Exhibit 10.11
The Middlefield Banking Company
Director Retirement Agreement
This Agreement is made as of December 1, 2001, by and between The
Middlefield Banking Company, an Ohio-chartered bank located in Middlefield, Ohio
("Middlefield Bank") and Xxxxxx Xxxx (the "Director").
To encourage the Director to remain a member of Middlefield Bank's board of
directors, Middlefield Bank is willing to provide retirement benefits to the
Director. Middlefield Bank will pay the benefits from its general assets. None
of the conditions or events included in the definition of the term "golden
parachute payment" that is set forth in section 18(k)(4)(A)(ii) of the Federal
Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit
Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or,
to the best knowledge of Middlefield Bank, is contemplated insofar as
Middlefield Bank is concerned.
Agreement
In consideration of the foregoing premises and other good and valuable
consideration, the receipt and acceptance of which are hereby acknowledged, the
Director and Middlefield Bank hereby agree as follows:
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall have
the meanings specified:
1.1 "Accrual Balance" means the amount reflected in Schedule A of this
Agreement, which is the amount required by generally accepted accounting
principles to be accrued by Middlefield Bank to account for benefits that may
become payable to the Director under this Agreement.
1.2 "Change in Control" means that any of the following events occur:
(a) Middlefield Banc Corp., the parent company of Middlefield Bank,
merges into or consolidates with another corporation, or merges another
corporation into Middlefield Banc Corp., and as a result less than a
majority of the combined voting power of the resulting corporation
immediately after the merger or consolidation is held by persons who were
the holders of Middlefield Banc Corp.'s voting securities immediately
before the merger or consolidation, or
(b) a report on Schedule 13D, Schedule TO, or another form or schedule
(other than Schedule 13G), is filed or is required to be filed under
Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, if the
schedule discloses that the filing person or persons acting in concert has
or have become the beneficial owner of 15% or more of a class of
Middlefield Banc Corp.'s voting securities (but this clause (b) shall not
apply to beneficial ownership of voting shares held by Middlefield Bank or
another subsidiary of Middlefield Banc Corp. in a fiduciary capacity), or
(c) during any period of two consecutive years, individuals who
constitute Middlefield Banc Corp.'s board of directors at the beginning of
the two-year period cease for any reason to constitute at least a majority
thereof; provided, however, that -- for purposes of this clause (c) -- each
director who is first elected by the board (or first nominated by the board
for election by stockholders) by a vote of at least two-thirds ( ) of the
directors who were directors at the beginning of the period shall be deemed
to have been a director at the beginning of the two-year period, or
(d) Middlefield Banc Corp. sells to a third party substantially all of
Middlefield Banc Corp.'s assets. For purposes of this Agreement, sale of
substantially all of Middlefield Banc Corp.'s assets includes sale of
Middlefield Bank.
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Disability" means, if the Director is covered by a Company-sponsored
disability policy, total disability as defined in such policy, without regard to
any waiting period. If the Director is not covered by such a policy, Disability
means the Director suffers a sickness, accident or injury that -- in the
judgment of a physician satisfactory to Middlefield Bank -- prevents the
Director from performing substantially all of the Director's normal duties for
Middlefield Bank. As a condition to receiving any Disability benefits,
Middlefield Bank may require the Director to submit to such physical or mental
evaluations and tests as Middlefield Bank's board of directors deems
appropriate.
1.5 "Early Termination" means Termination of Service on or after reaching
age 55 but before Normal Retirement Age and after having served as a director
for at least five years (including each year of board service before the
Effective Date of this Agreement), but Early Termination does not include
Termination of Service as a result of death, Disability, or Termination for
Cause, or Termination of Service within 12 months after a Change in Control.
1.6 "Early Termination Date" means the month, day and year in which Early
Termination occurs.
1.7 "Effective Date" means December 1, 2001.
1.8 "Normal Retirement Age" means the Director's 71st birthday.
1.9 "Normal Retirement Date" means the later of the Normal Retirement Age
or Termination of Service.
1.10 "Person" means an individual, corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or other entity.
1.11 "Plan Year" means each 12-month period from December 1 through
November 30.
1.12 "Termination for Cause" is defined in Section 3.1 of this Agreement.
1.13 "Termination of Service" means that the Director ceases to be a member
of Middlefield Bank's board of directors for any reason whatsoever. If the
Director ceases to be a member of Middlefield Bank's board of directors but
continues to serve on the board of directors of Middlefield Banc Corp.,
Termination of Service shall be deemed to have occurred instead when the
Director ceases also to be a member of the board of directors of Middlefield
Banc Corp. For purposes of this Agreement, if there is a dispute over the
service status of the Director or the date of the Director's Termination of
Service, Middlefield Bank shall have the sole and absolute right to decide the
dispute, unless a Change in Control shall have occurred.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Upon Termination of Service on or after
Normal Retirement Age, and provided the Director has served as a director of
Middlefield Bank for at least five years (including each year of board service
before the Effective Date of this Agreement), Middlefield Bank shall pay to the
Director the benefit described in this Section 2.1 instead of any other benefit
under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1 is
an amount in cash equal to 25% of the final average annual board fees paid
to the Director by Middlefield Bank in the three years preceding the
director's retirement on the Normal Retirement Date. For this purpose,
board fees include retainers and other regular fees paid or payable in cash
for the Director's service on or attendance at meetings of the board of
directors of Middlefield Bank and committees of the board of directors,
including board fees that may be deferred under any plan for elective
deferrals that may be adopted by Middlefield Bank in the future. If the
Director is serving as Chairman of the Board on the Normal Retirement Date,
board fees shall also include any additional cash compensation paid or
payable for service as Chairman of
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the Board. Board fees shall not include the value of non-cash compensation,
the value of life insurance benefits or other fringe benefits, or expense
reimbursement. In its sole discretion, Middlefield Bank's board of
directors may increase the annual benefit under this Section 2.1.1, but it
shall have no obligation to do so. Any increase shall require recalculation
of Schedule A.
2.1.2 Payment of Benefit. Middlefield Bank shall pay this annual
benefit to the Director in 12 equal monthly installments. Commencing the
month after the Director's Normal Retirement Date, the benefit is payable
on the first day of each month. The benefit shall be paid to the Director
for 120 months.
2.1.3 Section 2.4 Has Priority Over Other Sections. The Director's
entitlement to benefits arising out of Termination of Service within 12
months after a Change in Control shall be governed exclusively by Section
2.4, even if the Director reaches Normal Retirement Age within 12 months
after the Change in Control.
2.2 Early Termination Benefit. Provided the Director has reached age 55 and
has served as a director for at least five years (including each year of board
service before the Effective Date of this Agreement), Middlefield Bank shall pay
to the Director the benefit described in this Section 2.2 for Early Termination
instead of any other benefit under this Agreement, except as provided in Article
3.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
Early Termination Benefit set forth in Schedule A for the Plan Year ending
immediately before the Early Termination Date (except during the first Plan
Year, the benefit is the amount set forth for Plan Year 1). In its sole
discretion, Middlefield Bank's board of directors may increase the benefit
under this Section 2.2.1, but it shall have no obligation to do so. Any
increase shall require recalculation of Schedule A.
2.2.2 Payment of Benefit. Middlefield Bank shall pay this annual
benefit to the Director in 12 equal monthly installments. Commencing the
month after the Director's Normal Retirement Age, the benefit is payable on
the first day of each month. The benefit shall be paid to the Director for
120 months.
2.2.3 Section 2.4 Has Priority Over Other Sections. The Director's
entitlement to benefits arising out of Termination of Service within 12
months after a Change in Control shall be governed exclusively by Section
2.4.
2.3 Disability Benefit. If the Director terminates service because of
Disability before his or her Normal Retirement Age, Middlefield Bank shall pay
to the Director the benefit described in this Section 2.3 instead of any other
benefit under this Agreement, regardless of whether the Director has accrued
five years of service or has reached age 55.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
Accrual Balance for the Plan Year ending immediately before the date on
which Termination of Service because of Disability occurred (except during
the first Plan Year, the benefit is the Accrual Balance at the end of Plan
Year 1). In its sole discretion, Middlefield Bank's board of directors may
increase the benefit under this Section 2.3.1, but it shall have no
obligation to do so. Any increase shall require recalculation of Schedule
A.
2.3.2 Payment of Benefit. Middlefield Bank shall pay the benefit to
the Director in a single lump sum within 3 days after the Director's
Termination of Service.
2.3.3 Section 2.4 Has Priority Over Other Sections. The Director's
entitlement to benefits arising out of Termination of Service within 12
months after a Change in Control shall be governed exclusively by Section
2.4, even if Termination of Service is a result of Disability occurring
within 12 months after the Change in Control.
2.4 Change in Control Benefit. Unless the Director's service terminates
under Article 3 of this Agreement, if the Director's service with Middlefield
Bank terminates within 12 months after a Change in Control,
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Middlefield Bank shall pay to the Director the benefit described in this Section
2.4 instead of any other benefit under this Agreement, regardless of whether the
Director has accrued five years of service or has reached age 55.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is the
Accrual Balance for the Plan Year ending immediately before the date on
which Termination of Service occurs (except during the first Plan Year, the
benefit is the Accrual Balance at the end of Plan Year 1). In its sole
discretion, Middlefield Bank's board of directors may increase the benefit
under this Section 2.4.1, but it shall have no obligation to do so. Any
increase shall require recalculation of Schedule A.
2.4.2 Payment of Benefit. Middlefield Bank shall pay this benefit to
the Director in a single lump sum within 3 days after the Director's
Termination of Service.
2.4.3 Section 2.4 Has Priority Over Other Sections. The Director's
entitlement to benefits arising out of Termination of Service within 12
months after a Change in Control shall be governed exclusively by Section
2.4.
2.5 Petition for Payment of Vested Normal Retirement Benefit, Vested Early
Termination Benefit or Vested Disability Benefit. A Director who is entitled to
the Normal Retirement Benefit provided by Section 2.1 or the Early Termination
Benefit provided by Section 2.2 may petition the board of directors to have the
Accrual Balance amount corresponding to that particular benefit paid in a single
lump sum after (a) deduction of any Normal Retirement Benefits or Early
Termination Benefits already paid and (b) addition of interest at the rate of
7.5% on the Accrual Balance not yet paid for the period from Termination of
Service to payment of the lump sum amount. The board of directors shall have
sole and absolute discretion about whether to pay the remaining Accrual Balance
in a lump sum. If payment of the remaining Accrual Balance is paid in a lump
sum, Middlefield Bank shall have no further obligations under this Agreement.
2.6 Payout of Normal Retirement Benefit or Early Termination Benefit after
a Change in Control. If a Change in Control occurs when the Director is
receiving benefits provided by Sections 2.1 or 2.2 of this Agreement,
Middlefield Bank shall pay the remaining benefits to the Director in a single
lump sum within three days after the Change in Control. The lump-sum payment
shall be an amount equal to the Schedule A Accrual Balance remaining unpaid.
2.7 Contradiction in Terms of Agreement and Schedule A. Schedule A attached
hereto is incorporated by reference in this Agreement and made a part hereof.
But if there is a contradiction between the terms of this Agreement and Schedule
A concerning the amount due the Director under Article 2 hereof, the amount of
the benefit due the Director shall be determined by this Agreement without
regard to Schedule A.
2.8 Medical Benefits. [Intentionally left blank]
2.9 No Death Benefits. No benefits shall be payable under this Agreement
after the Director's death.
Article 3
General Limitations
3.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, Middlefield Bank shall not pay any benefit under this Agreement
if Middlefield Banc Corp.'s board of directors or a duly authorized committee of
the board of directors determines at any time that the Director will not be
nominated by the board or committee for reelection as a Director of Middlefield
Banc Corp. after the expiration of his current term, or if the Director is
removed as a director of Middlefield Bank, in either case because of the
Director's --
(a) gross negligence or gross neglect of duties,
(b) commission of a felony, or commission of a misdemeanor involving
moral turpitude, or
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(c) fraud, disloyalty, dishonesty, or willful violation of any law or
significant policy of Middlefield Bank committed in connection with the
Director's service and resulting in an adverse effect on Middlefield Bank
or Middlefield Banc Corp.
Middlefield Bank's board of directors or the duly authorized committee of
the board of directors shall have the sole and absolute right to determine
whether the bases set forth in this Section 3.1 for denial of benefits under
this Agreement exist. Benefits may be denied under this Section 3.1 regardless
of whether the Director continued to serve as a Director after the board or
committee made its determination not to nominate the Director for reelection,
and regardless of whether stockholders nominated the Director for reelection or
reelected the Director for an additional term.
3.2 Removal. If the Director is removed from service or permanently
prohibited from participating in the conduct of Middlefield Bank's affairs by an
order issued under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act [12 U.S.C. 1818(e)(4) or (g)(1)], all obligations of Middlefield Bank under
this Agreement shall terminate as of the effective date of the order.
3.3 Insolvency. If the Superintendent of the Ohio Division of Financial
Institutions appoints a conservator or receiver for Middlefield Bank under Ohio
Revised Code chapter 1125, all obligations under this Agreement shall terminate
as of the date of such appointment.
Article 4
Claims and Review Procedures
4.1 Claims Procedure. Middlefield Bank shall notify in writing any person
or entity making a claim for benefits under this Agreement (the "Claimant") of
his or her eligibility or noneligibility for benefits under the Agreement.
Middlefield Bank shall send the written notice to the Claimant within 90 days
after Claimant's written application for benefits. If Middlefield Bank
determines that the Claimant is not eligible for benefits or full benefits, the
notice shall state (a) the specific reasons for such denial, (b) a specific
reference to the 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 his or her claim, and a description of why it is needed, and (d) an
explanation of the Agreement's claims review procedure and other appropriate
information concerning the steps to be taken if the Claimant wishes to have the
claim reviewed. If Middlefield Bank determines that there are special
circumstances requiring additional time to make a decision, Middlefield Bank
shall notify the Claimant of the special circumstances and the date by which a
decision is expected to be made, and may extend the time for up to an additional
90 days.
4.2 Review Procedure. If Middlefield Bank determines that the Claimant is
not eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have the claim reviewed by Middlefield Bank by filing a petition
for review with Middlefield Bank within 60 days after receipt of the notice
issued by Middlefield Bank. The petition shall state the specific reasons the
Claimant believes entitle him or her to benefits or to greater or different
benefits. Within 60 days after receipt by Middlefield Bank of the petition,
Middlefield Bank shall give the Claimant (and counsel, if any) an opportunity to
present his or her position to Middlefield Bank verbally or in writing, and the
Claimant (or counsel) shall have the right to review the pertinent documents.
Middlefield Bank shall notify the Claimant of Middlefield Bank's decision in
writing within the 60-day period, stating specifically the basis of its decision
and identifying the specific provision(s) of the Agreement on which the decision
is based. If because of the need for a hearing the 60-day period is not
sufficient, the decision may be deferred for up to another 60 days at the
election of Middlefield Bank, but notice of this deferral shall be given to the
Claimant.
Article 5
Miscellaneous
5.1 Amendment and Termination. This Agreement may be amended or terminated
only by a written agreement signed by Middlefield Bank and the Director.
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5.2 Binding Effect. This Agreement shall bind the Director and Middlefield
Bank, and their beneficiaries, survivors, executors, successors, administrators
and transferees.
5.3 No Guarantee of Service. This Agreement is not a contract for services.
It does not give the Director the right to remain a Director of Middlefield
Bank, nor does the Agreement interfere with the rights of Middlefield Bank's
stockholder(s) not to re-elect the Director or the right of the stockholder(s)
or the board to remove an individual as a director of Middlefield Bank. The
Agreement also does not require the Director to remain a director nor interfere
with the Director's right to terminate service at any time.
5.4 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached, or encumbered in any manner.
5.5 Successors; Binding Agreement. By an assumption agreement in form and
substance satisfactory to the Director, Middlefield Bank will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of Middlefield
Bank or Middlefield Banc Corp. to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Middlefield Bank would
be required to perform this Agreement if no such succession had occurred.
Failure of Middlefield Bank to obtain such assumption agreement before
effectiveness of such succession shall be a breach of this Agreement and shall
entitle the Director to the Change in Control Benefit provided in Section 2.4.
5.6 Tax Withholding. Middlefield Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
5.7 Applicable Law. The Agreement and all rights hereunder shall be
governed by the internal substantive laws of the State of Ohio, without regard
to principles of conflict of laws.
5.8 Unfunded Arrangement. The Director is a general unsecured creditor of
Middlefield Bank for the payment of benefits under this Agreement. The benefits
represent the mere promise by Middlefield Bank 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 Director's life is a general asset of
Middlefield Bank to which the Director has no preferred or secured claim.
5.9 Entire Agreement. This Agreement constitutes the entire agreement
between Middlefield Bank and the Director as to the subject matter hereof. No
rights are granted to the Director by virtue of this Agreement other than those
specifically set forth herein.
5.10 Administration. Middlefield Bank shall have powers which are necessary
to administer this Agreement, including but not limited to--
(a) Interpreting the provisions of the Agreement,
(b) Establishing and revising the method of accounting for the
Agreement,
(c) Maintaining a record of benefit payments, and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
5.11 Named Fiduciary. Middlefield Bank shall be the named fiduciary and
plan administrator under this Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
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5.12 Severability. If for any reason any provision of this Agreement is
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall continue in full
force and effect to the full extent consistent with the law. If any provision of
this Agreement is held invalid in part, such invalidity shall in no way affect
the rest of such provision not held invalid, and the rest of such provision
together with all other provisions of this Agreement shall continue in full
force and effect to the full extent consistent with the law.
5.13 Headings. The headings of Sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Agreement.
5.14 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
(a) If to Middlefield Bank, to: Board of Directors
The Middlefield Banking Company
00000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx Xxxx, Xxxx 00000-0000
(b) If to the Director, to:
-----------------------------------------
-----------------------------------------
-----------------------------------------
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
In Witness Whereof, the Director and a duly authorized officer of
Middlefield Bank have signed this Agreement as of the day and year first written
above.
Director The Middlefield Banking Company
By:
------------------------ ------------------------
Its:
------------------------
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Schedule A dated as of January 8, 2002
The Middlefield Banking Company Director Retirement Agreement
Xxxxxx Xxxx
Benefit for Termination
Director's Accrual Balance at Disability Early Termination of Service within 12
Plan year Age at the end 7.5% Discount Rate at Benefit, payable Benefit, payable at months after a Change in
Plan ending of the Plan the end of the Plan in a single lump Normal Retirement Control, payable in a
year November 30, Year Year /(1)/ sum Age for 10 Years /(2)/ single lump sum
---- ------------ -------------- --------------------- ---------------- ---------------------- ------------------------
1 2002 59 $ 1,921 $ 1,921 $ 692 $ 1,921
2 2003 60 $ 3,991 $ 3,991 $1,335 $ 3,991
3 2004 61 $ 6,222 $ 6,222 $1,931 $ 6,222
4 2005 62 $ 8,626 $ 8,626 $2,484 $ 8,626
5 2006 63 $11,216 $11,216 $2,998 $11,216
6 2007 64 $14,008 $14,008 $3,474 $14,008
7 2008 65 $17,016 $17,016 $3,916 $17,016
8 2009 66 $20,258 $20,258 $4,326 $20,258
9 2010 67 $23,751 $23,751 $4,707 $23,751
10 2011 68 $27,516 $27,516 $5,060 $27,516
11 2012 69 $31,573 $31,573 $5,388 $31,573
12 2013 70 $35,945 $35,945 $5,692 $35,945
13 2014 71 $40,657 $40,657 $5,975 $40,657
May 2015 71/(3)/ $42,993 $42,993 $6,086 $42,993
(1) The Accrual Balance assumes payment at the beginning of each month during
retirement. Assumes retirement in May, 2015 after attaining the Normal
Retirement Age of 71 and at least five years of service. The Accrual
Balance assumes that the Director retires from director service in May,
2015 when his term as a director of Middlefield Banc Corp. expires at the
2015 Annual Meeting of Shareholders of Middlefield Banc Corp. The Normal
Retirement Benefit is an amount in cash equal to 25% of the final average
annual board fees in the three years preceding the director's retirement on
the Normal Retirement Date. For purposes of illustration, the Normal
Retirement Annual Benefit required by Agreement Section 2.1 is assumed to
be $6,086, calculated as shown by the attached Director Fee Analysis. The
Normal Retirement Benefit required by Agreement Section 2.1 is shown in
this Schedule A solely for illustrative purposes. The actual Normal
Retirement Benefit required by Agreement Section 2.1 will be determined
pursuant to Agreement Section 2.1. Board fees include retainers and other
regular fees paid or payable in cash for the Director's service on or
attendance at meetings of the board of directors and committees of the
board of directors, including elective deferrals. If the Director is
serving as Chairman of the Board on the Normal Retirement Date, board fees
also include any additional cash compensation paid or payable for service
as Chairman of the Board. Estimated assuming annual board fee increases of
5.00% commencing in 2002.
(2) Early Retirement Benefits are payable if the Director has five years of
service and has reached age 55.
(3) The age shown is not the age at the end of the Plan Year, but instead is
the Director's age at assumed retirement in May, 2015.
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