Exhibit 10.2
Severance Agreement
This
Severance Agreement
(this Agreement) is entered into effective as of
this
day of
, 2008, by and between Middlefield Banc
Corp., an Ohio corporation (Middlefield), and Thomas G. Caldwell, its President and Chief
Executive Officer (the Executive).
Whereas
, recognizing the contributions made and expected to be made by the Executive
to the profitability, growth, and financial strength of Middlefield and subsidiaries, intending to
assure itself of the current and future continuity of management, intending to establish minimum
severance benefits for certain officers and other key employees, including the Executive, intending
to ensure that officers and other key employees are not practically disabled from discharging their
duties if a proposed or actual transaction involving a change in control arises, and finally
desiring to provide additional inducement for the Executive to remain in the employment of
Middlefield, Middlefield entered into a Severance Agreement with the Executive dated as of July 11,
2006,
Whereas
, Middlefield and the Executive intend that this Agreement supersede and replace in its entirety
the July 11, 2006 Severance Agreement, and
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of Middlefield, is
contemplated insofar as either of Middlefield or any of its subsidiaries is concerned.
Now
Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
1
.
Change in Control
. (a) If a Change in Control occurs before the Executives employment
termination, Middlefield shall make a lump-sum payment to the Executive in cash in an amount equal
to 2.5 times the Executives annual compensation. For this purpose annual compensation means (
x
)
the Executives annual base salary on the date of the Change in Control, plus (
y
) the average of
the cash bonus and cash incentive compensation earned for the three calendar years immediately
preceding the year in which the Change in Control occurs, regardless of when the bonus or incentive
compensation is paid and regardless of whether the bonus or incentive compensation is subject to
elective deferral or vesting. Middlefield recognizes that the bonus and incentive compensation
earned by the Executive for a particular years service might be paid in the year after the
calendar year in which the bonus or incentive compensation is earned. The amount payable to the
Executive hereunder shall not be reduced to account for the time value of money or discounted to
present value. Subject to section 17, the payment required under this section 1(a) is payable
within five business days after the date of the Change in Control. The Executive shall be entitled
to a payment under this section 1(a) on no more than one occasion.
(b) If the Executives employment terminates within 24 months after the Change in
Control, Middlefield shall also (
x
) cause the Executive to become fully vested in any non-qualified
plans, programs, or arrangements in which the Executive participated if the plan, program, or
arrangement does not address the effect of a change in control and (
y
) continue or cause to be
continued life, health, and disability insurance coverage substantially identical to the coverage
maintained for the Executive before termination and in accordance with the same schedule prevailing
before employment termination. The insurance coverage may cease when the Executive becomes
employed by another employer or 24 months after the Executives termination, whichever occurs
first. If under the terms of the life, health, or disability policy coverage maintained by
Middlefield it is not possible to continue the Executives coverage after termination or if when
employment termination occurs the Executive is a specified employee within the meaning of section
409A of the Internal Revenue Code of 1986, if
any of the
continued insurance benefits specified in this section 1(b) would be considered deferred
compensation under section 409A, and finally if an exemption from the six-month delay requirement
of section 409A(a)(2)(B)(i) is not available for that particular insurance benefit, instead of
continued insurance coverage under this section 1(b) Middlefield shall pay to the Executive in a
single lump sum an amount in cash equal to the present value of the Employers projected cost to
maintain that particular insurance benefit had the Executives employment not terminated, assuming
continued coverage for the lesser of 24 months or the number of months until the Executive attains
age 65. The lump-sum payment shall be made 30 days after employment termination or, if a six-month
delay is required by section 409A, on the first day of the seventh month after the month in which
the Executives employment terminates.
2
.
Change in Control Defined
. For purposes of this Agreement Change in Control means a change
in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of
general application thereunder issued by the Department of the Treasury, including
(a)
Change in ownership
: a change in ownership of Middlefield occurs on the date any one
person or group accumulates ownership of Middlefield stock constituting more than 50% of the total
fair market value or total voting power of Middlefield stock, or
(b)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield stock possessing 30% or more of the
total voting power of Middlefield stock, or (
y
) a majority of Middlefields board of directors is
replaced during any 12-month period by directors whose appointment or election is not endorsed in
advance by a majority of Middlefields board of directors, or
(c)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefields assets occurs if in a 12-month period any one person or more
than one person acting as a group acquires from Middlefield assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all of Middlefields assets
immediately before the acquisition or acquisitions. For this purpose, gross fair market value
means the value of Middlefields assets, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the assets.
3
.
No Benefits After Termination with Cause
. (a) Despite anything in this Agreement to the
contrary, the Executive shall not be entitled to benefits under this Agreement if the Executives
employment terminates with Cause. For purposes of this Agreement the term Cause means the
Executive shall have committed any of the following acts
1) an act of fraud, embezzlement, or theft while employed by Middlefield or a
subsidiary, or conviction of the Executive for or plea of no contest to a felony or
conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual
incarceration of the Executive for 45 consecutive days or more, or
2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of
the Executives duties as an officer of Middlefield or a subsidiary; willful or reckless
failure by the Executive to adhere to Middlefields or subsidiarys written policies;
intentional wrongful damage by the Executive to the business or property of Middlefield or
subsidiary, including without limitation its reputation, which in Middlefields sole judgment
causes material harm to Middlefield or subsidiary; breach by the Executive of fiduciary
duties to Middlefield and its stockholders, whether in the Executives capacity as an officer
or as a director of Middlefield or subsidiary, or
3) removal of the Executive from office or permanent prohibition of the Executive
from participating in the affairs of Middlefields subsidiary bank or banks by an order
issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
1818(e)(4) or (g)(1), or
4) intentional wrongful disclosure of secret processes or confidential information of
Middlefield or affiliates, which in Middlefields sole judgment causes material harm to
Middlefield or affiliates, or
5) any actions that have caused the Executive to be terminated for cause under any
employment agreement existing on the date hereof or hereafter entered into between the
Executive and Middlefield or a subsidiary, or
6) the occurrence of any event that results in the Executive being excluded from
coverage, or having coverage limited for the Executive as compared to other executives of
Middlefield or affiliates, under a blanket bond or other fidelity or insurance policy
covering directors, officers, or employees, or
7) intentional wrongful engagement in any competitive activity. For purposes of this
Agreement, competitive activity means the Executives participation, without the consent of
Middlefields board of directors, in the management of any business enterprise if (
x
) the
enterprise engages in substantial and direct competition with Middlefield, (
y
) the
enterprises revenues derived from any product or service competitive with any product or
service of Middlefield or a subsidiary amounted to 10% or more of the enterprises revenues
for its most recently completed fiscal year, and (
z
) Middlefields revenues from the product
or service amounted to 10% of Middlefields revenues for its most recently completed fiscal
year. A competitive activity does not include mere ownership of securities in an enterprise
and the exercise of rights appurtenant thereto, provided the Executives share ownership does
not represent practical or legal control of the enterprise. For this purpose, ownership of
less than 5% of the enterprises outstanding voting securities shall conclusively be presumed
to be insufficient for practical or legal control, and ownership of more than 50% shall
conclusively be presumed to constitute practical and legal control.
(b) For purposes of this Agreement, no act or failure to act on the Executives part shall be
deemed to have been intentional if it was due primarily to an error in judgment or negligence. An
act or failure to act on the Executives part shall be considered intentional if it is not in good
faith and if it is without a reasonable belief that the action or failure to act is in
Middlefields best interests. Any act or failure to act based upon authority granted by
resolutions duly adopted by the board of directors or based upon the advice of counsel for
Middlefield shall be conclusively presumed to be in good faith and in Middlefields best interests.
For purposes of this Agreement the term subsidiary means any entity in which Middlefield directly
or indirectly beneficially owns 50% or more of the outstanding voting securities.
(c) The Executive shall not be deemed under this Agreement to have been terminated with Cause
unless and until there is delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of at least three-fourths (
3
/
4
) of the directors (excluding the Executive) of
Middlefield then in office at a meeting of the board of directors called and held for such purpose,
which resolution shall (
x
) contain findings that, in the good faith opinion of the board, the
Executive has committed an act constituting Cause and (
y
) specify the particulars thereof. Notice
of that meeting and the proposed determination of Cause shall be given to the Executive a
reasonable time before the boards meeting. The Executive and the Executives counsel (if the
Executive chooses to have counsel present) shall have a reasonable opportunity to be heard by the
board at the meeting. Nothing in this Agreement limits the Executives or beneficiaries right to
contest the validity or propriety of the boards
determination of Cause, and they shall have the right to contest the validity or propriety of
the boards determination of Cause even if that right does not exist under any employment agreement
of the Executive.
3
4
.
No Benefits after Termination Because of Death or Disability
. Despite anything in
this Agreement to the contrary, the Executive shall not be entitled to benefits under this
Agreement if the Executive dies while actively employed by Middlefield or a subsidiary or if the
Executive becomes totally disabled while actively employed by Middlefield or a subsidiary. For
purposes of this Agreement, the term totally disabled means that because of injury or sickness the
Executive is unable to perform the Executives duties. The benefits, if any, payable to the
Executive or the Executives beneficiary or estate relating to the Executives death or disability
shall be determined solely by such benefit plans or arrangements as Middlefield or subsidiary may
have with the Executive relating to death or disability, not by this Agreement.
5
.
Term of Agreement
. The initial term of this Agreement shall be for a period of three
years, commencing on the effective date. On the first anniversary of the effective date of this
Agreement and on each anniversary thereafter this Agreement shall be extended automatically for one
additional year, unless Middlefields board of directors gives notice to the Executive in writing
at least 90 days before the anniversary that the term of this Agreement will not be extended. If
the board of directors determines not to extend the term, it shall promptly notify the Executive.
References herein to the term of this Agreement mean the initial term and extensions of the initial
term. Unless terminated earlier, this Agreement shall terminate when the Executive attains age 65.
If the board of directors decides not to extend the term of this Agreement, this Agreement shall
nevertheless remain in force until its term expires.
6
.
This Agreement Is Not an Employment Contract
. The parties hereto acknowledge and agree
that (
x
) this Agreement is not a management or employment agreement and (
y
) nothing in this
Agreement shall give the Executive any rights or impose any obligations to continued employment by
Middlefield or any subsidiary or successor of Middlefield.
7
.
Payment of Legal Fees
. Middlefield is aware that after a Change in Control
management could cause or attempt to cause Middlefield to refuse to comply with its obligations
under this Agreement, or could institute or cause or attempt to cause Middlefield to institute
litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take
other action to deny Executive the benefits intended under this Agreement. In these circumstances
the purposes of this Agreement would be frustrated. Middlefield desires that the Executive not be
required to incur the expenses associated with the enforcement of rights under this Agreement,
whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive hereunder.
Middlefield desires that the Executive not be forced to negotiate settlement of rights under this
Agreement under threat of incurring expenses. Accordingly, if after a Change in Control occurs it
appears to the Executive that (
x
) Middlefield has failed to comply with any of its obligations
under this Agreement, or (
y
) Middlefield or any other person has taken any action to declare this
Agreement void or unenforceable, or instituted any litigation or other legal action designed to
deny, diminish, or to recover from the Executive the benefits intended to be provided to the
Executive hereunder, Middlefield irrevocably authorizes the Executive from time to time to retain
counsel of the Executives choice, at Middlefields expense as provided in this section 7, to
represent the Executive in the initiation or defense of any litigation or other legal action,
whether by or against Middlefield or any director, officer, stockholder, or other person affiliated
with Middlefield, in any jurisdiction. Despite any existing or previous attorney-client
relationship between Middlefield and any counsel chosen by the Executive under this section 7,
Middlefield irrevocably consents to the Executive entering into an attorney-client relationship
with that counsel and Middlefield and the Executive agree that a confidential relationship shall
exist between the Executive and that counsel. The fees and expenses of counsel selected from time
to time by the Executive as provided in this section shall be paid or reimbursed to the Executive
by Middlefield on a regular, periodic basis upon presentation by the Executive of a statement or
statements prepared by counsel in accordance with counsels customary practices, up to a
maximum aggregate amount of $500,000, whether suit be brought or not, and whether or not incurred
in trial, bankruptcy, or appellate proceedings. Middlefields obligation to pay the Executives
legal fees under this section 7 operates separately from and in addition to any legal fee
reimbursement obligation Middlefield may have with the Executive under any separate severance or
other
4
agreement. Despite any contrary provision of this Agreement however, Middlefield shall not
be required to pay or reimburse the Executives legal expenses if doing so would violate section
18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal
Deposit Insurance Corporation [12 CFR 359.3].
8
.
Withholding of Taxes
. Middlefield may withhold from any benefits payable under this
Agreement all Federal, state, local or other taxes as may be required by law, governmental
regulation, or ruling.
9
.
Successors and Assigns
. (a)
This Agreement is binding on successors
. This Agreement
shall be binding upon Middlefield and any successor to Middlefield, including any persons acquiring
directly or indirectly all or substantially all of the business or assets of Middlefield by
purchase, merger, consolidation, reorganization, or otherwise. But this Agreement and
Middlefields obligations under this Agreement are not otherwise assignable, transferable, or
delegable by Middlefield. By agreement in form and substance satisfactory to the Executive,
Middlefield shall require any successor to all or substantially all of the business or assets of
Middlefield expressly to assume and agree to perform this Agreement in the same manner and to the
same extent Middlefield would be required to perform had no succession occurred.
(b)
This Agreement is enforceable by the Executives heirs
. This Agreement shall inure to the
benefit of and be enforceable by the Executives personal or legal representatives, executors,
administrators, successors, heirs, distributees, and legatees.
(c)
This Agreement is personal and is not assignable
. This Agreement is personal in nature.
Without written consent of the other party, neither party shall assign, transfer, or delegate this
Agreement or any rights or obligations under this Agreement except as expressly provided in this
section 9. Without limiting the generality of the foregoing, the Executives right to receive
payments hereunder is not assignable or transferable, whether by pledge, creation of a security
interest, or otherwise, except for a transfer by Executives will or by the laws of descent and
distribution. If the Executive attempts an assignment or transfer that is contrary to this section
9, Middlefield shall have no liability to pay any amount to the assignee or transferee.
10
.
Notices
. Any notice under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Executive if addressed to the address of the Executive on the books and
records of Middlefield at the time of the delivery of the notice, and properly addressed to
Middlefield if addressed to the board of directors, Middlefield Banc Corp., 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
11
.
Captions and Counterparts
. The headings and subheadings used in this Agreement are
included solely for convenience and shall not affect the interpretation of this Agreement. This
Agreement may be executed in one or more counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one and the same agreement.
12
.
Amendments and Waivers
. No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in a writing signed by the
Executive and by
Middlefield. No waiver by either party hereto at any time of any breach by the other party
hereto or waiver of compliance with any condition or provision of this Agreement to be performed by
the other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time.
13
.
Severability
. The provisions of this Agreement are severable. The invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions of this Agreement. Any provision held to be invalid or unenforceable shall be reformed
to the extent and solely to the extent necessary to make it valid and enforceable.
5
14
.
Governing Law
. The validity, interpretation, construction, and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Ohio, without giving effect to the principles of conflict of laws of such state.
15
.
Entire Agreement
. This Agreement constitutes the entire agreement between Middlefield and
the Executive concerning the subject matter. No rights are granted to the Executive under this
Agreement other than those specifically set forth. No agreements or representations, oral or
otherwise, expressed or implied concerning the subject matter hereof have been made by either party
that are not set forth expressly in this Agreement. This Agreement supersedes and replaces in its
entirety the July 11, 2006 Severance Agreement between Middlefield and the Executive, and from and
after the date of this Agreement the July 11, 2006 Severance Agreement shall be of no further force
or effect.
16
.
No Mitigation Required
. Middlefield hereby acknowledges that it will be difficult and
could be impossible (
x
) for the Executive to find reasonably comparable employment after
termination and (
y
) to measure the amount of damages the Executive suffers as a result of
termination. Additionally, Middlefield acknowledges that its general severance pay plans do not
provide for mitigation, offset, or reduction of any severance payment received thereunder.
Middlefield further acknowledges that the payment of benefits by Middlefield under this Agreement
is reasonable and shall be liquidated damages. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor
will any profits, income, earnings, or other benefits from any source whatsoever create any
mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or
otherwise.
17
.
Internal Revenue Code Section 409A
. Middlefield and the Executive intend that their
exercise of authority or discretion under this Agreement shall comply with section 409A of the
Internal Revenue Code of 1986. If when the Executives employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any
payments or benefits under this Agreement will result in additional tax or interest to the
Executive because of section 409A, then despite any provision of this Agreement to the contrary the
Executive shall not be entitled to the payments or benefits until the earliest of (
x
) the date that
is at least six months after termination of the Executives employment for reasons other than the
Executives death, (
y
) the date of the Executives death, or (
z
) any earlier date that does not
result in additional tax or interest to the Executive under section 409A. As promptly as possible
after the end of the period during which payments or benefits are delayed under this provision, the
entire amount of the delayed payments shall be paid to the Executive in a single lump sum. If any
provision of this Agreement does not satisfy the requirements of section 409A, such provision shall
be applied in a manner consistent with those requirements, despite any contrary provision of this
Agreement. If any provision of this Agreement would subject the Executive to additional tax or
interest under section 409A, Middlefield shall reform the provision. However, Middlefield shall
maintain to the maximum extent practicable the original intent of the applicable provision without
subjecting the Executive to additional tax or interest, and Middlefield shall not be required to
incur any additional compensation expense as a result of the reformed provision. References in
this Agreement to section 409A of the Internal Revenue Code of 1986 include
rules, regulations, and guidance of general application issued by the Department of the
Treasury under Internal Revenue Code section 409A.
6
In Witness Whereof
, the parties have executed this Severance Agreement as of
the date first written above.
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Executive
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Middlefield Banc Corp
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By:
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James R. Heslop, II
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Its:
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Executive Vice President and Chief Operating Officer
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7
Exhibit 10.3
Severance Agreement
This
Severance Agreement
(this Agreement) is entered into effective as of this
day of
, 2008, by and between Middlefield Banc
Corp., an Ohio corporation (Middlefield), and James R. Heslop II, its Executive Vice President
and Chief Operating Officer (the Executive).
Whereas
, recognizing the contributions made and expected to be made by the Executive
to the profitability, growth, and financial strength of Middlefield and subsidiaries, intending to
assure itself of the current and future continuity of management, intending to establish minimum
severance benefits for certain officers and other key employees, including the Executive, intending
to ensure that officers and other key employees are not practically disabled from discharging their
duties if a proposed or actual transaction involving a change in control arises, and finally
desiring to provide additional inducement for the Executive to remain in the employment of
Middlefield, Middlefield entered into a Severance Agreement with the Executive dated as of July 11,
2006,
Whereas
, Middlefield and the Executive intend that this Agreement supersede and
replace in its entirety the July 11, 2006 Severance Agreement, and
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of Middlefield, is
contemplated insofar as either of Middlefield or any of its subsidiaries is concerned.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
1
.
Change in Control
. (a) If a Change in Control occurs before the Executives employment
termination, Middlefield shall make a lump-sum payment to the Executive in cash in an amount equal
to 2.5 times the Executives annual compensation. For this purpose annual compensation means (
x
)
the Executives annual base salary on the date of the Change in Control, plus (
y
) the average of
the cash bonus and cash incentive compensation earned for the three calendar years immediately
preceding the year in which the Change in Control occurs, regardless of when the bonus or incentive
compensation is paid and regardless of whether the bonus or incentive compensation is subject to
elective deferral or vesting. Middlefield recognizes that the bonus and incentive compensation
earned by the Executive for a particular years service might be paid in the year after the
calendar year in which the bonus or incentive compensation is earned. The amount payable to the
Executive hereunder shall not be reduced to account for the time value of money or discounted to
present value. Subject to section 17, the payment required under this section 1(a) is payable
within five business days after the date of the Change in Control. The Executive shall be entitled
to a payment under this section 1(a) on no more than one occasion.
(b) If the Executives employment terminates within 24 months after the Change in
Control, Middlefield shall also (
x
) cause the Executive to become fully vested in any non-qualified
plans, programs, or arrangements in which the Executive participated if the plan, program, or
arrangement does not address the effect of a change in control and (
y
) continue or cause to be
continued life, health, and disability insurance coverage substantially identical to the coverage
maintained for the Executive before termination and in accordance with the same schedule prevailing
before employment termination. The insurance coverage may cease when the Executive becomes
employed by another employer or 24 months after the Executives termination, whichever occurs
first. If under the terms of the life, health, or disability policy coverage maintained by
Middlefield it is not possible to continue the Executives coverage after termination or if when
employment termination occurs the Executive is a specified employee within the meaning of section
409A of the Internal Revenue Code of 1986, if
any of the continued insurance benefits specified in this section 1(b) would be considered deferred
compensation under section 409A, and finally if an exemption from the six-month delay requirement
of section 409A(a)(2)(B)(i) is not available for that particular insurance benefit, instead of
continued insurance coverage under this section 1(b) Middlefield shall pay to the Executive in a
single lump sum an amount in cash equal to the present value of the Employers projected cost to
maintain that particular insurance benefit had the Executives employment not terminated, assuming
continued coverage for the lesser of 24 months or the number of months until the Executive attains
age 65. The lump-sum payment shall be made 30 days after employment termination or, if a six-month
delay is required by section 409A, on the first day of the seventh month after the month in which
the Executives employment terminates.
2
.
Change in Control Defined
. For purposes of this Agreement Change in Control means a change
in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of
general application thereunder issued by the Department of the Treasury, including
(a)
Change in ownership
: a change in ownership of Middlefield occurs on the date any one
person or group accumulates ownership of Middlefield stock constituting more than 50% of the total
fair market value or total voting power of Middlefield stock, or
(b)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield stock possessing 30% or more of the
total voting power of Middlefield stock, or (
y
) a majority of Middlefields board of directors is
replaced during any 12-month period by directors whose appointment or election is not endorsed in
advance by a majority of Middlefields board of directors, or
(c)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefields assets occurs if in a 12-month period any one person or more
than one person acting as a group acquires from Middlefield assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all of Middlefields assets
immediately before the acquisition or acquisitions. For this purpose, gross fair market value
means the value of Middlefields assets, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the assets.
3
.
No Benefits After Termination with Cause
. (a) Despite anything in this Agreement to the
contrary, the Executive shall not be entitled to benefits under this Agreement if the Executives
employment terminates with Cause. For purposes of this Agreement the term Cause means the
Executive shall have committed any of the following acts
1) an act of fraud, embezzlement, or theft while employed by Middlefield or a
subsidiary, or conviction of the Executive for or plea of no contest to a felony or
conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual
incarceration of the Executive for 45 consecutive days or more, or
2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of
the Executives duties as an officer of Middlefield or a subsidiary; willful or reckless
failure by the Executive to adhere to Middlefields or subsidiarys written policies;
intentional wrongful damage by the Executive to the business or property of Middlefield or
subsidiary, including without limitation its reputation, which in Middlefields sole judgment
causes material harm to Middlefield or subsidiary; breach by the Executive of fiduciary
duties to Middlefield and its stockholders, whether in the Executives capacity as an officer
or as a director of Middlefield or subsidiary, or
2
3) removal of the Executive from office or permanent prohibition of the Executive from
participating in the affairs of Middlefields subsidiary bank or banks by an order issued
under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or
(g)(1), or
4) intentional wrongful disclosure of secret processes or confidential information of
Middlefield or affiliates, which in Middlefields sole judgment causes material harm to
Middlefield or affiliates, or
5) any actions that have caused the Executive to be terminated for cause under any
employment agreement existing on the date hereof or hereafter entered into between the
Executive and Middlefield or a subsidiary, or
6) the occurrence of any event that results in the Executive being excluded from
coverage, or having coverage limited for the Executive as compared to other executives of
Middlefield or affiliates, under a blanket bond or other fidelity or insurance policy
covering directors, officers, or employees, or
7) intentional wrongful engagement in any competitive activity. For purposes of this
Agreement, competitive activity means the Executives participation, without the consent of
Middlefields board of directors, in the management of any business enterprise if (
x
) the
enterprise engages in substantial and direct competition with Middlefield, (
y
) the
enterprises revenues derived from any product or service competitive with any product or
service of Middlefield or a subsidiary amounted to 10% or more of the enterprises revenues
for its most recently completed fiscal year, and (
z
) Middlefields revenues from the product
or service amounted to 10% of Middlefields revenues for its most recently completed fiscal
year. A competitive activity does not include mere ownership of securities in an enterprise
and the exercise of rights appurtenant thereto, provided the Executives share ownership does
not represent practical or legal control of the enterprise. For this purpose, ownership of
less than 5% of the enterprises outstanding voting securities shall conclusively be presumed
to be insufficient for practical or legal control, and ownership of more than 50% shall
conclusively be presumed to constitute practical and legal control.
(b) For purposes of this Agreement, no act or failure to act on the Executives part shall be
deemed to have been intentional if it was due primarily to an error in judgment or negligence. An
act or failure to act on the Executives part shall be considered intentional if it is not in good
faith and if it is without a reasonable belief that the action or failure to act is in
Middlefields best interests. Any act or failure to act based upon authority granted by
resolutions duly adopted by the board of directors or based upon the advice of counsel for
Middlefield shall be conclusively presumed to be in good faith and in Middlefields best interests.
For purposes of this Agreement the term subsidiary means any entity in which Middlefield directly
or indirectly beneficially owns 50% or more of the outstanding voting securities.
(c) The Executive shall not be deemed under this Agreement to have been terminated with Cause
unless and until there is delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of at least three-fourths (
3
/
4
) of the directors (excluding the Executive) of
Middlefield then in office at a meeting of the board of directors called and held for such purpose,
which resolution shall (
x
) contain findings that, in the good faith opinion of the board, the
Executive has committed an act constituting Cause and (
y
) specify the particulars thereof. Notice
of that meeting and the proposed determination of Cause shall be given to the Executive a
reasonable time before the boards meeting. The Executive and the Executives counsel (if the
Executive chooses to have counsel present) shall
have a reasonable opportunity to be heard by the board at the meeting. Nothing in this
Agreement limits the Executives or beneficiaries right to contest the validity or propriety of
the boards determination of Cause, and they shall have the right to contest the validity or
propriety of the boards determination of Cause even if that right does not exist under any
employment agreement of the Executive.
3
4
.
No Benefits after Termination Because of Death or Disability
. Despite anything in
this Agreement to the contrary, the Executive shall not be entitled to benefits under this
Agreement if the Executive dies while actively employed by Middlefield or a subsidiary or if the
Executive becomes totally disabled while actively employed by Middlefield or a subsidiary. For
purposes of this Agreement, the term totally disabled means that because of injury or sickness the
Executive is unable to perform the Executives duties. The benefits, if any, payable to the
Executive or the Executives beneficiary or estate relating to the Executives death or disability
shall be determined solely by such benefit plans or arrangements as Middlefield or subsidiary may
have with the Executive relating to death or disability, not by this Agreement.
5
.
Term of Agreement
. The initial term of this Agreement shall be for a period of three
years, commencing on the effective date. On the first anniversary of the effective date of this
Agreement and on each anniversary thereafter this Agreement shall be extended automatically for one
additional year, unless Middlefields board of directors gives notice to the Executive in writing
at least 90 days before the anniversary that the term of this Agreement will not be extended. If
the board of directors determines not to extend the term, it shall promptly notify the Executive.
References herein to the term of this Agreement mean the initial term and extensions of the initial
term. Unless terminated earlier, this Agreement shall terminate when the Executive attains age 65.
If the board of directors decides not to extend the term of this Agreement, this Agreement shall
nevertheless remain in force until its term expires.
6
.
This Agreement Is Not an Employment Contract
. The parties hereto acknowledge and agree
that (
x
) this Agreement is not a management or employment agreement and (
y
) nothing in this
Agreement shall give the Executive any rights or impose any obligations to continued employment by
Middlefield or any subsidiary or successor of Middlefield.
7
.
Payment of Legal Fees
. Middlefield is aware that after a Change in Control
management could cause or attempt to cause Middlefield to refuse to comply with its obligations
under this Agreement, or could institute or cause or attempt to cause Middlefield to institute
litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take
other action to deny Executive the benefits intended under this Agreement. In these circumstances
the purposes of this Agreement would be frustrated. Middlefield desires that the Executive not be
required to incur the expenses associated with the enforcement of rights under this Agreement,
whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive hereunder.
Middlefield desires that the Executive not be forced to negotiate settlement of rights under this
Agreement under threat of incurring expenses. Accordingly, if after a Change in Control occurs it
appears to the Executive that (
x
) Middlefield has failed to comply with any of its obligations
under this Agreement, or (
y
) Middlefield or any other person has taken any action to declare this
Agreement void or unenforceable, or instituted any litigation or other legal action designed to
deny, diminish, or to recover from the Executive the benefits intended to be provided to the
Executive hereunder, Middlefield irrevocably authorizes the Executive from time to time to retain
counsel of the Executives choice, at Middlefields expense as provided in this section 7, to
represent the Executive in the initiation or defense of any litigation or other legal action,
whether by or against Middlefield or any director, officer, stockholder, or other person affiliated
with Middlefield, in any jurisdiction. Despite any existing or previous attorney-client
relationship between Middlefield and any counsel chosen by the Executive under this section 7,
Middlefield irrevocably consents to the
Executive entering into an attorney-client relationship with that counsel and Middlefield and
the Executive agree that a confidential relationship shall exist between the Executive and that
counsel. The fees and expenses of counsel selected from time to time by the Executive as provided
in this section shall be paid or reimbursed to the Executive by Middlefield on a regular, periodic
basis upon presentation by the Executive of a statement or statements prepared by counsel in
accordance with counsels customary practices, up to a maximum aggregate amount of $500,000,
whether suit be brought or not, and whether or not incurred in trial, bankruptcy, or appellate
proceedings. Middlefields obligation to pay the Executives legal fees under this section 7
operates separately from and in addition to any legal fee reimbursement obligation Middlefield may
have with the Executive under any separate severance or other
4
agreement. Despite any contrary
provision of this Agreement however, Middlefield shall not be required to pay or reimburse the
Executives legal expenses if doing so would violate section 18(k) of the Federal Deposit Insurance
Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].
8
.
Withholding of Taxes
. Middlefield may withhold from any benefits payable under this
Agreement all Federal, state, local or other taxes as may be required by law, governmental
regulation, or ruling.
9
.
Successors and Assigns
. (a)
This Agreement is binding on successors
. This Agreement
shall be binding upon Middlefield and any successor to Middlefield, including any persons acquiring
directly or indirectly all or substantially all of the business or assets of Middlefield by
purchase, merger, consolidation, reorganization, or otherwise. But this Agreement and
Middlefields obligations under this Agreement are not otherwise assignable, transferable, or
delegable by Middlefield. By agreement in form and substance satisfactory to the Executive,
Middlefield shall require any successor to all or substantially all of the business or assets of
Middlefield expressly to assume and agree to perform this Agreement in the same manner and to the
same extent Middlefield would be required to perform had no succession occurred.
(b)
This Agreement is enforceable by the Executives heirs
. This Agreement shall inure to the
benefit of and be enforceable by the Executives personal or legal representatives, executors,
administrators, successors, heirs, distributees, and legatees.
(c)
This Agreement is personal and is not assignable
. This Agreement is personal in nature.
Without written consent of the other party, neither party shall assign, transfer, or delegate this
Agreement or any rights or obligations under this Agreement except as expressly provided in this
section 9. Without limiting the generality of the foregoing, the Executives right to receive
payments hereunder is not assignable or transferable, whether by pledge, creation of a security
interest, or otherwise, except for a transfer by Executives will or by the laws of descent and
distribution. If the Executive attempts an assignment or transfer that is contrary to this section
9, Middlefield shall have no liability to pay any amount to the assignee or transferee.
10
.
Notices
. Any notice under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Executive if addressed to the address of the Executive on the books and
records of Middlefield at the time of the delivery of the notice, and properly addressed to
Middlefield if addressed to the board of directors, Middlefield Banc Corp., 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
11
.
Captions and Counterparts
. The headings and subheadings used in this Agreement are
included solely for convenience and shall not affect the interpretation of this Agreement. This
Agreement may be executed in one or more counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one and the same agreement.
12
.
Amendments and Waivers
. No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in a writing signed by the
Executive and by Middlefield. No waiver by either party hereto at any time of any breach by the
other party hereto or waiver of compliance with any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
13
.
Severability
. The provisions of this Agreement are severable. The invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions of this Agreement. Any provision held to be invalid or unenforceable shall be reformed
to the extent and solely to the extent necessary to make it valid and enforceable.
5
14
.
Governing Law
. The validity, interpretation, construction, and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Ohio, without giving effect to the principles of conflict of laws of such state.
15
.
Entire Agreement
. This Agreement constitutes the entire agreement between Middlefield and
the Executive concerning the subject matter. No rights are granted to the Executive under this
Agreement other than those specifically set forth. No agreements or representations, oral or
otherwise, expressed or implied concerning the subject matter hereof have been made by either party
that are not set forth expressly in this Agreement. This Agreement supersedes and replaces in its
entirety the July 11, 2006 Severance Agreement between Middlefield and the Executive, and from and
after the date of this Agreement the July 11, 2006 Severance Agreement shall be of no further force
or effect.
16
.
No Mitigation Required
. Middlefield hereby acknowledges that it will be difficult and
could be impossible (
x
) for the Executive to find reasonably comparable employment after
termination and (
y
) to measure the amount of damages the Executive suffers as a result of
termination. Additionally, Middlefield acknowledges that its general severance pay plans do not
provide for mitigation, offset, or reduction of any severance payment received thereunder.
Middlefield further acknowledges that the payment of benefits by Middlefield under this Agreement
is reasonable and shall be liquidated damages. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor
will any profits, income, earnings, or other benefits from any source whatsoever create any
mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or
otherwise.
17
.
Internal Revenue Code Section 409A
. Middlefield and the Executive intend that their
exercise of authority or discretion under this Agreement shall comply with section 409A of the
Internal Revenue Code of 1986. If when the Executives employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any
payments or benefits under this Agreement will result in additional tax or interest to the
Executive because of section 409A, then despite any provision of this Agreement to the contrary the
Executive shall not be entitled to the payments or benefits until the earliest of (
x
) the date that
is at least six months after termination of the Executives employment for reasons other than the
Executives death, (
y
) the date of the Executives death, or (
z
) any earlier date that does not
result in additional tax or interest to the Executive under section 409A. As promptly as possible
after the end of the period during which payments or benefits are delayed under this provision, the
entire amount of the delayed payments
shall be paid to the Executive in a single lump sum. If any provision of this Agreement does
not satisfy the requirements of section 409A, such provision shall be applied in a manner
consistent with those requirements, despite any contrary provision of this Agreement. If any
provision of this Agreement would subject the Executive to additional tax or interest under section
409A, Middlefield shall reform the provision. However, Middlefield shall maintain to the maximum
extent practicable the original intent of the applicable provision without subjecting the Executive
to additional tax or interest, and Middlefield shall not be required to incur any additional
compensation expense as a result of the reformed provision. References in this Agreement to
section 409A of the Internal Revenue Code of 1986 include rules, regulations, and guidance of
general application issued by the Department of the Treasury under Internal Revenue Code section
409A.
6
In Witness Whereof
, the parties have executed this Severance Agreement as of
the date first written above.
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Executive
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Middlefield Banc Corp
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By:
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James R. Heslop II
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Thomas G. Caldwell
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Its:
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President and Chief Executive Officer
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7
Exhibit 10.4
Severance Agreement
This
Severance Agreement
(this Agreement) is entered into effective as of this
day of
, 2008, by and be
tween Middlefield Banc
Corp., an Ohio corporation (Middlefield), and Jay P. Giles (the Executive).
Whereas
, recognizing the contributions made and expected to be made by the Executive
to the profitability, growth, and financial strength of Middlefield and its subsidiaries, intending
to assure itself of the current and future continuity of management, intending to establish minimum
severance benefits for certain officers and other key employees, including the Executive, intending
to ensure that officers and other key employees are not practically disabled from discharging their
duties if a proposed or actual transaction involving a change in control arises, and finally
desiring to provide additional inducement for the Executive to remain in the employment of The
Middlefield Banking Company, Middlefield entered into a Severance Agreement with the Executive
dated as of July 11, 2006,
Whereas
, Middlefield and the Executive intend that this Agreement supersede and
replace in its entirety the July 11, 2006 Severance Agreement, and
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of Middlefield, is
contemplated insofar as either of Middlefield or any of its subsidiaries is concerned.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
1
.
Termination after a Change in Control
. (a)
Cash benefit
. If the Executives employment
terminates involuntarily but without Cause or voluntarily but with Good Reason, in either case
within 24 months after a Change in Control, Middlefield shall make a lump-sum payment to the
Executive in an amount in cash equal to two times the Executives compensation. For this purpose
the Executives compensation means (
x
) the sum of the Executives base salary when the Change in
Control occurs or when employment termination occurs, whichever amount is greater, plus (
y
) any
bonus earned for the most recent whole calendar year before the year in which the Change in Control
occurs or for the most recent whole calendar year before the year in which employment termination
occurs, whichever amount is greater, regardless of whether the bonus is paid in the year earned and
regardless of whether the bonus is subject to elective deferral or vesting. The term bonus means
cash or non-cash compensation of the type that is required to be reported as bonus by the
Securities and Exchange Commissions rules governing tabular disclosure of executive compensation,
specifically Regulation S-K Item 402 (17 CFR 229.402, currently Item 402(c)(2)(iv)). Unless delay
is required under section 1(b), the payment required under this section 1(a) shall be made within
five business days after the Executives employment termination. The amount payable to the
Executive hereunder shall not be reduced to account for the time value of money or discounted to
present value. If the Executives employment terminates involuntarily but without Cause before the
Change in Control occurs but after discussions regarding the Change in Control commence, then for
purposes of this Agreement the Executives employment shall be deemed to have terminated
immediately after the Change in Control and, unless delay is required under section 1(b), the
Executive shall be entitled to the cash benefit under this section 1(a) within five business days
after the Change in Control.
(b)
Payment of the benefit
. If when employment termination occurs the Executive is a
specified employee within the meaning of section 409A of the Internal Revenue Code of 1986, if the
cash severance benefit under section 1(a) would be considered deferred compensation under section
409A, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i)
is not available, payment of the benefit under
section 1(a) shall be delayed and shall be made to
the Executive in a single lump sum without interest on the first day of the seventh month after the
month in which the Executives employment terminates. References in this Agreement to section 409A
of the Internal Revenue Code of 1986 include rules, regulations, and guidance of general
application issued by the Department of the Treasury under Internal Revenue Code section 409A.
(c)
Change in Control defined
. For purposes of this Agreement Change in Control means a
change in control as defined in Internal Revenue Code section 409A and rules, regulations, and
guidance of general application thereunder issued by the Department of the Treasury, including
1)
Change in ownership
: a change in ownership of Middlefield occurs on the date any one person
or group accumulates ownership of Middlefield stock constituting more than 50% of the total fair
market value or total voting power of Middlefield stock, or
2)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield stock possessing 30% or more of the
total voting power of Middlefield stock, or (
y
) a majority of Middlefields board of directors is
replaced during any 12-month period by directors whose appointment or election is not endorsed in
advance by a majority of Middlefields board of directors, or
3)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefields assets occurs if in a 12-month period any one person or more
than one person acting as a group acquires from Middlefield assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all of Middlefields assets
immediately before the acquisition or acquisitions. For this purpose, gross fair market value
means the value of Middlefields assets, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the assets.
(d)
Involuntary termination with Cause defined
. For purposes of this Agreement involuntary
termination of the Executives employment shall be considered involuntary termination with Cause if
the Executive shall have committed any of the following acts
1) an act of fraud, embezzlement, or theft while employed by Middlefield or a subsidiary, or
conviction of the Executive for or plea of no contest to a felony or conviction of or plea of no
contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive
for 45 consecutive days or more, or
2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of the
Executives duties as an officer of Middlefield or a subsidiary; willful or reckless failure by the
Executive to adhere to Middlefields or subsidiarys written policies; intentional wrongful damage
by the Executive to the business or property of Middlefield or subsidiary, including without
limitation its reputation, which in Middlefields sole judgment causes material harm to Middlefield
or subsidiary; breach by the Executive of fiduciary duties to Middlefield and its stockholders,
whether in the Executives capacity as an officer or as a director of Middlefield or subsidiary, or
3) removal of the Executive from office or permanent prohibition of the Executive from
participating in the affairs of Middlefields subsidiary bank or banks by an order issued under
section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
4) intentional wrongful disclosure of secret processes or confidential information of
Middlefield or affiliates, which in Middlefields sole judgment causes material harm to Middlefield
or affiliates, or
2
5) any actions that have caused the Executive to be terminated with cause under any
employment agreement existing on the date hereof or hereafter entered into between the Executive
and Middlefield or a subsidiary, or
6) the occurrence of any event that results in the Executive being excluded from coverage, or
having coverage limited for the Executive as compared to other executives of Middlefield or
affiliates, under a blanket bond or other fidelity or insurance policy covering directors,
officers, or employees, or
7) intentional wrongful engagement in any competitive activity. For purposes of this
Agreement competitive activity means the Executives participation, without the consent of
Middlefields board of directors, in the management of any business enterprise if (
x
) the
enterprise engages in substantial and direct competition with Middlefield, (
y
) the enterprises
revenues derived from any product or service competitive with any product or service of Middlefield
or a subsidiary amounted to 10% or more of the enterprises revenues for its most recently
completed fiscal year, and (
z
) Middlefields revenues from the product or service amounted to 10%
of Middlefields revenues for its most recently completed fiscal year. A competitive activity does
not include mere ownership of securities in an enterprise and the exercise of rights appurtenant
thereto, provided the Executives share ownership does not represent practical or legal control of
the enterprise. For this purpose, ownership of less than 5% of the enterprises outstanding voting
securities shall conclusively be presumed to be insufficient for practical or legal control, and
ownership of more than 50% shall conclusively be presumed to constitute practical and legal
control.
For purposes of this Agreement no act or failure to act on the Executives part shall be
deemed to have been intentional if it was due primarily to an error in judgment or negligence. An
act or failure to act on the Executives part shall be considered intentional if it is not in good
faith and if it is without a reasonable belief that the action or failure to act is in
Middlefields best interests. Any act or failure to act based upon authority granted by
resolutions duly adopted by the board of directors or based upon the advice of counsel for
Middlefield shall be conclusively presumed to be in good faith and in Middlefields best interests.
For purposes of this Agreement the term subsidiary means any entity in which Middlefield directly
or indirectly beneficially owns 50% or more of the outstanding voting securities.
(e)
Voluntary termination with Good Reason defined
. For purposes of this Agreement a
voluntary termination by the Executive shall be considered a voluntary termination with Good Reason
if the conditions stated in both clauses (
x
) and (
y
) are satisfied
(
x
) a voluntary termination by the Executive shall be considered a voluntary termination
with Good Reason if any of the following occur without the Executives advance written
consent, and the term Good Reason shall mean the occurrence of any of the following without
the Executives advance written consent
1) a material diminution of the Executives base salary,
2) a material diminution of the Executives authority, duties, or
responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the
supervisor to whom the Executive is required to report,
4) a material diminution in the budget over which the Executive retains
authority,
5) a material change in the geographic location at which the Executive must
perform services, or
3
6) any other action or inaction that constitutes a material breach by
Middlefield of this Agreement.
(
y
) the Executive must give notice to Middlefield of the existence of one or more of the
conditions described in clause (
x
) within 90 days after the initial existence of the
condition, and Middlefield shall have 30 days thereafter to remedy the condition. In
addition, the Executives voluntary termination because of the existence of one or more of
the conditions described in clause (
x
) must occur within 24 months after the initial
existence of the condition.
2
.
Insurance and Miscellaneous Benefits
. (a)
Benefits
. Subject to section 2(b), if the
Executives employment terminates involuntarily but without Cause or voluntarily but for Good
Reason within 24 months after a Change in Control, Middlefield shall also (
x
) cause the Executive
to become fully vested in any non-qualified plans, programs, or arrangements in which the Executive
participated if the plan, program, or arrangement does not address the effect of a change in
control and (
y
) continue or cause to be continued life, health, and disability insurance coverage
substantially identical to the coverage maintained for the Executive before termination and in
accordance with the same schedule prevailing before employment termination. The insurance coverage
may cease when the Executive becomes employed by another employer or 24 months after the
Executives termination, whichever occurs first.
(b)
Alternative lump-sum cash payment
. If (
x
) under the terms of the applicable policy or
policies for the insurance benefits specified in section 2(a) it is not possible to continue the
Executives coverage, or (
y
) if when employment termination occurs the Executive is a specified
employee within the meaning of section 409A of the Internal Revenue Code of 1986, if any of the
continued insurance coverage benefits specified in section 2(a) would be considered deferred
compensation under section 409A, and finally if an exemption from the six-month delay requirement
of section 409A(a)(2)(B)(i) is not available for that particular insurance benefit, instead of
continued insurance coverage under section 2(a) Middlefield shall pay or cause to be paid to the
Executive in a single lump sum an amount in cash equal to the present value of Middlefields
projected cost to maintain that particular insurance benefit had the Executives employment not
terminated, assuming continued coverage for the lesser of 24 months or the number of months until
the Executive attains age 65. The lump-sum payment shall be made within five business days after
employment termination or, if the Executive is a specified employee within the meaning of section
409A and an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) is not
available, on the first day of the seventh month after the month in which the Executives
employment terminates.
3
.
Termination for Which No Benefits Are Payable
. Despite anything in this Agreement to the
contrary, the Executive shall be entitled to no benefits under this Agreement if the Executives
employment terminates with Cause, if the Executive dies while actively employed by Middlefield or a
subsidiary, or if the Executive becomes totally disabled while actively employed by Middlefield or
a subsidiary. For purposes of this Agreement, the term totally disabled means that because of
injury or sickness the Executive is unable to perform the Executives duties. The benefits, if
any, payable to the Executive or the Executives beneficiary or estate relating to the Executives
death or disability shall be determined solely by such benefit plans or arrangements as Middlefield
or subsidiary may have with the Executive relating to death or disability, not by this Agreement.
4
.
Term of Agreement
. The initial term of this Agreement shall be for a period of three
years, commencing on the effective date. On the first anniversary of the effective date of this
Agreement and on each anniversary thereafter this Agreement shall be extended automatically for one
additional year, unless Middlefields board of directors gives notice to the Executive in writing
at least 90 days before the anniversary that the term of this Agreement will not be extended. If
the board of directors determines not to extend the term, it shall promptly notify the Executive.
References herein to the term of this Agreement mean the initial term and extensions of the initial
term. Unless terminated earlier, this Agreement shall terminate when the Executive
4
attains age 65. If the board of directors decides not to extend the term of this Agreement, this Agreement shall
nevertheless remain in force until its term expires.
5
.
This Agreement Is Not an Employment Contract
. The parties hereto acknowledge and agree
that (
x
) this Agreement is not a management or employment agreement and (
y
) nothing in this
Agreement shall give the Executive any rights or impose any obligations to continued employment by
Middlefield or any subsidiary or successor of Middlefield.
6
.
Payment of Legal Fees
. Middlefield is aware that after a Change in Control management
could cause or attempt to cause Middlefield to refuse to comply with its obligations under this
Agreement, or could institute or cause or attempt to cause Middlefield to institute litigation
seeking to have this Agreement declared unenforceable, or could take or attempt to take other
action to deny Executive the benefits intended under this Agreement. In these circumstances the
purposes of this Agreement would be frustrated. Middlefield desires that the Executive not be
required to incur the expenses associated with the enforcement of rights under this Agreement,
whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive hereunder.
Middlefield desires that the Executive not be forced to negotiate settlement of rights under this
Agreement under threat of incurring expenses. Accordingly, if after a Change in Control occurs it
appears to the Executive that (
x
) Middlefield has failed to comply with any of its obligations
under this Agreement, or (
y
) Middlefield or any other person has taken any action to declare this
Agreement void or unenforceable, or instituted any litigation or other legal action designed to
deny, diminish, or to recover from the Executive the benefits intended to be provided to the
Executive hereunder, Middlefield irrevocably authorizes the Executive from time to time to retain
counsel of the Executives choice, at Middlefields expense as provided in this section 6, to
represent the Executive in the initiation or defense of any litigation or other legal action,
whether by or against Middlefield or any director, officer, stockholder, or other person affiliated
with Middlefield, in any jurisdiction. Despite any existing or previous attorney-client
relationship between Middlefield and any counsel chosen by the Executive under this section 6,
Middlefield irrevocably consents to the Executive entering into an attorney-client relationship
with that counsel and Middlefield and the Executive agree that a confidential relationship shall
exist between the Executive and that counsel. The fees and expenses of counsel selected from time
to time by the Executive as provided in this section shall be paid or reimbursed to the Executive
by Middlefield on a regular, periodic basis upon presentation by the Executive of a statement or
statements prepared by counsel in accordance with counsels customary practices, up to a maximum
aggregate amount of $300,000, whether suit be brought or not, and whether or not incurred in trial,
bankruptcy, or appellate proceedings. Middlefields obligation to pay the Executives legal fees
under this section 6 operates separately from and in addition to any legal fee reimbursement
obligation Middlefield may have with the Executive under any separate severance or other agreement.
Despite any contrary provision of this Agreement however, Middlefield shall not be required to pay
or reimburse the Executives legal expenses if doing so would violate section 18(k) of the Federal
Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance
Corporation [12 CFR 359.3].
7
.
Withholding of Taxes
. Middlefield may withhold from any benefits payable under this
Agreement all Federal, state, local or other taxes as may be required by law, governmental
regulation, or ruling.
8
.
Successors and Assigns
. (a)
This Agreement is binding on successors
. This Agreement
shall be binding upon Middlefield and any successor to Middlefield, including any persons acquiring
directly or indirectly all or substantially all of the business or assets of Middlefield by
purchase, merger, consolidation, reorganization, or otherwise. But this Agreement and
Middlefields obligations under this Agreement are not otherwise assignable, transferable, or
delegable by Middlefield. By agreement in form and substance satisfactory to the Executive,
Middlefield shall require any successor to all or substantially all of the business or assets of
Middlefield expressly to assume and agree to perform this Agreement in the same manner and to the
same extent Middlefield would be required to perform had no succession occurred.
5
(b)
This Agreement is enforceable by the Executives heirs
. This Agreement shall inure
to the benefit of and be enforceable by the Executives personal or legal representatives,
executors, administrators, successors, heirs, distributees, and legatees.
(c)
This Agreement is personal and is not assignable
. This Agreement is personal in nature.
Without written consent of the other party, neither party shall assign, transfer, or delegate this
Agreement or any rights or obligations under this Agreement except as expressly provided in this
section 8. Without limiting the generality of the foregoing, the Executives right to receive
payments hereunder is not assignable or transferable, whether by pledge, creation of a security
interest, or otherwise, except for a transfer by Executives will or by the laws of descent and
distribution. If the Executive attempts an assignment or transfer that is contrary to this section
8, Middlefield shall have no liability to pay any amount to the assignee or transferee.
9
.
Notices
. Any notice under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Executive if addressed to the address of the Executive on the books and
records of Middlefield at the time of the delivery of the notice, and properly addressed to
Middlefield if addressed to the board of directors, Middlefield Banc Corp., 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
10
.
Captions and Counterparts
. The headings and subheadings in this Agreement are included
solely for convenience and shall not affect the interpretation of this Agreement. This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same agreement.
11
.
Amendments and Waivers
. No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in a writing signed by the
Executive and by Middlefield. No waiver by either party hereto at any time of any breach by the
other party hereto or waiver of compliance with any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
12
.
Severability
. The provisions of this Agreement are severable. The invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions of this Agreement. Any provision held to be invalid or unenforceable shall be reformed
to the extent and solely to the extent necessary to make it valid and enforceable.
13
.
Governing Law
. The validity, interpretation, construction, and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Ohio, without giving effect to the principles of conflict of laws of such state.
14
.
Entire Agreement
. This Agreement constitutes the entire agreement between Middlefield and
the Executive concerning the subject matter. No rights are granted to the Executive under this
Agreement other than those specifically set forth. No agreements or representations, oral or
otherwise, expressed or implied concerning the subject matter hereof have been made by either party
that are not set forth expressly in this Agreement. This Agreement supersedes and replaces in its
entirety the July 11, 2006 Severance Agreement between Middlefield and the Executive, and from and
after the date of this Agreement the July 11, 2006 Severance Agreement shall be of no further force
or effect.
15
.
No Mitigation Required
. Middlefield hereby acknowledges that it will be difficult
and could be impossible (
x
) for the Executive to find reasonably comparable employment after
termination and (
y
) to measure the amount of damages the Executive suffers as a result of
termination. Additionally, Middlefield acknowledges
6
that its general severance pay plans do not provide for mitigation, offset, or reduction of any severance payment received thereunder.
Middlefield further acknowledges that the payment of benefits by Middlefield under this Agreement
is reasonable and shall be liquidated damages. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor
shall any profits, income, earnings, or other benefits from any source whatsoever create any
mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or
otherwise.
16
.
Internal Revenue Code Section 409A
. Middlefield and the Executive intend that their
exercise of authority or discretion under this Agreement shall comply with section 409A of the
Internal Revenue Code of 1986. If when the Executives employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any
payments or benefits under this Agreement will result in additional tax or interest to the
Executive because of section 409A, then despite any provision of this Agreement to the contrary the
Executive shall not be entitled to the payments or benefits until the earliest of (
x
) the date that
is at least six months after termination of the Executives employment for reasons other than the
Executives death, (
y
) the date of the Executives death, or (
z
) any earlier date that does not
result in additional tax or interest to the Executive under section 409A. As promptly as possible
after the end of the period during which payments or benefits are delayed under this provision, the
entire amount of the delayed payments shall be paid to the Executive in a single lump sum. If any
provision of this Agreement does not satisfy the requirements of section 409A, the provision shall
be applied in a manner consistent with those requirements, despite any contrary provision of this
Agreement. If any provision of this Agreement would subject the Executive to additional tax or
interest under section 409A, Middlefield shall reform the provision. However, Middlefield shall
maintain to the maximum extent practicable the original intent of the applicable provision without
subjecting the Executive to additional tax or interest, and Middlefield shall not be required to
incur any additional compensation expense as a result of the reformed provision. References in
this Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations, and
guidance of general application issued by the Department of the Treasury under Internal Revenue
Code section 409A.
In Witness Whereof
, the parties have executed this Severance Agreement as of the date
first written above.
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Executive
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Middlefield Banc Corp
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By:
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Thomas G. Caldwell
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Its:
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President and Chief Executive Officer
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7
Exhibit 10.4.1
Severance Agreement
This
Severance Agreement
(this Agreement) is entered into effective as of this
day of
, 2008, by and between Middlefield Banc
Corp., an Ohio corporation (Middlefield), and Teresa M. Hetrick (the Executive).
Whereas
, recognizing the contributions made and expected to be made by the Executive
to the profitability, growth, and financial strength of Middlefield and its subsidiaries, intending
to assure itself of the current and future continuity of management, intending to establish minimum
severance benefits for certain officers and other key employees, including the Executive, intending
to ensure that officers and other key employees are not practically disabled from discharging their
duties if a proposed or actual transaction involving a change in control arises, and finally
desiring to provide additional inducement for the Executive to remain in the employment of The
Middlefield Banking Company, Middlefield entered into a Severance Agreement with the Executive
dated as of July 11, 2006,
Whereas
, Middlefield and the Executive intend that this Agreement supersede and
replace in its entirety the July 11, 2006 Severance Agreement, and
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of Middlefield, is
contemplated insofar as either of Middlefield or any of its subsidiaries is concerned.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
1
.
Termination after a Change in Control
. (a)
Cash benefit
. If the Executives employment
terminates involuntarily but without Cause or voluntarily but with Good Reason, in either case
within 24 months after a Change in Control, Middlefield shall make a lump-sum payment to the
Executive in an amount in cash equal to two times the Executives compensation. For this purpose
the Executives compensation means (
x
) the sum of the Executives base salary when the Change in
Control occurs or when employment termination occurs, whichever amount is greater, plus (
y
) any
bonus earned for the most recent whole calendar year before the year in which the Change in Control
occurs or for the most recent whole calendar year before the year in which employment termination
occurs, whichever amount is greater, regardless of whether the bonus is paid in the year earned and
regardless of whether the bonus is subject to elective deferral or vesting. The term bonus means
cash or non-cash compensation of the type that is required to be reported as bonus by the
Securities and Exchange Commissions rules governing tabular disclosure of executive compensation,
specifically Regulation S-K Item 402 (17 CFR 229.402, currently Item 402(c)(2)(iv)). Unless delay
is required under section 1(b), the payment required under this section 1(a) shall be made within
five business days after the Executives employment termination. The amount payable to the
Executive hereunder shall not be reduced to account for the time value of money or discounted to
present value. If the Executives employment terminates involuntarily but without Cause before the
Change in Control occurs but after discussions regarding the Change in Control commence, then for
purposes of this Agreement the Executives employment shall be deemed to have terminated
immediately after the Change in Control and, unless delay is required under section 1(b), the
Executive shall be entitled to the cash benefit under this section 1(a) within five business days
after the Change in Control.
(b)
Payment of the benefit
. If when employment termination occurs the Executive is a
specified employee within the meaning of section 409A of the Internal Revenue Code of 1986, if the
cash severance benefit under section 1(a) would be considered deferred compensation under section
409A, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i)
is not available, payment of the benefit under
section 1(a) shall be delayed and shall be made to
the Executive in a single lump sum without interest on the first day of the seventh month after the
month in which the Executives employment terminates. References in this Agreement to section 409A
of the Internal Revenue Code of 1986 include rules, regulations, and guidance of general
application issued by the Department of the Treasury under Internal Revenue Code section 409A.
(c)
Change in Control defined
. For purposes of this Agreement Change in Control means a
change in control as defined in Internal Revenue Code section 409A and rules, regulations, and
guidance of general application thereunder issued by the Department of the Treasury, including
1)
Change in ownership
: a change in ownership of Middlefield occurs on the date any one person
or group accumulates ownership of Middlefield stock constituting more than 50% of the total fair
market value or total voting power of Middlefield stock, or
2)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield stock possessing 30% or more of the
total voting power of Middlefield stock, or (
y
) a majority of Middlefields board of directors is
replaced during any 12-month period by directors whose appointment or election is not endorsed in
advance by a majority of Middlefields board of directors, or
3)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefields assets occurs if in a 12-month period any one person or more
than one person acting as a group acquires from Middlefield assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all of Middlefields assets
immediately before the acquisition or acquisitions. For this purpose, gross fair market value
means the value of Middlefields assets, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the assets.
(d)
Involuntary termination with Cause defined
. For purposes of this Agreement involuntary
termination of the Executives employment shall be considered involuntary termination with Cause if
the Executive shall have committed any of the following acts
1) an act of fraud, embezzlement, or theft while employed by Middlefield or a subsidiary, or
conviction of the Executive for or plea of no contest to a felony or conviction of or plea of no
contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive
for 45 consecutive days or more, or
2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of the
Executives duties as an officer of Middlefield or a subsidiary; willful or reckless failure by the
Executive to adhere to Middlefields or subsidiarys written policies; intentional wrongful damage
by the Executive to the business or property of Middlefield or subsidiary, including without
limitation its reputation, which in Middlefields sole judgment causes material harm to Middlefield
or subsidiary; breach by the Executive of fiduciary duties to Middlefield and its stockholders,
whether in the Executives capacity as an officer or as a director of Middlefield or subsidiary, or
3) removal of the Executive from office or permanent prohibition of the Executive from
participating in the affairs of Middlefields subsidiary bank or banks by an order issued under
section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
4) intentional wrongful disclosure of secret processes or confidential information of
Middlefield or affiliates, which in Middlefields sole judgment causes material harm to Middlefield
or affiliates, or
2
5) any actions that have caused the Executive to be terminated with cause under any
employment agreement existing on the date hereof or hereafter entered into between the Executive
and Middlefield or a subsidiary, or
6) the occurrence of any event that results in the Executive being excluded from coverage, or
having coverage limited for the Executive as compared to other executives of Middlefield or
affiliates, under a blanket bond or other fidelity or insurance policy covering directors,
officers, or employees, or
7) intentional wrongful engagement in any competitive activity. For purposes of this
Agreement competitive activity means the Executives participation, without the consent of
Middlefields board of directors, in the management of any business enterprise if (
x
) the
enterprise engages in substantial and direct competition with Middlefield, (
y
) the enterprises
revenues derived from any product or service competitive with any product or service of Middlefield
or a subsidiary amounted to 10% or more of the enterprises revenues for its most recently
completed fiscal year, and (
z
) Middlefields revenues from the product or service amounted to 10%
of Middlefields revenues for its most recently completed fiscal year. A competitive activity does
not include mere ownership of securities in an enterprise and the exercise of rights appurtenant
thereto, provided the Executives share ownership does not represent practical or legal control of
the enterprise. For this purpose, ownership of less than 5% of the enterprises outstanding voting
securities shall conclusively be presumed to be insufficient for practical or legal control, and
ownership of more than 50% shall conclusively be presumed to constitute practical and legal
control.
For purposes of this Agreement no act or failure to act on the Executives part shall be
deemed to have been intentional if it was due primarily to an error in judgment or negligence. An
act or failure to act on the Executives part shall be considered intentional if it is not in good
faith and if it is without a reasonable belief that the action or failure to act is in
Middlefields best interests. Any act or failure to act based upon authority granted by
resolutions duly adopted by the board of directors or based upon the advice of counsel for
Middlefield shall be conclusively presumed to be in good faith and in Middlefields best interests.
For purposes of this Agreement the term subsidiary means any entity in which Middlefield directly
or indirectly beneficially owns 50% or more of the outstanding voting securities.
(e)
Voluntary termination with Good Reason defined
. For purposes of this Agreement a
voluntary termination by the Executive shall be considered a voluntary termination with Good Reason
if the conditions stated in both clauses (
x
) and (
y
) are satisfied
(
x
) a voluntary termination by the Executive shall be considered a voluntary termination
with Good Reason if any of the following occur without the Executives advance written
consent, and the term Good Reason shall mean the occurrence of any of the following without
the Executives advance written consent
1) a material diminution of the Executives base salary,
2) a material diminution of the Executives authority, duties, or
responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the
supervisor to whom the Executive is required to report,
4) a material diminution in the budget over which the Executive retains
authority,
5) a material change in the geographic location at which the Executive must
perform services, or
3
6) any other action or inaction that constitutes a material breach by
Middlefield of this Agreement.
(
y
) the Executive must give notice to Middlefield of the existence of one or more of the
conditions described in clause (
x
) within 90 days after the initial existence of the
condition, and Middlefield shall have 30 days thereafter to remedy the condition. In
addition, the Executives voluntary termination because of the existence of one or more of
the conditions described in clause (
x
) must occur within 24 months after the initial
existence of the condition.
2
.
Insurance and Miscellaneous Benefits
. (a)
Benefits
. Subject to section 2(b), if the
Executives employment terminates involuntarily but without Cause or voluntarily but for Good
Reason within 24 months after a Change in Control, Middlefield shall also (
x
) cause the Executive
to become fully vested in any non-qualified plans, programs, or arrangements in which the Executive
participated if the plan, program, or arrangement does not address the effect of a change in
control and (
y
) continue or cause to be continued life, health, and disability insurance coverage
substantially identical to the coverage maintained for the Executive before termination and in
accordance with the same schedule prevailing before employment termination. The insurance coverage
may cease when the Executive becomes employed by another employer or 24 months after the
Executives termination, whichever occurs first.
(b)
Alternative lump-sum cash payment
. If (
x
) under the terms of the applicable policy or
policies for the insurance benefits specified in section 2(a) it is not possible to continue the
Executives coverage, or (
y
) if when employment termination occurs the Executive is a specified
employee within the meaning of section 409A of the Internal Revenue Code of 1986, if any of the
continued insurance coverage benefits specified in section 2(a) would be considered deferred
compensation under section 409A, and finally if an exemption from the six-month delay requirement
of section 409A(a)(2)(B)(i) is not available for that particular insurance benefit, instead of
continued insurance coverage under section 2(a) Middlefield shall pay or cause to be paid to the
Executive in a single lump sum an amount in cash equal to the present value of Middlefields
projected cost to maintain that particular insurance benefit had the Executives employment not
terminated, assuming continued coverage for the lesser of 24 months or the number of months until
the Executive attains age 65. The lump-sum payment shall be made within five business days after
employment termination or, if the Executive is a specified employee within the meaning of section
409A and an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) is not
available, on the first day of the seventh month after the month in which the Executives
employment terminates.
3
.
Termination for Which No Benefits Are Payable
. Despite anything in this Agreement to the
contrary, the Executive shall be entitled to no benefits under this Agreement if the Executives
employment terminates with Cause, if the Executive dies while actively employed by Middlefield or a
subsidiary, or if the Executive becomes totally disabled while actively employed by Middlefield or
a subsidiary. For purposes of this Agreement, the term totally disabled means that because of
injury or sickness the Executive is unable to perform the Executives duties. The benefits, if
any, payable to the Executive or the Executives beneficiary or estate relating to the Executives death or
disability shall be determined solely by such benefit plans or arrangements as Middlefield or
subsidiary may have with the Executive relating to death or disability, not by this Agreement.
4
.
Term of Agreement
. The initial term of this Agreement shall be for a period of
three years, commencing on the effective date. On the first anniversary of the effective date of
this Agreement and on each anniversary thereafter this Agreement shall be extended automatically
for one additional year, unless Middlefields board of directors gives notice to the Executive in
writing at least 90 days before the anniversary that the term of this Agreement will not be
extended. If the board of directors determines not to extend the term, it shall promptly notify
the Executive. References herein to the term of this Agreement mean the initial term and
extensions of the initial term. Unless terminated earlier, this Agreement shall terminate when the
Executive
4
attains age 65. If the board of directors decides not to extend the term of this
Agreement, this Agreement shall nevertheless remain in force until its term expires.
5
.
This Agreement Is Not an Employment Contract
. The parties hereto acknowledge and agree
that (
x
) this Agreement is not a management or employment agreement and (
y
) nothing in this
Agreement shall give the Executive any rights or impose any obligations to continued employment by
Middlefield or any subsidiary or successor of Middlefield.
6
.
Payment of Legal Fees
. Middlefield is aware that after a Change in Control management
could cause or attempt to cause Middlefield to refuse to comply with its obligations under this
Agreement, or could institute or cause or attempt to cause Middlefield to institute litigation
seeking to have this Agreement declared unenforceable, or could take or attempt to take other
action to deny Executive the benefits intended under this Agreement. In these circumstances the
purposes of this Agreement would be frustrated. Middlefield desires that the Executive not be
required to incur the expenses associated with the enforcement of rights under this Agreement,
whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive hereunder.
Middlefield desires that the Executive not be forced to negotiate settlement of rights under this
Agreement under threat of incurring expenses. Accordingly, if after a Change in Control occurs it
appears to the Executive that (
x
) Middlefield has failed to comply with any of its obligations
under this Agreement, or (
y
) Middlefield or any other person has taken any action to declare this
Agreement void or unenforceable, or instituted any litigation or other legal action designed to
deny, diminish, or to recover from the Executive the benefits intended to be provided to the
Executive hereunder, Middlefield irrevocably authorizes the Executive from time to time to retain
counsel of the Executives choice, at Middlefields expense as provided in this section 6, to
represent the Executive in the initiation or defense of any litigation or other legal action,
whether by or against Middlefield or any director, officer, stockholder, or other person affiliated
with Middlefield, in any jurisdiction. Despite any existing or previous attorney-client
relationship between Middlefield and any counsel chosen by the Executive under this section 6,
Middlefield irrevocably consents to the Executive entering into an attorney-client relationship
with that counsel and Middlefield and the Executive agree that a confidential relationship shall
exist between the Executive and that counsel. The fees and expenses of counsel selected from time
to time by the Executive as provided in this section shall be paid or reimbursed to the Executive
by Middlefield on a regular, periodic basis upon presentation by the Executive of a statement or
statements prepared by counsel in accordance with counsels customary practices, up to a maximum
aggregate amount of $300,000, whether suit be brought or not, and whether or not incurred in trial,
bankruptcy, or appellate proceedings. Middlefields obligation to pay the Executives legal fees
under this section 6 operates separately from and in addition to any legal fee reimbursement
obligation Middlefield may have with the Executive under any separate severance or other agreement.
Despite any contrary provision of this Agreement however, Middlefield shall not be required to pay
or reimburse the Executives legal expenses if doing so would violate section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3
of the Federal Deposit Insurance Corporation [12 CFR 359.3].
7
.
Withholding of Taxes
. Middlefield may withhold from any benefits payable under this
Agreement all Federal, state, local or other taxes as may be required by law, governmental
regulation, or ruling.
8
.
Successors and Assigns
. (a)
This Agreement is binding on successors
. This Agreement
shall be binding upon Middlefield and any successor to Middlefield, including any persons acquiring
directly or indirectly all or substantially all of the business or assets of Middlefield by
purchase, merger, consolidation, reorganization, or otherwise. But this Agreement and
Middlefields obligations under this Agreement are not otherwise assignable, transferable, or
delegable by Middlefield. By agreement in form and substance satisfactory to the Executive,
Middlefield shall require any successor to all or substantially all of the business or assets of
Middlefield expressly to assume and agree to perform this Agreement in the same manner and to the
same extent Middlefield would be required to perform had no succession occurred.
5
(b)
This Agreement is enforceable by the Executives heirs
. This Agreement shall inure
to the benefit of and be enforceable by the Executives personal or legal representatives,
executors, administrators, successors, heirs, distributees, and legatees.
(c)
This Agreement is personal and is not assignable
. This Agreement is personal in nature.
Without written consent of the other party, neither party shall assign, transfer, or delegate this
Agreement or any rights or obligations under this Agreement except as expressly provided in this
section 8. Without limiting the generality of the foregoing, the Executives right to receive
payments hereunder is not assignable or transferable, whether by pledge, creation of a security
interest, or otherwise, except for a transfer by Executives will or by the laws of descent and
distribution. If the Executive attempts an assignment or transfer that is contrary to this section
8, Middlefield shall have no liability to pay any amount to the assignee or transferee.
9
.
Notices
. Any notice under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Executive if addressed to the address of the Executive on the books and
records of Middlefield at the time of the delivery of the notice, and properly addressed to
Middlefield if addressed to the board of directors, Middlefield Banc Corp., 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
10
.
Captions and Counterparts
. The headings and subheadings in this Agreement are included
solely for convenience and shall not affect the interpretation of this Agreement. This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same agreement.
11
.
Amendments and Waivers
. No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in a writing signed by the
Executive and by Middlefield. No waiver by either party hereto at any time of any breach by the
other party hereto or waiver of compliance with any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
12
.
Severability
. The provisions of this Agreement are severable. The invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions of this Agreement. Any provision held to be invalid or unenforceable shall be reformed
to the extent and solely to the extent necessary to make it valid and enforceable.
13
.
Governing Law
. The validity, interpretation, construction, and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Ohio, without giving effect to the principles of conflict of laws of such state.
14
.
Entire Agreement
. This Agreement constitutes the entire agreement between Middlefield and
the Executive concerning the subject matter. No rights are granted to the Executive under this
Agreement other than those specifically set forth. No agreements or representations, oral or
otherwise, expressed or implied concerning the subject matter hereof have been made by either party
that are not set forth expressly in this Agreement. This Agreement supersedes and replaces in its
entirety the July 11, 2006 Severance Agreement between Middlefield and the Executive, and from and
after the date of this Agreement the July 11, 2006 Severance Agreement shall be of no further force
or effect.
15
.
No Mitigation Required
. Middlefield hereby acknowledges that it will be difficult and
could be impossible (
x
) for the Executive to find reasonably comparable employment after
termination and (
y
) to measure the amount of damages the Executive suffers as a result of
termination. Additionally, Middlefield acknowledges
6
that its general severance pay plans do not
provide for mitigation, offset, or reduction of any severance payment received thereunder.
Middlefield further acknowledges that the payment of benefits by Middlefield under this Agreement
is reasonable and shall be liquidated damages. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor
shall any profits, income, earnings, or other benefits from any source whatsoever create any
mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or
otherwise.
16
.
Internal Revenue Code Section 409A
. Middlefield and the Executive intend that their
exercise of authority or discretion under this Agreement shall comply with section 409A of the
Internal Revenue Code of 1986. If when the Executives employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any
payments or benefits under this Agreement will result in additional tax or interest to the
Executive because of section 409A, then despite any provision of this Agreement to the contrary the
Executive shall not be entitled to the payments or benefits until the earliest of (
x
) the date that
is at least six months after termination of the Executives employment for reasons other than the
Executives death, (
y
) the date of the Executives death, or (
z
) any earlier date that does not
result in additional tax or interest to the Executive under section 409A. As promptly as possible
after the end of the period during which payments or benefits are delayed under this provision, the
entire amount of the delayed payments shall be paid to the Executive in a single lump sum. If any
provision of this Agreement does not satisfy the requirements of section 409A, the provision shall
be applied in a manner consistent with those requirements, despite any contrary provision of this
Agreement. If any provision of this Agreement would subject the Executive to additional tax or
interest under section 409A, Middlefield shall reform the provision. However, Middlefield shall
maintain to the maximum extent practicable the original intent of the applicable provision without
subjecting the Executive to additional tax or interest, and Middlefield shall not be required to
incur any additional compensation expense as a result of the reformed provision. References in
this Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations, and
guidance of general application issued by the Department of the Treasury under Internal Revenue
Code section 409A.
In Witness Whereof
, the parties have executed this Severance Agreement as of the date
first written above.
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Executive
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Middlefield Banc Corp
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By:
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Thomas G. Caldwell
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Its:
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President and Chief Executive Officer
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7
Exhibit 10.4.2
Severance Agreement
This
Severance Agreement
(this Agreement) is entered into effective as of this
day of
, 2008, by and between Middlefield Banc
Corp., an Ohio corporation (Middlefield), and Jack L. Lester (the Executive).
Whereas
, recognizing the contributions made and expected to be made by the Executive
to the profitability, growth, and financial strength of Middlefield and its subsidiaries, intending
to assure itself of the current and future continuity of management, intending to establish minimum
severance benefits for certain officers and other key employees, including the Executive, intending
to ensure that officers and other key employees are not practically disabled from discharging their
duties if a proposed or actual transaction involving a change in control arises, and finally
desiring to provide additional inducement for the Executive to remain in the employment of The
Middlefield Banking Company, Middlefield entered into a Severance Agreement with the Executive
dated as of July 11, 2006,
Whereas
, Middlefield and the Executive intend that this Agreement supersede and
replace in its entirety the July 11, 2006 Severance Agreement, and
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of Middlefield, is
contemplated insofar as either of Middlefield or any of its subsidiaries is concerned.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
1
.
Termination after a Change in Control
. (a)
Cash benefit
. If the Executives employment
terminates involuntarily but without Cause or voluntarily but with Good Reason, in either case
within 24 months after a Change in Control, Middlefield shall make a lump-sum payment to the
Executive in an amount in cash equal to two times the Executives compensation. For this purpose
the Executives compensation means (
x
) the sum of the Executives base salary when the Change in
Control occurs or when employment termination occurs, whichever amount is greater, plus (
y
) any
bonus earned for the most recent whole calendar year before the year in which the Change in Control
occurs or for the most recent whole calendar year before the year in which employment termination
occurs, whichever amount is greater, regardless of whether the bonus is paid in the year earned and
regardless of whether the bonus is subject to elective deferral or vesting. The term bonus means
cash or non-cash compensation of the type that is required to be reported as bonus by the
Securities and Exchange Commissions rules governing tabular disclosure of executive compensation,
specifically Regulation S-K Item 402 (17 CFR 229.402, currently Item 402(c)(2)(iv)). Unless delay
is required under section 1(b), the payment required under this section 1(a) shall be made within
five business days after the Executives employment termination. The amount payable to the
Executive hereunder shall not be reduced to account for the time value of money or discounted to
present value. If the Executives employment terminates involuntarily but without Cause before the
Change in Control occurs but after discussions regarding the Change in Control commence, then for
purposes of this Agreement the Executives employment shall be deemed to have terminated
immediately after the Change in Control and, unless delay is required under section 1(b), the
Executive shall be entitled to the cash benefit under this section 1(a) within five business days
after the Change in Control.
(b)
Payment of the benefit
. If when employment termination occurs the Executive is a
specified employee within the meaning of section 409A of the Internal Revenue Code of 1986, if the
cash severance benefit under section 1(a) would be considered deferred compensation under
section 409A, and finally if an exemption from the six-month delay requirement of section
409A(a)(2)(B)(i) is not available, payment of the benefit under
section 1(a) shall be delayed and shall be made to the Executive in a single lump sum without interest on the first day of the
seventh month after the month in which the Executives employment terminates. References in this
Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations, and
guidance of general application issued by the Department of the Treasury under Internal Revenue
Code section 409A.
(c)
Change in Control defined
. For purposes of this Agreement Change in Control means a
change in control as defined in Internal Revenue Code section 409A and rules, regulations, and
guidance of general application thereunder issued by the Department
of the Treasury,
including
1)
Change in ownership
: a change in ownership of Middlefield occurs on the date any one person
or group accumulates ownership of Middlefield stock constituting more than 50% of the total fair
market value or total voting power of Middlefield stock, or
2)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield stock possessing 30% or more of the
total voting power of Middlefield stock, or (
y
) a majority of Middlefields board of directors is
replaced during any 12-month period by directors whose appointment or election is not endorsed in
advance by a majority of Middlefields board of directors, or
3)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefields assets occurs if in a 12-month period any one person or more
than one person acting as a group acquires from Middlefield assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all of Middlefields assets
immediately before the acquisition or acquisitions. For this purpose, gross fair market value
means the value of Middlefields assets, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the assets.
(d)
Involuntary termination with Cause defined
. For purposes of this Agreement involuntary
termination of the Executives employment shall be considered involuntary termination with Cause if
the Executive shall have committed any of the following acts
1) an act of fraud, embezzlement, or theft while employed by Middlefield or a subsidiary, or
conviction of the Executive for or plea of no contest to a felony or conviction of or plea of no
contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive
for 45 consecutive days or more, or
2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of the
Executives duties as an officer of Middlefield or a subsidiary; willful or reckless failure by the
Executive to adhere to Middlefields or subsidiarys written policies; intentional wrongful damage
by the Executive to the business or property of Middlefield or subsidiary, including without
limitation its reputation, which in Middlefields sole judgment causes material harm to Middlefield
or subsidiary; breach by the Executive of fiduciary duties to Middlefield and its stockholders,
whether in the Executives capacity as an officer or as a director of Middlefield or subsidiary, or
3) removal of the Executive from office or permanent prohibition of the Executive from
participating in the affairs of Middlefields subsidiary bank or banks by an order issued under
section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
4) intentional wrongful disclosure of secret processes or confidential information of
Middlefield or affiliates, which in Middlefields sole judgment causes material harm to Middlefield
or affiliates, or
2
5) any actions that have caused the Executive to be terminated with cause under any
employment agreement existing on the date hereof or hereafter entered into between the Executive
and Middlefield or a subsidiary, or
6) the occurrence of any event that results in the Executive being excluded from coverage, or
having coverage limited for the Executive as compared to other executives of Middlefield or
affiliates, under a blanket bond or other fidelity or insurance policy covering directors,
officers, or employees, or
7) intentional wrongful engagement in any competitive activity. For purposes of this
Agreement competitive activity means the Executives participation, without the consent of
Middlefields board of directors, in the management of any business enterprise if (
x
) the
enterprise engages in substantial and direct competition with Middlefield, (
y
) the enterprises
revenues derived from any product or service competitive with any product or service of Middlefield
or a subsidiary amounted to 10% or more of the enterprises revenues for its most recently
completed fiscal year, and (
z
) Middlefields revenues from the product or service amounted to 10%
of Middlefields revenues for its most recently completed fiscal year. A competitive activity does
not include mere ownership of securities in an enterprise and the exercise of rights appurtenant
thereto, provided the Executives share ownership does not represent practical or legal control of
the enterprise. For this purpose, ownership of less than 5% of the enterprises outstanding voting
securities shall conclusively be presumed to be insufficient for practical or legal control, and
ownership of more than 50% shall conclusively be presumed to constitute practical and legal
control.
For purposes of this Agreement no act or failure to act on the Executives part shall be
deemed to have been intentional if it was due primarily to an error in judgment or negligence. An
act or failure to act on the Executives part shall be considered intentional if it is not in good
faith and if it is without a reasonable belief that the action or failure to act is in
Middlefields best interests. Any act or failure to act based upon authority granted by
resolutions duly adopted by the board of directors or based upon the advice of counsel for
Middlefield shall be conclusively presumed to be in good faith and in Middlefields best interests.
For purposes of this Agreement the term subsidiary means any entity in which Middlefield directly
or indirectly beneficially owns 50% or more of the outstanding voting securities.
(e)
Voluntary termination with Good Reason defined
. For purposes of this Agreement a
voluntary termination by the Executive shall be considered a voluntary termination with Good Reason
if the conditions stated in both clauses (
x
) and (
y
) are satisfied
(
x
) a voluntary termination by the Executive shall be considered a voluntary termination
with Good Reason if any of the following occur without the Executives advance written
consent, and the term Good Reason shall mean the occurrence of any of the following without
the Executives advance written consent
1) a material diminution of the Executives base salary,
2) a material diminution of the Executives authority, duties, or
responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the
supervisor to whom the Executive is required to report,
4) a material diminution in the budget over which the Executive retains
authority,
5) a material change in the geographic location at which the Executive must
perform services, or
3
6) any other action or inaction that constitutes a material breach by
Middlefield of this Agreement.
(
y
) the Executive must give notice to Middlefield of the existence of one or more of the
conditions described in clause (
x
) within 90 days after the initial existence of the
condition, and Middlefield shall have 30 days thereafter to remedy the condition. In
addition, the Executives voluntary termination because of the existence of one or more of
the conditions described in clause (
x
) must occur within 24 months after the initial
existence of the condition.
2
.
Insurance and Miscellaneous Benefits
. (a)
Benefits
. Subject to section 2(b), if the
Executives employment terminates involuntarily but without Cause or voluntarily but for Good
Reason within 24 months after a Change in Control, Middlefield shall also (
x
) cause the Executive
to become fully vested in any non-qualified plans, programs, or arrangements in which the Executive
participated if the plan, program, or arrangement does not address the effect of a change in
control and (
y
) continue or cause to be continued life, health, and disability insurance coverage
substantially identical to the coverage maintained for the Executive before termination and in
accordance with the same schedule prevailing before employment termination. The insurance coverage
may cease when the Executive becomes employed by another employer or 24 months after the
Executives termination, whichever occurs first.
(b)
Alternative lump-sum cash payment
. If (
x
) under the terms of the applicable policy or
policies for the insurance benefits specified in section 2(a) it is not possible to continue the
Executives coverage, or (
y
) if when employment termination occurs the Executive is a specified
employee within the meaning of section 409A of the Internal Revenue Code of 1986, if any of the
continued insurance coverage benefits specified in section 2(a) would be considered deferred
compensation under section 409A, and finally if an exemption from the six-month delay requirement
of section 409A(a)(2)(B)(i) is not available for that particular insurance benefit, instead of
continued insurance coverage under section 2(a) Middlefield shall pay or cause to be paid to the
Executive in a single lump sum an amount in cash equal to the present value of Middlefields
projected cost to maintain that particular insurance benefit had the Executives employment not
terminated, assuming continued coverage for the lesser of 24 months or the number of months until
the Executive attains age 65. The lump-sum payment shall be made within five business days after
employment termination or, if the Executive is a specified employee within the meaning of section
409A and an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) is not
available, on the first day of the seventh month after the month in which the Executives
employment terminates.
3
.
Termination for Which No Benefits Are Payable
. Despite anything in this Agreement to the
contrary, the Executive shall be entitled to no benefits under this Agreement if the Executives
employment terminates with Cause, if the Executive dies while actively employed by Middlefield or a
subsidiary, or if the Executive becomes totally disabled while actively employed by Middlefield or
a subsidiary. For purposes of this Agreement, the term totally disabled means that because of
injury or sickness the Executive is unable to perform the Executives duties. The benefits, if
any, payable to the Executive or the Executives beneficiary or estate relating to the
Executives death or disability shall be determined solely by such benefit plans or arrangements as
Middlefield or subsidiary may have with the Executive relating to death or disability, not by this
Agreement.
4
.
Term of Agreement
. The initial term of this Agreement shall be for a period of
three years, commencing on the effective date. On the first anniversary of the effective date of
this Agreement and on each anniversary thereafter this Agreement shall be extended automatically
for one additional year, unless Middlefields board of directors gives notice to the Executive in
writing at least 90 days before the anniversary that the term of this Agreement will not be
extended. If the board of directors determines not to extend the term, it shall promptly notify
the Executive. References herein to the term of this Agreement mean the initial term and
extensions of the initial term. Unless terminated earlier, this Agreement shall terminate when the
Executive
4
attains age 65. If the board of directors decides not to extend the term of this
Agreement, this Agreement shall nevertheless remain in force until its term expires.
5
.
This Agreement Is Not an Employment Contract
. The parties hereto acknowledge and agree
that (
x
) this Agreement is not a management or employment agreement and (
y
) nothing in this
Agreement shall give the Executive any rights or impose any obligations to continued employment by
Middlefield or any subsidiary or successor of Middlefield.
6
.
Payment of Legal Fees
. Middlefield is aware that after a Change in Control management
could cause or attempt to cause Middlefield to refuse to comply with its obligations under this
Agreement, or could institute or cause or attempt to cause Middlefield to institute litigation
seeking to have this Agreement declared unenforceable, or could take or attempt to take other
action to deny Executive the benefits intended under this Agreement. In these circumstances the
purposes of this Agreement would be frustrated. Middlefield desires that the Executive not be
required to incur the expenses associated with the enforcement of rights under this Agreement,
whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive hereunder.
Middlefield desires that the Executive not be forced to negotiate settlement of rights under this
Agreement under threat of incurring expenses. Accordingly, if after a Change in Control occurs it
appears to the Executive that (
x
) Middlefield has failed to comply with any of its obligations
under this Agreement, or (
y
) Middlefield or any other person has taken any action to declare this
Agreement void or unenforceable, or instituted any litigation or other legal action designed to
deny, diminish, or to recover from the Executive the benefits intended to be provided to the
Executive hereunder, Middlefield irrevocably authorizes the Executive from time to time to retain
counsel of the Executives choice, at Middlefields expense as provided in this section 6, to
represent the Executive in the initiation or defense of any litigation or other legal action,
whether by or against Middlefield or any director, officer, stockholder, or other person affiliated
with Middlefield, in any jurisdiction. Despite any existing or previous attorney-client
relationship between Middlefield and any counsel chosen by the Executive under this section 6,
Middlefield irrevocably consents to the Executive entering into an attorney-client relationship
with that counsel and Middlefield and the Executive agree that a confidential relationship shall
exist between the Executive and that counsel. The fees and expenses of counsel selected from time
to time by the Executive as provided in this section shall be paid or reimbursed to the Executive
by Middlefield on a regular, periodic basis upon presentation by the Executive of a statement or
statements prepared by counsel in accordance with counsels customary practices, up to a maximum
aggregate amount of $300,000, whether suit be brought or not, and whether or not incurred in trial,
bankruptcy, or appellate proceedings. Middlefields obligation to pay the Executives legal fees
under this section 6 operates separately from and in addition to any legal fee reimbursement
obligation Middlefield may have with the Executive under any separate severance or other agreement.
Despite any contrary provision of this Agreement however, Middlefield shall not be required to pay
or reimburse the Executives legal expenses if doing so would violate section 18(k) of the
Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit
Insurance Corporation [12 CFR 359.3].
7
.
Withholding of Taxes
. Middlefield may withhold from any benefits payable under this
Agreement all Federal, state, local or other taxes as may be required by law, governmental
regulation, or ruling.
8
.
Successors and Assigns
. (a)
This Agreement is binding on successors
. This Agreement
shall be binding upon Middlefield and any successor to Middlefield, including any persons acquiring
directly or indirectly all or substantially all of the business or assets of Middlefield by
purchase, merger, consolidation, reorganization, or otherwise. But this Agreement and
Middlefields obligations under this Agreement are not otherwise assignable, transferable, or
delegable by Middlefield. By agreement in form and substance satisfactory to the Executive,
Middlefield shall require any successor to all or substantially all of the business or assets of
Middlefield expressly to assume and agree to perform this Agreement in the same manner and to the
same extent Middlefield would be required to perform had no succession occurred.
5
(b)
This Agreement is enforceable by the Executives heirs
. This Agreement shall inure
to the benefit of and be enforceable by the Executives personal or legal representatives,
executors, administrators, successors, heirs, distributees, and legatees.
(c)
This Agreement is personal and is not assignable
. This Agreement is personal in nature.
Without written consent of the other party, neither party shall assign, transfer, or delegate this
Agreement or any rights or obligations under this Agreement except as expressly provided in this
section 8. Without limiting the generality of the foregoing, the Executives right to receive
payments hereunder is not assignable or transferable, whether by pledge, creation of a security
interest, or otherwise, except for a transfer by Executives will or by the laws of descent and
distribution. If the Executive attempts an assignment or transfer that is contrary to this section
8, Middlefield shall have no liability to pay any amount to the assignee or transferee.
9
.
Notices
. Any notice under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Executive if addressed to the address of the Executive on the books and
records of Middlefield at the time of the delivery of the notice, and properly addressed to
Middlefield if addressed to the board of directors, Middlefield Banc Corp., 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
10
.
Captions and Counterparts
. The headings and subheadings in this Agreement are included
solely for convenience and shall not affect the interpretation of this Agreement. This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same agreement.
11
.
Amendments and Waivers
. No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in a writing signed by the
Executive and by Middlefield. No waiver by either party hereto at any time of any breach by the
other party hereto or waiver of compliance with any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
12
.
Severability
. The provisions of this Agreement are severable. The invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions of this Agreement. Any provision held to be invalid or unenforceable shall be reformed
to the extent and solely to the extent necessary to make it valid and enforceable.
13
.
Governing Law
. The validity, interpretation, construction, and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Ohio, without giving effect to the principles of conflict of laws of such state.
14
.
Entire Agreement
. This Agreement constitutes the entire agreement between Middlefield and
the Executive concerning the subject matter. No rights are granted to the Executive under this
Agreement other than those specifically set forth. No agreements or representations, oral or
otherwise, expressed or implied concerning the subject matter hereof have been made by either party
that are not set forth expressly in this Agreement. This Agreement supersedes and replaces in its
entirety the July 11, 2006 Severance Agreement between Middlefield and the Executive, and from and
after the date of this Agreement the July 11, 2006 Severance Agreement shall be of no further force
or effect.
15
.
No Mitigation Required
. Middlefield hereby acknowledges that it will be difficult and
could be impossible (
x
) for the Executive to find reasonably comparable employment after
termination and (
y
) to measure the amount of damages the Executive suffers as a result of
termination. Additionally, Middlefield acknowledges
6
that its general severance pay plans do not provide for mitigation, offset, or reduction of any severance payment received thereunder.
Middlefield further acknowledges that the payment of benefits by Middlefield under this Agreement
is reasonable and shall be liquidated damages. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor
shall any profits, income, earnings, or other benefits from any source whatsoever create any
mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or
otherwise.
16
.
Internal Revenue Code Section 409A
. Middlefield and the Executive intend that their
exercise of authority or discretion under this Agreement shall comply with section 409A of the
Internal Revenue Code of 1986. If when the Executives employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any
payments or benefits under this Agreement will result in additional tax or interest to the
Executive because of section 409A, then despite any provision of this Agreement to the contrary the
Executive shall not be entitled to the payments or benefits until the earliest of (
x
) the date that
is at least six months after termination of the Executives employment for reasons other than the
Executives death, (
y
) the date of the Executives death, or (
z
) any earlier date that does not
result in additional tax or interest to the Executive under section 409A. As promptly as possible
after the end of the period during which payments or benefits are delayed under this provision, the
entire amount of the delayed payments shall be paid to the Executive in a single lump sum. If any
provision of this Agreement does not satisfy the requirements of section 409A, the provision shall
be applied in a manner consistent with those requirements, despite any contrary provision of this
Agreement. If any provision of this Agreement would subject the Executive to additional tax or
interest under section 409A, Middlefield shall reform the provision. However, Middlefield shall
maintain to the maximum extent practicable the original intent of the applicable provision without
subjecting the Executive to additional tax or interest, and Middlefield shall not be required to
incur any additional compensation expense as a result of the reformed provision. References in
this Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations, and
guidance of general application issued by the Department of the Treasury under Internal Revenue
Code section 409A.
In Witness Whereof
, the parties have executed this Severance Agreement as of the date
first written above.
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Executive
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Middlefield Banc Corp
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By:
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Jack L. Lester
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Thomas G. Caldwell
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Its:
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President and Chief Executive Officer
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7
Exhibit 10.4.3
Severance Agreement
This
Severance Agreement
(this Agreement) is entered into effective as of this
day of
, 2008, by and between Middlefield Banc
Corp., an Ohio corporation (Middlefield), and Donald L. Stacy, its Treasurer and Chief Financial
Officer (the Executive).
Whereas
, recognizing the contributions made and expected to be made by the Executive
to the profitability, growth, and financial strength of Middlefield and subsidiaries, intending to
assure itself of the current and future continuity of management, intending to establish minimum
severance benefits for certain officers and other key employees, including the Executive, intending
to ensure that officers and other key employees are not practically disabled from discharging their
duties if a proposed or actual transaction involving a change in control arises, and finally
desiring to provide additional inducement for the Executive to remain in the employment of
Middlefield, Middlefield entered into a Severance Agreement with the Executive dated as of July 11,
2006,
Whereas
, Middlefield and the Executive intend that this Agreement supersede and
replace in its entirety the July 11, 2006 Severance Agreement, and
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of Middlefield, is
contemplated insofar as either of Middlefield or any of its subsidiaries is concerned.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
1
.
Change in Control
. (a) If a Change in Control occurs before the Executives employment
termination, Middlefield shall make a lump-sum payment to the Executive in cash in an amount equal
to two times the Executives annual compensation. For this purpose annual compensation means (
x
)
the Executives annual base salary on the date of the Change in Control, plus (
y
) the average of
the cash bonus and cash incentive compensation earned for the three calendar years immediately
preceding the year in which the Change in Control occurs, regardless of when the bonus or incentive
compensation is paid and regardless of whether the bonus or incentive compensation is subject to
elective deferral or vesting. Middlefield recognizes that the bonus and incentive compensation
earned by the Executive for a particular years service might be paid in the year after the
calendar year in which the bonus or incentive compensation is earned. The amount payable to the
Executive hereunder shall not be reduced to account for the time value of money or discounted to
present value. Subject to section 17, the payment required under this section 1(a) is payable
within five business days after the date of the Change in Control. The Executive shall be entitled
to a payment under this section 1(a) on no more than one occasion.
(b) If the Executives employment terminates within 24 months after the Change in
Control, Middlefield shall also (
x
) cause the Executive to become fully vested in any non-qualified
plans, programs, or arrangements in which the Executive participated if the plan, program, or
arrangement does not address the effect of a change in control and (
y
) continue or cause to be
continued life, health, and disability insurance coverage substantially identical to the coverage
maintained for the Executive before termination and in accordance with the same schedule prevailing
before employment termination. The insurance coverage may cease when the Executive becomes
employed by another employer or 24 months after the Executives termination, whichever occurs
first. If under the terms of
the life, health, or disability policy coverage maintained by Middlefield it is not possible
to continue the Executives coverage after termination or if when employment termination occurs the
Executive is a specified employee within the meaning of section 409A of the Internal Revenue Code
of 1986, if
any of the continued insurance benefits specified in this section 1(b) would be
considered deferred compensation under section 409A, and finally if an exemption from the six-month
delay requirement of section 409A(a)(2)(B)(i) is not available for that particular insurance
benefit, instead of continued insurance coverage under this section 1(b) Middlefield shall pay to
the Executive in a single lump sum an amount in cash equal to the present value of the Employers
projected cost to maintain that particular insurance benefit had the Executives employment not
terminated, assuming continued coverage for the lesser of 24 months or the number of months until
the Executive attains age 65. The lump-sum payment shall be made 30 days after employment
termination or, if a six-month delay is required by section 409A, on the first day of the seventh
month after the month in which the Executives employment terminates.
2
.
Change in Control Defined
. For purposes of this Agreement Change in Control means a change
in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of
general application thereunder issued by the Department of the Treasury, including
(a)
Change in ownership
: a change in ownership of Middlefield occurs on the date any one
person or group accumulates ownership of Middlefield stock constituting more than 50% of the total
fair market value or total voting power of Middlefield stock, or
(b)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield stock possessing 30% or more of the
total voting power of Middlefield stock, or (
y
) a majority of Middlefields board of directors is
replaced during any 12-month period by directors whose appointment or election is not endorsed in
advance by a majority of Middlefields board of directors, or
(c)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefields assets occurs if in a 12-month period any one person or more
than one person acting as a group acquires from Middlefield assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all of Middlefields assets
immediately before the acquisition or acquisitions. For this purpose, gross fair market value
means the value of Middlefields assets, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the assets.
3
.
No Benefits After Termination with Cause
. (a) Despite anything in this Agreement to the
contrary, the Executive shall not be entitled to benefits under this Agreement if the Executives
employment terminates with Cause. For purposes of this Agreement the term Cause means the
Executive shall have committed any of the following acts
1) an act of fraud, embezzlement, or theft while employed by Middlefield or a
subsidiary, or conviction of the Executive for or plea of no contest to a felony or
conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual
incarceration of the Executive for 45 consecutive days or more, or
2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of
the Executives duties as an officer of Middlefield or a subsidiary; willful or reckless
failure by the Executive to adhere to Middlefields or subsidiarys written policies;
intentional wrongful
damage by the Executive to the business or property of Middlefield or subsidiary,
including without limitation its reputation, which in Middlefields sole judgment causes
material harm to Middlefield or subsidiary; breach by the Executive of fiduciary duties to
Middlefield and its stockholders, whether in the Executives capacity as an officer or as a
director of Middlefield or subsidiary, or
2
3) removal of the Executive from office or permanent prohibition of the Executive
from participating in the affairs of Middlefields subsidiary bank or banks by an order
issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
1818(e)(4) or (g)(1), or
4) intentional wrongful disclosure of secret processes or confidential information of
Middlefield or affiliates, which in Middlefields sole judgment causes material harm to
Middlefield or affiliates, or
5) any actions that have caused the Executive to be terminated for cause under any
employment agreement existing on the date hereof or hereafter entered into between the
Executive and Middlefield or a subsidiary, or
6) the occurrence of any event that results in the Executive being excluded from
coverage, or having coverage limited for the Executive as compared to other executives of
Middlefield or affiliates, under a blanket bond or other fidelity or insurance policy
covering directors, officers, or employees, or
7) intentional wrongful engagement in any competitive activity. For purposes of this
Agreement, competitive activity means the Executives participation, without the consent of
Middlefields board of directors, in the management of any business enterprise if (
x
) the
enterprise engages in substantial and direct competition with Middlefield, (
y
) the
enterprises revenues derived from any product or service competitive with any product or
service of Middlefield or a subsidiary amounted to 10% or more of the enterprises revenues
for its most recently completed fiscal year, and (
z
) Middlefields revenues from the product
or service amounted to 10% of Middlefields revenues for its most recently completed fiscal
year. A competitive activity does not include mere ownership of securities in an enterprise
and the exercise of rights appurtenant thereto, provided the Executives share ownership does
not represent practical or legal control of the enterprise. For this purpose, ownership of
less than 5% of the enterprises outstanding voting securities shall conclusively be presumed
to be insufficient for practical or legal control, and ownership of more than 50% shall
conclusively be presumed to constitute practical and legal control.
(b) For purposes of this Agreement, no act or failure to act on the Executives part shall be
deemed to have been intentional if it was due primarily to an error in judgment or negligence. An
act or failure to act on the Executives part shall be considered intentional if it is not in good
faith and if it is without a reasonable belief that the action or failure to act is in
Middlefields best interests. Any act or failure to act based upon authority granted by
resolutions duly adopted by the board of directors or based upon the advice of counsel for
Middlefield shall be conclusively presumed to be in good faith and in Middlefields best interests.
For purposes of this Agreement the term subsidiary means any entity in which Middlefield directly
or indirectly beneficially owns 50% or more of the outstanding voting securities.
4
.
No Benefits after Termination Because of Death or Disability
. Despite anything in this
Agreement to the contrary, the Executive shall not be entitled to benefits under this Agreement if
the Executive dies while actively employed by Middlefield or a subsidiary or if the Executive
becomes totally disabled while actively employed by Middlefield or a subsidiary. For purposes of
this Agreement, the term totally disabled means that because of injury or sickness the Executive is
unable to perform the Executives duties. The benefits, if any, payable to the Executive or the
Executives beneficiary or estate relating to the Executives death or disability shall be
determined solely by such benefit plans or arrangements as Middlefield or subsidiary may have with
the Executive relating to death or disability, not by this Agreement.
5
.
Term of Agreement
. The initial term of this Agreement shall be for a period of
three years, commencing on the effective date. On the first anniversary of the effective date of
this Agreement and on each anniversary thereafter this Agreement shall be extended automatically
for one additional year, unless
3
Middlefields board of directors gives notice to the Executive in
writing at least 90 days before the anniversary that the term of this Agreement will not be
extended. If the board of directors determines not to extend the term, it shall promptly notify
the Executive. References herein to the term of this Agreement mean the initial term and
extensions of the initial term. Unless terminated earlier, this Agreement shall terminate when the
Executive attains age 65. If the board of directors decides not to extend the term of this
Agreement, this Agreement shall nevertheless remain in force until its term expires.
6
.
This Agreement Is Not an Employment Contract
. The parties hereto acknowledge and agree
that (
x
) this Agreement is not a management or employment agreement and (
y
) nothing in this
Agreement shall give the Executive any rights or impose any obligations to continued employment by
Middlefield or any subsidiary or successor of Middlefield.
7
.
Payment of Legal Fees
. Middlefield is aware that after a Change in Control management
could cause or attempt to cause Middlefield to refuse to comply with its obligations under this
Agreement, or could institute or cause or attempt to cause Middlefield to institute litigation
seeking to have this Agreement declared unenforceable, or could take or attempt to take other
action to deny Executive the benefits intended under this Agreement. In these circumstances the
purposes of this Agreement would be frustrated. Middlefield desires that the Executive not be
required to incur the expenses associated with the enforcement of rights under this Agreement,
whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive hereunder.
Middlefield desires that the Executive not be forced to negotiate settlement of rights under this
Agreement under threat of incurring expenses. Accordingly, if after a Change in Control occurs it
appears to the Executive that (
x
) Middlefield has failed to comply with any of its obligations
under this Agreement, or (
y
) Middlefield or any other person has taken any action to declare this
Agreement void or unenforceable, or instituted any litigation or other legal action designed to
deny, diminish, or to recover from the Executive the benefits intended to be provided to the
Executive hereunder, Middlefield irrevocably authorizes the Executive from time to time to retain
counsel of the Executives choice, at Middlefields expense as provided in this section 7, to
represent the Executive in the initiation or defense of any litigation or other legal action,
whether by or against Middlefield or any director, officer, stockholder, or other person affiliated
with Middlefield, in any jurisdiction. Despite any existing or previous attorney-client
relationship between Middlefield and any counsel chosen by the Executive under this section 7,
Middlefield irrevocably consents to the Executive entering into an attorney-client relationship
with that counsel and Middlefield and the Executive agree that a confidential relationship shall
exist between the Executive and that counsel. The fees and expenses of counsel selected from time
to time by the Executive as provided in this
section shall be paid or reimbursed to the Executive by Middlefield on a regular, periodic
basis upon presentation by the Executive of a statement or statements prepared by counsel in
accordance with counsels customary practices, up to a maximum aggregate amount of $300,000,
whether suit be brought or not, and whether or not incurred in trial, bankruptcy, or appellate
proceedings. Middlefields obligation to pay the Executives legal fees under this section 7
operates separately from and in addition to any legal fee reimbursement obligation Middlefield may
have with the Executive under any separate severance or other agreement. Despite any contrary
provision of this Agreement however, Middlefield shall not be required to pay or reimburse the
Executives legal expenses if doing so would violate section 18(k) of the Federal Deposit Insurance
Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].
8
.
Withholding of Taxes
. Middlefield may withhold from any benefits payable under this
Agreement all Federal, state, local or other taxes as may be required by law, governmental
regulation, or ruling.
9
.
Successors and Assigns
. (a)
This Agreement is binding on successors
. This
Agreement shall be binding upon Middlefield and any successor to Middlefield, including any persons
acquiring directly or indirectly all or substantially all of the business or assets of Middlefield
by purchase, merger, consolidation, reorganization, or otherwise. But this Agreement and
Middlefields obligations under this Agreement are not otherwise assignable, transferable, or
delegable by Middlefield. By agreement in form and substance satisfactory to the
4
Executive,
Middlefield shall require any successor to all or substantially all of the business or assets of
Middlefield expressly to assume and agree to perform this Agreement in the same manner and to the
same extent Middlefield would be required to perform had no succession occurred.
(b)
This Agreement is enforceable by the Executives heirs
. This Agreement shall inure to the
benefit of and be enforceable by the Executives personal or legal representatives, executors,
administrators, successors, heirs, distributees, and legatees.
(c)
This Agreement is personal and is not assignable
. This Agreement is personal in nature.
Without written consent of the other party, neither party shall assign, transfer, or delegate this
Agreement or any rights or obligations under this Agreement except as expressly provided in this
section 9. Without limiting the generality of the foregoing, the Executives right to receive
payments hereunder is not assignable or transferable, whether by pledge, creation of a security
interest, or otherwise, except for a transfer by Executives will or by the laws of descent and
distribution. If the Executive attempts an assignment or transfer that is contrary to this section
9, Middlefield shall have no liability to pay any amount to the assignee or transferee.
10
.
Notices
. Any notice under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Executive if addressed to the address of the Executive on the books and
records of Middlefield at the time of the delivery of the notice, and properly addressed to
Middlefield if addressed to the board of directors, Middlefield Banc Corp., 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
11
.
Captions and Counterparts
. The headings and subheadings used in this Agreement are
included solely for convenience and shall not affect the interpretation of this Agreement. This
Agreement may be executed in one or more counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one and the same agreement.
12
.
Amendments and Waivers
. No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in a writing signed by the
Executive and by Middlefield. No waiver by either party hereto at any time of any breach by the
other party hereto or waiver of compliance with any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
13
.
Severability
. The provisions of this Agreement are severable. The invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions of this Agreement. Any provision held to be invalid or unenforceable shall be reformed
to the extent and solely to the extent necessary to make it valid and enforceable.
14
.
Governing Law
. The validity, interpretation, construction, and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Ohio, without giving effect to the principles of conflict of laws of such state.
15
.
Entire Agreement
. This Agreement constitutes the entire agreement between Middlefield and
the Executive concerning the subject matter. No rights are granted to the Executive under this
Agreement other than those specifically set forth. No agreements or representations, oral or
otherwise, expressed or implied concerning the subject matter hereof have been made by either party
that are not set forth expressly in this Agreement. This Agreement supersedes and replaces in its
entirety the July 11, 2006 Severance Agreement between Middlefield and the Executive, and from and
after the date of this Agreement the July 11, 2006 Severance Agreement shall be of no further force
or effect.
5
16
.
No Mitigation Required
. Middlefield hereby acknowledges that it will be difficult
and could be impossible (
x
) for the Executive to find reasonably comparable employment after
termination and (
y
) to measure the amount of damages the Executive suffers as a result of
termination. Additionally, Middlefield acknowledges that its general severance pay plans do not
provide for mitigation, offset, or reduction of any severance payment received thereunder.
Middlefield further acknowledges that the payment of benefits by Middlefield under this Agreement
is reasonable and shall be liquidated damages. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor
will any profits, income, earnings, or other benefits from any source whatsoever create any
mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or
otherwise.
17
.
Internal Revenue Code Section 409A
. Middlefield and the Executive intend that their
exercise of authority or discretion under this Agreement shall comply with section 409A of the
Internal Revenue Code of 1986. If when the Executives employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any
payments or benefits under this Agreement will result in additional tax or interest to the
Executive because of section 409A, then despite any provision of this Agreement to the contrary the
Executive shall not be entitled to the payments or benefits until the earliest of (
x
) the date that
is at least six months after termination of the Executives employment for reasons other than the
Executives death, (
y
) the date of the Executives death, or (
z
) any earlier date that does not
result in additional tax or interest to the Executive under section 409A. As promptly as possible
after the end of the period during which payments or benefits are delayed under this provision, the
entire amount of the delayed payments
shall be paid to the Executive in a single lump sum. If any provision of this Agreement does
not satisfy the requirements of section 409A, such provision shall be applied in a manner
consistent with those requirements, despite any contrary provision of this Agreement. If any
provision of this Agreement would subject the Executive to additional tax or interest under section
409A, Middlefield shall reform the provision. However, Middlefield shall maintain to the maximum
extent practicable the original intent of the applicable provision without subjecting the Executive
to additional tax or interest, and Middlefield shall not be required to incur any additional
compensation expense as a result of the reformed provision. References in this Agreement to
section 409A of the Internal Revenue Code of 1986 include rules, regulations, and guidance of
general application issued by the Department of the Treasury under Internal Revenue Code section
409A.
In Witness Whereof
, the parties have executed this Severance Agreement as of the date
first written above.
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Executive
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Middlefield Banc Corp
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By:
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Donald L. Stacy
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Thomas G. Caldwell
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Its:
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President and Chief Executive Officer
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6
Exhibit 10.4.4
Severance Agreement
This
Severance Agreement
(this Agreement) is entered into effective as of this
day of
, 2008, by and between Middlefield Banc
Corp., an Ohio corporation (Middlefield), and Alfred F. Thompson Jr. (the Executive).
Whereas
, recognizing the contributions made and expected to be made by the Executive
to the profitability, growth, and financial strength of Middlefield and its subsidiaries, intending
to assure itself of the current and future continuity of management, intending to establish minimum
severance benefits for certain officers and other key employees, including the Executive, intending
to ensure that officers and other key employees are not practically disabled from discharging their
duties if a proposed or actual transaction involving a change in control arises, and finally
desiring to provide additional inducement for the Executive to remain in the employment of The
Middlefield Banking Company, Middlefield entered into a Severance Agreement with the Executive
dated as of July 11, 2006,
Whereas
, Middlefield and the Executive intend that this Agreement supersede and
replace in its entirety the July 11, 2006 Severance Agreement, and
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of Middlefield, is
contemplated insofar as either of Middlefield or any of its subsidiaries is concerned.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
1
.
Termination after a Change in Control
. (a)
Cash benefit
. If the Executives employment
terminates involuntarily but without Cause or voluntarily but with Good Reason, in either case
within 24 months after a Change in Control, Middlefield shall make a lump-sum payment to the
Executive in an amount in cash equal to two times the Executives compensation. For this purpose
the Executives compensation means (
x
) the sum of the Executives base salary when the Change in
Control occurs or when employment termination occurs, whichever amount is greater, plus (
y
) any
bonus earned for the most recent whole calendar year before the year in which the Change in Control
occurs or for the most recent whole calendar year before the year in which employment termination
occurs, whichever amount is greater, regardless of whether the bonus is paid in the year earned and
regardless of whether the bonus is subject to elective deferral or vesting. The term bonus means
cash or non-cash compensation of the type that is required to be reported as bonus by the
Securities and Exchange Commissions rules governing tabular disclosure of executive compensation,
specifically Regulation S-K Item 402 (17 CFR 229.402, currently Item 402(c)(2)(iv)). Unless delay
is required under section 1(b), the payment required under this section 1(a) shall be made within
five business days after the Executives employment termination. The amount payable to the
Executive hereunder shall not be reduced to account for the time value of money or discounted to
present value. If the Executives employment terminates involuntarily but without Cause before the
Change in Control occurs but after discussions regarding the Change in Control commence, then for
purposes of this Agreement the Executives employment shall be deemed to have terminated
immediately after the Change in Control and, unless delay is required under section 1(b), the
Executive shall be entitled to the cash benefit under this section 1(a) within five business days
after the Change in Control.
(b)
Payment of the benefit
. If when employment termination occurs the Executive is a
specified employee within the meaning of section 409A of the Internal Revenue Code of 1986, if the
cash severance benefit under section 1(a) would be considered deferred compensation under
section
409A, and finally if an exemption from the six-month delay requirement of section
409A(a)(2)(B)(i) is not available, payment of the benefit under
section 1(a) shall be delayed and
shall be made to the Executive in a single lump sum without interest on the first day of the
seventh month after the month in which the Executives employment terminates. References in this
Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations, and
guidance of general application issued by the Department of the Treasury under Internal Revenue
Code section 409A.
(c)
Change in Control defined
. For purposes of this Agreement Change in Control means a
change in control as defined in Internal Revenue Code section 409A and rules, regulations, and
guidance of general application thereunder issued by the Department
of the Treasury,
including
1)
Change in ownership
: a change in ownership of Middlefield occurs on the date any one person
or group accumulates ownership of Middlefield stock constituting more than 50% of the total fair
market value or total voting power of Middlefield stock, or
2)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield stock possessing 30% or more of the
total voting power of Middlefield stock, or (
y
) a majority of Middlefields board of directors is
replaced during any 12-month period by directors whose appointment or election is not endorsed in
advance by a majority of Middlefields board of directors, or
3)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefields assets occurs if in a 12-month period any one person or more
than one person acting as a group acquires from Middlefield assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all of Middlefields assets
immediately before the acquisition or acquisitions. For this purpose, gross fair market value
means the value of Middlefields assets, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the assets.
(d)
Involuntary termination with Cause defined
. For purposes of this Agreement involuntary
termination of the Executives employment shall be considered involuntary termination with Cause if
the Executive shall have committed any of the following acts
1) an act of fraud, embezzlement, or theft while employed by Middlefield or a subsidiary, or
conviction of the Executive for or plea of no contest to a felony or conviction of or plea of no
contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive
for 45 consecutive days or more, or
2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of the
Executives duties as an officer of Middlefield or a subsidiary; willful or reckless failure by the
Executive to adhere to Middlefields or subsidiarys written policies; intentional wrongful damage
by the Executive to the business or property of Middlefield or subsidiary, including without
limitation its reputation, which in Middlefields sole judgment causes material harm to Middlefield
or subsidiary; breach by the Executive of fiduciary duties to Middlefield and its stockholders,
whether in the Executives capacity as an officer or as a director of Middlefield or subsidiary, or
3) removal of the Executive from office or permanent prohibition of the Executive from
participating in the affairs of Middlefields subsidiary bank or banks by an order issued under
section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
4) intentional wrongful disclosure of secret processes or confidential information of
Middlefield or affiliates, which in Middlefields sole judgment causes material harm to Middlefield
or affiliates, or
2
5) any actions that have caused the Executive to be terminated with cause under any
employment agreement existing on the date hereof or hereafter entered into between the Executive
and Middlefield or a subsidiary, or
6) the occurrence of any event that results in the Executive being excluded from coverage, or
having coverage limited for the Executive as compared to other executives of Middlefield or
affiliates, under a blanket bond or other fidelity or insurance policy covering directors,
officers, or employees, or
7) intentional wrongful engagement in any competitive activity. For purposes of this
Agreement competitive activity means the Executives participation, without the consent of
Middlefields board of directors, in the management of any business enterprise if (
x
) the
enterprise engages in substantial and direct competition with Middlefield, (
y
) the enterprises
revenues derived from any product or service competitive with any product or service of Middlefield
or a subsidiary amounted to 10% or more of the enterprises revenues for its most recently
completed fiscal year, and (
z
) Middlefields revenues from the product or service amounted to 10%
of Middlefields revenues for its most recently completed fiscal year. A competitive activity does
not include mere ownership of securities in an enterprise and the exercise of rights appurtenant
thereto, provided the Executives share ownership does not represent practical or legal control of
the enterprise. For this purpose, ownership of less than 5% of the enterprises outstanding voting
securities shall conclusively be presumed to be insufficient for practical or legal control, and
ownership of more than 50% shall conclusively be presumed to constitute practical and legal
control.
For purposes of this Agreement no act or failure to act on the Executives part shall be
deemed to have been intentional if it was due primarily to an error in judgment or negligence. An
act or failure to act on the Executives part shall be considered intentional if it is not in good
faith and if it is without a reasonable belief that the action or failure to act is in
Middlefields best interests. Any act or failure to act based upon authority granted by
resolutions duly adopted by the board of directors or based upon the advice of counsel for
Middlefield shall be conclusively presumed to be in good faith and in Middlefields best interests.
For purposes of this Agreement the term subsidiary means any entity in which Middlefield directly
or indirectly beneficially owns 50% or more of the outstanding voting securities.
(e)
Voluntary termination with Good Reason defined
. For purposes of this Agreement a
voluntary termination by the Executive shall be considered a voluntary termination with Good Reason
if the conditions stated in both clauses (
x
) and (
y
) are satisfied
(
x
) a voluntary termination by the Executive shall be considered a voluntary termination
with Good Reason if any of the following occur without the Executives advance written
consent, and the term Good Reason shall mean the occurrence of any of the following without
the Executives advance written consent
1) a material diminution of the Executives base salary,
2) a material diminution of the Executives authority, duties, or
responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the
supervisor to whom the Executive is required to report,
4) a material diminution in the budget over which the Executive retains
authority,
5) a material change in the geographic location at which the Executive must
perform services, or
3
6) any other action or inaction that constitutes a material breach by
Middlefield of this Agreement.
(
y
) the Executive must give notice to Middlefield of the existence of one or more of the
conditions described in clause (
x
) within 90 days after the initial existence of the
condition, and Middlefield shall have 30 days thereafter to remedy the condition. In
addition, the Executives voluntary termination because of the existence of one or more of
the conditions described in clause (
x
) must occur within 24 months after the initial
existence of the condition.
2
.
Insurance and Miscellaneous Benefits
. (a)
Benefits
. Subject to section 2(b), if the
Executives employment terminates involuntarily but without Cause or voluntarily but for Good
Reason within 24 months after a Change in Control, Middlefield shall also (
x
) cause the Executive
to become fully vested in any non-qualified plans, programs, or arrangements in which the Executive
participated if the plan, program, or arrangement does not address the effect of a change in
control and (
y
) continue or cause to be continued life, health, and disability insurance coverage
substantially identical to the coverage maintained for the Executive before termination and in
accordance with the same schedule prevailing before employment termination. The insurance coverage
may cease when the Executive becomes employed by another employer or 24 months after the
Executives termination, whichever occurs first.
(b)
Alternative lump-sum cash payment
. If (
x
) under the terms of the applicable policy or
policies for the insurance benefits specified in section 2(a) it is not possible to continue the
Executives coverage, or (
y
) if when employment termination occurs the Executive is a specified
employee within the meaning of section 409A of the Internal Revenue Code of 1986, if any of the
continued insurance coverage benefits specified in section 2(a) would be considered deferred
compensation under section 409A, and finally if an exemption from the six-month delay requirement
of section 409A(a)(2)(B)(i) is not available for that particular insurance benefit, instead of
continued insurance coverage under section 2(a) Middlefield shall pay or cause to be paid to the
Executive in a single lump sum an amount in cash equal to the present value of Middlefields
projected cost to maintain that particular insurance benefit had the Executives employment not
terminated, assuming continued coverage for the lesser of 24 months or the number of months until
the Executive attains age 65. The lump-sum payment shall be made within five business days after
employment termination or, if the Executive is a specified employee within the meaning of section
409A and an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) is not
available, on the first day of the seventh month after the month in which the Executives
employment terminates.
3
.
Termination for Which No Benefits Are Payable
. Despite anything in this Agreement to the
contrary, the Executive shall be entitled to no benefits under this Agreement if the Executives
employment terminates with Cause, if the Executive dies while actively employed by Middlefield or a
subsidiary, or if the Executive becomes totally disabled while actively employed by
Middlefield or a subsidiary. For purposes of this Agreement, the term totally disabled means that
because of injury or sickness the Executive is unable to perform the Executives duties. The
benefits, if any, payable to the
Executive or the Executives beneficiary or estate relating to the Executives death or
disability shall be determined solely by such benefit plans or arrangements as Middlefield or
subsidiary may have with the Executive relating to death or disability, not by this Agreement.
4
.
Term of Agreement
. The initial term of this Agreement shall be for a period of
three years, commencing on the effective date. On the first anniversary of the effective date of
this Agreement and on each anniversary thereafter this Agreement shall be extended automatically
for one additional year, unless Middlefields board of directors gives notice to the Executive in
writing at least 90 days before the anniversary that the term of this Agreement will not be
extended. If the board of directors determines not to extend the term, it shall promptly notify
the Executive. References herein to the term of this Agreement mean the initial term and
extensions of the initial term. Unless terminated earlier, this Agreement shall terminate when the
Executive
4
attains age 65. If the board of directors decides not to extend the term of this
Agreement, this Agreement shall nevertheless remain in force until its term expires.
5
.
This Agreement Is Not an Employment Contract
. The parties hereto acknowledge and agree
that (
x
) this Agreement is not a management or employment agreement and (
y
) nothing in this
Agreement shall give the Executive any rights or impose any obligations to continued employment by
Middlefield or any subsidiary or successor of Middlefield.
6
.
Payment of Legal Fees
. Middlefield is aware that after a Change in Control management
could cause or attempt to cause Middlefield to refuse to comply with its obligations under this
Agreement, or could institute or cause or attempt to cause Middlefield to institute litigation
seeking to have this Agreement declared unenforceable, or could take or attempt to take other
action to deny Executive the benefits intended under this Agreement. In these circumstances the
purposes of this Agreement would be frustrated. Middlefield desires that the Executive not be
required to incur the expenses associated with the enforcement of rights under this Agreement,
whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive hereunder.
Middlefield desires that the Executive not be forced to negotiate settlement of rights under this
Agreement under threat of incurring expenses. Accordingly, if after a Change in Control occurs it
appears to the Executive that (
x
) Middlefield has failed to comply with any of its obligations
under this Agreement, or (
y
) Middlefield or any other person has taken any action to declare this
Agreement void or unenforceable, or instituted any litigation or other legal action designed to
deny, diminish, or to recover from the Executive the benefits intended to be provided to the
Executive hereunder, Middlefield irrevocably authorizes the Executive from time to time to retain
counsel of the Executives choice, at Middlefields expense as provided in this section 6, to
represent the Executive in the initiation or defense of any litigation or other legal action,
whether by or against Middlefield or any director, officer, stockholder, or other person affiliated
with Middlefield, in any jurisdiction. Despite any existing or previous attorney-client
relationship between Middlefield and any counsel chosen by the Executive under this section 6,
Middlefield irrevocably consents to the Executive entering into an attorney-client relationship
with that counsel and Middlefield and the Executive agree that a confidential relationship shall
exist between the Executive and that counsel. The fees and expenses of counsel selected from time
to time by the Executive as provided in this section shall be paid or reimbursed to the Executive
by Middlefield on a regular, periodic basis upon presentation by the Executive of a statement or
statements prepared by counsel in accordance with counsels customary practices, up to a maximum
aggregate amount of $300,000, whether suit be brought or not, and whether or not incurred in trial,
bankruptcy, or appellate proceedings. Middlefields
obligation to pay the Executives legal fees under this section 6 operates separately from and
in addition to any legal fee reimbursement obligation Middlefield may have with the Executive under
any separate severance or other agreement. Despite any contrary provision of this Agreement
however, Middlefield shall not be required to pay or reimburse the Executives legal expenses if
doing so would
violate section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3
of the Federal Deposit Insurance Corporation [12 CFR 359.3].
7
.
Withholding of Taxes
. Middlefield may withhold from any benefits payable under this
Agreement all Federal, state, local or other taxes as may be required by law, governmental
regulation, or ruling.
8
.
Successors and Assigns
. (a)
This Agreement is binding on successors
. This Agreement
shall be binding upon Middlefield and any successor to Middlefield, including any persons acquiring
directly or indirectly all or substantially all of the business or assets of Middlefield by
purchase, merger, consolidation, reorganization, or otherwise. But this Agreement and
Middlefields obligations under this Agreement are not otherwise assignable, transferable, or
delegable by Middlefield. By agreement in form and substance satisfactory to the Executive,
Middlefield shall require any successor to all or substantially all of the business or assets of
Middlefield expressly to assume and agree to perform this Agreement in the same manner and to the
same extent Middlefield would be required to perform had no succession occurred.
5
(b)
This Agreement is enforceable by the Executives heirs
. This Agreement shall inure
to the benefit of and be enforceable by the Executives personal or legal representatives,
executors, administrators, successors, heirs, distributees, and legatees.
(c)
This Agreement is personal and is not assignable
. This Agreement is personal in nature.
Without written consent of the other party, neither party shall assign, transfer, or delegate this
Agreement or any rights or obligations under this Agreement except as expressly provided in this
section 8. Without limiting the generality of the foregoing, the Executives right to receive
payments hereunder is not assignable or transferable, whether by pledge, creation of a security
interest, or otherwise, except for a transfer by Executives will or by the laws of descent and
distribution. If the Executive attempts an assignment or transfer that is contrary to this section
8, Middlefield shall have no liability to pay any amount to the assignee or transferee.
9
.
Notices
. Any notice under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Executive if addressed to the address of the Executive on the books and
records of Middlefield at the time of the delivery of the notice, and properly addressed to
Middlefield if addressed to the board of directors, Middlefield Banc Corp., 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
10
.
Captions and Counterparts
. The headings and subheadings in this Agreement are included
solely for convenience and shall not affect the interpretation of this Agreement. This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same agreement.
11
.
Amendments and Waivers
. No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in a writing signed by the
Executive and by Middlefield. No waiver by either party hereto at any time of any breach by
the other party hereto or waiver of compliance with any condition or provision of this Agreement to
be performed by the other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
12
.
Severability
. The provisions of this Agreement are severable. The invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions of this Agreement. Any provision held to be invalid or unenforceable shall be reformed
to the extent and solely to the extent necessary to make it valid and enforceable.
13
.
Governing Law
. The validity, interpretation, construction, and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Ohio, without giving effect to the principles of conflict of laws of such state.
14
.
Entire Agreement
. This Agreement constitutes the entire agreement between Middlefield and
the Executive concerning the subject matter. No rights are granted to the Executive under this
Agreement other than those specifically set forth. No agreements or representations, oral or
otherwise, expressed or implied concerning the subject matter hereof have been made by either party
that are not set forth expressly in this Agreement. This Agreement supersedes and replaces in its
entirety the July 11, 2006 Severance Agreement between Middlefield and the Executive, and from and
after the date of this Agreement the July 11, 2006 Severance Agreement shall be of no further force
or effect.
15
.
No Mitigation Required
. Middlefield hereby acknowledges that it will be difficult and
could be impossible (
x
) for the Executive to find reasonably comparable employment after
termination and (
y
) to measure the amount of damages the Executive suffers as a result of
termination. Additionally, Middlefield acknowledges
6
that its general severance pay plans do not
provide for mitigation, offset, or reduction of any severance payment received thereunder.
Middlefield further acknowledges that the payment of benefits by Middlefield under this Agreement
is reasonable and shall be liquidated damages. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor
shall any profits, income, earnings, or other benefits from any source whatsoever create any
mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or
otherwise.
16
.
Internal Revenue Code Section 409A
. Middlefield and the Executive intend that their
exercise of authority or discretion under this Agreement shall comply with section 409A of the
Internal Revenue Code of 1986. If when the Executives employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any
payments or benefits under this Agreement will result in additional tax or interest to the
Executive because of section 409A, then despite any provision of this Agreement to the contrary the
Executive shall not be entitled to the payments or benefits until the earliest of (
x
) the date that
is at least six months after termination of the Executives employment for reasons other than the
Executives death, (
y
) the date of the Executives death, or (
z
) any earlier date that does not
result in additional tax or interest to the Executive under section 409A. As promptly as possible
after the end of the period during which payments or benefits are delayed under this provision, the
entire amount of the delayed payments shall be paid to the Executive in a single lump sum. If any
provision of this Agreement does not satisfy the requirements of section 409A, the provision shall
be applied in a manner consistent with those requirements, despite any contrary provision of this
Agreement. If any provision of this Agreement would subject the Executive to additional tax or
interest under section 409A, Middlefield shall reform the provision. However, Middlefield shall
maintain to the maximum extent practicable the original intent
of the applicable provision without subjecting the Executive to additional tax or interest,
and Middlefield shall not be required to incur any additional compensation expense as a result of
the reformed provision. References in this Agreement to section 409A of the Internal Revenue Code
of 1986 include rules, regulations, and guidance of general application issued by the Department of
the Treasury under Internal Revenue Code section 409A.
In Witness Whereof
, the parties have executed this Severance Agreement as of the date
first written above.
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Executive
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Middlefield Banc Corp
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By:
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Thomas G. Caldwell
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Its:
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President and Chief Executive Officer
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7
Exhibit 10.6
The Middlefield Banking Company
Amended Director Retirement Agreement
This
Amended Director Retirement Agreement
(this Agreement) is entered into as of
,
200
by and between The
Middlefield Banking Company, an Ohio-chartered bank (the Bank), and Richard T. Coyne, a director
of the Bank (the Director).
Whereas
, to encourage the Director to remain a member of the Banks board of
directors, the Bank entered into a Director Retirement Agreement dated as of December 1, 2001 with
the Director,
Whereas,
the Bank and the Director desire to amend the December 1, 2001 Director
Retirement Agreement to ensure that the agreement complies in form and in operation with Internal
Revenue Code section 409A,
Whereas
, the Bank and the Director intend that this Agreement shall amend and
restate in its entirety the December 1, 2001 Director Retirement Agreement,
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is
contemplated insofar as the Bank is concerned, and
Whereas
, the parties hereto intend that this Agreement shall be considered an
unfunded arrangement maintained primarily to provide supplemental retirement benefits for the
Director, and to be considered a non-qualified benefit plan for purposes of the Employee
Retirement Income Security Act of 1974, as amended (ERISA). The Director is fully advised of
the Banks financial status.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Director and the
Bank hereby agree as follows.
Article 1
Definitions
1.1
Accrual Balance
means the liability that should be accrued by the Bank under generally
accepted accounting principles (GAAP) to account for the Banks obligation to the Director under
this Agreement, applying Accounting Principles Board Opinion No. 12, as amended by Statement of
Financial Accounting Standards No. 106, and the calculation method and discount rate specified
hereinafter. The Accrual Balance shall be calculated such that when it is credited with interest
each month the Accrual Balance at Normal Retirement Age equals the present value of the normal
retirement benefit. The discount rate means the rate used by the Plan Administrator for
determining the Accrual Balance. In its sole discretion the Plan Administrator may adjust the
discount rate to maintain the rate within reasonable standards according to GAAP.
1.2
Beneficiary
means each designated person, or the estate of the deceased Executive,
entitled to benefits, if any, upon the death of the Director, determined according to Article 4.
1.3
Beneficiary Designation Form
means the form established from time to time by the Plan
Administrator that the Director completes, signs, and returns to the Plan Administrator to
designate one or more Beneficiaries.
1.4
Change in Control
shall mean a change in control as defined in Internal Revenue
Code section 409A and rules, regulations, and guidance of general application thereunder issued by
the Department of the Treasury, including
(a)
Change in ownership
: a change in ownership of Middlefield Banc Corp., an Ohio corporation
of which the Bank is a wholly owned subsidiary, occurs on the date any one person or group
accumulates ownership of Middlefield Banc Corp. stock constituting more than 50% of the total fair
market value or total voting power of Middlefield Banc Corp. stock,
(b)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield Banc Corp. stock possessing 30% or more
of the total voting power of Middlefield Banc Corp., or (
y
) a majority of Middlefield Banc Corp.s
board of directors is replaced during any 12-month period by directors whose appointment or
election is not endorsed in advance by a majority of Middlefield Banc Corp.s board of directors,
or
(c)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefield Banc Corp.s assets occurs if in a 12-month period any one
person or more than one person acting as a group acquires from Middlefield Banc Corp. assets
having a total gross fair market value equal to or exceeding 40% of the total gross fair market
value of all of Middlefield Banc Corp.s assets immediately before the acquisition or
acquisitions. For this purpose, gross fair market value means the value of Middlefield Banc
Corp.s assets, or the value of the assets being disposed of, determined without regard to any
liabilities associated with the assets.
1.5
Code
means the Internal Revenue Code of 1986, as amended, and rules, regulations, and
guidance of general application issued thereunder by the Department of the Treasury.
1.6
Disability
means, if the Director is covered by a Bank-sponsored disability policy,
total disability as defined in the policy, without regard to any waiting period. If the Director
is not covered by Bank-sponsored disability policy, Disability means the Director suffers a
sickness, accident, or injury that, in the judgment of a physician satisfactory to the Bank,
prevents the Director from performing substantially all of the Directors normal duties for the
Bank. As a condition to receiving any Disability benefits, the Bank may require the Director to
submit to such physical or mental evaluations and tests as the Banks board of directors deems
appropriate.
1.7
Early Termination
means Separation from Service before Normal Retirement Age for
reasons other than death, Disability, or Termination with Cause.
1.8
Effective Date
means December 1, 2001.
1.9
Normal Retirement Age
means the Directors 75
th
birthday.
1.10
Person
means an individual, corporation, partnership, trust, association, joint
venture, pool, syndicate, sole proprietorship, unincorporated organization, or other entity.
1.11
Plan Administrator
or
Administrator
means the plan administrator described in
Article 7.
1.12
Plan Year
means each 12-month period from December 1 through November 30.
1.13
Separation from Service
means the Directors service as a director and independent
contractor to the Bank and any member of a controlled group, as defined in Code section 414,
terminates for
2
any reason, other than because of a leave of absence approved by the Bank and other
than because of the Directors death. If there is a dispute about the Directors status or the
date of the Directors Separation from Service, the Bank shall have the sole and absolute right to
decide the dispute unless a Change in Control shall have occurred.
1.14
Termination with Cause
or
Cause
means the Director is not nominated by the board or
nominating committee for reelection as a director after the expiration of the Directors term, or
the Director is removed from the board of directors, in either case because of the Directors
(a) gross negligence or gross neglect of duties, or
(b) commission of a felony or commission of a misdemeanor involving moral turpitude, or
(c) fraud, disloyalty, dishonesty, or willful violation of any law or significant policy of
the Bank committed in connection with the Directors service and resulting in an adverse effect on
the Bank, or
(d) removal from service or permanent prohibition from participating in the Banks affairs by
an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act [12 U.S.C.
1818(e)(4) or (g)(1)].
Article 2
Lifetime Benefits
2.1 Normal Retirement
. Unless Separation from Service or a Change in Control occurs before
Normal Retirement Age, when the Director attains Normal Retirement Age the Bank shall pay to the
Director the benefit described in this section 2.1 instead of any other benefit under this
Agreement. If the Directors Separation from Service thereafter is a Termination with Cause or if
this Agreement terminates under Article 5, no further benefits shall be paid to the Director under
this Agreement.
2.1.1
Amount of benefit
. The annual benefit under this section 2.1 is an amount in cash
equal to 25% of the final average annual board fees paid to the Director by the Bank in the
three years preceding the year in which the Director attains Normal Retirement Age. For this
purpose board fees include retainers and other regular fees paid or payable in cash for the
Directors service on or attendance at meetings of the board of directors of the Bank and
committees of the board of directors, including board fees that may be deferred under any
plan for elective deferrals that may be adopted by the Bank in the future. If the Director
is serving as Chairman of the Board at Normal Retirement Age, board fees shall also include
any additional cash compensation paid or payable for service as Chairman of the Board. Board
fees shall not include the value of non-cash compensation, the value of life insurance
benefits or other fringe benefits, or expense reimbursement.
2.1.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.2 Early Termination
. Provided the Director has attained age 55 and has served as a director
for at least five years (including each year of board service before the Effective Date) before
Separation from Service occurs, for Early Termination the Bank shall pay to the Director the
benefit specified in this section 2.2 instead of any other benefit under this Agreement, unless the
Director shall have received the benefit under section 2.4 after a Change in Control. If the
Directors Separation from Service is a Termination with Cause or
3
if this Agreement terminates
under Article 5, no benefits shall be paid to the Director under this Agreement. In addition, the
Director shall be entitled to no benefits under this section 2.2 if Early Termination occurs before
the Director shall have attained age 55 and served as a director for at least five years (including
each year of board service before the Effective Date).
2.2.1
Amount of benefit
. The annual benefit under this section 2.2 is calculated as the
amount that fully amortizes the Accrual Balance existing at the end of the month immediately
before the month in which Separation from Service occurs, amortizing that Accrual Balance
over ten years and taking into account interest at the discount rate or rates established by
the Plan Administrator.
2.2.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.3 Disability
. Unless the Director shall have received the benefit under section 2.4 after a
Change in Control, if the Directors Separation from Service occurs because of Disability before
Normal Retirement Age the Bank shall pay to the Director the benefit described in this section 2.3
instead of any other benefit under this Agreement, regardless of whether the Director has accrued
five years of service or has attained age 55.
2.3.1
Amount of benefit
. The annual benefit under this section 2.3 is calculated as the
amount that fully amortizes the Accrual Balance existing at the end of the month immediately
before the month in which Separation from Service occurs, amortizing that Accrual Balance
over ten years and taking into account interest at the discount rate or rates established by
the Plan Administrator.
2.3.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.4 Change in Control
. If a Change in Control occurs both before the Directors Normal
Retirement Age and before the Directors Separation from Service, the Bank shall pay to the
Director the benefit described in this section 2.4 instead of any other benefit under this
Agreement, regardless of whether the Director has accrued five years of service or has attained age
55.
2.4.1
Amount of benefit
. The benefit under this section 2.4 is the Accrual Balance at
the end of the month immediately before the month in which the Change in Control occurs.
2.4.2
Payment of benefit
. The Bank shall pay the benefit under this section 2.4 to the
Director in a single lump sum within three days after the Change in Control.
2.5 Payout of Normal Retirement Benefit after a Change in Control
. If a Change in Control
occurs while the Director is receiving the benefit provided by section 2.1, the Bank shall pay the
remaining benefits to the Director in a single lump sum within three days after the Change in
Control. If when a Change in Control occurs the Director is receiving or is entitled at Normal
Retirement Age to receive the benefit under sections 2.2 or 2.3, the Bank shall pay the remaining
benefits to the Director in a single lump sum within three days after the Change in Control. The
lump-sum payment due to the Director as the result of a Change in Control shall be an amount equal
to the Accrual Balance amount corresponding to the particular benefit when the Change in Control
occurs.
4
2.6 Annual Benefit Statement
. Within 120 days after the end of each Plan Year the Plan
Administrator shall provide or cause to be provided to the Director an annual benefit statement
showing benefits payable or potentially payable to the Director under this Agreement. Each annual
benefit statement shall supersede the previous years annual benefit statement. If there is a
contradiction between this Agreement and the annual benefit statement concerning the amount of a
particular benefit payable or potentially payable to the Director, the amount of the benefit
determined under this Agreement shall control.
2.7 One Benefit Only
. Despite any contrary provision of this Agreement, the Director is
entitled to one benefit only under Article 2 of this Agreement, which shall be determined by the
first event to occur that is dealt with by Article 2 of this Agreement. Except as provided in
section 2.5, subsequent occurrence of events dealt with by this Agreement shall not entitle the
Director to other or additional benefits under this Agreement.
Article 3
Death Benefit
Unless this Agreement terminates under Article 5, at the Directors death the Bank shall pay
to the Directors Beneficiary in a single lump sum the Accrual Balance remaining, if any, on the
date of the Directors death, unless the Director shall have received the Change-in-Control benefit
under section 2.4 or unless a Change-in-Control payout shall have occurred under section 2.5. The
Accrual Balance shall be paid to the Beneficiary 30 days after the Bank receives notice of the
Directors death.
Article 4
Beneficiaries
4.1 Beneficiary Designations
. The Director shall have the right to designate at any time a
Beneficiary to receive any benefits payable under this Agreement after the Directors death. The
Beneficiary designated under this Agreement may be the same as or different from the beneficiary
designation under any other benefit plan of the Bank in which the Director participates.
4.2 Beneficiary Designation: Change
. The Director shall designate a Beneficiary by completing
and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its
designated agent. The Directors Beneficiary designation shall be deemed automatically revoked if
the Beneficiary predeceases the Director or if the Executive names a spouse as Beneficiary and the
marriage is subsequently dissolved. The Director shall have the right to change a Beneficiary by
completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and
the Plan Administrators rules and procedures, as in effect from time to time. Upon the acceptance
by the Plan Administrator of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be
entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by
the Plan Administrator before the Directors death.
4.3 Acknowledgment
. No designation or change in designation of a Beneficiary shall be
effective until received, accepted, and acknowledged in writing by the Plan Administrator or its
designated agent.
4.4 No Beneficiary Designation
. If the Director dies without a valid beneficiary designation,
or if all designated Beneficiaries predecease the Director, the Directors spouse shall be the
designated Beneficiary. If the Director has no surviving spouse, the benefits shall be paid to the
Directors estate.
4.5 Facility of Payment
. If a benefit is payable to a minor, to a person declared
incapacitated, or to a person incapable of handling the disposition of his or her property, the
Bank may pay the benefit to the guardian, legal representative, or person having the care or
custody of the minor, incapacitated person, or
5
incapable person. The Bank may require proof of
incapacity, minority, or guardianship as it may deem appropriate before distribution of the
benefit. Distribution shall completely discharge the Bank from all liability for the benefit.
Article 5
Agreement Termination
5.1 Director Termination
. Despite any contrary provision of this Agreement, the Bank shall
not pay any benefit under this Agreement and this Agreement shall terminate if Separation from
Service is a Termination with Cause or if Separation from Service is an Early Termination occurring
before the Director has attained age 55 and served as a director for at least five years (including
each year of board service before the Effective Date). The board of directors or a duly authorized
committee of the board shall have the sole and absolute right to determine whether the bases for
denial of benefits for Cause exist. Benefits may be denied for Cause regardless of whether the
Director continued to serve as a director after the board or committee made its determination not
to nominate the Director for reelection.
5.2 Removal
. If the Director is removed or permanently prohibited from participating in the
Banks affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement shall
terminate as of the effective date of the order.
5.3 Default
. Despite any contrary provision of this Agreement, if the Bank is in default or
in danger of default, as those terms are defined in section 3(x) of the Federal Deposit Insurance
Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
5.4 FDIC Open-Bank Assistance
. All obligations under this Agreement shall terminate, except
to the extent determined that continuation of the contract is necessary for the continued operation
of the Bank, when the Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in section 13(c) of the
Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any rights of the parties that have already
vested shall not be affected by such action, however.
Article 6
Claims and Review Procedures
6.1 Claims Procedure
. The Bank shall notify in writing any person or entity making a claim
for benefits under this Agreement (the Claimant) of his or her eligibility or ineligibility for
benefits under the Agreement. The Bank shall send the written notice to the Claimant within 90
days after Claimants written application for benefits. If the Bank determines that the Claimant
is not eligible for benefits or full benefits, the notice shall state (
w
) the specific reasons for
denial, (
x
) a specific reference to the provisions of the Agreement on which the denial is based,
(
y
) a description of any additional information or material necessary for the Claimant to perfect
his or her claim and a description of why it is needed, and (
z
) an explanation of the Agreements
claims review procedure and other appropriate information concerning the steps to be taken if the
Claimant wishes to have the claim reviewed. If the Bank determines that there are special
circumstances requiring additional time to make a decision, the Bank shall notify the Claimant of
the special circumstances and the date by which a decision is expected to be made, and the Bank may
extend the time for up to an additional 90 days.
6.2 Review Procedure
. If the Bank determines that the Claimant is not eligible for
benefits or if the Claimant believes that he or she is entitled to greater or different benefits,
the Claimant shall have the opportunity to have the claim reviewed by the Bank by filing a petition
for review with the Bank within 60 days after receipt of the notice issued by the Bank. The
petition shall state the specific reasons the Claimant believes entitle him or her to benefits or
to greater or different benefits. Within 60 days
6
after receipt by the Bank of the petition, the
Bank shall give the Claimant (and counsel, if any) an opportunity to present his or her position to
the Bank verbally or in writing, and the Claimant (or counsel) shall have the right to review the
pertinent documents. The Bank shall notify the Claimant of the Banks decision in writing within
the 60-day period, stating specifically the basis of its decision and identifying the specific
provision(s) of the Agreement on which the decision is based. If because of the need for a hearing
the 60-day period is not sufficient, the decision may be deferred for up to another 60 days at the
election of the Bank, but notice of this deferral shall be given to the Claimant.
Article 7
Plan Administration
7.1 Plan Administrator Duties
. This Agreement shall be administered by a Plan Administrator
consisting of the board or such committee or persons as the board shall appoint. The Director may
be a member of the Plan Administrator. The Plan Administrator shall have the discretion and
authority to (
x
) make, amend, interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (
y
) decide or resolve any and all questions that may arise,
including interpretations of this Agreement.
7.2 Agents
. In the administration of this Agreement, the Plan Administrator may employ agents
and delegate to them such administrative duties as it sees fit (including acting through a duly
appointed representative) and may from time to time consult with counsel, who may be counsel to the
Bank.
7.3 Binding Effect of Decisions
. The decision or action of the Plan Administrator concerning
any question arising out of the administration, interpretation, and application of the Agreement
and the rules and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Agreement. No Director shall be deemed to
have any right, vested or nonvested, regarding the continuing effect of any decision or action of
the Plan Administrator.
7.4 Indemnity of Plan Administrator
. The Bank shall indemnify and hold harmless the members
of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities
arising from any action or failure to act with respect to this Agreement, except in the case of
willful misconduct by the Plan Administrator or any of its members.
7.5 Bank Information
. To enable the Plan Administrator to perform its functions, the Bank
shall supply full and timely information to the Plan Administrator on all matters relating to the
date and circumstances of the retirement, Disability, death, or Separation from Service of the
Director, and such other pertinent information as the Plan Administrator may reasonably require.
Article 8
Miscellaneous
8.1 Amendment
. This Agreement may be amended solely by a written agreement signed by the Bank
and the Director, except that the Bank specifically reserves the right to amend this Agreement as
necessary to comply with Code section 409A.
8.2 Termination
. This Agreement shall terminate as provided in Article 5. In
addition, the Bank reserves the right to terminate this Agreement at any time if, because of
legislative, judicial or regulatory action, continuation of the Agreement would (
x
) cause benefits
to be taxable to the Director before actual receipt or (
y
)
7
in the Banks judgment, result in
significant financial penalties or other significantly detrimental consequences for the Bank (other
than the financial impact of paying benefits).
8.3 Binding Effect
. This Agreement shall bind the Director and the Bank and their
beneficiaries, successors, assigns, survivors, executors, administrators, and transferees.
8.4 No Guarantee of Service
. This Agreement is not a contract for services. This Agreement
does not give the Director the right to remain a director of the Bank or interfere with the Bank
stockholders right to replace the Director. This Agreement also does not require the Director to
remain a director or interfere with the Directors right to terminate service at any time.
8.5 Non-Transferability
. Benefits under this Agreement may not be sold, transferred,
assigned, pledged, attached, or encumbered.
8.6 Taxes
. The Bank shall withhold any taxes that are required to be withheld from the
benefits provided under this Agreement.
8.7 Successors
;
Binding Agreement
. By an assumption agreement in form and substance
satisfactory to the Director, the Bank shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Bank or Middlefield Banc Corp. to expressly assume and agree to perform this Agreement in
the same manner and to the same extent the Bank would be required to perform this Agreement had no
succession occurred.
8.8 Applicable Law
. The Agreement and all rights hereunder shall be governed by the internal
substantive laws of the State of Ohio, without regard to principles of conflict of laws.
8.9 Unfunded Arrangement
. The Director is a general unsecured creditor of the Bank for the
payment of benefits under this Agreement. The benefits represent the mere promise by the Bank to
pay benefits. The rights to benefits are not subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the
Directors life is a general asset of the Bank to which the Director has no preferred or secured
claim.
8.10 Severability
. If any provision of this Agreement is held invalid, such invalidity shall
not affect any other provision of this Agreement not held invalid, and each such other provision
shall continue in full force and effect to the full extent consistent with the law. If any
provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder
of the provision not held invalid, and the remainder of the provision together with all other
provisions of this Agreement shall continue in full force and effect to the full extent consistent
with the law.
8.11 Captions and Counterparts
. Section headings and subheadings are included solely for
convenience of reference and shall not affect the meaning or interpretation of any provision of
this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which taken together shall constitute a single agreement.
8.12 Entire Agreement
. This Agreement constitutes the entire agreement between the Bank and
the Director concerning the subject matter. No rights are granted to the Director other than those
specifically set forth. This Agreement amends and restates in its entirety the December 1, 2001
Director Retirement Agreement between the Bank and the Director, as the same may have been amended
or restated.
8
8.13 Waiver
. A waiver by either party of any of the terms or conditions of this
Agreement in any one instance shall not be considered a waiver of the terms or conditions for the
future, or of any subsequent breach thereof. All remedies, rights, undertakings, obligations, and
agreements contained in this Agreement shall be cumulative and none of them shall be in limitation
of any other remedy, right, undertaking, obligation, or agreement of either party.
8.14 Notices
. Any notice under this Agreement shall be deemed to have been effectively made
or given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Director if addressed to the address of the Director on the books and
records of the Bank at the time of the delivery of the notice, and properly addressed to the Bank
if addressed to the board of directors, The Middlefield Banking Company, 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
8.15 Internal Revenue Code Section 409A
. The Bank and the Director intend that their exercise
of authority or discretion under this Agreement shall comply with Code section 409A. If when the
Directors service terminates the Director is a specified employee, as defined in Code section
409A, or if any payments or benefits under this Agreement will result in additional tax or interest
to the Director because of section 409A(a)(1), then despite any provision of this Agreement to the
contrary the Director shall not be entitled to the payments or benefits until the earliest of (
x
)
the date that is at least six months after termination of the Directors service for reasons other
than the Directors death, (
y
) the date of the Directors death, or (
z
) any earlier date that does
not result in
additional tax or interest to the Director under section 409A. As promptly as possible after
the end of the period during which payments or benefits are delayed under this provision, the
entire amount of the delayed payments shall be paid to the Director in a single lump sum. If any
provision of this Agreement does not satisfy the requirements of section 409A, the provision shall
nevertheless be applied in a manner consistent with those requirements, despite any contrary
provision of this Agreement. If any provision of this Agreement would subject the Director to
additional tax or interest under section 409A, the Bank shall reform the provision. However, the
Bank shall maintain to the maximum extent practicable the original intent of the applicable
provision without subjecting the Director to additional tax or interest, and the Bank shall not be
required to incur any additional compensation expense as a result of the reformed provision.
In Witness Whereof
, the Director and a duly authorized officer of the Bank have
executed this Amended Director Retirement Agreement as of the date first written above.
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Director
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The Middlefield Banking Company
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Richard T. Coyne
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By:
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Its:
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9
The Middlefield Banking Company
Amended Director Retirement Agreement
Director Fee Analysis
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Year
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Coyne
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Frank
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Halstead
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Hasman
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Hunter
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Villers
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1998
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13,800
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13,700
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13,900
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13,900
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14,200
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14,600
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1999
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13,650
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14,150
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14,050
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14,750
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16,250
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13,650
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2000
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13,300
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13,300
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13,400
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13,600
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13,300
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12,900
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2001
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13,600
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14,000
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13,800
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14,200
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13,200
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13,100
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2002
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14,280
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14,700
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14,490
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14,910
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13,860
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13,755
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2003
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15,100
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15,200
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15,700
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15,500
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15,300
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15,000
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2004
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16,200
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16,700
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16,000
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17,100
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16,100
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16,800
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2005 *
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17,600
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17,750
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17,250
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18,700
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17,800
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18,500
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2006
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18,480
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18,638
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18,113
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18,690
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19,425
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2007
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19,404
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19,569
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19,018
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20,396
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2008
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20,374
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20,548
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21,416
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2009
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21,393
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21,575
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2010
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22,463
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22,654
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2011
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23,586
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23,787
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2012
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24,976
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2013
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26,225
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2014
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27,536
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2015
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28,913
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2016
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30,359
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2017
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31,876
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2018
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33,470
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2019
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35,144
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2020
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36,901
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2021
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38,746
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2022
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40,683
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Retire Date
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May 1, 2012
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May 1, 2023
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May 1, 2008
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May 1, 2006
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May 1, 2007
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May 1, 2009
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Final 3 Year Average:
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22,480
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38,777
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18,127
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17,100
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17,530
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20,412
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25% of Average:
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*
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actual fees for all Plan Years through December 31, 2005
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10
Beneficiary Designation
The Middlefield Banking Company
Amended Director Retirement Agreement
I, Richard T. Coyne, designate the following as beneficiary of any death benefits under this
Amended Director Retirement Agreement:
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Primary:
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Contingent:
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Note: To name a trust as beneficiary, please provide the name of the trustee(s) and the
exact
name and date of the trust agreement.
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I understand that I may change these beneficiary designations by filing a new written
designation with the Bank. I further understand that the designations will be automatically
revoked if the beneficiary predeceases me or if I have named my spouse as beneficiary and our
marriage is subsequently dissolved.
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Signature:
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Richard T. Coyne
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Date:
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, 200
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Received by the Bank this
day of
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200
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By:
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Title:
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Exhibit 10.7
The Middlefield Banking Company
Amended Director Retirement Agreement
This
Amended Director Retirement Agreement
(this Agreement) is entered into as of
, 200
by and between The
Middlefield Banking Company, an Ohio-chartered bank (the Bank), and Frances H. Frank, a director
of the Bank (the Director).
Whereas
, to encourage the Director to remain a member of the Banks board of
directors, the Bank entered into a Director Retirement Agreement dated as of December 1, 2001 with
the Director,
Whereas,
the Bank and the Director desire to amend the December 1, 2001 Director
Retirement Agreement to ensure that the agreement complies in form and in operation with Internal
Revenue Code section 409A,
Whereas
, the Bank and the Director intend that this Agreement shall amend and
restate in its entirety the December 1, 2001 Director Retirement Agreement,
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is
contemplated insofar as the Bank is concerned, and
Whereas
, the parties hereto intend that this Agreement shall be considered an
unfunded arrangement maintained primarily to provide supplemental retirement benefits for the
Director, and to be considered a non-qualified benefit plan for purposes of the Employee
Retirement Income Security Act of 1974, as amended (ERISA). The Director is fully advised of
the Banks financial status.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Director and the
Bank hereby agree as follows.
Article 1
Definitions
1.1
Accrual Balance
means the liability that should be accrued by the Bank under generally
accepted accounting principles (GAAP) to account for the Banks obligation to the Director under
this Agreement, applying Accounting Principles Board Opinion No. 12, as amended by Statement of
Financial Accounting Standards No. 106, and the calculation method and discount rate specified
hereinafter. The Accrual Balance shall be calculated such that when it is credited with interest
each month the Accrual Balance at Normal Retirement Age equals the present value of the normal
retirement benefit. The discount rate means the rate used by the Plan Administrator for
determining the Accrual Balance. In its sole discretion the Plan Administrator may adjust the
discount rate to maintain the rate within reasonable standards according to GAAP.
1.2
Beneficiary
means each designated person, or the estate of the deceased Executive,
entitled to benefits, if any, upon the death of the Director, determined according to Article 4.
1.3
Beneficiary Designation Form
means the form established from time to time by the Plan
Administrator that the Director completes, signs, and returns to the Plan Administrator to
designate one or more Beneficiaries.
1.4
Change in Control
shall mean a change in control as defined in Internal Revenue
Code section 409A and rules, regulations, and guidance of general application thereunder issued by
the Department of the Treasury, including
(a)
Change in ownership
: a change in ownership of Middlefield Banc Corp., an Ohio corporation
of which the Bank is a wholly owned subsidiary, occurs on the date any one person or group
accumulates ownership of Middlefield Banc Corp. stock constituting more than 50% of the total fair
market value or total voting power of Middlefield Banc Corp. stock,
(b)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield Banc Corp. stock possessing 30% or more
of the total voting power of Middlefield Banc Corp., or (
y
) a majority of Middlefield Banc Corp.s
board of directors is replaced during any 12-month period by directors whose appointment or
election is not endorsed in advance by a majority of Middlefield Banc Corp.s board of directors,
or
(c)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefield Banc Corp.s assets occurs if in a 12-month period any one
person or more than one person acting as a group acquires from Middlefield Banc Corp. assets
having a total gross fair market value equal to or exceeding 40% of the total gross fair market
value of all of Middlefield Banc Corp.s assets immediately before the acquisition or
acquisitions. For this purpose, gross fair market value means the value of Middlefield Banc
Corp.s assets, or the value of the assets being disposed of, determined without regard to any
liabilities associated with the assets.
1.5
Code
means the Internal Revenue Code of 1986, as amended, and rules, regulations, and
guidance of general application issued thereunder by the Department of the Treasury.
1.6
Disability
means, if the Director is covered by a Bank-sponsored disability policy,
total disability as defined in the policy, without regard to any waiting period. If the Director
is not covered by Bank-sponsored disability policy, Disability means the Director suffers a
sickness, accident, or injury that, in the judgment of a physician satisfactory to the Bank,
prevents the Director from performing substantially all of the Directors normal duties for the
Bank. As a condition to receiving any Disability benefits, the Bank may require the Director to
submit to such physical or mental evaluations and tests as the Banks board of directors deems
appropriate.
1.7
Early Termination
means Separation from Service before Normal Retirement Age for
reasons other than death, Disability, or Termination with Cause.
1.8
Effective Date
means December 1, 2001.
1.9
Normal Retirement Age
means the Directors 75
th
birthday.
1.10
Person
means an individual, corporation, partnership, trust, association, joint
venture, pool, syndicate, sole proprietorship, unincorporated organization, or other entity.
1.11
Plan Administrator
or
Administrator
means the plan administrator described in
Article 7.
1.12
Plan Year
means each 12-month period from December 1 through November 30.
1.13
Separation from Service
means the Directors service as a director and
independent contractor to the Bank and any member of a controlled group, as defined in Code section
414, terminates for
2
any reason, other than because of a leave of absence approved by the Bank and
other than because of the Directors death. If there is a dispute about the Directors status or
the date of the Directors Separation from Service, the Bank shall have the sole and absolute right
to decide the dispute unless a Change in Control shall have occurred.
1.14
Termination with Cause
or
Cause
means the Director is not nominated by the board or
nominating committee for reelection as a director after the expiration of the Directors term, or
the Director is removed from the board of directors, in either case because of the Directors
(a) gross negligence or gross neglect of duties, or
(b) commission of a felony or commission of a misdemeanor involving moral turpitude, or
(c) fraud, disloyalty, dishonesty, or willful violation of any law or significant policy of
the Bank committed in connection with the Directors service and resulting in an adverse effect on
the Bank, or
(d) removal from service or permanent prohibition from participating in the Banks affairs by
an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act [12 U.S.C.
1818(e)(4) or (g)(1)].
Article 2
Lifetime Benefits
2.1 Normal Retirement
. Unless Separation from Service or a Change in Control occurs before
Normal Retirement Age, when the Director attains Normal Retirement Age the Bank shall pay to the
Director the benefit described in this section 2.1 instead of any other benefit under this
Agreement. If the Directors Separation from Service thereafter is a Termination with Cause or if
this Agreement terminates under Article 5, no further benefits shall be paid to the Director under
this Agreement.
2.1.1
Amount of benefit
. The annual benefit under this section 2.1 is an amount in cash
equal to 25% of the final average annual board fees paid to the Director by the Bank in the
three years preceding the year in which the Director attains Normal Retirement Age. For this
purpose board fees include retainers and other regular fees paid or payable in cash for the
Directors service on or attendance at meetings of the board of directors of the Bank and
committees of the board of directors, including board fees that may be deferred under any
plan for elective deferrals that may be adopted by the Bank in the future. If the Director
is serving as Chairman of the Board at Normal Retirement Age, board fees shall also include
any additional cash compensation paid or payable for service as Chairman of the Board. Board
fees shall not include the value of non-cash compensation, the value of life insurance
benefits or other fringe benefits, or expense reimbursement.
2.1.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual
benefit shall be paid to the Director for ten years.
2.2 Early Termination
. Provided the Director has attained age 55 and has served as a
director for at least five years (including each year of board service before the Effective Date)
before Separation from Service occurs, for Early Termination the Bank shall pay to the Director the
benefit specified in this section 2.2 instead of any other benefit under this Agreement, unless the
Director shall have received the benefit under section 2.4 after a Change in Control. If the
Directors Separation from Service is a Termination with Cause or
3
if this Agreement terminates
under Article 5, no benefits shall be paid to the Director under this Agreement. In addition, the
Director shall be entitled to no benefits under this section 2.2 if Early Termination occurs before
the Director shall have attained age 55 and served as a director for at least five years (including
each year of board service before the Effective Date).
2.2.1
Amount of benefit
. The annual benefit under this section 2.2 is calculated as the
amount that fully amortizes the Accrual Balance existing at the end of the month immediately
before the month in which Separation from Service occurs, amortizing that Accrual Balance
over ten years and taking into account interest at the discount rate or rates established by
the Plan Administrator.
2.2.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.3 Disability
. Unless the Director shall have received the benefit under section 2.4 after a
Change in Control, if the Directors Separation from Service occurs because of Disability before
Normal Retirement Age the Bank shall pay to the Director the benefit described in this section 2.3
instead of any other benefit under this Agreement, regardless of whether the Director has accrued
five years of service or has attained age 55.
2.3.1
Amount of benefit
. The annual benefit under this section 2.3 is calculated as the
amount that fully amortizes the Accrual Balance existing at the end of the month immediately
before the month in which Separation from Service occurs, amortizing that Accrual Balance
over ten years and taking into account interest at the discount rate or rates established by
the Plan Administrator.
2.3.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.4 Change in Control
. If a Change in Control occurs both before the Directors Normal
Retirement Age and before the Directors Separation from Service, the Bank shall pay to the
Director the benefit described in this section 2.4 instead of any other benefit under this
Agreement, regardless of whether the Director has accrued five years of service or has attained age
55.
2.4.1
Amount of benefit
. The benefit under this section 2.4 is the Accrual Balance at
the end of the month immediately before the month in which the Change in Control occurs.
2.4.2
Payment of benefit
. The Bank shall pay the benefit under this section 2.4 to the
Director in a single lump sum within three days after the Change in Control.
2.5 Payout of Normal Retirement Benefit after a Change in Control
. If a Change in Control
occurs while the Director is receiving the benefit provided by section 2.1, the Bank shall pay the
remaining benefits to the Director in a single lump sum within three days after the Change in
Control. If when a Change in Control occurs the Director is receiving or is entitled at Normal
Retirement Age to receive the benefit under sections 2.2 or 2.3, the Bank shall pay the remaining
benefits to the Director in a single lump sum within three days after the Change in Control. The
lump-sum payment due to the Director as the result of a Change in Control shall be an amount equal
to the Accrual Balance amount corresponding to the particular benefit when the Change in Control
occurs.
4
2.6 Medical Benefits
. Provided health insurance coverage can be obtained by the Bank
on terms it, in its sole judgment, considers commercially reasonable, the Bank shall obtain and
maintain health insurance coverage for the Director after Separation from Service for the lifetime
of the Director and the Directors surviving spouse.
2.7 Annual Benefit Statement
. Within 120 days after the end of each Plan Year the Plan
Administrator shall provide or cause to be provided to the Director an annual benefit statement
showing benefits payable or potentially payable to the Director under this Agreement. Each annual
benefit statement shall supersede the previous years annual benefit statement. If there is a
contradiction between this Agreement and the annual benefit statement concerning the amount of a
particular benefit payable or potentially payable to the Director, the amount of the benefit
determined under this Agreement shall control.
2.8 One Benefit Only
. Despite any contrary provision of this Agreement, the Director is
entitled to one benefit only under Article 2 of this Agreement, which shall be determined by the
first event to occur that is dealt with by Article 2 of this Agreement. Except as provided in
section 2.5, subsequent occurrence of events dealt with by this Agreement shall not entitle the
Director to other or additional benefits under this Agreement.
Article 3
Death Benefit
Unless this Agreement terminates under Article 5, at the Directors death the Bank shall pay
to the Directors Beneficiary in a single lump sum the Accrual Balance remaining, if any, on the
date of the Directors death, unless the Director shall have received the Change-in-Control benefit
under section 2.4 or unless a Change-in-Control payout shall have occurred under section 2.5. The
Accrual Balance shall be paid to the Beneficiary 30 days after the Bank receives notice of the
Directors death.
Article 4
Beneficiaries
4.1 Beneficiary Designations
. The Director shall have the right to designate at any time a
Beneficiary to receive any benefits payable under this Agreement after the Directors death. The
Beneficiary designated under this Agreement may be the same as or different from the beneficiary
designation under any other benefit plan of the Bank in which the Director participates.
4.2 Beneficiary Designation: Change
. The Director shall designate a Beneficiary by completing
and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its
designated agent. The Directors Beneficiary designation shall be deemed automatically revoked if
the Beneficiary predeceases the Director or if the Executive names a spouse as Beneficiary and the
marriage is subsequently dissolved. The Director shall have the right to change a Beneficiary by
completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and
the Plan Administrators rules and procedures, as in effect from time to time. Upon the acceptance
by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations
previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last
Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before
the Directors death.
4.3 Acknowledgment
. No designation or change in designation of a Beneficiary shall be
effective until received, accepted, and acknowledged in writing by the Plan Administrator or its
designated agent.
5
4.4 No Beneficiary Designation
. If the Director dies without a valid beneficiary
designation, or if all designated Beneficiaries predecease the Director, the Directors spouse
shall be the designated Beneficiary. If the Director has no surviving spouse, the benefits shall
be paid to the Directors estate.
4.5 Facility of Payment
. If a benefit is payable to a minor, to a person declared
incapacitated, or to a person incapable of handling the disposition of his or her property, the
Bank may pay the benefit to the guardian, legal representative, or person having the care or
custody of the minor, incapacitated person, or incapable person. The Bank may require proof of
incapacity, minority, or guardianship as it may deem appropriate before distribution of the
benefit. Distribution shall completely discharge the Bank from all liability for the benefit.
Article 5
Agreement Termination
5.1 Director Termination
. Despite any contrary provision of this Agreement, the Bank shall
not pay any benefit under this Agreement and this Agreement shall terminate if Separation from
Service is a Termination with Cause or if Separation from Service is an Early Termination occurring
before the Director has attained age 55 and served as a director for at least five years (including
each year of board service before the Effective Date). The board of directors or a duly authorized
committee of the board shall have the sole and absolute right to determine whether the bases for
denial of benefits for Cause exist. Benefits may be denied for Cause regardless of whether the
Director continued to serve as a director after the board or committee made its determination not
to nominate the Director for reelection.
5.2 Removal
. If the Director is removed or permanently prohibited from participating in the
Banks affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement shall
terminate as of the effective date of the order.
5.3 Default
. Despite any contrary provision of this Agreement, if the Bank is in default or
in danger of default, as those terms are defined in section 3(x) of the Federal Deposit Insurance
Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
5.4 FDIC Open-Bank Assistance
. All obligations under this Agreement shall terminate, except
to the extent determined that continuation of the contract is necessary for the continued operation
of the Bank, when the Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in section 13(c) of the
Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any rights of the parties that have already
vested shall not be affected by such action, however.
Article 6
Claims and Review Procedures
6.1 Claims Procedure
. The Bank shall notify in writing any person or entity making a
claim for benefits under this Agreement (the Claimant) of his or her eligibility or ineligibility
for benefits under the Agreement. The Bank shall send the written notice to the Claimant within 90
days after Claimants written application for benefits. If the Bank determines that the Claimant
is not eligible for benefits or full benefits, the notice shall state (
w
) the specific reasons for
denial, (
x
) a specific reference to the provisions of the Agreement on which the denial is based,
(
y
) a description of any additional information or material necessary for the Claimant to perfect
his or her claim and a description of why it is needed, and (
z
) an explanation of the Agreements
claims review procedure and other appropriate information concerning the steps to be taken if the
Claimant wishes to have the claim reviewed. If the Bank determines that there are special
circumstances
6
requiring additional time to make a decision, the Bank shall notify the Claimant of
the special circumstances and the date by which a decision is expected to be made, and the Bank may
extend the time for up to an additional 90 days.
6.2 Review Procedure
. If the Bank determines that the Claimant is not eligible for benefits
or if the Claimant believes that he or she is entitled to greater or different benefits, the
Claimant shall have the opportunity to have the claim reviewed by the Bank by filing a petition for
review with the Bank within 60 days after receipt of the notice issued by the Bank. The petition
shall state the specific reasons the Claimant believes entitle him or her to benefits or to greater
or different benefits. Within 60 days after receipt by the Bank of the petition, the Bank shall
give the Claimant (and counsel, if any) an opportunity to present his or her position to the Bank
verbally or in writing, and the Claimant (or counsel) shall have the right to review the pertinent
documents. The Bank shall notify the Claimant of the Banks decision in writing within the 60-day
period, stating specifically the basis of its decision and identifying the specific provision(s) of
the Agreement on which the decision is based. If because of the need for a hearing the 60-day
period is not sufficient, the decision may be deferred for up to another 60 days at the election of
the Bank, but notice of this deferral shall be given to the Claimant.
Article 7
Plan Administration
7.1 Plan Administrator Duties
. This Agreement shall be administered by a Plan Administrator
consisting of the board or such committee or persons as the board shall appoint. The Director may
be a member of the Plan Administrator. The Plan Administrator shall have the discretion and
authority to (
x
) make, amend, interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (
y
) decide or resolve any and all questions that may arise,
including interpretations of this Agreement.
7.2 Agents
. In the administration of this Agreement, the Plan Administrator may employ agents
and delegate to them such administrative duties as it sees fit (including acting through a duly
appointed representative) and may from time to time consult with counsel, who may be counsel to the
Bank.
7.3 Binding Effect of Decisions
. The decision or action of the Plan Administrator concerning
any question arising out of the administration, interpretation, and application of the Agreement
and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon
all persons having any interest in the Agreement. No Director shall be deemed to have any right,
vested or nonvested, regarding the continuing effect of any decision or action of the Plan
Administrator.
7.4 Indemnity of Plan Administrator
. The Bank shall indemnify and hold harmless the members
of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities
arising from any action or failure to act with respect to this Agreement, except in the case of
willful misconduct by the Plan Administrator or any of its members.
7.5 Bank Information
. To enable the Plan Administrator to perform its functions, the Bank
shall supply full and timely information to the Plan Administrator on all matters relating to the
date and circumstances of the retirement, Disability, death, or Separation from Service of the
Director, and such other pertinent information as the Plan Administrator may reasonably require.
7
Article 8
Miscellaneous
8.1 Amendment
. This Agreement may be amended solely by a written agreement signed by the Bank
and the Director, except that the Bank specifically reserves the right to amend this Agreement as
necessary to comply with Code section 409A.
8.2 Termination
. This Agreement shall terminate as provided in Article 5. In addition, the
Bank reserves the right to terminate this Agreement at any time if, because of legislative,
judicial or regulatory action, continuation of the Agreement would (
x
) cause benefits to be taxable
to the Director before actual receipt or (
y
) in the Banks judgment, result in significant
financial penalties or other significantly detrimental consequences for the Bank (other than the
financial impact of paying benefits).
8.3 Binding Effect
. This Agreement shall bind the Director and the Bank and their
beneficiaries, successors, assigns, survivors, executors, administrators, and transferees.
8.4 No Guarantee of Service
. This Agreement is not a contract for services. This Agreement
does not give the Director the right to remain a director of the Bank or interfere with the Bank
stockholders right to replace the Director. This Agreement also does not require the Director to
remain a director or interfere with the Directors right to terminate service at any time.
8.5 Non-Transferability
. Benefits under this Agreement may not be sold, transferred,
assigned, pledged, attached, or encumbered.
8.6 Taxes
. The Bank shall withhold any taxes that are required to be withheld from the
benefits provided under this Agreement.
8.7 Successors
;
Binding Agreement
. By an assumption agreement in form and substance
satisfactory to the Director, the Bank shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Bank or Middlefield Banc Corp. to expressly assume and agree to perform this Agreement in
the same manner and to the same extent the Bank would be required to perform this Agreement had no
succession occurred.
8.8 Applicable Law
. The Agreement and all rights hereunder shall be governed by the internal
substantive laws of the State of Ohio, without regard to principles of conflict of laws.
8.9 Unfunded Arrangement
. The Director is a general unsecured creditor of the Bank for the
payment of benefits under this Agreement. The benefits represent the mere promise by the Bank to
pay benefits. The rights to benefits are not subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the
Directors life is a general asset of the Bank to which the Director has no preferred or secured
claim.
8.10 Severability
. If any provision of this Agreement is held invalid, such invalidity shall
not affect any other provision of this Agreement not held invalid, and each such other provision
shall continue in full force and effect to the full extent consistent with the law. If any
provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder
of the provision not held invalid, and the remainder of the provision together with all other
provisions of this Agreement shall continue in full force and effect to the full extent consistent
with the law.
8
8.11 Captions and Counterparts
. Section headings and subheadings are included solely
for convenience of reference and shall not affect the meaning or interpretation of any provision of
this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which taken together shall constitute a single agreement.
8.12 Entire Agreement
. This Agreement constitutes the entire agreement between the Bank and
the Director concerning the subject matter. No rights are granted to the Director other than those
specifically set forth. This Agreement amends and restates in its entirety the December 1, 2001
Director Retirement Agreement between the Bank and the Director, as the same may have been amended
or restated.
8.13 Waiver
. A waiver by either party of any of the terms or conditions of this Agreement in
any one instance shall not be considered a waiver of the terms or conditions for the future, or of
any subsequent breach thereof. All remedies, rights, undertakings, obligations, and agreements
contained in this Agreement shall be cumulative and none of them shall be in limitation of any
other remedy, right, undertaking, obligation, or agreement of either party.
8.14 Notices
. Any notice under this Agreement shall be deemed to have been effectively made
or given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Director if addressed to the address of the Director on the books and
records of the Bank at the time of the delivery of the notice, and properly addressed to the Bank
if addressed to the board of directors, The Middlefield Banking Company, 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
8.15 Internal Revenue Code Section 409A
. The Bank and the Director intend that their exercise
of authority or discretion under this Agreement shall comply with Code section 409A. If when the
Directors service terminates the Director is a specified employee, as defined in Code section
409A, or if any payments or benefits under this Agreement will result in additional tax or interest
to the Director because of section 409A(a)(1), then despite any provision of this Agreement to the
contrary the Director shall not be entitled to the payments or benefits until the earliest of (
x
)
the date that is at least six months after termination of the Directors service for reasons other
than the Directors death, (
y
) the date of the Directors death, or (
z
) any earlier date that does
not result in additional tax or interest to the Director under section 409A. As promptly as
possible after the end of the period during which payments or benefits are delayed under this
provision, the entire amount of the delayed payments shall be paid to the Director in a single lump
sum. If any provision of this Agreement does not satisfy the requirements of section 409A, the
provision shall nevertheless be applied in a manner consistent with those requirements, despite any
contrary provision of this Agreement. If any provision of this Agreement would subject the
Director to additional tax or interest under section 409A, the Bank shall reform the provision.
However, the Bank shall maintain to the maximum extent practicable the original intent of the
applicable provision without subjecting the Director to additional tax or interest, and the Bank
shall not be required to incur any additional compensation expense as a result of the reformed
provision.
In Witness Whereof
, the Director and a duly authorized officer of the Bank have
executed this Amended Director Retirement Agreement as of the date first written above.
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Director
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The Middlefield Banking Company
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By:
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Its:
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9
The Middlefield Banking Company
Amended Director Retirement Agreement
Director Fee Analysis
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Year
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Coyne
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Frank
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Halstead
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Hasman
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Hunter
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Villers
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1998
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13,800
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13,700
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13,900
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13,900
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14,200
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14,600
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1999
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13,650
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14,150
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14,050
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14,750
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16,250
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13,650
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2000
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13,300
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13,300
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13,400
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13,600
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13,300
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12,900
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2001
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13,600
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14,000
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13,800
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14,200
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13,200
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13,100
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2002
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14,280
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14,700
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14,490
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14,910
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13,860
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13,755
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2003
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15,100
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15,200
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15,700
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15,500
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15,300
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15,000
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2004
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16,200
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16,700
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16,000
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17,100
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16,100
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16,800
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2005 *
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17,600
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17,750
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17,250
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18,700
|
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17,800
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18,500
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2006
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18,480
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18,638
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18,113
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18,690
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19,425
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2007
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19,404
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19,569
|
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19,018
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|
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20,396
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2008
|
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20,374
|
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20,548
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21,416
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2009
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21,393
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21,575
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2010
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22,463
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22,654
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2011
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23,586
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23,787
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2012
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24,976
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2013
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26,225
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2014
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27,536
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2015
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28,913
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2016
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30,359
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2017
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31,876
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2018
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33,470
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2019
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35,144
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2020
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36,901
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2021
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38,746
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2022
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40,683
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Retire Date
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May 1, 2012
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May 1, 2023
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May 1, 2008
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May 1, 2006
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May 1, 2007
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May 1, 2009
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Final 3 Year Average:
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22,480
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38,777
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18,127
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17,100
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17,530
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20,412
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25% of Average:
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*
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actual fees for all Plan Years through December 31, 2005
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10
Beneficiary Designation
The Middlefield Banking Company
Amended Director Retirement Agreement
I, Frances H. Frank, designate the following as beneficiary of any death benefits under this
Amended Director Retirement Agreement:
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Note:
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To name a trust as beneficiary, please provide the name of the trustee(s) and the
exact
name and date of the trust agreement.
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I understand that I may change these beneficiary designations by filing a new written
designation with the Bank. I further understand that the designations will be automatically
revoked if the beneficiary predeceases me or if I have named my spouse as beneficiary and our
marriage is subsequently dissolved.
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Signature:
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Frances H. Frank
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Date:
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, 200
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Received by the Bank this
day of
,
200
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By:
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Title:
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Exhibit 10.8
The Middlefield Banking Company
Amended Director Retirement Agreement
This
Amended Director Retirement Agreement
(this Agreement) is entered into as of
, 200
by and between The
Middlefield Banking Company, an Ohio-chartered bank (the Bank), and Thomas C. Halstead, a
director of the Bank (the Director).
Whereas
, to encourage the Director to remain a member of the Banks board of
directors, the Bank entered into a Director Retirement Agreement dated as of December 1, 2001 with
the Director,
Whereas,
the Bank and the Director desire to amend the December 1, 2001 Director
Retirement Agreement to ensure that the agreement complies in form and in operation with Internal
Revenue Code section 409A,
Whereas
, the Bank and the Director intend that this Agreement shall amend and
restate in its entirety the December 1, 2001 Director Retirement Agreement,
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is
contemplated insofar as the Bank is concerned, and
Whereas
, the parties hereto intend that this Agreement shall be considered an
unfunded arrangement maintained primarily to provide supplemental retirement benefits for the
Director, and to be considered a non-qualified benefit plan for purposes of the Employee
Retirement Income Security Act of 1974, as amended (ERISA). The Director is fully advised of
the Banks financial status.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Director and the
Bank hereby agree as follows.
Article 1
Definitions
1.1
Accrual Balance
means the liability that should be accrued by the Bank under generally
accepted accounting principles (GAAP) to account for the Banks obligation to the Director under
this Agreement, applying Accounting Principles Board Opinion No. 12, as amended by Statement of
Financial Accounting Standards No. 106, and the calculation method and discount rate specified
hereinafter. The Accrual Balance shall be calculated such that when it is credited with interest
each month the Accrual Balance at Normal Retirement Age equals the present value of the normal
retirement benefit. The discount rate means the rate used by the Plan Administrator for
determining the Accrual Balance. In its sole discretion the Plan Administrator may adjust the
discount rate to maintain the rate within reasonable standards according to GAAP.
1.2
Beneficiary
means each designated person, or the estate of the deceased Executive,
entitled to benefits, if any, upon the death of the Director, determined according to Article 4.
1.3
Beneficiary Designation Form
means the form established from time to time by the Plan
Administrator that the Director completes, signs, and returns to the Plan Administrator to
designate one or more Beneficiaries.
1.4
Change in Control
shall mean a change in control as defined in Internal Revenue
Code section 409A and rules, regulations, and guidance of general application thereunder issued by
the Department of the Treasury, including
(a)
Change in ownership
: a change in ownership of Middlefield Banc Corp., an Ohio corporation
of which the Bank is a wholly owned subsidiary, occurs on the date any one person or group
accumulates ownership of Middlefield Banc Corp. stock constituting more than 50% of the total fair
market value or total voting power of Middlefield Banc Corp. stock,
(b)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield Banc Corp. stock possessing 30% or more
of the total voting power of Middlefield Banc Corp., or (
y
) a majority of Middlefield Banc Corp.s
board of directors is replaced during any 12-month period by directors whose appointment or
election is not endorsed in advance by a majority of Middlefield Banc Corp.s board of directors,
or
(c)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefield Banc Corp.s assets occurs if in a 12-month period any one
person or more than one person acting as a group acquires from Middlefield Banc Corp. assets
having a total gross fair market value equal to or exceeding 40% of the total gross fair market
value of all of Middlefield Banc Corp.s assets immediately before the acquisition or
acquisitions. For this purpose, gross fair market value means the value of Middlefield Banc
Corp.s assets, or the value of the assets being disposed of, determined without regard to any
liabilities associated with the assets.
1.5
Code
means the Internal Revenue Code of 1986, as amended, and rules, regulations, and
guidance of general application issued thereunder by the Department of the Treasury.
1.6
Disability
means, if the Director is covered by a Bank-sponsored disability policy,
total disability as defined in the policy, without regard to any waiting period. If the Director
is not covered by Bank-sponsored disability policy, Disability means the Director suffers a
sickness, accident, or injury that, in the judgment of a physician satisfactory to the Bank,
prevents the Director from performing substantially all of the Directors normal duties for the
Bank. As a condition to receiving any Disability benefits, the Bank may require the Director to
submit to such physical or mental evaluations and tests as the Banks board of directors deems
appropriate.
1.7
Early Termination
means Separation from Service before Normal Retirement Age for
reasons other than death, Disability, or Termination with Cause.
1.8
Effective Date
means December 1, 2001.
1.9
Normal Retirement Age
means the Directors 75
th
birthday.
1.10
Person
means an individual, corporation, partnership, trust, association, joint
venture, pool, syndicate, sole proprietorship, unincorporated organization, or other entity.
1.11
Plan Administrator
or
Administrator
means the plan administrator described in
Article 7.
1.12
Plan Year
means each 12-month period from December 1 through November 30.
1.13
Separation from Service
means the Directors service as a director and independent
contractor to the Bank and any member of a controlled group, as defined in Code section 414,
terminates for
2
any reason, other than because of a leave of absence approved by the Bank and other
than because of the Directors death. If there is a dispute about the Directors status or the
date of the Directors Separation from Service, the Bank shall have the sole and absolute right to
decide the dispute unless a Change in Control shall have occurred.
1.14
Termination with Cause
or
Cause
means the Director is not nominated by the board or
nominating committee for reelection as a director after the expiration of the Directors term, or
the Director is removed from the board of directors, in either case because of the Directors
(a) gross negligence or gross neglect of duties, or
(b) commission of a felony or commission of a misdemeanor involving moral turpitude, or
(c) fraud, disloyalty, dishonesty, or willful violation of any law or significant policy of
the Bank committed in connection with the Directors service and resulting in an adverse effect on
the Bank, or
(d) removal from service or permanent prohibition from participating in the Banks affairs by
an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act [12 U.S.C.
1818(e)(4) or (g)(1)].
Article 2
Lifetime Benefits
2.1 Normal Retirement
. Unless Separation from Service or a Change in Control occurs before
Normal Retirement Age, when the Director attains Normal Retirement Age the Bank shall pay to the
Director the benefit described in this section 2.1 instead of any other benefit under this
Agreement. If the Directors Separation from Service thereafter is a Termination with Cause or if
this Agreement terminates under Article 5, no further benefits shall be paid to the Director under
this Agreement.
2.1.1
Amount of benefit
. The annual benefit under this section 2.1 is an amount in cash
equal to 25% of the final average annual board fees paid to the Director by the Bank in the
three years preceding the year in which the Director attains Normal Retirement Age. For this
purpose board fees include retainers and other regular fees paid or payable in cash for the
Directors service on or attendance at meetings of the board of directors of the Bank and
committees of the board of directors, including board fees that may be deferred under any
plan for elective deferrals that may be adopted by the Bank in the future. If the Director
is serving as Chairman of the Board at Normal Retirement Age, board fees shall also include
any additional cash compensation paid or payable for service as Chairman of the Board. Board
fees shall not include the value of non-cash compensation, the value of life insurance
benefits or other fringe benefits, or expense reimbursement.
2.1.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.2 Early Termination
. Provided the Director has attained age 55 and has served as a director
for at least five years (including each year of board service before the Effective Date) before
Separation from Service occurs, for Early Termination the Bank shall pay to the Director the
benefit specified in this section 2.2 instead of any other benefit under this Agreement, unless the
Director shall have received the benefit under section 2.4 after a Change in Control. If the
Directors Separation from Service is a Termination with Cause or
3
if this Agreement terminates
under Article 5, no benefits shall be paid to the Director under this Agreement. In addition, the
Director shall be entitled to no benefits under this section 2.2 if Early Termination occurs before
the Director shall have attained age 55 and served as a director for at least five years (including
each year of board service before the Effective Date).
2.2.1
Amount of benefit
. The annual benefit under this section 2.2 is calculated as the
amount that fully amortizes the Accrual Balance existing at the end of the month immediately
before the month in which Separation from Service occurs, amortizing that Accrual Balance
over ten years and taking into account interest at the discount rate or rates established by
the Plan Administrator.
2.2.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.3 Disability
. Unless the Director shall have received the benefit under section 2.4 after a
Change in Control, if the Directors Separation from Service occurs because of Disability before
Normal Retirement Age the Bank shall pay to the Director the benefit described in this section 2.3
instead of any other benefit under this Agreement, regardless of whether the Director has accrued
five years of service or has attained age 55.
2.3.1
Amount of benefit
. The annual benefit under this section 2.3 is calculated as the
amount that fully amortizes the Accrual Balance existing at the end of the month immediately
before the month in which Separation from Service occurs, amortizing that Accrual Balance
over ten years and taking into account interest at the discount rate or rates established by
the Plan Administrator.
2.3.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.4 Change in Control
. If a Change in Control occurs both before the Directors Normal
Retirement Age and before the Directors Separation from Service, the Bank shall pay to the
Director the benefit described in this section 2.4 instead of any other benefit under this
Agreement, regardless of whether the Director has accrued five years of service or has attained age
55.
2.4.1
Amount of benefit
. The benefit under this section 2.4 is the Accrual Balance at
the end of the month immediately before the month in which the Change in Control occurs.
2.4.2
Payment of benefit
. The Bank shall pay the benefit under this section 2.4 to the
Director in a single lump sum within three days after the Change in Control.
2.5 Payout of Normal Retirement Benefit after a Change in Control
. If a Change in Control
occurs while the Director is receiving the benefit provided by section 2.1, the Bank shall pay the
remaining benefits to the Director in a single lump sum within three days after the Change in
Control. If when a Change in Control occurs the Director is receiving or is entitled at Normal
Retirement Age to receive the benefit under sections 2.2 or 2.3, the Bank shall pay the remaining
benefits to the Director in a single lump sum within three days after the Change in Control. The
lump-sum payment due to the Director as the result of a Change in Control shall be an amount equal
to the Accrual Balance amount corresponding to the particular benefit when the Change in Control
occurs.
4
2.6 Medical Benefits
. Provided health insurance coverage can be obtained by the Bank
on terms it, in its sole judgment, considers commercially reasonable, the Bank shall obtain and
maintain health insurance coverage for the Director after Separation from Service for the lifetime
of the Director and the Directors surviving spouse.
2.7 Annual Benefit Statement
. Within 120 days after the end of each Plan Year the Plan
Administrator shall provide or cause to be provided to the Director an annual benefit statement
showing benefits payable or potentially payable to the Director under this Agreement. Each annual
benefit statement shall supersede the previous years annual benefit statement. If there is a
contradiction between this Agreement and the annual benefit statement concerning the amount of a
particular benefit payable or potentially payable to the Director, the amount of the benefit
determined under this Agreement shall control.
2.8 One Benefit Only
. Despite any contrary provision of this Agreement, the Director is
entitled to one benefit only under Article 2 of this Agreement, which shall be determined by the
first event to occur that is dealt with by Article 2 of this Agreement. Except as provided in
section 2.5, subsequent occurrence of events dealt with by this Agreement shall not entitle the
Director to other or additional benefits under this Agreement.
Article 3
Death Benefit
Unless this Agreement terminates under Article 5, at the Directors death the Bank shall pay
to the Directors Beneficiary in a single lump sum the Accrual Balance remaining, if any, on the
date of the Directors death, unless the Director shall have received the Change-in-Control benefit
under section 2.4 or unless a Change-in-Control payout shall have occurred under section 2.5. The
Accrual Balance shall be paid to the Beneficiary 30 days after the Bank receives notice of the
Directors death.
Article 4
Beneficiaries
4.1 Beneficiary Designations
. The Director shall have the right to designate at any time a
Beneficiary to receive any benefits payable under this Agreement after the Directors death. The
Beneficiary designated under this Agreement may be the same as or different from the beneficiary
designation under any other benefit plan of the Bank in which the Director participates.
4.2 Beneficiary Designation: Change
. The Director shall designate a Beneficiary by completing
and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its
designated agent. The Directors Beneficiary designation shall be deemed automatically
revoked if the Beneficiary predeceases the Director or if the Executive names a spouse as
Beneficiary and the marriage is subsequently dissolved. The Director shall have the right to
change a Beneficiary by completing, signing, and otherwise complying with the terms of the
Beneficiary Designation Form and the Plan Administrators rules and procedures, as in effect from
time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form,
all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be
entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by
the Plan Administrator before the Directors death.
4.3 Acknowledgment
. No designation or change in designation of a Beneficiary shall be
effective until received, accepted, and acknowledged in writing by the Plan Administrator or its
designated agent.
5
4.4 No Beneficiary Designation
. If the Director dies without a valid beneficiary
designation, or if all designated Beneficiaries predecease the Director, the Directors spouse
shall be the designated Beneficiary. If the Director has no surviving spouse, the benefits shall
be paid to the Directors estate.
4.5 Facility of Payment
. If a benefit is payable to a minor, to a person declared
incapacitated, or to a person incapable of handling the disposition of his or her property, the
Bank may pay the benefit to the guardian, legal representative, or person having the care or
custody of the minor, incapacitated person, or incapable person. The Bank may require proof of
incapacity, minority, or guardianship as it may deem appropriate before distribution of the
benefit. Distribution shall completely discharge the Bank from all liability for the benefit.
Article 5
Agreement Termination
5.1 Director Termination
. Despite any contrary provision of this Agreement, the Bank shall
not pay any benefit under this Agreement and this Agreement shall terminate if Separation from
Service is a Termination with Cause or if Separation from Service is an Early Termination occurring
before the Director has attained age 55 and served as a director for at least five years (including
each year of board service before the Effective Date). The board of directors or a duly authorized
committee of the board shall have the sole and absolute right to determine whether the bases for
denial of benefits for Cause exist. Benefits may be denied for Cause regardless of whether the
Director continued to serve as a director after the board or committee made its determination not
to nominate the Director for reelection.
5.2 Removal
. If the Director is removed or permanently prohibited from participating in the
Banks affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement shall
terminate as of the effective date of the order.
5.3 Default
. Despite any contrary provision of this Agreement, if the Bank is in default or
in danger of default, as those terms are defined in section 3(x) of the Federal Deposit Insurance
Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
5.4 FDIC Open-Bank Assistance
. All obligations under this Agreement shall terminate, except
to the extent determined that continuation of the contract is necessary for the continued
operation of the Bank, when the Federal Deposit Insurance Corporation enters into an agreement
to provide assistance to or on behalf of the Bank under the authority contained in section 13(c)
of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any rights of the parties that have
already vested shall not be affected by such action, however.
Article 6
Claims and Review Procedures
6.1 Claims Procedure
. The Bank shall notify in writing any person or entity making a
claim for benefits under this Agreement (the Claimant) of his or her eligibility or ineligibility
for benefits under the Agreement. The Bank shall send the written notice to the Claimant within 90
days after Claimants written application for benefits. If the Bank determines that the Claimant
is not eligible for benefits or full benefits, the notice shall state (
w
) the specific reasons for
denial, (
x
) a specific reference to the provisions of the Agreement on which the denial is based,
(
y
) a description of any additional information or material necessary for the Claimant to perfect
his or her claim and a description of why it is needed, and (
z
) an explanation of the Agreements
claims review procedure and other appropriate information concerning the steps to be taken if the
Claimant wishes to have the claim reviewed. If the Bank determines that there are special
circumstances
6
requiring additional time to make a decision, the Bank shall notify the Claimant of
the special circumstances and the date by which a decision is expected to be made, and the Bank may
extend the time for up to an additional 90 days.
6.2 Review Procedure
. If the Bank determines that the Claimant is not eligible for benefits
or if the Claimant believes that he or she is entitled to greater or different benefits, the
Claimant shall have the opportunity to have the claim reviewed by the Bank by filing a petition for
review with the Bank within 60 days after receipt of the notice issued by the Bank. The petition
shall state the specific reasons the Claimant believes entitle him or her to benefits or to greater
or different benefits. Within 60 days after receipt by the Bank of the petition, the Bank shall
give the Claimant (and counsel, if any) an opportunity to present his or her position to the Bank
verbally or in writing, and the Claimant (or counsel) shall have the right to review the pertinent
documents. The Bank shall notify the Claimant of the Banks decision in writing within the 60-day
period, stating specifically the basis of its decision and identifying the specific provision(s) of
the Agreement on which the decision is based. If because of the need for a hearing the 60-day
period is not sufficient, the decision may be deferred for up to another 60 days at the election of
the Bank, but notice of this deferral shall be given to the Claimant.
Article 7
Plan Administration
7.1 Plan Administrator Duties
. This Agreement shall be administered by a Plan Administrator
consisting of the board or such committee or persons as the board shall appoint. The Director may
be a member of the Plan Administrator. The Plan Administrator shall have the discretion and
authority to (
x
) make, amend, interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (
y
) decide or resolve any and all questions that may arise,
including interpretations of this Agreement.
7.2 Agents
. In the administration of this Agreement, the Plan Administrator may employ agents
and delegate to them such administrative duties as it sees fit (including acting through a duly
appointed representative) and may from time to time consult with counsel, who may be counsel
to the Bank.
7.3 Binding Effect of Decisions
. The decision or action of the Plan Administrator concerning
any question arising out of the administration, interpretation, and application of the Agreement
and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon
all persons having any interest in the Agreement. No Director shall be deemed to have any right,
vested or nonvested, regarding the continuing effect of any decision or action of the Plan
Administrator.
7.4 Indemnity of Plan Administrator
. The Bank shall indemnify and hold harmless the members
of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities
arising from any action or failure to act with respect to this Agreement, except in the case of
willful misconduct by the Plan Administrator or any of its members.
7.5 Bank Information
. To enable the Plan Administrator to perform its functions, the Bank
shall supply full and timely information to the Plan Administrator on all matters relating to the
date and circumstances of the retirement, Disability, death, or Separation from Service of the
Director, and such other pertinent information as the Plan Administrator may reasonably require.
7
Article 8
Miscellaneous
8.1 Amendment
. This Agreement may be amended solely by a written agreement signed by the Bank
and the Director, except that the Bank specifically reserves the right to amend this Agreement as
necessary to comply with Code section 409A.
8.2 Termination
. This Agreement shall terminate as provided in Article 5. In addition, the
Bank reserves the right to terminate this Agreement at any time if, because of legislative,
judicial or regulatory action, continuation of the Agreement would (
x
) cause benefits to be taxable
to the Director before actual receipt or (
y
) in the Banks judgment, result in significant
financial penalties or other significantly detrimental consequences for the Bank (other than the
financial impact of paying benefits).
8.3 Binding Effect
. This Agreement shall bind the Director and the Bank and their
beneficiaries, successors, assigns, survivors, executors, administrators, and transferees.
8.4 No Guarantee of Service
. This Agreement is not a contract for services. This Agreement
does not give the Director the right to remain a director of the Bank or interfere with the Bank
stockholders right to replace the Director. This Agreement also does not require the Director to
remain a director or interfere with the Directors right to terminate service at any time.
8.5 Non-Transferability
. Benefits under this Agreement may not be sold, transferred,
assigned, pledged, attached, or encumbered.
8.6 Taxes
. The Bank shall withhold any taxes that are required to be withheld from the
benefits provided under this Agreement.
8.7 Successors
;
Binding Agreement
. By an assumption agreement in form and substance
satisfactory to the Director, the Bank shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Bank or Middlefield Banc Corp. to expressly assume and agree to perform this Agreement in
the same manner and to the same extent the Bank would be required to perform this Agreement had no
succession occurred.
8.8 Applicable Law
. The Agreement and all rights hereunder shall be governed by the internal
substantive laws of the State of Ohio, without regard to principles of conflict of laws.
8.9 Unfunded Arrangement
. The Director is a general unsecured creditor of the Bank for the
payment of benefits under this Agreement. The benefits represent the mere promise by the Bank to
pay benefits. The rights to benefits are not subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the
Directors life is a general asset of the Bank to which the Director has no preferred or secured
claim.
8.10 Severability
. If any provision of this Agreement is held invalid, such invalidity shall
not affect any other provision of this Agreement not held invalid, and each such other provision
shall continue in full force and effect to the full extent consistent with the law. If any
provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder
of the provision not held invalid, and the remainder of the provision together with all other
provisions of this Agreement shall continue in full force and effect to the full extent consistent
with the law.
8
8.11 Captions and Counterparts
. Section headings and subheadings are included solely
for convenience of reference and shall not affect the meaning or interpretation of any provision of
this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which taken together shall constitute a single agreement.
8.12 Entire Agreement
. This Agreement constitutes the entire agreement between the Bank and
the Director concerning the subject matter. No rights are granted to the Director other than those
specifically set forth. This Agreement amends and restates in its entirety the December 1, 2001
Director Retirement Agreement between the Bank and the Director, as the same may have been amended
or restated.
8.13 Waiver
. A waiver by either party of any of the terms or conditions of this Agreement in
any one instance shall not be considered a waiver of the terms or conditions for the future, or of
any subsequent breach thereof. All remedies, rights, undertakings, obligations, and agreements
contained in this Agreement shall be cumulative and none of them shall be in limitation of any
other remedy, right, undertaking, obligation, or agreement of either party.
8.14 Notices
. Any notice under this Agreement shall be deemed to have been effectively made
or given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Director if addressed to the address of the Director on the books and
records of the Bank at the time of the delivery of the notice, and properly addressed to the Bank
if addressed to the board of directors, The Middlefield Banking Company, 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
8.15 Internal Revenue Code Section 409A
. The Bank and the Director intend that their exercise
of authority or discretion under this Agreement shall comply with Code section 409A. If when the
Directors service terminates the Director is a specified employee, as defined in Code section
409A, or if any payments or benefits under this Agreement will result in additional tax or interest
to the Director because of section 409A(a)(1), then despite any provision of this Agreement to the
contrary the Director shall not be entitled to the payments or benefits until the earliest of (
x
)
the date that is at least six months after termination of the Directors service for reasons other
than the Directors death, (
y
) the date of the Directors death, or (
z
) any earlier date that does
not result in additional tax or interest to the Director under section 409A. As promptly as
possible after the end of the period during which payments or benefits are delayed under this
provision, the entire amount of the delayed payments shall be paid to the Director in a single lump
sum. If any provision of this Agreement does not satisfy the requirements of section 409A, the
provision shall nevertheless be applied in a manner consistent with those requirements, despite any
contrary provision of this Agreement. If any provision of this Agreement would subject the
Director to additional tax or interest under section 409A, the Bank shall reform the provision.
However, the Bank shall maintain to the maximum extent practicable the original intent of the
applicable provision without subjecting the Director to additional tax or interest, and the Bank
shall not be required to incur any additional compensation expense as a result of the reformed
provision.
In Witness Whereof
, the Director and a duly authorized officer of the Bank have
executed this Amended Director Retirement Agreement as of the date first written above.
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Director
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The Middlefield Banking Company
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By:
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Its:
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9
The Middlefield Banking Company
Amended Director Retirement Agreement
Director Fee Analysis
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Year
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Coyne
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Frank
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Halstead
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Hasman
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Hunter
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Villers
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1998
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13,800
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13,700
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13,900
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13,900
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14,200
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14,600
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1999
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13,650
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14,150
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14,050
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14,750
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16,250
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13,650
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2000
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13,300
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13,300
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13,400
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13,600
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13,300
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12,900
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2001
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13,600
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14,000
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13,800
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14,200
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13,200
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13,100
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2002
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14,280
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14,700
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14,490
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14,910
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13,860
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13,755
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2003
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15,100
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15,200
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15,700
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15,500
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15,300
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15,000
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2004
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16,200
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16,700
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16,000
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17,100
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16,100
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16,800
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2005 *
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17,600
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17,750
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17,250
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18,700
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17,800
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18,500
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2006
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18,480
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18,638
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18,113
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18,690
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19,425
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2007
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19,404
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19,569
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19,018
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20,396
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2008
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20,374
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20,548
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21,416
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2009
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21,393
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21,575
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2010
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22,463
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22,654
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2011
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23,586
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23,787
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2012
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24,976
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2013
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26,225
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2014
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27,536
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2015
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28,913
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2016
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30,359
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2017
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31,876
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2018
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33,470
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2019
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35,144
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2020
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36,901
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2021
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38,746
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2022
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40,683
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Retire Date
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May 1, 2012
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May 1, 2023
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May 1, 2008
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May 1, 2006
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May 1, 2007
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May 1, 2009
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Final 3 Year
Average:
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22,480
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38,777
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18,127
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17,100
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17,530
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20,412
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25% of Average:
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*
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actual fees for all Plan Years through December 31, 2005
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10
Beneficiary Designation
The Middlefield Banking Company
Amended Director Retirement Agreement
I, Thomas C. Halstead, designate the following as beneficiary of any death benefits under this
Amended Director Retirement Agreement:
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Note:
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To name a trust as beneficiary, please provide the name of the trustee(s) and the
exact name and date of the trust agreement.
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I understand that I may change these beneficiary designations by filing a new written
designation with the Bank. I further understand that the designations will be automatically
revoked if the beneficiary predeceases me or if I have named my spouse as beneficiary and our
marriage is subsequently dissolved.
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Signature:
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Thomas C. Halstead
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Date:
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, 200
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Received by the Bank this
day of
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200
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By:
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Title:
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Exhibit 10.12
The Middlefield Banking Company
Amended Director Retirement Agreement
This
Amended Director Retirement Agreement
(this Agreement) is entered into as of
, 200
by and between The
Middlefield Banking Company, an Ohio-chartered bank (the Bank), and Donald E. Villers, a
director of the Bank (the Director).
Whereas
, to encourage the Director to remain a member of the Banks board of
directors, the Bank entered into a Director Retirement Agreement dated as of December 1, 2001 with
the Director,
Whereas,
the Bank and the Director desire to amend the December 1, 2001 Director
Retirement Agreement to ensure that the agreement complies in form and in operation with Internal
Revenue Code section 409A,
Whereas
, the Bank and the Director intend that this Agreement shall amend and
restate in its entirety the December 1, 2001 Director Retirement Agreement,
Whereas
, none of the conditions or events included in the definition of the term
golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit
Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is
contemplated insofar as the Bank is concerned, and
Whereas
, the parties hereto intend that this Agreement shall be considered an
unfunded arrangement maintained primarily to provide supplemental retirement benefits for the
Director, and to be considered a non-qualified benefit plan for purposes of the Employee
Retirement Income Security Act of 1974, as amended (ERISA). The Director is fully advised of
the Banks financial status.
Now Therefore
, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Director and the
Bank hereby agree as follows.
Article 1
Definitions
1.1
Accrual Balance
means the liability that should be accrued by the Bank under generally
accepted accounting principles (GAAP) to account for the Banks obligation to the Director under
this Agreement, applying Accounting Principles Board Opinion No. 12, as amended by Statement of
Financial Accounting Standards No. 106, and the calculation method and discount rate specified
hereinafter. The Accrual Balance shall be calculated such that when it is credited with interest
each month the Accrual Balance at Normal Retirement Age equals the present value of the normal
retirement benefit. The discount rate means the rate used by the Plan Administrator for
determining the Accrual Balance. In its sole discretion the Plan Administrator may adjust the
discount rate to maintain the rate within reasonable standards according to GAAP.
1.2
Beneficiary
means each designated person, or the estate of the deceased Executive,
entitled to benefits, if any, upon the death of the Director, determined according to Article 4.
1.3
Beneficiary Designation Form
means the form established from time to time by the Plan
Administrator that the Director completes, signs, and returns to the Plan Administrator to
designate one or more Beneficiaries.
1.4
Change in Control
shall mean a change in control as defined in Internal Revenue
Code section 409A and rules, regulations, and guidance of general application thereunder issued by
the Department of the Treasury, including
(a)
Change in ownership
: a change in ownership of Middlefield Banc Corp., an Ohio corporation
of which the Bank is a wholly owned subsidiary, occurs on the date any one person or group
accumulates ownership of Middlefield Banc Corp. stock constituting more than 50% of the total fair
market value or total voting power of Middlefield Banc Corp. stock,
(b)
Change in effective control
: (
x
) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield Banc Corp. stock possessing 30% or more
of the total voting power of Middlefield Banc Corp., or (
y
) a majority of Middlefield Banc Corp.s
board of directors is replaced during any 12-month period by directors whose appointment or
election is not endorsed in advance by a majority of Middlefield Banc Corp.s board of directors,
or
(c)
Change in ownership of a substantial portion of assets
: a change in ownership of a
substantial portion of Middlefield Banc Corp.s assets occurs if in a 12-month period any one
person or more than one person acting as a group acquires from Middlefield Banc Corp. assets
having a total gross fair market value equal to or exceeding 40% of the total gross fair market
value of all of Middlefield Banc Corp.s assets immediately before the acquisition or
acquisitions. For this purpose, gross fair market value means the value of Middlefield Banc
Corp.s assets, or the value of the assets being disposed of, determined without regard to any
liabilities associated with the assets.
1.5
Code
means the Internal Revenue Code of 1986, as amended, and rules, regulations, and
guidance of general application issued thereunder by the Department of the Treasury.
1.6
Disability
means, if the Director is covered by a Bank-sponsored disability policy,
total disability as defined in the policy, without regard to any waiting period. If the Director
is not covered by Bank-sponsored disability policy, Disability means the Director suffers a
sickness, accident, or injury that, in the judgment of a physician satisfactory to the Bank,
prevents the Director from performing substantially all of the Directors normal duties for the
Bank. As a condition to receiving any Disability benefits, the Bank may require the Director to
submit to such physical or mental evaluations and tests as the Banks board of directors deems
appropriate.
1.7
Early Termination
means Separation from Service before Normal Retirement Age for
reasons other than death, Disability, or Termination with Cause.
1.8
Effective Date
means December 1, 2001.
1.9
Normal Retirement Age
means the Directors 75
th
birthday.
1.10
Person
means an individual, corporation, partnership, trust, association, joint
venture, pool, syndicate, sole proprietorship, unincorporated organization, or other entity.
1.11
Plan Administrator
or
Administrator
means the plan administrator described in
Article 7.
1.12
Plan Year
means each 12-month period from December 1 through November 30.
1.13
Separation from Service
means the Directors service as a director and independent
contractor to the Bank and any member of a controlled group, as defined in Code section 414,
terminates for
2
any reason, other than because of a leave of absence approved by the Bank and other
than because of the Directors death. If there is a dispute about the Directors status or the
date of the Directors Separation from Service, the Bank shall have the sole and absolute right to
decide the dispute unless a Change in Control shall have occurred.
1.14
Termination with Cause
or
Cause
means the Director is not nominated by the board or
nominating committee for reelection as a director after the expiration of the Directors term, or
the Director is removed from the board of directors, in either case because of the Directors
(a) gross negligence or gross neglect of duties, or
(b) commission of a felony or commission of a misdemeanor involving moral turpitude, or
(c) fraud, disloyalty, dishonesty, or willful violation of any law or significant policy of
the Bank committed in connection with the Directors service and resulting in an adverse effect on
the Bank, or
(d) removal from service or permanent prohibition from participating in the Banks affairs by
an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act [12 U.S.C.
1818(e)(4) or (g)(1)].
Article 2
Lifetime Benefits
2.1 Normal Retirement
. Unless Separation from Service or a Change in Control occurs before
Normal Retirement Age, when the Director attains Normal Retirement Age the Bank shall pay to the
Director the benefit described in this section 2.1 instead of any other benefit under this
Agreement. If the Directors Separation from Service thereafter is a Termination with Cause or if
this Agreement terminates under Article 5, no further benefits shall be paid to the Director under
this Agreement.
2.1.1
Amount of benefit
. The annual benefit under this section 2.1 is an amount in cash
equal to 25% of the final average annual board fees paid to the Director by the Bank in the
three years preceding the year in which the Director attains Normal Retirement Age. For this
purpose board fees include retainers and other regular fees paid or payable in cash for the
Directors service on or attendance at meetings of the board of directors of the Bank and
committees of the board of directors, including board fees that may be deferred under any
plan for elective deferrals that may be adopted by the Bank in the future. If the Director
is serving as Chairman of the Board at Normal Retirement Age, board fees shall also include
any additional cash compensation paid or payable for service as Chairman of the Board. Board
fees shall not include the value of non-cash compensation, the value of life insurance
benefits or other fringe benefits, or expense reimbursement.
2.1.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.2 Early Termination
. Provided the Director has attained age 55 and has served as a director
for at least five years (including each year of board service before the Effective Date) before
Separation from Service occurs, for Early Termination the Bank shall pay to the Director the
benefit specified in this section 2.2 instead of any other benefit under this Agreement, unless the
Director shall have received the benefit under section 2.4 after a Change in Control. If the
Directors Separation from Service is a Termination with Cause or
3
if this Agreement terminates
under Article 5, no benefits shall be paid to the Director under this Agreement. In addition, the
Director shall be entitled to no benefits under this section 2.2 if Early Termination occurs before
the Director shall have attained age 55 and served as a director for at least five years (including
each year of board service before the Effective Date).
2.2.1
Amount of benefit
. The annual benefit under this section 2.2 is calculated as the
amount that fully amortizes the Accrual Balance existing at the end of the month immediately
before the month in which Separation from Service occurs, amortizing that Accrual Balance
over ten years and taking into account interest at the discount rate or rates established by
the Plan Administrator.
2.2.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.3 Disability
. Unless the Director shall have received the benefit under section 2.4 after a
Change in Control, if the Directors Separation from Service occurs because of Disability before
Normal Retirement Age the Bank shall pay to the Director the benefit described in this section 2.3
instead of any other benefit under this Agreement, regardless of whether the Director has accrued
five years of service or has attained age 55.
2.3.1
Amount of benefit
. The annual benefit under this section 2.3 is calculated as the
amount that fully amortizes the Accrual Balance existing at the end of the month immediately
before the month in which Separation from Service occurs, amortizing that Accrual Balance
over ten years and taking into account interest at the discount rate or rates established by
the Plan Administrator.
2.3.2
Payment of benefit
. Beginning with the month immediately after the month in which
the Director attains Normal Retirement Age, the Bank shall pay the annual benefit to the
Director in equal monthly installments on the first day of each month. The annual benefit
shall be paid to the Director for ten years.
2.4 Change in Control
. If a Change in Control occurs both before the Directors Normal
Retirement Age and before the Directors Separation from Service, the Bank shall pay to the
Director the benefit described in this section 2.4 instead of any other benefit under this
Agreement, regardless of whether the Director has accrued five years of service or has attained age
55.
2.4.1
Amount of benefit
. The benefit under this section 2.4 is the Accrual Balance at
the end of the month immediately before the month in which the Change in Control occurs.
2.4.2
Payment of benefit
. The Bank shall pay the benefit under this section 2.4 to the
Director in a single lump sum within three days after the Change in Control.
2.5 Payout of Normal Retirement Benefit after a Change in Control
. If a Change in Control
occurs while the Director is receiving the benefit provided by section 2.1, the Bank shall pay the
remaining benefits to the Director in a single lump sum within three days after the Change in
Control. If when a Change in Control occurs the Director is receiving or is entitled at Normal
Retirement Age to receive the benefit under sections 2.2 or 2.3, the Bank shall pay the remaining
benefits to the Director in a single lump sum within three days after the Change in Control. The
lump-sum payment due to the Director as the result of a Change in Control shall be an amount equal
to the Accrual Balance amount corresponding to the particular benefit when the Change in Control
occurs.
4
2.6 Medical Benefits
. Provided health insurance coverage can be obtained by the Bank
on terms it, in its sole judgment, considers commercially reasonable, the Bank shall obtain and
maintain health insurance coverage for the Director after Separation from Service for the lifetime
of the Director and the Directors surviving spouse.
2.7 Annual Benefit Statement
. Within 120 days after the end of each Plan Year the Plan
Administrator shall provide or cause to be provided to the Director an annual benefit statement
showing benefits payable or potentially payable to the Director under this Agreement. Each annual
benefit statement shall supersede the previous years annual benefit statement. If there is a
contradiction between this Agreement and the annual benefit statement concerning the amount of a
particular benefit payable or potentially payable to the Director, the amount of the benefit
determined under this Agreement shall control.
2.8 One Benefit Only
. Despite any contrary provision of this Agreement, the Director is
entitled to one benefit only under Article 2 of this Agreement, which shall be determined by the
first event to occur that is dealt with by Article 2 of this Agreement. Except as provided in
section 2.5, subsequent occurrence of events dealt with by this Agreement shall not entitle the
Director to other or additional benefits under this Agreement.
Article 3
Death Benefit
Unless this Agreement terminates under Article 5, at the Directors death the Bank shall pay
to the Directors Beneficiary in a single lump sum the Accrual Balance remaining, if any, on the
date of the Directors death, unless the Director shall have received the Change-in-Control benefit
under section 2.4 or unless a Change-in-Control payout shall have occurred under section 2.5. The
Accrual Balance shall be paid to the Beneficiary 30 days after the Bank receives notice of the
Directors death.
Article 4
Beneficiaries
4.1 Beneficiary Designations
. The Director shall have the right to designate at any time a
Beneficiary to receive any benefits payable under this Agreement after the Directors death. The
Beneficiary designated under this Agreement may be the same as or different from the beneficiary
designation under any other benefit plan of the Bank in which the Director participates.
4.2 Beneficiary Designation: Change
. The Director shall designate a Beneficiary by completing
and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its
designated agent. The Directors Beneficiary designation shall be deemed automatically
revoked if the Beneficiary predeceases the Director or if the Executive names a spouse as
Beneficiary and the marriage is subsequently dissolved. The Director shall have the right to
change a Beneficiary by completing, signing, and otherwise complying with the terms of the
Beneficiary Designation Form and the Plan Administrators rules and procedures, as in effect from
time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form,
all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be
entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by
the Plan Administrator before the Directors death.
4.3 Acknowledgment
. No designation or change in designation of a Beneficiary shall be
effective until received, accepted, and acknowledged in writing by the Plan Administrator or its
designated agent.
5
4.4 No Beneficiary Designation
. If the Director dies without a valid beneficiary
designation, or if all designated Beneficiaries predecease the Director, the Directors spouse
shall be the designated Beneficiary. If the Director has no surviving spouse, the benefits shall
be paid to the Directors estate.
4.5 Facility of Payment
. If a benefit is payable to a minor, to a person declared
incapacitated, or to a person incapable of handling the disposition of his or her property, the
Bank may pay the benefit to the guardian, legal representative, or person having the care or
custody of the minor, incapacitated person, or incapable person. The Bank may require proof of
incapacity, minority, or guardianship as it may deem appropriate before distribution of the
benefit. Distribution shall completely discharge the Bank from all liability for the benefit.
Article 5
Agreement Termination
5.1 Director Termination
. Despite any contrary provision of this Agreement, the Bank shall
not pay any benefit under this Agreement and this Agreement shall terminate if Separation from
Service is a Termination with Cause or if Separation from Service is an Early Termination occurring
before the Director has attained age 55 and served as a director for at least five years (including
each year of board service before the Effective Date). The board of directors or a duly authorized
committee of the board shall have the sole and absolute right to determine whether the bases for
denial of benefits for Cause exist. Benefits may be denied for Cause regardless of whether the
Director continued to serve as a director after the board or committee made its determination not
to nominate the Director for reelection.
5.2 Removal
. If the Director is removed or permanently prohibited from participating in the
Banks affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement shall
terminate as of the effective date of the order.
5.3 Default
. Despite any contrary provision of this Agreement, if the Bank is in default or
in danger of default, as those terms are defined in section 3(x) of the Federal Deposit Insurance
Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
5.4 FDIC Open-Bank Assistance
. All obligations under this Agreement shall terminate, except
to the extent determined that continuation of the contract is necessary for the continued
operation of the Bank, when the Federal Deposit Insurance Corporation enters into an agreement
to provide assistance to or on behalf of the Bank under the authority contained in section 13(c)
of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any rights of the parties that have
already vested shall not be affected by such action, however.
Article 6
Claims and Review Procedures
6.1 Claims Procedure
. The Bank shall notify in writing any person or entity making a
claim for benefits under this Agreement (the Claimant) of his or her eligibility or ineligibility
for benefits under the Agreement. The Bank shall send the written notice to the Claimant within 90
days after Claimants written application for benefits. If the Bank determines that the Claimant
is not eligible for benefits or full benefits, the notice shall state (
w
) the specific reasons for
denial, (
x
) a specific reference to the provisions of the Agreement on which the denial is based,
(
y
) a description of any additional information or material necessary for the Claimant to perfect
his or her claim and a description of why it is needed, and (
z
) an explanation of the Agreements
claims review procedure and other appropriate information concerning the steps to be taken if the
Claimant wishes to have the claim reviewed. If the Bank determines that there are special
circumstances
6
requiring additional time to make a decision, the Bank shall notify the Claimant of
the special circumstances and the date by which a decision is expected to be made, and the Bank may
extend the time for up to an additional 90 days.
6.2 Review Procedure
. If the Bank determines that the Claimant is not eligible for benefits
or if the Claimant believes that he or she is entitled to greater or different benefits, the
Claimant shall have the opportunity to have the claim reviewed by the Bank by filing a petition for
review with the Bank within 60 days after receipt of the notice issued by the Bank. The petition
shall state the specific reasons the Claimant believes entitle him or her to benefits or to greater
or different benefits. Within 60 days after receipt by the Bank of the petition, the Bank shall
give the Claimant (and counsel, if any) an opportunity to present his or her position to the Bank
verbally or in writing, and the Claimant (or counsel) shall have the right to review the pertinent
documents. The Bank shall notify the Claimant of the Banks decision in writing within the 60-day
period, stating specifically the basis of its decision and identifying the specific provision(s) of
the Agreement on which the decision is based. If because of the need for a hearing the 60-day
period is not sufficient, the decision may be deferred for up to another 60 days at the election of
the Bank, but notice of this deferral shall be given to the Claimant.
Article 7
Plan Administration
7.1 Plan Administrator Duties
. This Agreement shall be administered by a Plan Administrator
consisting of the board or such committee or persons as the board shall appoint. The Director may
be a member of the Plan Administrator. The Plan Administrator shall have the discretion and
authority to (
x
) make, amend, interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (
y
) decide or resolve any and all questions that may arise,
including interpretations of this Agreement.
7.2 Agents
. In the administration of this Agreement, the Plan Administrator may employ agents
and delegate to them such administrative duties as it sees fit (including acting through a duly
appointed representative) and may from time to time consult with counsel, who may be counsel
to the Bank.
7.3 Binding Effect of Decisions
. The decision or action of the Plan Administrator concerning
any question arising out of the administration, interpretation, and application of the Agreement
and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon
all persons having any interest in the Agreement. No Director shall be deemed to have any right,
vested or nonvested, regarding the continuing effect of any decision or action of the Plan
Administrator.
7.4 Indemnity of Plan Administrator
. The Bank shall indemnify and hold harmless the members
of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities
arising from any action or failure to act with respect to this Agreement, except in the case of
willful misconduct by the Plan Administrator or any of its members.
7.5 Bank Information
. To enable the Plan Administrator to perform its functions, the Bank
shall supply full and timely information to the Plan Administrator on all matters relating to the
date and circumstances of the retirement, Disability, death, or Separation from Service of the
Director, and such other pertinent information as the Plan Administrator may reasonably require.
7
Article 8
Miscellaneous
8.1 Amendment
. This Agreement may be amended solely by a written agreement signed by the Bank
and the Director, except that the Bank specifically reserves the right to amend this Agreement as
necessary to comply with Code section 409A.
8.2 Termination
. This Agreement shall terminate as provided in Article 5. In addition, the
Bank reserves the right to terminate this Agreement at any time if, because of legislative,
judicial or regulatory action, continuation of the Agreement would (
x
) cause benefits to be taxable
to the Director before actual receipt or (
y
) in the Banks judgment, result in significant
financial penalties or other significantly detrimental consequences for the Bank (other than the
financial impact of paying benefits).
8.3 Binding Effect
. This Agreement shall bind the Director and the Bank and their
beneficiaries, successors, assigns, survivors, executors, administrators, and transferees.
8.4 No Guarantee of Service
. This Agreement is not a contract for services. This Agreement
does not give the Director the right to remain a director of the Bank or interfere with the Bank
stockholders right to replace the Director. This Agreement also does not require the Director to
remain a director or interfere with the Directors right to terminate service at any time.
8.5 Non-Transferability
. Benefits under this Agreement may not be sold, transferred,
assigned, pledged, attached, or encumbered.
8.6 Taxes
. The Bank shall withhold any taxes that are required to be withheld from the
benefits provided under this Agreement.
8.7 Successors
;
Binding Agreement
. By an assumption agreement in form and substance
satisfactory to the Director, the Bank shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Bank or Middlefield Banc Corp. to expressly assume and agree to perform this Agreement in
the same manner and to the same extent the Bank would be required to perform this Agreement had no
succession occurred.
8.8 Applicable Law
. The Agreement and all rights hereunder shall be governed by the internal
substantive laws of the State of Ohio, without regard to principles of conflict of laws.
8.9 Unfunded Arrangement
. The Director is a general unsecured creditor of the Bank for the
payment of benefits under this Agreement. The benefits represent the mere promise by the Bank to
pay benefits. The rights to benefits are not subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the
Directors life is a general asset of the Bank to which the Director has no preferred or secured
claim.
8.10 Severability
. If any provision of this Agreement is held invalid, such invalidity shall
not affect any other provision of this Agreement not held invalid, and each such other provision
shall continue in full force and effect to the full extent consistent with the law. If any
provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder
of the provision not held invalid, and the remainder of the provision together with all other
provisions of this Agreement shall continue in full force and effect to the full extent consistent
with the law.
8
8.11 Captions and Counterparts
. Section headings and subheadings are included solely
for convenience of reference and shall not affect the meaning or interpretation of any provision of
this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which taken together shall constitute a single agreement.
8.12 Entire Agreement
. This Agreement constitutes the entire agreement between the Bank and
the Director concerning the subject matter. No rights are granted to the Director other than those
specifically set forth. This Agreement amends and restates in its entirety the December 1, 2001
Director Retirement Agreement between the Bank and the Director, as the same may have been amended
or restated.
8.13 Waiver
. A waiver by either party of any of the terms or conditions of this Agreement in
any one instance shall not be considered a waiver of the terms or conditions for the future, or of
any subsequent breach thereof. All remedies, rights, undertakings, obligations, and agreements
contained in this Agreement shall be cumulative and none of them shall be in limitation of any
other remedy, right, undertaking, obligation, or agreement of either party.
8.14 Notices
. Any notice under this Agreement shall be deemed to have been effectively made
or given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Director if addressed to the address of the Director on the books and
records of the Bank at the time of the delivery of the notice, and properly addressed to the Bank
if addressed to the board of directors, The Middlefield Banking Company, 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.
8.15 Internal Revenue Code Section 409A
. The Bank and the Director intend that their exercise
of authority or discretion under this Agreement shall comply with Code section 409A. If when the
Directors service terminates the Director is a specified employee, as defined in Code section
409A, or if any payments or benefits under this Agreement will result in additional tax or interest
to the Director because of section 409A(a)(1), then despite any provision of this Agreement to the
contrary the Director shall not be entitled to the payments or benefits until the earliest of (
x
)
the date that is at least six months after termination of the Directors service for reasons other
than the Directors death, (
y
) the date of the Directors death, or (
z
) any earlier date that does
not result in additional tax or interest to the Director under section 409A. As promptly as
possible after the end of the period during which payments or benefits are delayed under this
provision, the entire amount of the delayed payments shall be paid to the Director in a single lump
sum. If any provision of this Agreement does not satisfy the requirements of section 409A, the
provision shall nevertheless be applied in a manner consistent with those requirements, despite any
contrary provision of this Agreement. If any provision of this Agreement would subject the
Director to additional tax or interest under section 409A, the Bank shall reform the provision.
However, the Bank shall maintain to the maximum extent practicable the original intent of the
applicable provision without subjecting the Director to additional tax or interest, and the Bank
shall not be required to incur any additional compensation expense as a result of the reformed
provision.
In Witness Whereof
, the Director and a duly authorized officer of the Bank have
executed this Amended Director Retirement Agreement as of the date first written above.
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Director
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The Middlefield Banking Company
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Donald E. Villers
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By:
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Its:
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9
The Middlefield Banking Company
Amended Director Retirement Agreement
Director Fee Analysis
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Year
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Coyne
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Frank
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Halstead
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Hasman
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Hunter
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Villers
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1998
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13,800
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13,700
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13,900
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13,900
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14,200
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14,600
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1999
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13,650
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14,150
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14,050
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14,750
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16,250
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13,650
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2000
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13,300
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13,300
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13,400
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13,600
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13,300
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12,900
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2001
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13,600
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14,000
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13,800
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14,200
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13,200
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13,100
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2002
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14,280
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14,700
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14,490
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14,910
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13,860
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13,755
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2003
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15,100
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15,200
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15,700
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15,500
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15,300
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15,000
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2004
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16,200
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16,700
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16,000
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17,100
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16,100
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16,800
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2005 *
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17,600
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17,750
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17,250
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18,700
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17,800
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18,500
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2006
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18,480
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18,638
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18,113
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18,690
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19,425
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2007
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19,404
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19,569
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19,018
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20,396
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2008
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20,374
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20,548
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21,416
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2009
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21,393
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21,575
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2010
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22,463
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22,654
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2011
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23,586
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23,787
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2012
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24,976
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2013
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26,225
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2014
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27,536
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2015
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28,913
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2016
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30,359
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2017
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31,876
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2018
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33,470
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2019
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35,144
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2020
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36,901
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2021
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38,746
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2022
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40,683
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Retire Date
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May 1, 2012
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May 1, 2023
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May 1, 2008
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May 1, 2006
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May 1, 2007
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May 1, 2009
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Final 3 Year
Average:
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22,480
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38,777
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18,127
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17,100
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17,530
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20,412
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25% of Average:
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*
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actual fees for all Plan Years through December 31, 2005
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10
Beneficiary Designation
The Middlefield Banking Company
Amended Director Retirement Agreement
I, Donald E. Villers, designate the following as beneficiary of any death benefits under this
Amended Director Retirement Agreement:
Note: To name a trust as beneficiary, please provide the name of the trustee(s) and the
exact
name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new written
designation with the Bank. I further understand that the designations will be automatically
revoked if the beneficiary predeceases me or if I have named my spouse as beneficiary and our
marriage is subsequently dissolved.
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Signature:
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Donald E. Villers
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Date:
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, 200
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Received by the Bank this
day of
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200
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By:
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Title:
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