AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
(C. XXXXX XXXX)
This Agreement, dated as of the 15th day of July 2005, by and among
MACKINAC FINANCIAL CORPORATION, a Michigan corporation (the "Company"), and C.
XXXXX XXXX ("Employee").
WITNESSETH:
WHEREAS, the Company and the Employee are parties to an Employment
Agreement dated August 10, 2004, as amended by a First Amendment to Employment
Agreement dated December 15, 2004 (together, the "Existing Agreement"); and
WHEREAS, the parties desire to further amend and replace the Existing
Agreement with the following amendment to, and replacement of, the Existing
Agreement:
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings set forth herein the parties hereto agree as follows:
1. Employment and Duties. As of the date of this Agreement and through
June 30, 2006 Employee shall be employed as the Vice Chairman of the Board of
the Company and its wholly-owned subsidiary, mBank (the "Bank") and shall have
such duties and responsibilities as the Company's Board and the Board of
Directors of the Bank may from time to time direct. Employee shall devote such
time to his duties as is mutually agreeable to Employee, the Company and Bank.
Effective July 1, 2006 and through the end of the term as set forth in paragraph
2 hereof Employee shall be a non-officer employee of the Company and the Bank
and shall provide such consultative services as are reasonably requested by the
Company or the
Bank, including being available for, and participating in, scheduled meetings of
the Commercial Loan Committee, Executive Committee, and Asset/Liability
Committee, as well as meetings regarding capital expenditures and marketing
strategy. It is specifically acknowledged and agreed that Employee's employment
hereunder during the Employment Period is part time and no minimum time shall be
required of Employee in the discharge of his duties, nor shall Employee be
required to be on site at the offices of the Company or the Bank other than for
normal monthly meetings of the Boards of Directors. Employee will be available
by telephone for requested consultations and committee participation, and will,
in his discretion as reasonably necessary to discharge his duties, go to the
offices of the Company and Bank.
2. Term of Employment. The employment of Employee hereunder under the
terms of the Employment Agreement as modified by this Agreement shall commence
as of the date hereof and shall continue until June 30,2007 (the "Employment
Period").
3. Cash Compensation. As full cash compensation for all services to be
provided by Employee after the date of this Agreement, the Company shall pay to
Employee:
(a) effective as of the date hereof, a salary at the rate of
$150,000 per year, through June 30, 2006, and $75,000 thereafter through
the end of the Employment Period, payable at the intervals at which other
executive officers of the Company and the Bank are paid.
(b) such additional incentive compensation as the Company and Bank
shall determine.
4. Certain Fringe Benefits. During the period of employment hereunder for
each day that the Employee is required to travel to the offices of the Company
or Bank he shall be provided with a per diem living expense allowance to cover
the cost of lodging and meals of
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$125. In addition, the Company will provide Employee with the use of the 2004
GMC Denali presently used by him through June 30, 2006, and thereafter Employee
shall be reimbursed for mileage at the standard rate applicable to employees of
the Company and Bank while traveling on Company or Bank business.
5. Other Employee Benefits. During the period of employment hereunder,
Employee also shall be entitled to participate in the Company's or the Bank's
medical insurance plan as from time to time maintained, sponsored, or made
available to the executive employees of the Company and the Bank generally, in
each case on the same terms and subject to the same conditions and limitations
generally applicable to other executive officers with respect to participation
therein. Employee shall be entitled to six weeks of vacation per year, for a
total of twelve weeks over the Employment Period. Vacation time not taken during
an applicable period will terminate and will not be compensated for.
6. Certain Expenses. The Company shall pay or reimburse Employee for the
reasonable travel, entertainment and other incidental expenses (including the
cost of business publications and professional associations) incurred on
business of the Company or the Bank with the approval of the Chairman of the
Company, and in accordance with the Company's practices as in effect during the
term of this Agreement as applied to executive officers.
7. Certain Continuing Obligations of Employee. Throughout the period of
his employment hereunder and thereafter, Employee agrees to keep confidential
all trade secrets, customer lists, business strategies, financial and marketing
information, and other data concerning the private affairs of the Company and
the Bank or any of their affiliates, made known to or developed by Employee
during the course of his employment hereunder ("Confidential Information"), not
to use any Confidential Information or supply Confidential
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Information to others other than in furtherance of the Company's or Bank's
business, and to return to the Company upon termination of his employment all
copies, in whatever form, of all Confidential Information and all other
documents relating to the business of the Company or any of its affiliates which
may then be in the possession or under the control of Employee.
At the request of the Company Board, whether or not made during the period
of his employment hereunder, Employee agrees to execute such confidentiality
agreements, assignments of intellectual property rights, and other documents as
hereafter may be reasonably determined by the Company Board to be appropriate to
carry out the purposes of this Section.
8. Termination of Employment; Effect.
(a) Employee's employment hereunder will be terminated in any of the
following ways:
(i) Immediately upon the death of the Employee;
(ii) Immediately upon the Employee becoming disabled due to
his physical or mental condition to regularly and satisfactorily
perform his duties hereunder (as determined by the Company Board)
for a period of three (3) continuous months; or
(iii) Voluntarily by Employee, or by the Company, without or
with Cause (as hereinafter defined), by 30 days' prior written
notice to the other, effective as of the date specified in such
notice.
(b) Upon the termination of Employee's employment in any of the ways
provided in subsection (a), then this Agreement and all rights and
obligations of Employee and the Company hereunder shall terminate and
cease immediately, except for
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(i) Employee's rights to the payments provided in Section 9 below; and
(ii) the rights and obligations set forth in Section 7 above and Sections
12 and 14 below.
9. Payments On Termination. Employee shall be entitled to the following
payments and benefits upon termination of his employment:
(a) If Employee's employment is terminated under Section 8(a)(i)
above (by reason of death), or if Employee's employment is terminated
(either voluntarily by Employee or for Cause by the Company) under Section
8(a)(iii) above, then Employee shall be entitled to the cash compensation
under Section 3 (a) above, and the benefits to which Employee is entitled
under Sections 4 and 5 above, through the date of termination of
employment.
(b) If Employee's employment is terminated under Section 8(a)(ii)
above (disability), or by the Company, without Cause under Section
8(a)(iii) above, Employee shall be entitled to the cash compensation
payable under Section 3 (a) above, and continued participation in the
health insurance program as provided in Section 5 above for the balance of
the Employment Term.
10. Definition. For purposes of this Agreement, "Cause" means any of the
following:
(a) Material breach of any of the terms of this Agreement or of the
Company's or Bank's policies and procedures applicable to employees and/or
directors;
(b) Conviction of or plea of guilty or nolo contendere to a crime
involving moral turpitude or involving any violation of securities or
banking law or regulation, or the issuance of any court or administrative
order enjoining or prohibiting Employee from violating any such law or
regulation;
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(c) Repeated or habitual intoxication with alcohol or drugs while on
the premises of the Company or the Bank or any of their affiliates, or
during the performance by Employee of any of his duties hereunder;
(d) Embezzlement of any property belonging or entrusted to the
Company or the Bank, or any of their affiliates;
(e) Willful misconduct or gross neglect of duties, or failure to act
with respect to duties or actions previously communicated to Employee in
writing by the Company Board;
(f) Any other act or omission of kind or nature similar to any of
the foregoing, or determined in good faith by the Company Board to be of
comparable seriousness, which in the good faith judgment of the Company
Board may have adversely affected or may in the future adversely affect
the Company, the Bank or any of their affiliates, or has irreparably
damaged Employee's continued ability to function effectively in any of the
capacities contemplated by this Agreement.
11. Integration; Amendment. This Agreement contains the entire agreement
of the parties relating to the subject matter hereof and thereof, and together
supersede and replace in their entirety any prior agreements or understandings
concerning such subject matter, including the Existing Agreement. This Agreement
may not be waived, changed, modified, extended, or discharged orally, but only
by agreement in writing signed in the case of the Company by the Chairman of the
Company Board.
12. Arbitration. Any controversy, dispute, or claim arising out of or
relating to Employee's employment or to this Agreement or breach thereof shall
be settled by arbitration in accordance with the commercial rules of the
American Arbitration Association at its Southfield,
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Michigan offices. Judgment upon any award may be entered in any circuit court or
other court having jurisdiction thereof, without notice to the opposite party or
parties. Anything contained herein to the contrary notwithstanding, this
agreement to arbitrate shall not be deemed to be a waiver of the Company's right
to secure equitable relief including injunction (whether as part of or separate
from the arbitration proceeding) if and when otherwise appropriate.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan applicable to contracts made
and to be performed within such State.
14. Non-competition: Non-solicitation. Employee agrees that he shall not
(i) engage in competitive activities while employed by the Company or the Bank;
and (ii) if Employee's employment is terminated by the Company, with or without
Cause, or is voluntarily terminated by Employee, Employee during the Restricted
Period (as defined below) will not solicit to hire, or hire, any employee of the
Company or the Bank for or on behalf of any firm or organization. Employee shall
be deemed to engage in competitive activities if he shall, without the prior
written consent of the Company, (i) within a twenty-five (25) mile radius of the
main office or any branch office of the Bank, 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 Company or any of its affiliates in providing
financial products or services (including, without limitation, banking or other
services) then being offered by the Company and such affiliates to consumers and
businesses, or (ii) directly or indirectly acquires 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 within a
twenty-five (25) mile radius of the main office or any branch office of the
Bank, which competes
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directly or indirectly with the business of the Company or the Bank or any of
their 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, Employee shall not be
prohibited from owning less than 5 percent of any publicly traded corporation
whether or not such corporation is in competition with the Company. For purposes
hereof, the term "Restricted Period" shall equal the longer of the period during
which payments are actually made to Employee pursuant to this Agreement or one
year from the effective date of the termination.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MACKINAC FINANCIAL CORPORATION
By /s/ Xxxx X.Xxxxxx
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Its Chairman and CEO
/s/ C.Xxxxx Xxxx
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C.Xxxxx Xxxx
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