Exhibit 10.2
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT ("Agreement") is made as of July 3, 2001,
between FIRST COMMUNITY FINANCE ("First Community" or "Employer"), a wholly
owned subsidiary of TFC Enterprises, Inc. ("TFCEI") and G. XXXX XXXXXX
("Employee").
RECITALS:
A. The parties are entering into this Agreement under the assumption that
it is possible that at some future date there may be a Change of Control in
First Community.
B. It is the parties express agreement and understanding that the
provisions of this Agreement will not take effect unless there is a Change of
Control in First Community as defined in Section 13 of this Agreement.
AGREEMENT
1. Employment. First Community hereby employs Employee and Employee hereby
accepts employment, upon the terms and conditions set forth in this Agreement.
2. Term. Subject to the provisions for extension or earlier termination as
provided below, the term of this Agreement shall commence upon a "Change of
Control" (as defined in Section 13) and continue for three (3) years.
3. Compensation.
3.1 For all services rendered by Employee under this Agreement, First
Community shall pay Employee a base salary at the following rates per calendar
year commencing on the date of the Change of Control:
Calendar Year Yearly Salary
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2001 $124,010
2002 $130,200
2003 $136,700
2004 $143,500
Base salary shall be payable in equal semi-monthly installments (pro rated
for partial periods).
3.2 In addition to Employee's base salary, an Executive Profit Sharing
Plan at the rate of 3.0% of the net pre-tax earnings of First Community during
each calendar year of the duration of this Agreement shall be paid Employee as
hereinafter provided. A copy of the current Executive Profit Sharing Plan is
attached hereto as Attachment A and is incorporated by reference. First
Community and its successors and assigns agree to abide by this Executive Profit
Sharing Plan. The term "net pre-tax earnings" as used in this Agreement shall
mean the consolidated net pre-tax earnings of First Community. In computing net
pre-tax earnings, no deductions shall be taken or allowances made for (i)
federal or state income taxes paid or accrued, or for (ii) Executive Profit
Sharing Plans paid by First Community to Employee, as the President of First
Community, pursuant to this Agreement and to any other employees who participate
in the Executive First Community Profit Sharing Plan. Executive Profit Sharing
Plan due Employee during each year of the term of this Agreement shall be
finally determined as of, and shall accrue and become vested on, December 31, of
each year. The Executive Profit Sharing Plan provided in this Section 3.2 shall
be payable as follows:
3.2.1 As soon as the annual audited financial statements prepared
by First Community's independent public accountants are available, Employee's
Executive Profit Sharing Plan for the preceding fiscal year will be finally
determined. Upon First Community's final determination of Employee's Executive
Profit Sharing Plan, it shall be paid promptly to Employee. It is the parties
express agreement that Employee is a salaried exempt and executive employee and
accordingly, the Employee's Executive Profit Sharing Plan is not subject to the
Fair Labor Standard Act and/or its equivalent embodied in the Virginia Code at
(S) 40.1-29.
3.2.2 In the event that Employee resigns at any time during the \
life of this Agreement, Employee will not be entitled to any Executive Profit
Sharing Plan payments or any pro rated portion thereof not yet calculated.
3.3 Nothing in Sections 3.1 or 3.2 above is to be interpreted as
restricting or limiting the power of the Board of Directors to authorize and
direct giving any First Community employee, from time to time, such additional
compensation, Executive Profit Sharing Plans or other incentives as the Board
may deem appropriate.
4. Duties. Employee is engaged as President of First Community. Employee
shall retain the "same or equivalent employment." "Same or equivalent
employment" shall mean employment with the same or equivalent position,
employment benefits, pay and other terms and conditions of employment. Factors
to consider may include whether there are substantially similar duties and
responsibilities, which must entail substantially equivalent skill, effort,
responsibility and authority; the same type of appointment work schedule, status
and tenure; the same employment benefits made available to the Employee (e.g.
life insurance, health benefits, retirement coverage, and leave accrual). If
Employee is elected or appointed an officer or director of TFCEI and/or its
subsidiaries, Employee will serve in such capacity without further compensation
except out-of-pocket expenses not otherwise reimbursed by First Community.
5. Extent of Services. Employee shall devote his full time, best efforts,
attention and energies to the business of First Community and its affiliates,
and shall not, without prior consent of TFCE's CEO, Board of Directors, or First
Community's successor, directly or indirectly engage in any other business
activity which materially interferes with Employee's performance of Employee's
duties hereunder. This shall not be construed as preventing Employee from
investing Employee's assets in such form or manner as will not require
substantial time on the part of Employee in the affairs of the entities in which
such investments are made, will not detract from the operation of First
Community and are not reasonably expected to cause conflicts of interest to
arise.
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6. Disclosure of Confidential Information and Consent Not to Compete.
Employee recognizes and acknowledges that the identities of First Community's
customers, business or financial contracts, agreements, techniques, practices,
plans or other "trade secrets," such as may exist from time to time, are a
valuable, special and unique asset of First Community's business.
6.1 Employee hereby agrees Employee will not, during or for a period of
two (2) years after the term of Employee's employment, disclose First
Community's trade secrets or any part thereof not of public record or generally
known otherwise to any unaffiliated person, firm, corporation, association or
other entity without First Community's prior consent unless such disclosure is
required by law or governmental regulation(s). Employee hereby further agrees
that, during and for a period of two (2) years after the term of this Agreement,
Employee will not use any of First Community's trade secrets, directly or
indirectly, for Employee's or any third party's benefit or use in any business
endeavor not affiliated with First Community. In the event of a breach or
threatened breach by Employee of the provisions of this Section, First Community
shall be entitled to an injunction, without the necessity of posting bond,
restraining Employee from disclosing, in whole or in part, First Community's
trade secrets, or from utilizing them for his benefit or that of any
unaffiliated person, firm, corporation, association or other entity to whom such
information, in whole or in part, has been disclosed or is threatened to be
disclosed. Nothing herein shall be construed as prohibiting First Community from
pursuing any other remedies available to it for such breach or threatened
breach, including the recovery of damages.
6.2 Employee agrees that subsequent termination of Employee's
employment for whatever reason, Employee will not directly or indirectly,
individually or as an owner, employee, partner, officer, director or
stockholder, advisor, consultant or independent contractor, compete against
Employer in the Employer's market areas pursuant to the following schedule.
(a) Employee's covenant not-to-compete cannot exceed the
remaining time left in the Agreement's payout period. It is understood that at
the end of this Agreement, or payout period, Employee will not be subject to a
covenant not-to-compete.
6.2.1 For purposes of this Agreement, "compete" means to be
employed by or to provide services to any entity which is in the business of
direct consumer lending and financing sub-prime motor vehicles. The term
"sub-prime" shall be governed by the industry definition. For purposes of this
Agreement, "market areas" means those areas set out in Attachment B to this
Agreement. Employee acknowledges that this Agreement is reasonable
based upon his position with Employer, is not an unreasonable restraint, and
will not affect Employee from being employed in a job of equivalent pay and
benefits.
6.3 Employee agrees that for a period of three (3) years from the
termination of employment, for whatever reason, Employee will not directly or
indirectly, individually or as owner, employee, officer, director or
stockholder, advisor, consultant, or independent contractor solicit any person
employed by Employer.
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6.4 Employee and Employer agree that in case of a breach of the
provisions contained in Section 6 of this Agreement, damages will be difficult,
if not impossible, to ascertain. Accordingly, Employer and Employee, through a
process of arms length negotiation, have established a sum and liquidated
damages for each separate violation in the amount of $10,000. A violation for
purposes of this Agreement is each occurrence of Employee purchasing a contract
as defined in Paragraph 6.2.1. By signing this Agreement, Employee acknowledges
that this amount is not a penalty, that the amount is reasonable, and that
Employee is waiving any right to contest the reasonableness of the amount of
liquidated damages or that the liquidated damages are against public policy.
6.5 Employee agrees that if Employee violates the provisions of Section
6 of this Agreement, that in addition to the relief authorized in this
Agreement, the Employer will also be entitled to actual damages to the extent
that the actual damages can be established and exceed the amount of liquidated
damages, any and all equitable relief, including an injunction without the
necessity of posting a bond, and the Employer's costs of litigation, including
attorney's fees and costs.
7. Expenses. Upon the presentation of an itemized accounting and the
submission of supporting vouchers, Employee shall be promptly reimbursed for all
reasonable and necessary expenses incurred by him in the promotion of the
business of First Community and its affiliates. First Community shall furnish
Employee an automobile for Employee's personal and business use and shall pay
all reasonable expenses for the operation and maintenance of said automobile.
Gasoline for personal use within a 50-mile radius of Employee's home office will
be paid by First Community.
8. Benefits. First Community will continue to provide employee any such
other benefits as Employee now has and that may be additionally approved for
First Community's employees generally or its senior executives. First Community
agrees that it will maintain Employee's health benefits, both employee cost and
benefits, at its current level or an equivalent level. A copy of the current
health insurance plan is attached hereto as Attachment C. Employee shall be
entitled each year to a vacation of four (4) weeks during which time Employee
compensation shall continue in full. Said vacation may be taken incrementally
unless otherwise directed by the CEO.
9. Disability. If Employee is unable to perform Employee's duties hereunder
by reason of medical incapacity for a consecutive period of not more than six
(6) months, Employee shall be entitled to Employee's regular compensation
(including Executive Profit Sharing Plans and all other elements thereof) during
the period of such incapacity. In the event that such medical incapacity exceeds
six (6) consecutive months in duration, Employee's base salary and Executive
Profit Sharing Plan payable under this Agreement may, after the initial six (6)
consecutive months period, be reduced by fifty percent (50%), provided
Employee's full base salary and Executive Profit Sharing Plan shall be
reinstated subject to the terms of this Agreement upon Employee's return to
employment and to the discharge of Employee's full duties hereunder.
Notwithstanding anything herein to the contrary, First Community may terminate
this Agreement at anytime after Employee shall be unable to perform his duties,
for whatever cause, for a continuous period of more than twelve (12) months or
for a total of 275 business days during any rolling 18-month period, and all
obligations of First Community hereunder shall cease upon any such termination.
In addition, any such Executive Profit Sharing Plan actually paid to Employee
pursuant to Section 3.2 and this Section 9 shall be deemed to vest on the last
day of the month that is the sixth month in which Employee has suffered a
medical incapacity. It is expressly agreed by the parties that any amounts owed
to Employee in salary, Executive Profit Sharing Plans and benefits during the
disability period will be offset by any payments made to Employee under the
First Community's disability policy.
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10. Termination
10.1. For Cause. Notwithstanding any other provision of this Agreement,
First Community reserves the right to terminate Employee's employment, without
notice, for cause and such termination shall not constitute a breach of this
Agreement by First Community. As used herein, any one or more of the following
shall constitute cause: (i) fraud, misappropriation, embezzlement or similar
wrongful acts to or against First Community or its affiliates; (ii) conviction
of a felony or engaging in conduct involving moral turpitude, provided such
conviction or conduct is reasonably expected to affect First Community's,
TFCEI's or The Finance Company's ability to engage in their businesses or is
reasonably expected to materially affect the good name of First Community, TFCEI
and/or its subsidiaries; (iii) unless medically incapacitated, Employee is
demonstrably unable, or Employee is grossly negligent in the performance of his
office and such other duties as may be assigned to him by First Community's CEO
or First Community Board from time to time after Employee has been provided with
thirty (30) days written notice and an opportunity to cure the problem(s) or;
(iv) Employee's violation of any provision of this Agreement. In the event of
termination of this Agreement pursuant to provisions (i), (ii) or (iv) of this
subsection, Employee shall be entitled to only such unpaid base salary as shall
have accrued as of the date of his termination, together with any Executive
Profit Sharing Plans that would become payable on such date had First
Community's fiscal year then terminated. If Employee is terminated, pursuant to
provision (iii) of this Subsection, in addition to Employee's Executive Profit
Sharing Plan payments, Employee will also be entitled to a payment of an
additional six (6) months salary and the payment of COBRA for six (6) months.
These payments shall be made to Employee at the time First Community distributes
payroll checks to its other Employees.
10.2. Not For Cause. Employee, pursuant to the terms of the Agreement,
may at any time upon the giving of 30-days notice be terminated not for cause.
If Employee is terminated not for cause, Employee shall be entitled to all
compensation, benefits and bonuses due under Section 3 of this Agreement for the
remainder of this Agreement. Such payments shall be paid to Employee as all
salary, bonuses and profit sharing are made to First Community's Employees.
10.3. Constructive Discharge. If Employee is ready, willing and able to
work and First Community, for whatever reason, does not utilize the services of
Employee for substantially the same professional duties for a total period of
ninety (90) days during the life of this Agreement or elects to transfer
Employee outside the Greater Richmond, Virginia metropolitan area and Employee
is unable to transfer for any reason, Employee will be entitled to all salary,
Executive Profit Sharing Plans, and benefits as provided in Section 10.2 of this
Agreement.
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10.4. Excise Tax Under Section 4999. Employee understands that the
payments Employee receives under this or other agreements, individually or
combined, may be subject to an excise tax pursuant to Section 4999 of the
Internal Revenue Code. Accordingly, if at any time, it is determined that any
payments to Employee under this Agreement would be subject to such excise tax,
the payments to Employee under this Agreement shall be reduced by any amount
sufficient to eliminate the excise tax but only if the result is to give the
Employee a larger after-tax return than if such payments were not reduced. The
Employee shall have the right to designate which payments shall be reduced.
11. Death During Employment.
11.1 If Employee dies during the term of Employee's employment, First
Community shall pay to Employee's estate the compensation (including Executive
Profit Sharing Plans and all other elements thereof) which would otherwise be
accrued by Employee through the end of the month in which Employee's death
occurs. In addition, the Company will pay Employee's estate the compensation and
Executive Profit Sharing Plan payments for an additional six-month period
following Employee's death. The Executive Profit Sharing Plan payable hereunder
shall be payable through the month of the Employee's death calculated on an
unaudited basis.
11.2 First Community reserves the right to insure the life of Employee
for all or any part of the payments which it anticipates would be payable
pursuant to Section 11.1; however, no benefits payable to Employee's survivors
or estate under any group life insurance program provided by First Community
shall be deemed to be any part of the payments due under Section 11.1 above.
12. Arbitration. Any controversy or claim arising out of, or relating to
this Agreement, or any breach thereof, shall be settled by arbitration in
accordance with the rules then pertaining of the American Arbitration
Association or other alternative dispute resolution means the parties may then
agree upon, and judgment upon the award rendered may be entered in any court
having jurisdiction hereof and the parties. In the event that Employee's
employment is finally determined to have been not for cause, constructive
discharge or without notice and an opportunity to cure as provided in Section
10.1(iii), Employee shall be paid any and all payments due and owing pursuant to
Section 10.1(iii), 10.2 or 10.3 as the case may be.
13. Change of Control. A "Change of Control" of TFCEI and First Community
shall be deemed to have occurred upon the happening of any of the following
events:
13.1 The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 30% or more of either the then outstanding shares of common stock of TFCEI or
First Community or the combined voting power of the then outstanding voting
securities of TFCEI or First Community entitled to vote generally in the
election of directors, but excluding, for this purpose, any such acquisition by
TFCEI or any of its subsidiaries, or any employee benefit plan (or related
trust) of the Company, or any corporation with respect to which, following such
acquisition, more than 50% of, respectively, the then outstanding shares of
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common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the common stock and voting securities of TFCEI or
First Community immediately prior to such acquisition in substantially the same
proportion as their ownership, immediately prior to such acquisition, of then
outstanding shares of common stock of TFCEI or First Community or the combined
voting power of the then outstanding voting securities of TFCEI or First
Community entitled to vote generally in the election of directors, as the case
may be;
13.2 Approval by TFCEIs' or First Community's shareholders of a
reorganization, merger or consolidation of TFCEI or First Community, in each
case, with respect to which all or substantially all of the individuals and
entities who were the respective beneficial owners of the common stock and
voting securities of TFCEI or First Community immediately prior to such
reorganization, merger or consolidation do not, following such reorganization,
merger or consolidation, beneficially own, directly or indirectly, more than 50%
of, respectively, the then outstanding shares of common stock or the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such reorganization, merger or consolidation, or of a complete
liquidation or dissolution of TFCEI or First Community or of the sale or other
disposition of all or substantially all of the assets of TFCEI or First
Community.
14. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and personally or electronically
delivered or if sent by certified mail to his residence in the case of Employee,
or to its principal office in the case of First Community.
15. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by the waiving party.
16. Assignment. The rights and obligations of Employee under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of First Community; however, no assignment of rights, powers or benefits
by Employee shall be binding upon First Community without the consent of the
Board of Directors.
17. Affiliated Entities. Any business entity which is fifty-one percent
(51%) or more owned by First Community or TFCEI shall be deemed to be an
"affiliate" for purposes of this Agreement.
18. Entire Agreement. This Agreement contains the entire agreement of the
parties. It may not be changed orally but only an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification,
extension or discharge is sought. Furthermore, this Agreement supercedes any
prior severance agreements between Employee and First Community.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
(Corporate Seal) THE FIRST COMMUNITY COMPANY
ATTEST:
By:______________________________________
____________________ Xxxxxx X. Xxxxx, Chairman of the Board
EMPLOYEE
________________________________________
G. Xxxx Xxxxxx
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ATTACHMENT A
EXECUTIVE PROFIT SHARING PLAN
In addition to Employee's base salary, at a stipulated percentage of
the net pre-tax earnings of THE Finance Company (TFC) and its subsidiaries
during each fiscal year shall be paid Employee as hereinafter provided.
Employee's percentage will be determined, prior to the beginning of any fiscal
year, by the Chief Executive Officer of TFC. The term "net pre-tax earnings"
shall mean the consolidated net pre-tax earnings of TFC and its subsidiaries.
In computing net pre-tax earnings, no deductions shall be taken or allowances
made for (i) federal or state income taxes paid or accrued, or for (ii)
Executive Profit Sharing Plans paid by TFC to Employee, pursuant to this plan
and to any other Employees who participate in this plan. Executive Profit
Sharing Plan payments due Employee during any year shall be finally determined
as of, December 31, of each year. The Executive Profit Sharing Plan shall be
payable as follows:
As soon as the annual audited financial statements prepared by TFC's
independent public accountants are available, Employee's Executive Profit
Sharing Plan for the preceding fiscal year will be finally determined. Upon
TFC's final determination of Employee's Executive Profit Sharing Plan, it shall
be paid promptly to Employee.
In the event Employee is no longer employed, for any reason, by TFC at
the time the final determination of the amount due Employee, Employee will not
be entitled to any Executive Profit Sharing Plan payments or any pro-rated
portion thereof.
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ATTACHMENT B
For purposes of Section 6.2.1 of this Agreement, the term "Market
Areas" is defined as the states in which First Community currently does business
in and any other states that First Community enters prior to the termination of
Employee's employment. Currently, First Community does business in the
following states:
Virginia
North Carolina
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