EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into this 3rd
day of July, 2000 by and between NORTH COUNTRY
FINANCIAL CORPORATION, a Michigan corporation (the
"Company"), and XXXXXX X. XXXX (the "Executive").
RECITALS
The Executive is employed by the Company as its
Chief Executive Officer and serves as Chairman and a
Director of the Company. The Company desires to
continue to employ the Executive pursuant to the terms
of this Employment Agreement and the Executive desires
to continue to be employed by the Company in accordance
with the terms and provisions contained herein.
NOW, THEREFORE, in consideration of the premises
and mutual covenants and agreements contained herein,
the parties hereto hereby agree as follows.
1. Employment.
(a) The Company hereby employs Executive,
and Executive hereby accepts employment, on the terms
and subject to the conditions contained herein.
(b) During the Employment Term as defined in
Section 2, below, Executive shall serve as the Chief
Executive Officer ("CEO") of the Company, faithfully
and to the best of the Executive's ability, subject to
the direction of the Board of Directors and, in such
capacity, shall supervise, manage and administer the
operations, business and affairs of the Company and
shall perform such duties and exercise such power and
authority as may from time to time be delegated to the
Executive by the Board of Directors consistent with the
Executive's status as CEO. During the Employment Term,
Executive shall also serve as a Director of the Company
and the Chairman (for so long as the Executive shall be
nominated and elected to fill such positions). During
the Employment Term, and for no additional
consideration, Executive shall also serve as the CEO of
North Country Bank and Trust (the "Bank") and as a
Director of the Bank and the Chairman (for so long as
the Executive shall be nominated and elected to fill
such positions).In addition, Executive shall serve as
an officer and/or director of such subsidiaries of the
Company as may be designated by their Boards of
Directors and/or shareholders.
(c) During the Employment Term, and
excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees
to devote substantially all of his business time,
efforts and skills to the business and affairs of the
Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder,
to use the
Executive's reasonable best efforts to perform faithfully
and efficiently such responsibilities. During the Employment
Term, it shall not be a violation of this Agreement for
the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and
(C) manage personal investments, so long as such
activities do not materially interfere with the
performance of the Executive's responsibilities as an
employee of the Company in accordance with this
Agreement.
2. Employment Term. The term of the employment
of Executive under this Agreement (the "Employment
Term") shall commence as of the date hereof and shall
continue, unless sooner terminated under Section 7
hereof, until July 3rd, 2005. At the end of each day
of the Employment Term, this Agreement shall be
automatically extended for one (1) day unless either
the Company or the Executive shall have given written
notice to the other at least thirty (30) days prior
thereto that the Employment Term shall not be so
extended.
3. Salary.
(a) During the Employment Term, Executive
shall be paid a salary at the rate of two hundred thirty
thousand and 00/100 ($230,000) per annum (the "Annual
Base Salary"), payable in equal installments in
accordance with the Company's customary payroll practices
in effect from time to time.
(b) Executive's Annual Base Salary shall be
reviewed at least annually by the Compensation
Committee of the Company's Board of Directors (the
"Compensation Committee") and may be increased at any
time and from time to time as the Board of Directors,
in its sole discretion, shall deem appropriate taking
into account the Compensation Committee's
recommendation. The term Annual Base Salary as
utilized in this Agreement shall refer to Annual Base
Salary as so increased. Any increase in Annual Base
Salary shall not serve to limit or reduce any other
obligation to Executive under this Agreement. Annual
Base Salary shall not be reduced at any time during the
Employment Term. Annual Base Salary is subject to
income and employment tax withholding and all amounts
in this Agreement are stated prior to any such
deductions.
4. Bonus and Long-Employment Term Incentives.
(a) In addition to Annual Base Salary,
Executive shall be eligible to receive, for each fiscal
year ending during the Employment Term, an annual bonus
(the "Annual Bonus") determined in accordance with the
Company's bonus plan adopted by the Board of Directors
as in effect from time to time (the "Bonus Plan").
(b) Executive shall be eligible to
participate in those long-term incentive plans
available to senior executives of the Company,
including the 2000 Stock Incentive Plan, or any
successors thereto, in an amount and on such terms as
shall be determined by the Compensation Committee .
Executive shall also be eligible to participate in the
Company's Supplemental Executive Retirement Plan in
accordance with its terms.
5. Benefits. Subject to the application of any
applicable anti-discrimination rules, the Executive
shall be entitled to participate in all employee
benefit plans, programs, practices or arrangements of
the Company in which other senior executives of the
Company are eligible to participate from time to time,
including, without limitation, any qualified or non-
qualified pension, profit sharing and savings plans,
any death benefit and disability benefit plans, and any
medical, dental, health and welfare plans on terms and
conditions at least as favorable as provided to other
senior executives of the Company. Notwithstanding the
foregoing, (a) the Company with provide the Executive
with the use of an automobile of his choice with a
retail value up to $50,000 (the "Automobile") and
(b) the Executive will be entitled to four (4) weeks of
vacation per year (and, to the extent the full amount
of vacation time is not taken, the Executive may only
carry over vacation time to a subsequent year to the
extent approved by the Compensation Committee). The
Automobile shall be owned by the Company or the Bank
and shall be replaced when it is approximately two
years old. The Executive shall be responsible for all
expenses associated with the Automobile, including
repairs and gasoline, other than customary insurance
coverage which shall be purchased by the owner of the
Automobile.
6. Expenses. The Company shall pay or reimburse
the Executive for all reasonable out-of-pocket expenses
incurred by him in the course of performing his duties
for the Company in accordance with the Company's
reimbursement policies as in effect from time to time.
Executive shall keep accurate records and receipts of
such expenditures and shall submit such accounts and
proof thereof as may from time to time be required in
accordance with such expense account or reimbursement
policies that the Company may establish for its
employees generally.
7. Termination of Employment. During the
Employment Term, the Executive's employment hereunder
may be terminated under any of the following
circumstances:
(a) Death or Disability. The Executive's
employment hereunder shall terminate automatically
upon the Executive's death during the Employment
Term. If the Company determines in good faith
that a Disability of the Executive has occurred
during the Employment Term (pursuant to the
definition of Disability set forth below), the
Company may give to the Executive written notice
in accordance with Section 7(d) of this Agreement
of its intention to terminate the Executive's
employment hereunder. In such event, the
Executive's employment with the Company shall
terminate effective on
the thirtieth (30th) day
after receipt of such notice by the Executive (the
"Disability Effective Date"), provided that,
within thirty (30) days after such receipt, the
Executive shall not have returned to full-time
performance of the Executive's duties. For
purposes of this Agreement, "Disability" means a
condition rendering the Executive unable, by
reason of a medically determinable physical or
mental impairment, to perform his duties with the
Company or the Bank, which condition, in the
opinion of a physician selected by the Company's
Board of Directors, is expected to have a duration
of more than 90 consecutive days.
(b) Termination by Company. The Company may
terminate the Executive's employment for Cause or
without Cause. For purposes of this Agreement,
"Cause" means (i) the willful commission by the
Executive of a criminal or other act that causes
or will probably cause substantial economic damage
to the Company, the Bank or an affiliate, (ii) the
commission by the Executive of an act of fraud in
the performance of his duties on behalf of the
Company, the Bank or an affiliate, (iii) the
continuing willful failure of the Executive to
perform his duties to the Company, the Bank or an
affiliate (other than any such failure resulting
from the Executive's incapacity due to physical or
mental illness) after written notice therefor
(specifying the particulars thereof in reasonable
detail) and a reasonable opportunity to be heard
and cure such failure are given to the Executive;
or (iv) the order of a federal or state bank
regulatory agency or a court of competent
jurisdiction requiring the Executive's termination
of employment. For purposes of this paragraph, no
act, or failure to act, on the Executive's part
shall be deemed "willful" unless done, or omitted
to be done, by the Executive not in good faith and
without reasonable belief that the action or
omission was in the best interest of the Company,
the Bank or an affiliate. The term "affiliate"
means a corporation or other business entity that
is controlled by, controlling or under common
control with the Company.
(c) Good Reason Termination. The Executive
may voluntarily terminate his employment hereunder
for Good Reason. "Good Reason" means, without the
Executive's written consent, the material breach
by the Company or the Bank of any provision of
this Agreement, or, if in anticipation of or after
the occurrence of a Change in Control, the
occurrence of one or more of the following during
the Employment Term:
(i) a material diminution of or
interference with the Executive's duties and
responsibilities with the Company or the Bank
immediately prior to the Change in Control,
including, but not limited to a material
demotion of the Executive, a material
reduction in the number or seniority of other
Company personnel reporting, directly or
indirectly, to the Executive, or a material
reduction in the frequency with which, or in
the nature of the matters with respect to
which, such personnel are to report to the
Executive; or
(ii) the assignment to the Executive by
the Company or the Bank of duties
inconsistent with the Executive's position,
duties, responsibilities and status
immediately prior to the Change in Control;
or
(iii) a change in the principal
workplace of the Executive to a location
outside of a 50-mile radius from Manistique,
Michigan; or
(iv) any failure by the Company or the
Bank to continue in effect any qualified
plan, welfare benefit or incentive plan or
arrangement in which the Executive is
participating immediately prior to the Change
in Control or to reduce or eliminate the
Executive's participation in, or remuneration
or benefits under, any such plans or
arrangements; or
(v) if this Agreement does not become,
by operation of law, an obligation of any
successor to the Company, any failure by a
successor to the Company to expressly assume
this Agreement; or
(vi) a voluntary termination by the
Executive for any reason or no reason during
the ninety (90) day period commencing on the
date six (6) months after the Change in
Control.
For purposes of this Agreement, Change in Control
has the same meaning as in the Company's 2000
Stock Incentive Plan, as the same may be amended
from time to time. Notwithstanding the foregoing,
prior to a Change in Control, Executive will not
have "Good Reason" to terminate his employment
with the Company unless (i) the Executive
complies with the requirements of subsection (d)
hereof and (ii) within the ten (10) day period
after the Board of Directors receives the Notice
of Termination, as defined in Section 7(d), below,
the Company has not reasonably cured the situation
which is the basis for the Executive's claim of
Good Reason to terminate. The Executive's
continued employment or failure to give Notice of
Termination will not constitute consent to, or a
waiver of rights with respect to, any circumstance
constituting Good Reason hereunder. After the
occurrence of a Change in Control, any good faith
determination by the Executive that there is Good
Reason shall be conclusive and binding on the
Company and its successors.
(d) Notice of Termination. Any purported
termination of employment shall be communicated by
Notice of Termination to the other party. For
purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which (i)
indicates the specific termination provision in
this Agreement relied upon; (ii) if applicable,
sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for
termination of the Executive's employment under
the provision so indicated; and (iii) indicates the
Termination Date. "Termination Date" shall
mean in the case of the Executive's death, his
date of death, or in all other cases of
termination by the Company, the date specified in
the Notice of Termination; provided, however, that
the date specified in the Notice of Termination
shall be at least thirty (30) days after the date
the Notice of Termination is given to the
Executive, provided, further, that in the case of
Disability, the Executive shall not have returned
to the full-time performance of his duties during
such period of at least thirty (30) days. In the
case of the Executive's Good Reason Termination,
the "Termination Date" shall be no earlier than
thirty (30) days after written notice by the
Executive to the Company, unless the Company
agrees to an earlier Termination Date.
8. Obligations Upon Termination.
(a) Termination by the Company for Cause.
If the Executive's employment with the Company is
terminated by the Company for Cause, the Company
will pay and/or provide the Executive with the
following: (i) the Executive's Annual Base Salary
through the Termination Date, and (ii) all
benefits to which the Executive is entitled under
any benefit plans set forth in Section 5 hereof in
accordance with the terms of such plans through
the Termination Date.
(b) Termination by Reason of Disability or
Death. If the Executive's employment with the
Company is terminated during the Employment Term
by reason of the Executive's Disability or death,
the Company will pay and/or provide the Executive
or the Executive's legal representative, as the
case may be, with the following: (i) the
Executive's Annual Base Salary as then in effect
through the Termination Date (ii) a fraction of
the Annual Bonus paid to the Executive for the
fiscal year preceding the Termination Date
determined by multiplying the prior year's Annual
Bonus by a fraction, the numerator of which shall
equal the number of days during such fiscal year
preceding the Termination Date, and the
denominator of which shall equal three hundred
sixty-five (365) and (iii) all benefits to which
the Executive is entitled under any benefit plans
set forth in Section 5 hereof in accordance with
the terms of such plans through the Termination
Date. Payment of the amount set forth in
subparagraph (ii) hereof shall be made within
thirty (30) days after the Termination Date.
(c) Good Reason Termination or Termination
by the Company Without Cause. If the Executive
terminates his employment hereunder for Good
Reason, or the Company terminates the Executive's
employment without Cause, the Company shall make
twenty (20) quarterly payments to the Executive,
each in an amount equal to twenty-five percent
(25%) of his Annual Base Salary commencing on a
date which is no later than ten (10) business days
after compliance with subsection (d) hereof. If
such termination of employment occurs after a
Change in Control, the term Annual Base
Salary shall refer to the greater of the Executive's
Annual Base Salary before or after the Change in
Control.
(d) Release of Claims. Notwithstanding the
foregoing, the Company will not pay to the
Executive, and the Executive will not have any
right to receive any payments described in
Sections 8(b) and (c),above, unless and until the
Executive or his legal representative (in the case
of the Executive's death or if the Executive is
disabled such that he is unable to consent)
executes, and there shall be effective following
any statutory period for revocation, a release, in
a form reasonably acceptable to the Company, that
irrevocably and unconditionally releases, waives,
and fully and forever discharges the Company and
its past and current shareholders, members of the
Board of Directors, officers, employees, and
agents from and against any and all claims,
liabilities, obligations, covenants, rights,
demands and damages of any nature whatsoever,
whether known or unknown, anticipated or
unanticipated, relating to or arising out of the
Executive's employment with the Company, including
without limitation claims arising under the Age
Discrimination in Employment Act of 1977, as
amended, Title VII of the Civil Rights Act of
1974, as amended, the Civil Rights Act of 1991, as
amended, the Equal Pay Act, as amended, and any
other federal, state, or local law or regulation.
(e) Withholding, Waiver of Vacation Pay and
Other Issues. Payments to be made to Executive
under this Section 8 will be reduced by any
applicable income or employment taxes which are
required by be withheld under applicable law, and
all amounts are stated before any such deduction.
Furthermore, none of the payments under this
Section 8 shall be included as compensation for
purposes of any pension, deferred compensation or
welfare benefit plan or program of the Company.
Finally, in consideration of all of the payments
to be made under this Section 8 to the Executive
by the Company pursuant to this Agreement, the
Executive hereby waives any claim he may have for
accrued and unpaid vacation pay as of the
Termination Date.
9. Nondisclosure.
(a) During the Employment Term and after the
Executive's termination of employment with the
Company, the Executive shall not make any
Unauthorized Disclosure. For purposes of this
Agreement, "Unauthorized Disclosure" shall mean
use by the Executive or disclosure by the
Executive without the consent of the Board of
Directors of the Company to any person, other than
use or disclosure that is reasonably necessary or
appropriate in connection with the performance by
the Executive of his duties as an executive of the
Company or as may be legally required (provided
the provisions of Section 9(c) hereof are complied
with), of any confidential information obtained by
the Executive while in the employ of the Company,
including, but not limited to, confidential
information with respect to any of the Company's
customers, suppliers,
contractors, methods of operation, services, products,
mechanisms, databases, processes, programs and access
codes (the "Confidential Information"); provided,
however, that Confidential Information shall not
include the use or disclosure by the Executive,
without consent, of any information known
generally to the public (other than as a result of
disclosure by him in violation of this Section
9(a)).
(b) The Executive agrees that all memoranda,
notes, records, papers, financial models,
mechanisms, programs, flow charts, work papers,
source codes, computer codes, designs, software,
data and other documents and all copies thereof
relating to the operations or business of the
Company, some of which may be prepared by him, and
all objects associated therewith (such as samples)
in any way obtained by him in connection with the
performance of his duties hereunder shall be the
exclusive property of the Company. The Executive
shall not, except for the Company's use, copy or
duplicate any of the aforementioned, not remove
them from the Company's facilities, nor use any
information concerning them, in each case, except
for the Company's benefit, either during his
employment or thereafter. The Executive agrees
that he will deliver the original and all copies
of all of the aforementioned that may be in his
possession to the Company on termination of his
employment, or at any other time on the request of
the Board of Directors of the Company.
(c) If the Executive is requested or becomes
legally required or compelled (by oral questions,
interrogatories, requests for information or
documents, subpoena, civil or criminal
investigative demand, or similar process) or is
required by a governmental body to make any
disclosure that is prohibited or otherwise
constrained by this Agreement, the Executive will
provide the Company with prompt notice of such
request so that it may seek an appropriate
protective order or other appropriate remedy.
Subject to the foregoing, the Executive may
furnish that portion (and only that portion) of
the Confidential Information that the Executive is
legally compelled or is otherwise required to
disclose or else stand liable for contempt or
suffer other material censure or material penalty.
(d) Enforcement of Covenants. The Executive
recognizes that irreparable and incalculable
injury will result to the Company Affiliated
Group, its businesses or properties in the event
of his breach of any of the restrictions imposed
by this Section 9. The Executive therefore agrees
that, in the event of any such actual, impending
or threatened breach, the Company or any affiliate
thereof will be entitled, in addition to any other
remedies and damages, to temporary and permanent
injunctive relief (without the necessity of
posting a bond or other security) restraining the
violation, or further violation, of such
restrictions by the Executive and by any other
person or entity for whom the Executive may be
acting or who is acting for the Executive or in
concert with the Executive.
10. Exclusive Remedy. The payments, severance
benefits and severance protections provided to the
Executive pursuant to this Agreement are to be paid and
provided in lieu of any severance payments, severance
benefits and severance protections provided in any
other plan or policy of the Company.
11. Excise Tax Payments. Notwithstanding
anything contained in this Agreement to the contrary,
in the event that any payment or distribution to or for
the benefit of the Executive, whether paid or payable
or distributed or distributable pursuant to the terms
of this Agreement or otherwise in connection with, or
arising out of, his employment with the Company (a
"Payment" or "Payments"), would be subject to the
excise tax imposed by Section 4999 of the Internal
Revenue Code of 1996, as amended (the "Code")), or any
interest or penalties are incurred by the Executive
with respect to such excise tax (such excise tax,
together with any interest and penalties, are
collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including
any interest or penalties imposed with respect to such
taxes), including any Excise Tax, imposed upon the
Gross-Up Payment, the Executive retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed
upon the Payments. The Company shall pay the Gross-Up
Payment to the Executive, or to the taxing authorities
on behalf of the Executive, at the time when the Excise
Tax is required to be paid to the taxing authorities.
Calculation of the Gross-Up Payment shall be made by
the Company's independent certified public accounting
firm engaged by the Company immediately prior to the
Change in Control and shall be subject to the
Executive's review and consent at least ten (10) days
prior to the date on which an Excise Tax payment must
be made hereunder.
12. Trial by Jury. THE COMPANY, THE BANK AND THE
EXECUTIVE ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY
IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED.
THE COMPANY, THE BANK AND THE EXECUTIVE ACKNOWLEDGE
THAT EACH HAS HAD THE OPPORTUNITY TO CONSULT WITH
COUNSEL OF CHOICE, BEFORE SIGNING THIS CONTRACT, AND
THE COMPANY, THE BANK AND THE EXECUTIVE EACH HEREBY
KNOWINGLY AND VOLUNTARILY, WITHOUT COERCION, WAIVES ALL
RIGHTS TO TRIAL BY JURY OF ALL DISPUTES BETWEEN THEM.
13. Successors.
(a) This Agreement is personal to the
Executive and without the prior written consent of
the Company shall not be assignable by the
Executive otherwise than by will or the laws of
descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the
benefit of and be binding upon the Company and its
successors.
14. Legal Fees and Expenses. If any legal
proceeding is necessary to enforce or interpret the
terms of this Agreement, or to recover damages for
breach hereof, Executive, if the prevailing party,
shall be entitled to recover from the Company
reasonable attorneys' fees and necessary costs and
disbursements incurred in such litigation, in addition
to any other relief to which he may be entitled.
15. Miscellaneous.
(a) This Agreement shall be governed by and
construed in accordance with the laws of the State
of Michigan, without reference to principles of
conflict of laws. The captions of this Agreement
are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be
amended or modified otherwise than by a written
agreement executed by the Company and the
Executive or their respective successors and legal
representatives.
(b) All notices and other communications
hereunder shall be in writing and shall be given
by hand delivery to the other party, delivered by
overnight courier, or by certified mail, return
receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Xxxxxx X. Xxxx
XX Xxx 0000X
Xxxxxxxxxx, XX 00000
If to the Company: North Country Financial Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Chairman - Compensation
Committee
or to such other address as either party shall
have furnished to the other in writing in
accordance herewith. Notice and communications
shall be effective when actually received by the
addressee.
(c) The invalidity or unenforceability of
any provision of this Agreement shall not affect
the validity or enforceability of any other
provision of this Agreement. By way of example
and not by wary of limitation, if any payments
provided for hereunder are found to be beyond
limits permissible to be paid by the Company or
the Bank by statute or
regulation, it is intended that the payments shall
be made to the maximum of any such lesser amount as
is permissible to be paid by the Company or the Bank.
(d) The Executive's or Company's failure to
insist upon strict compliance with any provision
hereof shall not be deemed to be a waiver of such
provision or any other provision thereof.
(e) This Agreement contains the entire
understanding of the Company and the Executive
with respect to the subject matter hereof. It is
expressly agreed that this Agreement supersedes
and replaces any other agreements, understandings
and arrangements, oral or written, between the
parties hereto regarding the subject matter of
this Agreement, including that Employment Contract
dated July 1, 1994, as amended, between the
Company and the Executive, other than the terms of
all qualified, welfare benefit and compensation
plans and awards in which the Executive
participates and the Consulting Agreement dated as
of September 15, 1999 between the Company and the
Executive.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first set forth
above.
NORTH COUNTRY FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx
Compensation Committee Chairman and
Authorized Signatory
EXECUTIVE
/s/ Xxxxxx X. Xxxx
----------------------
Xxxxxx X. Xxxx
