EXHIBIT 10.1
CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made effective as of ______________ __, 2005 by and
between FIRST FEDERAL OF NORTHERN MICHIGAN, a federally chartered stock savings
bank (the "Bank"), and ___________________ ("Executive"). Any reference to
"Company" herein shall mean First Federal of Northern Michigan Bancorp, Inc., or
any successor thereto.
WHEREAS, the Bank recognizes the substantial contribution Executive has
made to the Bank and wishes to provide Executive with certain protections and
benefits in the event of a Change in Control of the Bank or the Company, as
provided in this Agreement; and
WHEREAS, Executive has been elected to, and has agreed to serve in the
position of _____________________ for the Bank, a position of substantial
responsibility;
NOW, THEREFORE, in consideration of the contribution of Executive, and
upon the other terms and conditions hereinafter provided, the parties hereto
agree as follows:
1. TERM OF AGREEMENT
The term of this Agreement shall be thirty-six (36) full calendar months
from the effective date of this Agreement set forth above. Commencing on the
first anniversary date of this Agreement and continuing on each anniversary date
thereafter, the Board will conduct a performance evaluation and review of
Executive for purposes of determining whether to extend this Agreement, and the
results thereof shall be included in the minutes of the Board's meeting. In the
event that the Board determines to extend the Agreement, this Agreement shall
renew for an additional twelve (12) months, such that the remaining term shall
be thirty-six (36) months unless a written notice of non-renewal is provided to
Executive at least thirty (30) days and not more than sixty (60) days prior to
such anniversary date. In the event this Agreement is not renewed on an
anniversary date, the remaining term of this Agreement shall be twenty-four (24)
months. If Executive is also a director then he shall abstain from any and all
voting with respect to the renewal or extension of the term of this Agreement.
2. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL AND TERMINATION
This Agreement provides for certain payments and benefits to Executive
only in the event of a Change in Control followed by a termination of
Executive's services as described in this Agreement.
(a) Upon the occurrence of a "Change in Control" of the Bank or the
Company followed at any time during the term of this Agreement by the
Involuntary Termination of Executive's employment, other than Termination for
Cause, death or Disability of Executive, the Bank shall be obligated to pay or
provide Executive or in the following event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be:
(i) as severance pay, a sum equal to two times the sum of
(a) the highest rate of base salary, and (b) highest
rate of bonus awarded to Executive during the prior
three years. If Executive has been employed by the Bank
for less
than one year, then the severance pay shall be a sum
equal to twenty-four (24) times the highest monthly
salary, and two times the highest rate of bonus awarded
to Executive.
(ii) life, medical and dental coverage (at the expense of the
Bank) substantially identical to the coverage maintained
by the Bank for Executive prior to his termination. Such
coverage and payments shall cease upon expiration of
twenty-four (24) months.
(iii) within sixty (60) days (or within such shorter period to
the extent that information can be reasonably be
obtained) following Executive's termination, a lump-sum
payment in an amount equal to the excess, if any, of:
(a) the present value of the benefits to which Executive
would be entitled under the Bank's defined benefit
pension plan (and any other defined benefit plan
maintained by the Bank) if Executive had the additional
years of service that Executive would have had if
Executive had continued working for the Bank for a
twenty-four (24) month period following his termination
earning the base salary paid at the time of termination
of employment for the remaining unexpired term of this
Agreement, determined as if each such plan had continued
in effect without change in accordance with its terms as
of the day prior to his actual date of termination and
as if such benefits were payable beginning on the first
day of the month coincident with or next following his
actual date of Executive's termination, over (b) the
present value of the benefits to which Executive is
actually entitled under the Bank's defined benefit
pension plan (and any other defined benefit plan
maintained by the Bank) as of the date of his
termination, where such present values are to be
determined using a discount rate of 6% and the mortality
tables prescribed under Section 72 of the Internal
Revenue Code of 1986 ("Code");
(b) Upon the occurrence of a Change in Control, Executive will have
such rights as specified in any other employee benefit plan with respect to
options, stock awards or other stock incentives and such other rights as may
have been granted to Executive under such plans.
(c) At the election of Executive, which election is to be made on an
annual basis during the month of January, and which election is irrevocable for
the year in which made and upon the occurrence of an Involuntary Termination of
Executive, any cash severance payments shall be made in a lump sum, or paid
bi-weekly during the remaining term of this Agreement. In the event no such
election is made, payment hereunder shall be in a lump sum.
(d) Any payments to Executive under this Section 2 should be reduced
by applicable withholding taxes.
(e) Notwithstanding the preceding paragraphs of this Section 2, in
no event shall the aggregate payments or benefits to be made or afforded to
Executive under said paragraphs (the "Termination Benefits") constitute an
"excess parachute payment" under Section 280G of the Code or any successor
thereto, and in order to avoid such a result, Termination Benefits will be
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reduced, if necessary, to an amount (the "Non-Triggering Amount"), the value of
which is one dollar ($1.00) less than an amount equal to three (3) times
Executive's "base amount", as determined in accordance with said Section 280G.
(f) Executive shall not have the right to receive termination
benefits pursuant to Section 2 hereof in the event of Executive's Termination
for Cause or termination of employment due to Executive's death or Disability.
3. DEFINED TERMS
The following capitalized terms used in this Agreement are defined as
set forth below:
(a) CHANGE IN CONTROL. A "Change in Control" of the Bank or the
Company shall mean a change in control of a nature that: (i) would be required
to be reported in response to Item 5.01 of the current report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a Change in
Control of the Bank or the Company within the meaning of the Home Owners' Loan
Act, as amended, and applicable rules and regulations promulgated thereunder
(collectively, the "HOLA") as in effect at the time of the Change in Control; or
(iii) without limitation such a Change in Control shall be deemed to have
occurred at such time as (a) any "person" (as the term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 25% or more of the combined voting power of Company's
outstanding securities, except for any securities purchased by the Bank's
employee stock ownership plan or trust; or (b) individuals who constitute the
Board on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, PROVIDED that any person becoming a
director subsequent to the date hereof whose election was approved by a vote of
at least three-quarters of the directors comprising the Incumbent Board, or
whose nomination for election by the Company's stockholders was approved by the
same Nominating Committee serving under an Incumbent Board, shall be, for
purposes of this clause (b), considered as though he were a member of the
Incumbent Board; or (c) a plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Bank or the Company or similar
transaction in which the Bank or Company is not the surviving institution occurs
or is effected; or (d) a proxy statement soliciting proxies from stockholders of
the Company is distributed, by someone other than the current management of the
Company, seeking stockholder approval of a plan of reorganization, merger or
consolidation of the Company or similar transaction with one or more business
organizations as a result of which the outstanding shares of the class of
securities then subject to the plan are to be exchanged for or converted into
cash or property or securities not issued by the Company; or (e) a tender offer
is made for 25% or more of the voting securities of the Company and the
shareholders owning beneficially or of record 25% or more of the outstanding
securities of the Company have tendered or offered to sell their shares pursuant
to such tender offer and such tendered shares have been accepted by the tender
offeror.
(b) INVOLUNTARY TERMINATION. "Involuntary Termination" of Executive
shall mean either (i) Executive's termination by the Bank, the Company or any
successor(s) thereto during
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the remaining unexpired period of the Agreement and following a Change in
Control for any reason other than a Termination for Cause, Disability or death,
or (ii) Executive's resignation of employment during the remaining unexpired
period of the Agreement and following a Change in Control as a result of any
demotion, loss of title, office, significant change in Executive's functions,
duties or responsibilities which change would cause Executive's position to
become one of lesser importance, responsibility or scope from his position held
immediately prior to the Change in Control, reduction in Executive's annual
compensation or benefits, relocation of Executive's principal place of
employment by more than 25 miles from its location immediately prior to the
Change in Control, or material breach of this Agreement by the Bank, the Company
or its successor(s) following a Change in Control.
(c) TERMINATION FOR CAUSE. "Termination for Cause" shall mean
termination because of Executive's intentional failure to perform stated duties,
personal dishonesty, incompetence, willful misconduct, any breach of fiduciary
duty involving personal profit, willful violation of any law, rule, regulation
(other than traffic violations or similar offenses) or final cease and desist
order, or any material breach of any material provision of this Agreement. In
determining incompetence, the acts or omissions shall be measured against
standards generally prevailing in the savings institution industry.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote of not less than a
majority of the members of the Board at a meeting of the Board called and held
for that purpose (after reasonable notice to Executive and an opportunity for
him, together with counsel, to be heard before the Board), finding that in the
good faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail.
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause. Any stock options granted to Executive
under any stock option plan of the Bank, the Company or any subsidiary or
affiliate thereof, shall become null and void effective upon Executive's receipt
of Notice of Termination for Cause pursuant to Section 4 hereof, and shall not
be exercisable by Executive at any time subsequent to such Termination for
Cause.
(d) DISABILITY. "Disability" shall mean Executive's inability to
perform duties normally associated with his position on a full-time basis for a
period a six consecutive months by reason of illness or other physical or mental
disability. The Bank or the Company may require a physician's written
confirmation that Executive cannot perform his duties because of Executive's
Disability.
4. NOTICE OF TERMINATION
(a) Following a Change in Control, any purported termination by the
Bank or by Executive shall be communicated by Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
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(b) "Date of Termination" shall mean (A) if Executive's employment
is terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that Executive shall not have returned to the performance of
Executive's duties on a full-time basis during such thirty (30) day period), and
(B) if Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the case of a Termination for
Cause, shall be immediate). Except as set forth below in paragraph (c), in no
event shall the Date of Termination exceed 30 days from the date Notice of
Termination is given.
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the occurrence of
a Change in Control and Involuntary Termination by Executive, as defined in
Section 3(b)(ii) above, in which case the date of termination shall be the date
specified in the Notice, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of the
parties, by a binding arbitration award, or by a final judgment, order or decree
of a court of competent jurisdiction (the time for appeal therefrom having
expired and no appeal having been perfected) and provided further that the Date
of Termination shall be extended by a notice of dispute only if such notice is
given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence. Notwithstanding the pendency of any such
dispute, the Bank will continue to pay Executive's full compensation in effect
when the notice giving rise to the dispute was given (including, but not limited
to, Base Salary) and continue Executive's as a participant in all compensation,
benefit and insurance plans in which Executive was participating when the notice
of dispute was given, until the earlier of 90 days from the date of the Notice
of Termination or the date upon which the dispute is finally resolved in
accordance with this Agreement. Amounts paid under this Section are in addition
to all other amounts due under this Agreement and shall not be offset against or
reduce any other amounts due under this Agreement. Notwithstanding the
foregoing, no compensation or benefits shall be paid to Executive in the event
Executive is Terminated for Cause. In the event that such Termination for Cause
is found to have been wrongful or such dispute is otherwise decided in
Executive's favor, Executive shall be entitled to receive all compensation and
benefits to which Executive may be entitled under Sections 2(a)(i) through (iii)
and 2(b), reduced by any amount paid hereinabove during the pendency of the
dispute..
5. SOURCE OF PAYMENTS
It is intended by the parties hereto that all payments provided in this
Agreement shall be paid in cash or check from the general funds of the Bank. The
Company, however, guarantees payment and provision of all amounts and benefits
due hereunder to Executive and, if such amounts and benefits due from the Bank
are not timely paid or provided by the Bank, such amounts and benefits shall be
paid or provided by the Company.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Bank and Executive, except
that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to Executive of a kind elsewhere provided. No provision of
this Agreement shall be interpreted to mean that Executive
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is subject to receiving fewer benefits than those available to him without
reference to this Agreement.
7. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive, the Bank and their respective successors and assigns.
8. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
9. REQUIRED PROVISIONS
(a) The Bank may terminate Executive's employment at any time.
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause as defined herein.
(b) If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) (12 USC ss. 1818(e)(3)) or 8(g) (12 USC ss.
1818(g)) of the Federal Deposit Insurance Act, as amended by the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (the "FDI Act"), the
Bank's obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Bank may in its discretion (i) pay Executive all or part of
the compensation withheld while their contract obligations were suspended and
(ii) reinstate (in whole or in part) any of the obligations which were
suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e) (12 USC ss. 1818(e)) or 8(g) (12 USC ss. 1818(g)) of the FDI Act,
all obligations of the Bank under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected.
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(d) If the Bank is in default as defined in Section 3(x) (12 USC ss.
1813(x)(1)) of the FDI Act, all obligations of the Bank under this contract
shall terminate as of the date of default, but this paragraph shall not affect
any vested rights of the contracting parties.
(e) All obligations of the Bank under this contract shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the Bank, (i) by the Federal Deposit
Insurance Corporation ("FDIC"), at the time the FDIC enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
Section 13(c) (12 USC ss. 1823(c)) of the FDI Act; or (ii) when the Bank is
determined by the FDIC to be in an unsafe or unsound condition. Any rights of
the parties that have already vested, however, shall not be affected by such
action.
10. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
11. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
12. GOVERNING LAW
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the State of Michigan, unless
superseded or preempted by Federal law as now or hereafter in effect.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the employee within fifty
(50) miles from the location of the Bank, in accordance with the rules of the
Judicial Mediation and Arbitration Systems (JAMS) then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdiction; provided,
however, that subject to Section 3(c) hereof, Executive shall be entitled to
seek specific performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
13. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank if Executive is successful on the merits pursuant to a
legal judgment, arbitration or settlement.
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14. SUCCESSOR TO THE BANK
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank, expressly and
unconditionally to assume and agree to perform the Bank's obligations under this
Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
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15. SIGNATURES
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed by
its duly authorized officer, and Executive has signed this Agreement, on the day
and date first above written.
ATTEST: FIRST FEDERAL OF NORTHERN MICHIGAN
By:
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President
ATTEST: FIRST FEDERAL OF NORTHERN MICHIGAN BANCORP, INC.
By:
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President
WITNESS: EXECUTIVE
By:
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