EXHIBIT 10.1
MONROE BANK & TRUST
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT is adopted this 1st day of July, 2003, by and between
MONROE BANK & TRUST, a state-chartered commercial bank located in Monroe,
Michigan (the "Company"), and H. XXXXXXX XXXXXXX (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide supplemental retirement benefits to the Executive.
The Company will pay the benefits from its general assets.
AGREEMENT
The Company and the Executive agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Code" means the Internal Revenue Code of 1986, as amended.
1.2 "Disability" means the Executive's suffering a sickness, accident
or injury which has been determined by the carrier of any individual or group
disability insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totally and
permanently disabled. The Executive must submit proof to the Company of the
carrier's or Social Security Administration's determination upon the request of
the Company.
1.3 "Early Termination" means the Termination of Employment before
Normal Retirement Age for reasons other than death, Disability, or Termination
for Cause.
1.4 "Early Termination Date" means the month, day and year in which
Early Termination occurs.
1.5 "Effective Date" means July 1, 2003.
1.6 "Final Pay" means the total annual base salary payable to the
Executive at the rate in effect at Termination of Employment. Final Pay shall
not be reduced for any salary reduction contributions to: (i) cash or deferred
arrangements under Section 401(k) of the Code; (ii) a cafeteria plan under
Section 125 of the Code; or (iii) a deferred compensation plan that is not
qualified under Section 401(a) of the Code.
1.7 "Normal Retirement Age" means the Executive's 65th birthday.
1.8 "Normal Retirement Date" means the later of the Normal Retirement
Age or Termination of Employment.
1.9 "Plan Year" means a twelve-month period commencing on July 1 and
ending on June 30 of each year. The initial Plan Year shall commence on the
Effective Date of this Agreement.
1.10 "Termination for Cause" See Article 5.
1.11 "Termination of Employment" means that the Executive ceases to be
employed by the Company for any reason, voluntary or involuntary, other than by
reason of a leave of absence approved by the Company.
ARTICLE 2
BENEFITS DURING LIFETIME
2.1 Normal Retirement Benefit. Upon Termination of Employment on or
after the Normal Retirement Age for reasons other than death, the Company shall
pay to the Executive the benefit described in this Section 2.1 in lieu of any
other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section
2.1 is 65 percent of the Executive's Final Pay, as set forth on
Schedule A, attached hereto and incorporated by reference herein, and
as revised and updated by the Company from time to time, reduced by:
(a) fifty percent (50%) of the primary Social
Security benefit payable (before earnings
reduction) to the Executive or which would
be payable if applied for by the Executive
upon his Normal Retirement Age;
(b) the annual amount of benefits payable to the
Executive upon his Normal Retirement Age
(whether or not actually paid) from the
Company's qualified pension plan (the
"Pension Plan"); and
(c) the annual amount of benefits payable to the
Executive upon his Normal Retirement Age, on
a single life annuity basis, attributable to
the portion of the Executive's account
balances arising from employer contributions
(but excluding the portion of such balances
arising from employee salary reduction
contributions) from the Bank's Section
401(k) plan.
2.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments commencing
with the month following the Executive's Normal Retirement Date. The
annual benefit shall be paid to the Executive for a period of 10 years.
2.2 Early Termination Benefit. Upon Early Termination, the Company
shall pay to the Executive the benefit described in this Section 2.2 in lieu of
any other benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is
an amount equal to the "Accrual Balance" determined as of the Company's
fiscal year end immediately preceding the Executive's Early Termination
Date, as set forth on Schedule A, attached hereto and incorporated by
reference herein, and as revised and updated by the Company from time
to time. The Executive shall begin to vest in said Accrual Balance
commencing on the date of Xxxxxx X. XxXxxx'x retirement, subject to the
following vesting schedule:
PLAN YEARS SINCE
XXXXXX'X RETIREMENT VESTED PERCENTAGE
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0 - 4 0%
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5 or more 100%
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2.2.2 Payment of Benefit. The Company shall pay the benefit to
the Executive by calculating a fixed annuity payable in 120 monthly
installments, crediting interest on the unpaid balance at an annual
rate of 6.75 percent, compounded monthly. The monthly installments
shall be payable on the first day of each month commencing with the
month following Normal Retirement Age.
2.3 Disability Benefit. If the Executive terminates employment due to
Disability prior to
Normal Retirement Age, the Company shall pay to the Executive the benefit
described in this Section 2.3 in lieu of any other benefit under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is
an amount equal to the "Accrual Balance" determined as of the Company's
fiscal year end immediately preceding the date the Executive's
Termination of Employment occurs, as set forth on Schedule A, attached
hereto and incorporated by reference herein, and as revised and updated
by the Company from time to time.
2.3.2 Payment of Benefit. The Company shall pay the benefit to
the Executive by calculating a fixed annuity payable in 120 monthly
installments, crediting interest on the unpaid balance at an annual
rate of 6.75 percent, compounded monthly. The monthly installments
shall be payable on the first day of each month commencing with the
month following Normal Retirement Age.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies while in the
active service of the Company, no benefit shall be payable under this Agreement.
3.2 Death During Payment of a Benefit. If the Executive dies after any
benefit payments have commenced under Article 2 of this Agreement but before
receiving all such payments, the Company shall pay the remaining benefits to the
Executive's beneficiary at the same time and in the same amounts they would have
been paid to the Executive had the Executive survived.
3.3 Death After Termination of Employment But Before Payment of a
Benefit Commences. If the Executive is entitled to a benefit under Article 2 of
this Agreement, but dies prior to the commencement of said benefit payments, the
Company shall pay the same benefit payments to the Executive's beneficiary that
the Executive was entitled to prior to death except that the benefit payments
shall commence on the first day of the month following the date of the
Executive's death.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
received by the Company during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Executive, or if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement if the Company terminates the Executive's employment for:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor
involving moral turpitude; or
(c) Fraud, disloyalty, dishonesty or willful violation of
any law or significant Company policy committed in connection with the
Executive's employment and resulting in an adverse effect on the
Company.
5.2 Suicide or Misstatement. The Company shall not pay any benefit
under this Agreement if the Executive commits suicide within three years after
the date of this Agreement. In addition, the Company shall not pay any benefit
under this Agreement if the Executive has made any material misstatement of fact
on an employment application or resume provided to the Company, or on any
application for any benefits provided by the Company to the Executive.
5.3 Competition After Termination of Employment. The Company shall not
pay any benefit under this Agreement if the Executive, within 12 months
following Termination of Employment, without the prior written consent of the
Company, engages in, becomes interested in, directly or indirectly, as a sole
proprietor, as a partner in a partnership, or as a substantial shareholder in a
corporation, or becomes associated with, in the capacity of employee, director,
officer, principal, agent, trustee or in any other capacity whatsoever, any
enterprise conducted in the trading area (a 50 mile radius) of the business of
the Company, which enterprise is, or may deemed to be, competitive with any
business carried on by the Company as of the date of termination of the
Executive's employment or retirement. This section shall not apply following a
Change of Control.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. An Executive or beneficiary ("claimant") who has
not received benefits under the Agreement that he or she believes should be paid
shall make a claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a
claim by submitting to the Company a written claim for the benefits.
6.1.2 Timing of Company Response. The Company shall respond to
such claimant within 90 days after receiving the claim. If the Company
determines that special circumstances require additional time for
processing the claim, the Company can extend the response period by an
additional 90 days by notifying the claimant in writing, prior to the
end of the initial 90-day period that an additional period is required.
The notice of extension must set forth the special circumstances and
the date by which the Company expects to render its decision.
6.1.3 Notice of Decision. If the Company denies part or all of
the claim, the Company shall notify the claimant in writing of such
denial. The Company shall write the notification in a manner calculated
to be understood by the claimant. The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the
Agreement on which the
denial is based;
(c) A description of any additional information or
material necessary for the claimant to perfect the claim and
an explanation of why it is needed;
(d) An explanation of the Agreement's review
procedures and the time limits applicable to such procedures;
and
(e) A statement of the claimant's right to bring a
civil action under ERISA Section 502(a) following an adverse
benefit determination on review.
6.2 Review Procedure. If the Company denies part or all of the claim,
the claimant shall have the opportunity for a full and fair review by the
Company of the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review,
the claimant, within 60 days after receiving the Company's notice of
denial, must file with the Company a written request for review.
6.2.2 Additional Submissions - Information Access. The
claimant shall then have the opportunity to submit written comments,
documents, records and other information relating to the claim. The
Company shall also provide the claimant, upon request and free of
charge, reasonable access to, and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations)
to the claimant's claim for benefits.
6.2.3 Considerations on Review. In considering the review, the
Company shall take into account all materials and information the
claimant submits relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit
determination.
6.2.4 Timing of Company Response. The Company shall respond in
writing to such claimant within 60 days after receiving the request for
review. If the Company determines that special circumstances require
additional time for processing the claim, the Company can extend the
response period by an additional 60 days by notifying the claimant in
writing, prior to the end of the initial 60-day period, that an
additional period is required. The notice of extension must set forth
the special circumstances and the date by which the Company expects to
render its decision.
6.2.5 Notice of Decision. The Company shall notify the
claimant in writing of its decision on review. The Company shall write
the notification in a manner calculated to be understood by the
claimant. The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the
Agreement on which the denial is based;
(c) A statement that the claimant is entitled to
receive, upon request and free of charge, reasonable access
to, and copies of, all documents, records and other
information relevant (as defined in applicable ERISA
regulations) to the claimant's claim for benefits; and
(d) A statement of the claimant's right to bring a
civil action under ERISA Section 502(a).
ARTICLE 7
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
Notwithstanding the previous paragraph in this Article 7, the Company
may amend or terminate this Agreement at any time if, pursuant to legislative,
judicial or regulatory action, continuation of the Agreement would (i) cause
benefits to be taxable to the Executive prior to actual receipt, or (ii) result
in significant financial penalties or other significantly detrimental
ramifications to the Company (other than the financial impact of paying the
benefits).
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Company, nor does it interfere with the Company's right to
discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the Executive's right to terminate employment at any
time.
8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
8.4 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement. Upon the occurrence of such event, the term "Company" as
used in this Agreement shall be deemed to refer to the successor or survivor
company.
8.5 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.6 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Michigan, except to the extent preempted by
the laws of the United States of America.
8.7 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Executive's life is a general
asset of the Company to which the Executive and beneficiary have no preferred or
secured claim.
8.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive as to the subject matter hereof. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
8.9 Administration. The Company shall have powers which are necessary
to administer this Agreement, including but not limited to:
(a) Establishing and revising the method of accounting
for the Agreement;
(b) Maintaining a record of benefit payments;
(c) Establishing rules and prescribing any forms
necessary or desirable to administer
the Agreement; and
(d) Interpreting the provisions of the Agreement.
8.10 Named Fiduciary. The Company shall be the named fiduciary and plan
administrator under this Agreement. It may delegate to others certain aspects of
the management and operational responsibilities including the employment of
advisors and the delegation of ministerial duties to qualified individuals.
IN WITNESS WHEREOF, the Executive and the Company have signed this
Agreement.
EXECUTIVE: COMPANY:
MONROE BANK & TRUST
/s/ H. Xxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
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H. Xxxxxxx Xxxxxxx Title: Senior Vice President & Controller
