RETIREMENT AGREEMENT
EXHIBIT 10.1
This Retirement Agreement ("Agreement") is made by and between Xxxxxx Xxxxxxxxxxxx ("Xx. Xxxxxxxxxxxx"), First National Bank in Xxxxxx and FNBH Bancorp ("the Bank").
WHEREAS, Xx. Xxxxxxxxxxxx will be retiring from employment with the Bank.
WHEREAS, the Bank and Xx. Xxxxxxxxxxxx desire that Xx. Xxxxxxxxxxxx'x services continue for a period of time prior to the end of the employment relationship in order to promote a smooth transition;
WHEREAS, the parties desire to end their relationship in an amicable manner;
NOW, THEREFORE, the parties agree as follows:
l. Retention Period. Xx. Xxxxxxxxxxxx will remain employed with the Bank until May 4, 2015 ("Retention Period"). Xx. Xxxxxxxxxxxx'x duties during the Retention Period will be as follows. Until March 31, 2015, Xx. Xxxxxxxxxxxx will continue to report to the Bank and will perform all of the usual duties of his role of Senior Vice President, Chief Credit Officer, and will not utilize any vacation time. Beginning April 1, 2015 and for the remainder of the Retention Period, Xx. Xxxxxxxxxxxx will utilize his accrued eight (8) days of available vacation time under the Bank's policies, will take such additional personal days (13 hours accrued during 2015 and 48 hours carried over from 2014 yearend) and paid vacation time as may be approved by Xxx Xxxx, and will perform duties as requested by the Bank. Xx. Xxxxxxxxxxxx will perform such duties remotely except as specifically requested by the Bank and agreed by Xx. Xxxxxxxxxxxx.
2. Retirement from Employment. Effective at the close of business on May 4, 2015 (the "Separation Date"), Xx. Xxxxxxxxxxxx shall retire and his employment relationship with the Bank shall be terminated. Following the Separation Date, Xx. Xxxxxxxxxxxx will not accrue any benefits or vest in any benefits under any Company policy, plan, or procedure for any purpose except as specifically provided in this Agreement. Xx. Xxxxxxxxxxxx shall be entitled to elect continued health coverage, if applicable, pursuant to COBRA, and shall be entitled to any vested benefits and rights Xx. Xxxxxxxxxxxx has under the Bank's qualified retirement, savings, or stock option plans. Under terms of the existing 401k plan, Xx. Xxxxxxxxxxxx will be eligible for an employer match for his 401k contributions made during the 2015 plan year provided that the Board elects to approve match of 2015 employee 401k contributions.
3. Separation Benefits. The Bank will pay Xx. Xxxxxxxxxxxx the following separation benefits, provided Xx. Xxxxxxxxxxxx remains employed through the Separation Date, enters into and complies with this Agreement, and enters into a subsequent complete release of claims in a form substantially similar to that set forth at Exhibit A:
a. Salary Continuation. The Bank will continue Xx. Xxxxxxxxxxxx'x regular salary through the Retention Period as outlined in Section 1 above.
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b. Executive Management Success Reward. The Bank will pay Xx. Xxxxxxxxxxxx the $24,555 Executive Management Success Reward as identified in the 2014 Employee Compensation Program on the same basis as if he were actively employed. The Executive Management Success Reward will be paid on the earliest date permitted by the Department of Treasury, Office of the Comptroller of the Currency, concurrent with payment of the Executive Management Success Reward to other executive management personnel.
Xx. Xxxxxxxxxxxx acknowledges that the Separation Benefits constitute good and valuable consideration, and that they satisfy and exceed any compensation or benefits to which Xx. Xxxxxxxxxxxx is entitled by law.
4. Release. Xx. Xxxxxxxxxxxx forever releases the Bank and its parents, affiliates, subsidiaries, officers and directors, employees, agents, and consultants from any and all complaints, charges or causes of actions, obligations, demands, liabilities, and/or claims whatsoever that Xx. Xxxxxxxxxxxx ever had, now has, or might have, known or unknown, as of the date Xx. Xxxxxxxxxxxx signs this Agreement. Except as prohibited by law, this release includes, but is not limited to, any claims for compensation and/or fringe benefits, claims relating to or arising from wrongful termination, employment discrimination or retaliation under state or federal law including, without limitation, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Xxxxxxx-Xxxxxx Civil Rights Act, the Michigan Persons with Disabilities Act, or any other federal, state, or local law, regulation or ordinance, or public policy, contract, or tort law having any bearing whatsoever on the terms and conditions of Xx. Xxxxxxxxxxxx'x employment with the Bank or Xx. Xxxxxxxxxxxx'x separation from employment, and to any complaints or charges brought with state or federal agencies under any state, federal, or local law regulating wages, hours, notice, or any other term or condition of employment.
Xx. Xxxxxxxxxxxx specifically understands, acknowledges, and agrees that through this Agreement Xx. Xxxxxxxxxxxx is waiving any and all claims Xx. Xxxxxxxxxxxx may have under the Age Discrimination in Employment Act ("ADEA") and the Older Workers' Benefit Protection Act ("OWBPA").
5. Covenant Not to Xxx or Institute Charges. To the fullest extent permitted by law, Xx. Xxxxxxxxxxxx will not institute or initiate any action, administrative action, grievance, or other suit against the Bank or any other person or entity released in Paragraph 4, with any state, federal, or local court or agency or other tribunal related to claims released through this Agreement. Nothing in this provision or Agreement shall preclude Xx. Xxxxxxxxxxxx from seeking a judicial determination regarding the validity of this waiver with respect to any claim under the ADEA. Further, this provision shall not affect or interfere with Xx. Xxxxxxxxxxxx'x right to file a charge with the Equal Employment Opportunity Commission or participate, cooperate, or assist in an investigation or proceeding conducted by any federal or state enforcement agency; but Xx. Xxxxxxxxxxxx knowingly and voluntarily waives the right to any form of recovery or compensation in any such action arising from or related to Xx. Xxxxxxxxxxxx’x employment with the Bank.
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6. Reasonable Cooperation. Xx. Xxxxxxxxxxxx will provide reasonable cooperation to the Bank related to any business or other issues that arose during Xx. Xxxxxxxxxxxx'x employment at the Bank for which Xx. Xxxxxxxxxxxx had responsibility or involvement.
7. Property Return. Xx. Xxxxxxxxxxxx will return, on or before the Separation Date, all Bank property, including, but not limited to: keys/access cards, charge card(s), documents, files, records, and/or any other non-public or confidential Company property under Xx. Xxxxxxxxxxxx'x control or in Xx. Xxxxxxxxxxxx'x possession that is nonpublic or confidential.
8. Non-Disparagement. Xx. Xxxxxxxxxxxx will not in any way disparage, criticize, condemn, or impugn the reputation or character of the Bank or any other entity/individual released in Paragraph 4.
9. Nondisclosure of Confidential Information, Restrictive Covenants.
a. Non-Disclosure. Xx. Xxxxxxxxxxxx acknowledges that, through employment with the Bank, Xx. Xxxxxxxxxxxx obtained confidential and proprietary information concerning the Bank's (including its subsidiaries and affiliates) products, its research and development information, plans and activities, its methods, means, practices, procedures, processes, its formulas and know-how relating to design or production, its intellectual property and related legal affairs, and other business or affairs ("Confidential Information"). Xx. Xxxxxxxxxxxx acknowledges that all such Confidential Information is the property of the Bank. Therefore, Xx. Xxxxxxxxxxxx will not at any time disclose to any third party or use for Xx. Xxxxxxxxxxxx'x own purposes any Confidential Information without the prior written consent of the Bank, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of Xx. Xxxxxxxxxxxx'x acts or omissions to act.
b. Non-Solicitation. For the duration of Xx. Xxxxxxxxxxxx'x employment and for a 12 month period following the Separation Date, Xx. Xxxxxxxxxxxx will not, directly or indirectly, on behalf of himself or any third party:
i. Employ or solicit for employment, or engage or hire any Employee (defined as any individual who is at the time of the prohibited contact, or was at any time during the twelve (12) month period prior to the Separation Date, an employee of the Bank or any of its affiliates);
ii. Solicit any Clients (defined as any person who is at the time of the prohibited contact or was at any time within the twelve (12) months preceding the Separation Date, a customer of the Bank or any affiliate of the Bank) for the provision of services similar to those offered by the Bank; or
iii. Request or encourage any Employee or Client of the Bank to discontinue, reduce, or modify his/her relationship with the Bank.
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10. Agreement as Defense. This Agreement may be pled as a complete defense to any claim or entitlement arising out of the matters released in Paragraph 4 above, which Xx. Xxxxxxxxxxxx may subsequently assert in any suit or claim against the Bank or any other person or entity released pursuant to Paragraph 4.
11. Entire Agreement. This Agreement, including any prior agreement provisions incorporated by reference in Paragraph 10, contains the entire agreement and understanding of the parties and supersedes all prior discussions, agreements, understandings, and practices of every nature between them related to the topics addressed herein, including the claims released in Paragraph 4. This Agreement may not be changed or modified, except through an agreement in writing signed by the Bank and Xx. Xxxxxxxxxxxx.
12. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the Bank and its affiliates, successors, and assigns. This Agreement shall be binding on and inure to the benefit of Xx. Xxxxxxxxxxxx and Xx. Xxxxxxxxxxxx'x personal representatives and heirs. Xx. Xxxxxxxxxxxx may not assign this Agreement without the prior written consent of the Bank, provided, however, the Bank may assign this Agreement to any person or entity acquiring all or substantially all of its business (whether by sale of stock, sale of assets, merger, consolidation, or otherwise) but such assignments shall not relieve the Bank of its liabilities hereunder.
13. Waiver. The waiver of a breach of any term or provision of this Agreement shall not operate as or be construed to be a waiver of any other or subsequent breach of this Agreement.
14. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Michigan.
15. Invalidity. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the validity of any other provision of this
Agreement and such provision shall be deemed modified to the extent necessary to be made enforceable.
16. Voluntary Execution. Xx. Xxxxxxxxxxxx acknowledges and warrants that no promise or inducement has been offered for this Agreement other than as set forth above, and that this Agreement is executed without reliance upon any other Bank statement or representation.
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17. Consideration Period, ADEA Revocation. Xx. Xxxxxxxxxxxx warrants that he is legally competent to execute this Agreement, and that he has had adequate time and opportunity to deliberate over the Agreement's terms. Xx. Xxxxxxxxxxxx is advised by the Bank to consult with an attorney prior to signing this Agreement and prior to executing the subsequent release referenced in Paragraph 2. Xx. Xxxxxxxxxxxx has been provided at least twenty-one (21) days to consider the Agreement prior to signing. Xx. Xxxxxxxxxxxx has seven (7) days to revoke this Agreement once it is signed. To revoke this Agreement, Xx. Xxxxxxxxxxxx must send a written letter revoking the Agreement within the seven (7) days provided to:
First National Bank in Howell
Attn: Xxxxxx Xxxx
000 X. Xxxxx Xxxxx
XX Xxx 000
Xxxxxx, XX 00000-0000
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date and year below.
FNBH BANCORP (and the First National Bank in Xxxxxx) | |||||
| Date: | March 17, 2015 | By: | /s/Xxxxxx X. Xxxx | ||
| Its: | CEO | ||||
| Date: | March 17, 2015 | /s/Xxxxxx Xxxxxxxxxxxx | |||
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EXHIBIT A
In further consideration of FNBH Bancorp's (the "Bank") agreement to provide me separation benefits as set forth in my March 17, 2015 Confidential Separation Agreement and Release, I forever release the Bank and its affiliates, subsidiaries, officers and directors, employees, agents, and consultants from any and all complaints, charges or causes of actions, obligations, demands, liabilities, and/or claims whatsoever that I ever had, now have, or might have, known or unknown, arising out of my employment with the Bank, or the decision to separate that employment. Except as prohibited by law, this release includes, but is not limited to, any claims for compensation and/or fringe benefits, claims relating to or arising from wrongful termination, employment discrimination or retaliation under state or federal law including, without limitation, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Xxxxxxx-Xxxxxx Civil Rights Act, the Michigan Persons with Disabilities Act, or any other federal, state, or local law, regulation or ordinance, or public policy, contract, or tort law having any bearing whatsoever on the terms and conditions of my employment with the Bank, and to any complaints or charges brought with state or federal agencies under any state, federal, or local law regulating wages, hours, notice, or any other term or condition of employment.
I specifically understand, acknowledge, and agree that through this release I am waiving any and all claims I may have under the Age Discrimination in Employment Act ("ADEA") and the Older Workers' Benefit Protection Act ("OWBPA").
I am legally competent to execute this release, and have had adequate time and opportunity to deliberate over its terms. I have been advised in writing to consult with an attorney prior to signing this release. I have been provided twenty-one (21) days to consider the release prior to signing and seven (7) days to revoke this release once it is signed. To revoke this release, I understand I must send a written letter of revocation within the seven (7) days provided to:
First National Bank in Howell
Xxxxxx Xxxx
000 X. Xxxxx Xxxxx
XX Xxx 000
Xxxxxx, XX 00000-0000
| Date: | March 17, 2015 | /s/Xxxxxx Xxxxxxxxxxxx |
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