a share of Bancorp's common stock (a "Share") exceeds the
Base Price. The Base Price is the closing price of a share of
Bancorp's common stock on August 26, 1994 (known as the "Base
Date") as quoted on NASDAQ. The Market Value of a Share is the
price of a Share in the most recent trade (as of the date of
exercise) in any public market for such Shares or, in the absence
of any public market for the Shares, the book value of a Share as
of the end of the fiscal quarter immediately preceding the date of
exercise.
2. Term. The term of these Stock Appreciation Rights is ten
years from the Base Date, until August 26, 2004.
3. Payment. The amount payable to Meisky on account of the
exercise of any Stock Appreciation Rights will be payable in full
not more than 30 days after exercise.
4. Transferability. These Stock Appreciation Rights may not
be transferred by Meisky, except upon Meisky's death by will or by
the laws of descent and distribution.
5. Exercise. These Stock Appreciation Rights remain
exercisable until they terminate pursuant to paragraph 2.
During Meisky's lifetime, only the Meisky may exercise the
Stock Appreciation Rights. If Meisky dies prior to the termination
of the Stock Appreciation Rights, without having exercised them,
the Stock Appreciation Rights may be exercised by the estate or a
person who acquired the right to exercise the Stock Appreciation
Rights by bequest or inheritance or by reason of the death of
Meisky.
The Stock Appreciation Rights may be exercised in full or in
part from time to time and shall be exercised by delivery to the
Secretary of Bancorp of a Notice of Exercise in the form attached
to this Memorandum.
6. Administration. Bancorp has the authority to construe
and interpret these Stock Appreciation Rights and to require of any
person exercising these Stock Appreciation Rights, at the time of
such exercise, the execution of any paper or the making of any
representation or the giving of any commitment that Bancorp shall,
in its discretion, deem necessary or advisable by reason of the
securities laws of the United States or any state, or the execution
of any paper or the payment of any sum of money in respect of taxes
or the undertaking to pay or have paid any such sum that Bancorp
shall, in its discretion, deem necessary by reason of the Internal
Revenue Code or any rule or regulation thereunder, or by reason of
the tax laws of any state.
7. Capital Adjustments. The number of Stock Appreciation
Rights granted hereby, and the amount receivable upon exercise
thereof, will be subject to an appropriate and equitable
adjustment, as determined by Bancorp, to reflect any stock
dividend, stock split or share combination, and will be subject to
such adjustment as Bancorp may deem appropriate to reflect any
exchange of shares, recapitalization, merger, consolidation,
separation, reorganization, liquidation or the like, of or by
Bancorp.
8. Rights as a Shareholder. Meisky, or a transferee of any
Stock Appreciation Rights, shall have no rights as a shareholder
with respect to such Stock Appreciation Rights.
9. Appreciation Limit. Notwithstanding anything to the
contrary contained herein, the maximum amount of gross compensation
to be paid to Meisky on account of this Stock Appreciation Right
shall be $40,000.00.
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To evidence their agreement to the terms and conditions of
these Stock Appreciation Rights, Bancorp and the Meisky have signed
this Memorandum.
BANCORP:
FIRST BANCORP
By: /s/ Xxxxx X. Xxxxxx
------------------------
MEISKY:
/s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
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NOTICE OF EXERCISE
I hereby exercise the ____________ (Number) of the Stock
Appreciation Rights granted to me on _________________.
The date of this exercise is _____________________.
I agree to provide Bancorp with such other documents and
representations as it deems appropriate.
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