Exhibit 10
January 26, 2006
Dear (EXECUTIVE'S NAME):
I want to take this opportunity to reiterate how important you are as a
senior member of the MBT Financial Corp. and/or its subsidiary Monroe Bank &
Trust (collectively the "Company") management team and to thank you for your
commitment to our success. As you know, we face many opportunities and
challenges as our industry continues to evolve, and this Agreement, which
addresses your entitlement to severance benefits should you separate from the
Company while these terms are in effect, is intended to give you the security to
focus on your contributions as we move forward.
TERM OF AGREEMENT: This Agreement shall commence on the date hereof and
shall continue in effect until December 31, 2006, and will be automatically
renewed thereafter on an annual basis for successive one-year terms unless the
Company provides you with written notice that the Agreement will not be renewed
("Notice of Non-Renewal") no later than 60 days prior to the expiration of the
then-current term. Notwithstanding the foregoing, in the event a Change in
Control (as defined in Exhibit A) occurs during the then current term, the term
of this Agreement shall not end prior to the first anniversary of such Change in
Control.
SEPARATION FROM EMPLOYMENT: Your employment with the Company is at-will.
Under certain circumstances, however, you will be entitled to severance benefits
should you separate from employment during the term of this Agreement. The
following provisions govern your compensation and benefits should you separate
from employment during the term of this Agreement.
QUALIFYING TERMINATION: Should you incur a Qualifying Termination (as
defined below) you will be eligible for the following payments and benefits,
provided that you remain in compliance with your obligations under the terms of
this agreement, including, but not limited to the provisions regarding
non-competition, non-solicitation, and non-disparagement, and the Release (as
defined below). Should you fail to comply with your obligations under this
Agreement or the Release, the Company may, in addition to any other available
remedies, cease making any payment or benefit provided for herein.
SEPARATION PAYMENT: A separation payment, before applicable deductions,
equal to one (1) times the sum of your base salary as in effect as of your
termination of employment, plus in the event of a Qualifying Termination under
subparagraphs (3) or (4) as set forth in the definition below of Qualifying
Termination, an amount equal to the average annual cash bonuses
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received by you during the three year period ending prior to the year in which
the Change in Control occurs (the "Separation Payment").
The Separation Payment shall be paid as follows: 50% of the Separation
Payment shall be paid to you within ten business days of your execution of the
Release, with the remaining 50% to be paid in equal installments, without
interest, commencing on the Company's second regularly scheduled payroll
following your execution of the Release and ending with the Company's regularly
scheduled payroll one year later (the "Separation Pay Period"). In the event of
a change in payroll practice during the Separation Pay Period, the Company may
adjust the amounts of such installments as necessary to ensure that the total
amount paid is equal to the Separation Payment, as defined above.
Notwithstanding the foregoing, in the event of a Qualifying Termination within
one year following a Change in Control, the Separation Payment shall be paid in
a single lump sum within 10 days following the effective date of the Qualifying
Termination.
HEALTH BENEFIT CONTINUATION: The Company will pay the COBRA premiums for
continuation of healthcare benefits for you and your eligible dependents for so
long as you are otherwise eligible for such coverage during the 12-month period
following a Qualifying Termination. You will be responsible for all other costs,
such as co-payments and deductibles.
ADDITIONAL RESTRICTION ON DISTRIBUTIONS TO KEY EMPLOYEES: Notwithstanding
the provisions of this agreement providing for payment of benefits, if at the
time a benefit would otherwise be payable, you are a "specified employee" [as
defined below], and the payment provided for would be deferred compensation
within the meaning of the Internal Revenue Code (the "Code"), section 409A, the
distribution of your benefit may not be made until six months after the date of
the your separation from service with the Company [as that term may be defined
in Section 409A(a)(2)(A)(i) of the Code and regulations promulgated thereunder],
or, if earlier the date of your death. This requirement shall remain in effect
only for periods in which the stock of the Company is publicly traded on an
established securities market.
For purposes of this subparagraph a "specified employee" shall mean any
employee of the Company who is a "key employee" of the Company within the
meaning of Code section 416(i). This shall include any employee who is (i) a
5-percent owner of the Company's common stock, or (ii) an officer of the Company
with annual compensation from the Company of $130,000.00 or more, or (iii) a
1-percent owner of Company's common stock with annual compensation from the
Company of $150,000.00 or more (or such higher annual limit as may be in effect
for years subsequent to 2005 pursuant to indexing section 416(i) of the Code).
The provisions of this subparagraph have been adopted only in order to
comply with the requirements added by Code section 409A. These provisions shall
be interpreted and administered in a manner consistent with the requirements of
Code section 409A, together with any regulations or other guidance which may be
published by the Treasury Department or Internal Revenue Service interpreting
such Code section 409A.
DEFINITION OF QUALIFYING TERMINATION: For purposes of this Agreement, a
Qualifying Termination shall mean any of the following:
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(1) Involuntary termination of your employment without Cause. For purposes
of this Agreement, Cause shall mean and be limited to your (a) criminal
dishonesty, (b) refusal to perform your duties on an exclusive and
substantially full-time basis, (c) refusal to act in accordance with any
specific substantive instructions given by the Company with respect to your
performance of duties normally associated with your position prior to the
Change in Control, or (d) engaging in conduct which could be materially
damaging to the Company without a reasonable good faith belief that such
conduct was in the best interest of the Company.
(2) Resignation within 90 days of the occurrence (prior to a Change of
Control) of an event constituting Good Reason, which, for purposes of this
Agreement, shall mean: (a) a material reduction in your job
responsibilities, duties, and/or status within the Company, (b) a reduction
in your base salary, unless such reduction is part of an across-the-board
reduction in base salary of all officers of the Company, or (c) receipt of
a Notice of Non-Renewal. Notwithstanding the foregoing, you will not be
eligible for a Separation Payment unless you provide the Board of Directors
with 60 days written notice of your intent to resign for Good Reason,
containing details regarding the grounds for your resignation, and allow
the Board of Directors to take action to remove or correct the Good Reason
within 30 days. If the Board of Directors fails to take action to remove or
correct the Good Reason within 30 days of receiving notice of same, your
resignation for Good Reason shall become effective.
(3) Involuntary termination of your employment by the Company for any
reason within one year following a Change in Control.
(4) Your resignation, within one year following a Change in Control, by
reason of any of the following events which occurs on or after a Change in
Control: (a) a material reduction in your job responsibilities, duties
and/or status from that which existed immediately prior to the Change in
Control, (b) a reduction in your base salary, or (c) receipt of a Notice of
Non-Renewal.
You will not be deemed to have incurred a Qualifying Termination unless you
execute, within 30 days of your separation, a release of claims in a form
substantially similar to the form attached as Exhibit B hereto (the "Release").
Under no circumstances will your resignation or termination from employment as a
result of Disability (as defined below) or death constitute a Qualifying
Termination.
INVOLUNTARY TERMINATION FOR CAUSE/RESIGNATION NOT CONSTITUTING A QUALIFYING
TERMINATION: If you are involuntarily terminated for Cause or resign your
employment (other than a resignation constituting a Qualifying Termination), you
will not be entitled to any severance payment under this Agreement. The Company
will have no other obligations under this Agreement, and all compensation and
benefits will be determined by the terms of the governing plan or program.
EXCISE TAX ROLLBACK: In the event the payments required under this
Agreement, when added together with any other amounts required to be included by
you under the provisions
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of the Internal Revenue Code of 1986, as amended, result in an "Excess Parachute
Payment," as that term is defined in Section 280G of the Code, then the amount
of the payments provided for in this agreement will be reduced in an amount
which eliminates any and all excise tax to be imposed under Section 4999 (or any
successor thereto) of the Code.
COVENANTS: In your role with the Company (which, for purposes of these
Covenants includes the Company, its subsidiaries, affiliates, related entities,
and successors), you will have access to confidential and proprietary
information, and your access to such information is intrinsic to, and essential
to the success of, your employment by the Company. In consideration of your
access to such information, your continuing employment with the Company, and the
payments and benefits provided for under this Agreement, you agree to the
following Covenants, which you agree are reasonable and necessary for the
protection of the Company's legitimate business interests, including, but not
limited to, goodwill and information which is confidential and proprietary to
the Company.
A. Noncompetition Agreement and Nonsolicitation Agreement
1. In view of your importance to the success of the Company, you and the
Company agree that the Company would likely suffer significant harm
from your competing with Company during your term of employment with
Company and for some period of time thereafter. Accordingly, you agree
that you will not engage in competitive activities while employed by
Company and during the Restricted Period. You will be deemed to engage
in competitive activities if you, without the prior written consent of
the Company, (i) in Monroe County, Michigan and counties contiguous
thereto (including the municipalities therein), render services
directly or indirectly, as an employee, officer, director, consultant,
advisor, partner or otherwise, for any organization or enterprise
which competes directly or indirectly with the business of the Company
or any of its affiliates in providing financial products or services
(including, without limitation, banking, insurance, or securities
products or services) to consumers and businesses, or (ii) directly or
indirectly acquire any financial or beneficial interest in (except as
provided in the next sentence) any organization which conducts or is
otherwise engaged in a business or enterprise in Monroe County,
Michigan, and counties contiguous thereto (including all
municipalities therein) which competes directly or indirectly with the
business of Company or any of its affiliates in providing financial
products or services (including, without limitation, banking,
insurance or securities products or services) to consumers and
businesses. Notwithstanding the preceding sentence, you will not be
prohibited from owning less than 1 percent of any publicly traded
corporation, whether or not such corporation is in competition with
the Company. For purposes hereof the term "Restricted Period" will
equal one year, commencing as of the date of your termination of
employment.
2. While employed by the Company and for a period of one (1) year
following your termination of employment with the Company, you agree
that you will not, in any manner, directly or indirectly, (i) solicit
by mail, by telephone, by personal meeting, or by any other means,
either directly or indirectly, any customer or prospective customer of
the Company to whom you provided services, or for whom you transacted
business,
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or whose identity became known to you in connection with your services
to the Company (including employment with or services to any
predecessor or successor entities), to transact business with a person
or an entity other than the Company or its affiliates or reduce or
refrain from doing any business with the Company or its affiliates or
(ii) interfere with or damage (or attempt to interfere with or damage)
any relationship between the Company or its affiliates and any such
customer or prospective customer. The term "solicit" as used in this
Agreement means any communication of any kind whatsoever, inviting,
encouraging or requesting any person to take or refrain from taking
any action with respect to the business of the Company and its
subsidiaries.
3. While employed by Company and for a period of one (1) year following
your termination of employment with the Company, you agree that you
will not, in any manner, directly or indirectly, solicit any person
who is an employee of the Company or any of its affiliates to apply
for or accept employment or a business opportunity with any other
person or entity.
4. The Company and you agree that nothing herein will be construed to
limit or negate the common law of torts or trade secrets where it
provides broader protection than that provided herein.
B. Confidential Information
You have obtained and may obtain confidential information concerning the
businesses, operations, financial affairs, organizational and personnel matters,
policies, procedures and other non-public matters of the Company and its
affiliates, and those of third-parties that is not generally disclosed to
persons not employed by the Company or its subsidiaries. Such information
(referred to herein as the "Confidential Information") may have been or may be
provided in written form or orally. You will not disclose to any other person
the Confidential Information at any time during your employment with the Company
or after the termination of your employment, provided that you may disclose such
Confidential Information only to a person who is then a director, officer,
employee, partner, attorney or agent of the Company who, in your reasonable good
faith judgment, has a need to know the Confidential Information.
C. Remedies
1. You acknowledge that a violation on your part of the Covenants section
of this agreement would cause immeasurable and irreparable damage to
the Company. Accordingly, you agree that notwithstanding the agreement
of the parties to arbitrate disputes arising under the terms of this
agreement, the Company will be entitled to injunctive relief in any
court of competent jurisdiction for any actual or threatened violation
of any of the provisions of the Covenants sections of this agreement,
in addition to any other remedies it may have.
2. In addition to the Company's right to seek injunctive relief as set
forth above, in the event that you violate the terms and conditions of
the Covenants sections of this agreement, the Company may: (i) make a
general claim for damages and (ii) terminate any payments or benefits
payable by Company, if applicable, to you.
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3. The Board will be responsible for determining whether you have
violated the Covenants sections of this agreement, and in the absence
of your ability to show that the Board has acted in bad faith and
without fair dealing, such decision will be final and binding. Upon
your request, the Company will provide an advance opinion as to
whether a proposed activity would violate the provisions of this
Agreement.
ARBITRATION: Except for claims by the Company arising out of your alleged
breach of obligations under the Covenants section of this Agreement, all
disputes arising out of or relating to this Agreement or to your employment or
the termination thereof, will be resolved by final and binding arbitration in
Monroe, Michigan, under the Federal Arbitration Act in accordance with the
Employment Dispute Resolution Rules then in effect with the American Arbitration
Association. This paragraph will apply both during and after termination of the
employment relationship. Either party will have the right to enforce this
agreement to arbitrate in either federal or state court.
All proceedings and documents prepared in connection with any arbitration
under this Agreement will be Confidential Information and, unless otherwise
required by law, the contents or subject matter thereof will not be disclosed to
any person other than the parties to the proceedings, their counsel, witnesses
and experts, the arbitrator, and, if court enforcement of an arbitration award
is sought, the court and court staff hearing such matter.
Should a dispute under this Agreement be submitted to arbitration and you
prevail in that arbitration, you will be entitled to recover your reasonable
expenses you incurred in connection with that arbitration, including but not
limited to attorneys' fees and arbitrators' fees, from the Company. Should the
Company prevail, each party will pay its own costs. Notwithstanding the
foregoing, the Company will promptly pay or reimburse you for all reasonable
legal fees incurred by you in seeking in good faith to obtain or enforce any
benefit or right provided by this Agreement relating to the termination of your
employment within one year following a Change in Control.
IMPACT ON OTHER COMPENSATION AND BENEFIT PROGRAMS: There will be no
duplication between payments made under this Agreement and any payment or
benefit under any other plan, program, agreement, or arrangement. Except as
otherwise specifically provided for herein, payments under this Agreement will
not be considered compensation for purposes of any compensation, deferred
compensation, insurance, pension, savings, or other benefit plan.
CONTROLLING LAW: Except where otherwise provided for herein, this Agreement
will be governed in all respects by the laws of the State of Michigan, excluding
any conflict-of-law rule or principle that might refer the construction of the
Agreement to the laws of another State or country.
NOTICES: Any notices under this agreement that are required to be given to
the Company will be addressed to Corporate Secretary, MBT Financial Corp., 000
X. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and any notices required to be given to
you will be sent to your address as shown in the Company's records.
SEPARABILITY AND CONSTRUCTION: If any provision of this Agreement is
determined to be invalid, unenforceable, or unlawful by an arbitrator or a court
of competent
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jurisdiction, the other provisions of this Agreement will remain in full force
and effect, and the provisions that are determined to be invalid, unenforceable,
or unlawful will either be limited so that they will remain in effect to the
extent permissible by law or such arbitrator or court will substitute, to the
extent enforceable, provisions similar thereto or other provision so as to
provide, to the fullest extent allowed by law, the benefits intended by this
Agreement.
WAIVER OF BREACH: No failure by any party to give notice of any breach of,
or to require compliance with, any condition or provision of this Agreement will
be deemed a waiver or relinquishment of that party's rights, and no waiver or
relinquishment of rights by any party at any one or more times will be deemed to
be a waiver or relinquishment of such right or power at any other time or times.
ENTIRE AGREEMENT: This Agreement, together with the plan documents referred
to herein, as amended from time to time, will constitute the entire
understanding relating to the severance benefits for which you are eligible upon
your separation from employment with the Company, and any previous severance
agreements (or other agreements providing for severance benefits, to the extent
that they provide for severance benefits), whether written or oral, between you
and the Company will be deemed to be revoked and canceled for all purposes as of
the date of this Agreement. There will be no duplication between payments made
pursuant to this Agreement and payments made under any other plan, program,
arrangement, or agreement.
MODIFICATION IN WRITING: No addition to, or modification of, this Agreement
will be effective, unless it is in writing and signed by both you and an
authorized representative of the Company.
I hope that this Agreement provides you with the level of security and
incentive that will allow you to continue as a leader at the Company to the best
of your abilities. Please sign below and return an executed original to indicate
your acceptance of these terms.
Sincerely,
X. Xxxxxxx Xxxxxxx
President & Chief Executive Officer
MBT Financial Corp.
I have read, understand, and agree to the foregoing terms and conditions.
------------------------------------- ------------------
(Executive's Name) Date
(Title)
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Exhibit A
Change in Control Definition
A "Change in Control" shall mean a "Change in Ownership" as defined in (a)
hereof; a "Change in Effective Control" as defined in (b), hereof; or a
"Change in Ownership of a Substantial Portion of Assets" as defined in (c)
hereof.
(a) Change in Ownership. For purposes of this Agreement, a change in the
ownership of the Company occurs on the date that any one person, or
more than one person acting as a group (as defined in subsection (d)
hereof), acquires ownership of stock of the Company that, together
with stock held by such person or group, constitutes more than 50
percent of the total fair market value or total voting power of the
stock of the Company. However, if any one person, or more than one
person acting as a group, is considered to own more than 50 percent of
the total fair market value or total voting power of the stock of the
Company, the acquisition of additional stock by the same person or
persons is not considered to cause a change in the ownership of the
Company (or to cause a change in the effective control of the Company
within the meaning of subsection (b) hereof). An increase in the
percentage of stock owned by any one person, or persons acting as a
group, as a result of a transaction in which the Company acquires its
stock in exchange for property will be treated as an acquisition of
stock for purposes of this section.
(b) Change in the Effective Control. For purposes of this Agreement, a
change in the effective control of the Company occurs on the date that
either -
(i) Any one person, or more than one person acting as a group (as
determined under subsection (d) hereof), acquires (or has
acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) ownership of
stock of the Company possessing 35 percent or more of the total
voting power of the stock of the Company; or
(ii) a majority of members of the Company's board of directors is
replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Company's board of directors prior to the date of
the appointment or election.
In the absence of an event described in subsection (b)(i) or (ii)
above, a change in the effective control of a Company will not have
occurred.
(c) Change in the Ownership of a Substantial Portion of the Company's
Assets. For purposes of this Agreement, a change in the ownership of a
substantial portion of the Company's assets occurs on the date that
any one person, or more than one person acting as a group (as
determined in subsection(d) hereof), acquires (or has acquired during
the 12-month period ending on the date of the most recent acquisition
by such person or persons) assets from the Company that have a total
gross fair market value equal to or more than 40 percent of the total
gross fair market value of all of the assets of the Company
immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the
Company, or the value of the assets being disposed of, determined
without regard to any liabilities associated with such assets.
There is no Change in Control Event under this subsection (c) when
there is a transfer to an entity that is controlled by the
shareholders of the Company immediately after the transfer, as
provided
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in this paragraph. A transfer of assets by the Company is not treated
as a change in the ownership of such assets if the assets are
transferred to --
(i) A shareholder of the Company (immediately before the asset
transfer) in exchange for or with respect to its stock;
(ii) An entity, 50 percent or more of the total value or voting power
of which is owned, directly or indirectly, by the Company;
(iii) A person, or more than one person acting as a group, that owns,
directly or indirectly, 50 percent or more of the total value or
voting power of all the outstanding stock of the Company; or
(iv) An entity, at least 50 percent of the total value or voting power
of which is owned, directly or indirectly, by a person described
in section (iii) above.
For purposes of this subsection (c) and except as otherwise provided,
a person's status is determined immediately after the transfer of the
assets. For example, a transfer to a corporation in which the
transferor corporation has no ownership interest before the
transaction, but which is a majority-owned subsidiary of the
transferor corporation after the transaction is not treated as a
change in the ownership of the assets of the transferor corporation.
(d) Persons Acting as a Group. Persons will not be considered to be acting
as a group solely because they purchase assets or purchase or own
stock of the same corporation at the same time, or as a result of the
same public offering. However, persons will be considered to be acting
as a group if they are owners of a corporation that enters into a
merger, consolidation, purchase or acquisition of stock, purchase or
acquisition of assets, or similar business transaction with the
Company. If a person, including an entity shareholder, owns stock in
both corporations that enter into a merger, consolidation, purchase or
acquisition of stock, or similar transaction, such shareholder is
considered to be acting as a group with other shareholders in a
corporation only to the extent of the ownership in that corporation
prior to the transaction giving rise to the change and not with the
ownership interest in the other corporation.
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Exhibit B
Release of Claims
I acknowledge that I have had twenty-one days to decide whether to execute
this Release of Claims ("Release") and that I have been advised in writing to
consult an attorney before executing this Release. I acknowledge that I have
seven days from the date I execute this Release to revoke my signature. I
understand that if I choose to revoke this Release I must deliver my written
revocation to the Company before the end of the seven-day period.
I, for myself, my heirs, successors, and assigns do hereby settle, waive,
and release the Company ("the Company") and any of its past and present
officers, owners, stockholders, partners, directors, agents, employees,
successors, predecessors, assigns, representatives, attorneys, divisions,
subsidiaries, or affiliates from any and all claims, charges, complaints,
rights, demands, actions, and causes of action of any kind or character, in
contract, tort, or otherwise, based on actions or omissions occurring in the
past and/or present, and regardless of whether known or unknown to me at this
time, including those not specifically mentioned in this Release. Among the
rights, claims, and causes of action which I give up under this Release are
those arising in connection with my employment and the termination of my
employment, including rights or claims under federal, state and local fair
employment practice or discrimination laws (including the various Civil Rights
Acts, the Age Discrimination in Employment Act, the Equal Pay Act, and any
similar state laws of the State of Michigan), laws pertaining to breach of
employment contract, wrongful termination or other wrongful treatment, and any
other laws or rights relating to my employment with the Company and the
termination of that employment. I acknowledge that I am aware of my rights under
the Age Discrimination in Employment Act, and that I am knowingly and
voluntarily waiving and releasing any claim of age discrimination which I may
have under that statute as part of this Release. This agreement does not waive
or release any rights, claims, or causes of action that may arise from acts or
omissions occurring after the date I execute this Release, nor does this
agreement waive or release any rights, claims or causes of action relating to
(A) indemnification from the Company and its affiliates with respect to my
activities on behalf of the Company and its affiliates prior to my termination
of employment, (B) compensation or benefits to which I am entitled under any
compensation or benefit plans of the Company or its affiliates or (C) amounts to
which I am entitled pursuant to the Agreement to which a form of this Release of
Claims was attached as Exhibit B. Except as contemplated by the preceding
sentence, I agree not to bring or join any lawsuit or file any claim against the
Company in any court relating to my employment or the termination of my
employment.
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