The Middlefield Banking Company Amended Executive Deferred Compensation Agreement
Exhibit 10.24
The Middlefield Banking Company
Amended Executive Deferred Compensation Agreement
This Amended Executive Deferred Compensation Agreement (this “Agreement”) is entered
into as of this 8th day of May, 2008, by and between The Middlefield Banking Company, an
Ohio-chartered bank (the “Bank”), and Xxxxx X. Xxxxxx XX, Executive Vice President and Chief
Operating Officer of the Bank (the “Executive”).
Whereas, to encourage the Executive to remain an employee of the Bank, the Bank and
the Executive entered into an Executive Deferred Compensation Agreement dated as of December 28,
2006, with contributions made solely by the Bank and benefits payable out of the Bank’s general
assets,
Whereas, the Bank and the Executive desire to amend the December 28, 2006 Executive
Deferred Compensation Agreement to ensure that the agreement complies in form and in operation with
Internal Revenue Code section 409A,
Whereas, the Bank and the Executive intend that this Agreement shall amend and
restate in its entirety the December 28, 2006 Executive Deferred Compensation Agreement,
Whereas, 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 the Bank, is
contemplated insofar as the Bank is concerned, and
Whereas, the parties hereto intend that this Agreement shall be considered an
unfunded and noncontributory arrangement maintained primarily to provide supplemental retirement
benefits for the Executive, and to be considered a non-qualified benefit plan for purposes of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Executive is fully
advised of the Bank’s financial status.
Now Therefore, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the
Bank hereby agree as follows.
Article 1
Definitions
Definitions
1.1 “Account Balance” means the Bank’s accounting of Annual Contributions made by the Bank,
plus accrued interest.
1.2 “Annual Contribution” means the amount credited to the Account Balance after the end of
each Plan Year for which the Performance Goals are achieved. For the first Plan Year, the
Executive shall receive an Annual Contribution amount equal to 5% of the Executive’s Base Annual
Salary. For every Plan Year after the first Plan Year, the Annual Contribution will
be conditional
on achievement of the Performance Goals. The Annual Contribution amount in any Plan Year shall not
be less than 5% or more than 15% of the Executive’s Base Annual Salary. In its discretion, the
Bank’s board of directors may increase or decrease the amount of the Annual Contribution, but the
Annual Contribution amount shall be changed no more frequently than annually.
1.3 “Base Annual Salary” means compensation of the type required to be reported as salary
according to Securities and Exchange Commission Rule 229.402(c) (17 CFR 229.402(c)), specifically
column (c) of that rule’s Summary Compensation Table (or any successor provision).
1.4 “Beneficiary” means each designated person, or the estate of the deceased Executive,
entitled to benefits, if any, upon the death of the Executive, determined according to Article 5.
1.5 “Beneficiary Designation Form” means the form established from time to time by the Plan
Administrator that the Executive completes, signs, and returns to the Plan Administrator to
designate one or more Beneficiaries.
1.6 “Change in Control” shall mean a change in control as defined in Internal Revenue Code
section 409A and rules, regulations, and guidance of general application thereunder issued by the
Department of the Treasury, including -
(a) Change in ownership: a change in ownership of Middlefield Banc Corp., an Ohio corporation
of which the Bank is a wholly owned subsidiary, occurs on the date any one person or group
accumulates ownership of Middlefield Banc Corp. stock constituting more than 50% of the total fair
market value or total voting power of Middlefield Banc Corp. stock,
(b) Change in effective control: (x) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield Banc Corp. stock possessing 30% or more
of the total voting power of Middlefield Banc Corp., or (y) a majority of Middlefield Banc Corp.’s
board of directors is replaced during any 12-month period by directors whose appointment or
election is not endorsed in advance by a majority of Middlefield Banc Corp.’s board of directors,
or
(c) Change in ownership of a substantial portion of assets: a change in ownership of a
substantial portion of Middlefield Banc Corp.’s assets occurs if in a 12-month period any one
person or more than one person acting as a group acquires from Middlefield Banc Corp. assets having
a total gross fair market value equal to or exceeding 40% of the total gross fair market value of
all of Middlefield Banc Corp.’s assets immediately before the acquisition or acquisitions. For
this purpose, gross fair market value means the value of Middlefield Banc
Corp.’s assets, or the value of the assets being disposed of, determined without regard to any
liabilities associated with the assets.
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1.7 “Code” means the Internal Revenue Code of 1986, as amended, and rules, regulations, and
guidance of general application issued thereunder by the Department of the Treasury.
1.8 “Effective Date” means January 1, 2006.
1.9 “Normal Retirement Age” means the Executive’s 65th birthday.
1.10 “Performance Goals” means the performance criteria set forth in Schedule A attached to
this Agreement and incorporated herein by this reference, which criteria have been established by
the Bank’s board of directors. The Performance Goals may be changed by the board of directors no
more frequently than annually. If the performance criteria are changed, a new Schedule A shall be
substituted for and shall supersede the old Schedule A, and the new Schedule A shall be deemed to
be incorporated by reference herein and to be a part of this Agreement. A change in Performance
Goals shall not become effective for the Plan Year in which the change is made unless the change is
made on or before March 31 of the Plan Year. The Plan Administrator shall have sole authority to
determine whether the Performance Goals have been achieved for any Plan Year. The Plan
Administrator’s determination that the Performance Goals for a Plan Year have or have not been
achieved shall be conclusive and binding.
1.11 “Plan Administrator” or “Administrator” means the plan administrator described in Article
8.
1.12 “Plan Year” means the calendar year. The first Plan Year shall begin on the Effective
Date and end on December 31, 2006.
1.13 “Separation from Service” means the Executive’s service as an executive or independent
contractor to the Bank and any member of a controlled group, as defined in Code section 414,
terminates for any reason, other than because of a leave of absence approved by the Bank or the
Executive’s death. If there is a dispute about the Executive’s status or the date of the
Executive’s Separation from Service, the Bank shall have the sole and absolute right to decide the
dispute unless a Change in Control shall have occurred.
1.14 “Termination with Cause” and “Cause” shall have the same definition specified in any
effective severance or employment agreement existing on the date hereof or hereafter entered into
between the Executive and the Bank or between the Executive and Middlefield Banc Corp. If the
Executive is not a party to a severance or employment agreement containing a definition,
Termination with Cause means the Bank terminates the Executive’s employment because of —
(a) the Executive’s gross negligence or gross neglect of duties or intentional and material
failure to perform stated duties after written notice thereof, or
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(b) disloyalty or dishonesty by the Executive in the performance of duties or breach of the
Executive’s fiduciary duties for personal profit, in any case whether in the Executive’s capacity
as a director or officer, or
(c) intentional wrongful damage by the Executive to the business or property of the Bank or
its affiliates, including without limitation the reputation of the Bank, which in the judgement of
the Bank causes material harm to the Bank or affiliates, or
(d) a willful violation by the Executive of any applicable law or significant policy of the
Bank or an affiliate that, in the Bank’s judgement, results in an adverse effect on the Bank or the
affiliate, regardless of whether the violation leads to criminal prosecution or conviction. For
purposes of this Agreement applicable laws include any statute, rule, regulatory order, statement
of policy, or final cease-and-desist order of any governmental agency or body having regulatory
authority over the Bank, or
(e) the occurrence of any event that results in the Executive being excluded from coverage, or
having coverage limited for the Executive as compared to other executives of the Bank, under the
Bank’s blanket bond or other fidelity or insurance policy covering its directors, officers, or
employees, or
(f) the Executive is removed from office or permanently prohibited from participating in the
Bank’s affairs by an order issued under section 8(e)(4) or section 8(g)(1) of the Federal Deposit
Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
(g) conviction of the Executive for or plea of no contest to a felony or conviction of or plea
of no contest to a misdemeanor involving moral turpitude, or the actual incarceration of the
Executive for 45 consecutive days or more.
Article 2
Deferral Account
Deferral Account
2.1 Annual Contribution. The Bank shall establish an Account Balance on its books. Within
three months after the end of each Plan Year the Bank shall credit the Annual Contribution to the
Account Balance provided the Performance Goals were achieved for the Plan Year. Contributions to
the Account Balance by the Executive are prohibited. Discretionary contributions by the Bank are
likewise prohibited. The Annual Contribution shall not be made by the Bank for the Plan Year in
which the Executive attains Normal Retirement Age or for any year thereafter. However, if the
Performance Goals are achieved for the Plan Year in which the Executive attains Normal Retirement
Age (and if Separation from Service does not occur before Normal Retirement Age), the Bank shall
make a final contribution in an amount equal to the Annual Contribution multiplied by a percentage.
The percentage shall equal the number of days in the Plan Year before the Executive attained
Normal Retirement Age divided by 365. No Annual Contributions shall be made by the Bank for the
Plan Year in which the Executive’s death or Separation from Service occurs or for any year
thereafter (except for a final contribution for the year in which the Executive attains Normal
Retirement Age, unless Separation from Service occurs before Normal Retirement Age).
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2.2 Interest. At the end of each Plan Year and until the first to occur of (x) Normal
Retirement Age, (y) the Executive’s death, or (z) the Executive’s Separation from Service, interest
is to be credited on the Account Balance at an annual rate of interest for that Plan Year,
compounded monthly on the first day of the month, equal to the prime interest rate as published in
The Wall Street Journal (the “Index”). After the first to occur of (x) Normal Retirement Age, (y)
the Executive’s death, or (z) the Executive’s Separation from Service, interest shall be credited
on the Account Balance at an annual rate equal to the yield on a 20-year corporate bond rated Aa by
Moody’s, rounded to the nearest 1/4%.
2.3 Statement of Account. Within 120 days after the end of each Plan Year, the Bank shall
provide to the Executive a statement of the Account Balance at the end of the Plan Year. Each
annual statement of the Account Balance shall supersede the previous year’s statement of the
Account Balance.
2.4 Accounting Device Only. The Account Balance is solely a device for measuring amounts to
be paid under this Agreement. The Account Balance is not a trust fund of any kind. The Executive
is a general unsecured creditor of the Bank for the payment of benefits. The benefits represent
the mere promise by the Bank to pay benefits. The Executive’s rights are not subject in any manner
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by the Executive’s creditors.
Article 3
Benefits During Lifetime
Benefits During Lifetime
3.1 Normal Retirement Age. Unless Separation from Service or a Change in Control occurs
before Normal Retirement Age, when the Executive attains Normal Retirement Age the Bank shall pay
to the Executive the Account Balance as of the end of the month in which the Executive attains
Normal Retirement Age, instead of any other benefit under this Agreement. Beginning on the first
day of the month after the month in which the Executive attains Normal Retirement Age, the Account
Balance shall be paid to the Executive in 180
substantially equal monthly installments. The Bank shall credit interest according to the
formula of section 2.2, compounded monthly, until the Account Balance is paid in full. If the
Executive’s Separation from Service is a Termination with Cause, no further benefits shall be paid
under this Agreement and this Agreement shall terminate.
3.2 Separation from Service. If Separation from Service occurs before Normal Retirement Age
for reasons other than death, instead of any other benefit under this Agreement the Bank shall pay
to the Executive the Account Balance as of the end of the month immediately before the month in
which payments commence, unless the Change-in-Control benefit shall have been paid under section
3.3. Beginning on the first day of the later of (x) the seventh month after the month in which
Separation from Service occurs or (y) the month after the month in which the Executive attains
Normal Retirement Age, the Bank shall pay the Account Balance in 180 substantially equal monthly
installments. The Bank shall credit interest according to the formula of section 2.2, compounded
monthly, until the Account Balance is paid in full.
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3.3 Change in Control. If a Change in Control occurs both before the Executive attains Normal
Retirement Age and before the Executive’s Separation from Service, instead of any other benefit
payable under this Agreement the Bank shall pay to the Executive the entire Account Balance in a
single lump sum within three days after the Change in Control. Payment of the Change-in-Control
benefit shall fully discharge the Bank from all obligations under this Agreement, except the legal
fee reimbursement obligation under section 9.11.
3.4 Payout of Normal Retirement Benefit or Separation from Service Benefit after a Change in
Control. If when a Change in Control occurs the Executive is receiving the benefit under section
3.1, the Bank shall pay the remaining benefits to the Executive in a single lump sum within three
business days after the Change in Control. If when a Change in Control occurs the Executive is
receiving or is entitled at Normal Retirement Age to receive the benefit under section 3.2, the
Bank shall pay the remaining benefits to the Executive in a single lump sum within three business
days after the later of (x) the date of the Change in Control or (y) the first day of the seventh
month after the month in which the Executive’s Separation from Service occurs. The lump-sum
payment due to the Executive as a result of a Change in Control shall be an amount equal to the
Account Balance remaining unpaid.
3.5 One Benefit Only. Despite anything to the contrary in this Agreement, the Executive and
Beneficiary are entitled to one benefit only under this Agreement, which shall be determined by the
first event to occur that is dealt with by this Agreement. Except as provided in section 3.4,
later occurrence of events dealt with by this Agreement shall not entitle the Executive or
Beneficiary to other or additional benefits under this Agreement.
3.6 Savings Clause Relating to Compliance with Code Section 409A. Despite any contrary
provision of this Agreement, if when the Executive’s employment terminates the Executive is a
specified employee, as defined in Code section 409A, and if any payments under Article 3 of this
Agreement will result in additional tax or interest to the Executive because of section 409A, the
Executive shall not be entitled to the payments under Article 3 until the earliest of (x) the date
that is at least six months after termination of the Executive’s employment for reasons other than
the Executive’s death, (y) the date of the Executive’s death, or (z) any earlier
date that does not result in additional tax or interest to the Executive under section 409A.
If any provision of this Agreement would subject the Executive to additional tax or interest under
section 409A, the Bank shall reform the provision. However, the Bank shall maintain to the maximum
extent practicable the original intent of the applicable provision without subjecting the Executive
to additional tax or interest, and the Bank shall not be required to incur any additional
compensation expense as a result of the reformed provision.
Article 4
Death Benefits
Death Benefits
After the Executive’s death, the Bank shall pay to the Executive’s Beneficiary the Account
Balance as of the date of the Executive’s death. The Account Balance shall be paid to the
Executive’s Beneficiary in a single lump sum 90 days after the date of the Executive’s death.
However, if the Executive dies after termination of this Agreement under Article 6, the Executive’s
Beneficiary shall be entitled to no benefits under this Agreement.
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Article 5
Beneficiaries
Beneficiaries
5.1 Beneficiary Designations. The Executive shall have the right to designate at any time a
Beneficiary to receive any benefits payable under this Agreement after the Executive’s death. The
Beneficiary designated under this Agreement may be the same as or different from the beneficiary
designation under any other benefit plan of the Bank in which the Executive participates.
5.2 Beneficiary Designation Change. The Executive shall designate a Beneficiary by completing
and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its
designated agent. 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. The Executive shall have the right to change a Beneficiary by
completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and
the Plan Administrator’s rules and procedures, as in effect from time to time. Upon the acceptance
by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations
previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last
Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before
the Executive’s death.
5.3 Acknowledgment. No designation or change in designation of a Beneficiary shall be
effective until received, accepted, and acknowledged in writing by the Plan Administrator or its
designated agent.
5.4 No Beneficiary Designation. If the Executive dies without a valid beneficiary designation
or if all designated Beneficiaries predecease the Executive, the Executive’s spouse shall be the
designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be paid to
the Executive’s estate.
5.5 Facility of Payment. If a benefit is payable to a minor, to a person declared
incapacitated, or to a person incapable of handling the disposition of his or her property, the
Bank may pay the benefit to the guardian, legal representative, or person having the care or
custody of the minor, incapacitated person, or incapable person. The Bank may require proof of
incapacity, minority, or guardianship as it may deem appropriate before distribution of the
benefit. Distribution shall completely discharge the Bank from all liability for the benefit.
Article 6
General Limitations
General Limitations
6.1 Termination with Cause. Despite any contrary provision of this Agreement, the Bank shall
not pay any benefit under this Agreement and this Agreement shall terminate if Separation from
Service is a Termination with Cause.
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6.2 Misstatement. No benefits shall be paid under this Agreement if the Executive makes any
material misstatement of fact on any application or resume provided to the Bank, on any application
for life insurance purchased by the Bank, or on any application for benefits provided by the Bank.
6.3 Removal. Despite any contrary provision of this Agreement, if the Executive is removed
from office or permanently prohibited from participating in the 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 the Bank under this Agreement shall terminate as of the effective date
of the order.
6.4 Default. Despite any contrary provision of this Agreement, if the Bank is in “default” or
“in danger of default”, as those terms are defined in of section 3(x) of the Federal Deposit
Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
Article 7
Claims and Review Procedures
Claims and Review Procedures
7.1 Claims Procedure. Any person who has not received benefits under this Agreement that he
or she believes should be paid (the “claimant”) shall make a claim for benefits as follows.
7.1.1
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Initiation — written claim. The claimant initiates a claim by submitting to the Administrator a written claim for the benefits. If the claim relates to the contents of a notice received by the claimant, the claim must be made within 60 days after the notice was received by the claimant. All other claims must be made within 180 days after the date of the event that caused the claim to arise. The claim must state with particularity the determination desired by the claimant. | |
7.1.2
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Timing of Administrator response. The Administrator shall respond to the claimant within 90 days after receiving the claim. If the Administrator determines that special circumstances require additional time for processing the claim, the | |
Administrator can extend the response period by an additional 90 days by notifying the claimant in writing, before 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 Administrator expects to render its decision. | ||
7.1.3
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Notice of decision. If the Administrator denies part or all of the claim, the Administrator shall notify the claimant in writing of the denial. The Administrator 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, |
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(b) A reference to the specific provisions of this Agreement on
which the denial is based, |
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(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, |
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(d) An explanation of the Agreement’s review procedures and the
time limits applicable to such procedures, and |
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(e) A statement of the claimant’s right to bring a civil action
under ERISA section 502(a) after an adverse benefit determination on review. |
7.2 Review Procedure. If the Administrator denies part or all of the claim, the claimant
shall have the opportunity for a full and fair review by the Administrator of the denial, as
follows.
7.2.1
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Initiation — written request. To initiate the review, the claimant must file with the Administrator a written request for review within 60 days after receiving the Administrator’s notice of denial. | |
7.2.2
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Additional submissions — information access. The claimant shall then have the opportunity to submit written comments, documents, records, and other information relating to the claim. Upon request and free of charge, the Administrator shall also provide the claimant 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. | |
7.2.3
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Considerations on review. In considering the review, the Administrator shall take into account all materials and information the claimant submits relating to the claim, without regard to whether the information was submitted or considered in the initial benefit determination. | |
7.2.4
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Timing of Administrator response. The Administrator shall respond in writing to the claimant within 60 days after receiving the request for review. If the Administrator determines that special circumstances require additional time for processing the claim, the Administrator can extend the response period by an additional 60 days by notifying the claimant in writing before 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 Administrator expects to render its decision. | |
7.2.5
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Notice of decision. The Administrator shall notify the claimant in writing of its decision on review. The Administrator 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, |
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(b) A reference to the specific provisions of the Agreement on
which the denial is based, |
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(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 |
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(d) A statement of the claimant’s right to bring a civil action
under ERISA section 502(a). |
Article 8
Administration of Agreement
Administration of Agreement
8.1 Plan Administrator Duties. This Agreement shall be administered by a Plan Administrator
consisting of the board or such committee or persons as the board shall appoint. The Executive may
not be a member of the Plan Administrator. The Plan Administrator shall have the discretion and
authority to (x) make, amend, interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (y) decide or resolve any and all questions that may arise,
including interpretations of this Agreement.
8.2 Agents. In the administration of this Agreement, the Plan Administrator may employ agents
and delegate to them such administrative duties as it sees fit (including acting through a duly
appointed representative) and may from time to time consult with counsel, who may be counsel to the
Bank.
8.3 Binding Effect of Decisions. The decision or action of the Plan Administrator concerning
any question arising out of the administration, interpretation, and application of the Agreement
and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon
all persons having any interest in the Agreement. Neither the Executive nor any Beneficiary shall
be deemed to have any right, vested or unvested, regarding the continuing effect of any decision or
action of the Plan Administrator.
8.4 Indemnity of Plan Administrator. The Bank shall indemnify and hold harmless the members
of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities
arising from any action or failure to act with respect to this Agreement, except in the case of
willful misconduct by the Plan Administrator or any of its members.
8.5 Bank Information. To enable the Plan Administrator to perform its functions, the Bank
shall supply full and timely information to the Plan Administrator on all matters
relating to the date and circumstances of the retirement, death, or Separation from Service of
the Executive and such other pertinent information as the Plan Administrator may reasonably
require.
Article 9
Miscellaneous
Miscellaneous
9.1 Amendments and Termination. This Agreement may be amended solely by a written agreement
signed by the Bank and by the Executive. Except for the case of Termination with Cause, this
Agreement shall not be terminated unless the Account Balance is first paid to the Executive or the
Executive’s Beneficiary.
9.2 Binding Effect. This Agreement shall bind the Executive and the Bank and their
beneficiaries, survivors, executors, successors, administrators, and transferees.
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9.3 Successors; Binding Agreement. By an assumption agreement in form and substance
satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by
purchase, merger, consolidation, or otherwise) to all or substantially all of the Bank’s business
or assets to expressly assume and agree to perform this Agreement in the same manner and to the
same extent the Bank would be required to perform this Agreement had no succession occurred.
9.4 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 Bank nor does it interfere with
the Bank’s right to discharge the Executive. It also does not require the Executive to remain an
employee or interfere with the Executive’s right to terminate employment at any time.
9.5 Non-Transferability. Benefits under this Agreement may not be sold, transferred,
assigned, pledged, attached, or encumbered.
9.6 Tax Withholding. The Bank shall withhold any taxes that are required to be withheld from
the benefits provided under this Agreement.
9.7 Applicable Law. This Agreement and all rights hereunder shall be governed by the laws of
the State of Ohio, except to the extent the laws of the United States of America otherwise require.
9.8 Unfunded Arrangement. The Executive and the Beneficiary are general unsecured creditors
of the Bank for the payment of benefits under this Agreement. The benefits represent the mere
promise by the Bank to pay benefits. The rights to benefits are not subject 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 Bank to which the
Executive and the Beneficiary have no preferred or secured claim.
9.9 Entire Agreement. This Agreement constitutes the entire agreement between the Bank and
the Executive concerning the subject matter. No rights are granted to the Executive under this
Agreement other than those specifically set forth. This Agreement amends and restates in its
entirety the December 28, 2006 Executive Deferred Compensation Agreement between the Executive and
the Bank.
9.10 Tax Consequences. The Bank does not insure or guarantee the tax consequences of payments
provided hereunder for matters beyond its control. The Executive certifies that the Executive’s
decision to defer receipt of compensation is not due to reliance on financial, tax, or legal advice
given by the Bank or any of its employees, agents, accountants, or legal advisors.
9.11 Payment of Legal Fees. The Bank is aware that after a Change in Control management of
the Bank could cause or attempt to cause the Bank to refuse to comply with its obligations under
this Agreement, or could institute or cause or attempt to cause the Bank to institute litigation
seeking to have this Agreement declared unenforceable, or could take or
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attempt to take other
action to deny the Executive the benefits intended under this Agreement. In these circumstances
the purpose of this Agreement would be frustrated. The Bank desires that the Executive not be
required to incur the expenses associated with the enforcement of rights under this Agreement,
whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive hereunder. The
Bank desires that the Executive not be forced to negotiate settlement of rights under this
Agreement under threat of incurring expenses. Accordingly, if after a Change in Control occurs it
appears to the Executive that (x) the Bank has failed to comply with any of its obligations under
this Agreement, or (y) the Bank or any other person has taken any action to declare this Agreement
void or unenforceable, or instituted any litigation or other legal action designed to deny,
diminish, or to recover from the Executive the benefits intended to be provided to the Executive
hereunder, the Bank irrevocably authorizes the Executive from time to time to retain counsel of the
Executive’s choice, at the Bank’s expense as provided in this section 9.11, to represent the
Executive in the initiation or defense of any litigation or other legal action, whether by or
against the Bank or any director, officer, stockholder, or other person affiliated with the Bank,
in any jurisdiction. Despite any existing or previous attorney-client relationship between the
Bank and any counsel chosen by the Executive under this section 9.11, the Bank irrevocably consents
to the Executive entering into an attorney-client relationship with that counsel, and the Bank and
the Executive agree that a confidential relationship shall exist between the Executive and that
counsel. The fees and expenses of counsel selected from time to time by the Executive as provided
in this section shall be paid or reimbursed to the Executive by the Bank on a regular, periodic
basis upon presentation by the Executive of a statement or statements prepared by counsel in
accordance with counsel’s customary practices, up to a maximum aggregate amount of $500,000,
whether suit be brought or not, and whether or not incurred in trial, bankruptcy, or appellate
proceedings. The Bank’s obligation to pay the Executive’s legal fees under this section 9.11
operates separately from and in addition to any legal fee reimbursement obligation the Bank may
have with the Executive under any separate employment, severance, or other agreement between the
Executive and the Bank. Despite anything in this section 9.11 to the contrary however, the Bank
shall not be required to pay or reimburse the Executive’s legal expenses if doing so would violate
section 18(k) of the Federal
Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance
Corporation [12 CFR 359.3].
9.12 Severability. If 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 law. If any provision
of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the
provision not held invalid, and the remainder of such provision together with all other provisions
of this Agreement shall continue in full force and effect to the full extent consistent with law.
9.13 Waiver. A waiver by either party of any of the terms or conditions of this Agreement in
any one instance shall not be considered a waiver of the terms or conditions for the future or a
waiver of any subsequent breach. All remedies, rights, undertakings, obligations, and agreements
contained in this Agreement shall be cumulative, and none of them shall be in limitation of any
other remedy, right, undertaking, obligation or agreement of either party.
12
9.14 Captions and Counterparts. Captions in this Agreement are included for convenience only
and shall not affect the interpretation or construction of the Agreement or any of its provisions.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an
original and all of which taken together shall constitute a single agreement.
9.15 Notice. 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. Unless otherwise changed by
notice, notice shall be properly addressed to the Executive if addressed to the address of the
Executive on the books and records of the Bank at the time of the delivery of such notice, and
properly addressed to the Bank if addressed to the Board of Directors, The Middlefield Banking
Company, 00000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxx 00000-0000.
9.16 Termination or Modification of Agreement Because of Changes in Law, Rules or Regulations.
The Bank is entering into this Agreement on the assumption that certain existing tax laws, rules,
and regulations will continue in effect in their current form. If that assumption materially
changes and the change has a material detrimental effect on this Agreement, the Bank reserves the
right to terminate or modify this Agreement accordingly, subject to the written consent of the
Executive, which shall not be unreasonably withheld. This section 9.16 shall become null and void
effective immediately after a Change in Control.
In Witness Whereof, the Executive and a duly authorized Bank officer have executed
this Amended Executive Deferred Compensation Agreement as of the date first written above.
Executive: | Bank: | |||||||
The Middlefield Banking | ||||||||
Company |
||||||||
By: | ||||||||
Its: | ||||||||
13
The Middlefield Banking Company
Amended Executive Deferred Compensation Agreement
Beneficiary Designation
Amended Executive Deferred Compensation Agreement
Beneficiary Designation
I designate the following as beneficiary under this Amended Executive Deferred Compensation
Agreement of benefits payable after my death.
Primary: |
||
Contingent: |
||
Note: To name a trust as beneficiary, please provide the name of the trustee(s) and the exact name and date of the trust agreement. |
I understand that I may change these beneficiary designations by filing a new written
designation with the Bank. I further understand that the designations will be automatically
revoked if the beneficiary predeceases me, or, if I have named my spouse as beneficiary and our
marriage is subsequently dissolved.
Signature: | ||||||||||
Xxxxx X. Xxxxxx XX | ||||||||||
Date: | , 2008 | |||||||||
Received by the Bank this day of , 2008 | ||||||||||
By: | ||||||||||
Title: | ||||||||||
14
The Middlefield Banking Company
Amended Executive Deferred Compensation Agreement
Amended Executive Deferred Compensation Agreement
Schedule A
Performance Goals
Performance Goals
The Bank’s board of directors shall establish Performance Goals, which may be absolute
performance targets taking the Bank’s performance only into account, or relative targets taking the
Bank’s performance into account relative to a peer group of companies, or a combination of both.
The measures of performance used to establish Performance Goals shall not change from one Plan Year
to the next unless the board of directors concludes that compelling reasons exist to use different
or additional measures of performance. If performance relative to a peer group is used, the peer
group analysis selected by the board of directors shall not be changed from one Plan Year to the
next unless the board of directors concludes that the peer group being employed is no longer
representative of the Bank’s actual peer group of companies, or alternatively, the company
preparing the peer group analysis ceases to exist or no longer prepares peer group analyses.
For the first Plan Year, the Executive will receive an Annual Contribution amount equal to 5%
of the Executive’s Base Annual Salary. For every Plan Year after the first Plan Year unless
changed by the board of directors under section 1.10 of the Agreement, the Performance Goals are -
Annual Contribution for Achievement of | ||||||
Performance Target #1 | Performance Goal #1 | Performance Goal #1 | ||||
Bank’s Target Net Income for Plan Year
|
$ | 3,902,000 | 2.5% of the Executive’s Base Annual Salary | |||
Bank’s Net Income for Plan Year Is
Equal to or Greater than - |
$ | 3,941,020 | (101%) | 3.5% of the Executive’s Base Annual Salary | ||
Bank’s Net Income for Plan Year Is
Equal to or Greater than - |
$ | 3,980,040 | (102%) | 4.5% of the Executive’s Base Annual Salary | ||
Bank’s Net Income for Plan Year Is
Equal to or Greater than - |
$ | 4,019,060 | (103%) | 5.5% of the Executive’s Base Annual Salary | ||
Bank’s Net Income for Plan Year Is
Equal to or Greater than - |
$ | 4,058,080 | (104%) | 6.5% of the Executive’s Base Annual Salary | ||
Bank’s Net Income for Plan Year Is
Equal to or Greater than - |
$ | 4,097,100 | (105%) | 7.5% of the Executive’s Base Annual Salary |
The Bank’s target net income for Performance Goal #1 is $3,902,000. At a minimum, the Executive is
entitled to an Annual Contribution for Performance Goal #1 equal to 2.5% of Base Annual Salary.
For the Executive to receive a greater Annual Contribution under Performance Goal #1, the Bank’s
net income for the Plan Year must meet or exceed 101% of the Bank’s target net income for the Plan
Year. For every additional 1% that the Bank’s target net income is met or exceeded in any Plan
Year, up to 105%, the Executive’s Annual Contribution amount also increases by 1%. Thus, the
maximum Annual Contribution for achievement of Performance
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Goal #1 is 7.5% of the Executive’s Base Annual Salary. The Bank and the Executive agree that the
Bank’s net income for the Plan Year shall be derived from the quarterly reports of condition filed
with the FDIC under the Federal Deposit Insurance Act section 7(a), 12 U.S.C. 1817(a), and FDIC
rules, 12 CFR Part 304.
Annual Contribution for Achievement | ||||
Performance Target #2 | Performance Goal #2 | of Performance Goal #2 | ||
Bank’s Target Peer Rank
|
Overall Ranking in
Top 50% of Ohio-Headquartered Commercial Banks as Reported by Xxxx Xxxx & Co. |
2.5% of the Executive’s Base Annual Salary | ||
Bank Has An -
|
Overall Ranking in
Top 60% of Ohio-Headquartered Commercial Banks as Reported by Xxxx Xxxx & Co. |
3.5% of the Executive’s Base Annual Salary | ||
Bank Has An -
|
Overall Ranking in
Top 70% of Ohio-Headquartered Commercial Banks as Reported by Xxxx Xxxx & Co. |
4.5% of the Executive’s Base Annual Salary | ||
Bank Has An -
|
Overall Ranking in
Top 80% of Ohio-Headquartered Commercial Banks as Reported by Xxxx Xxxx & Co. |
5.5% of the Executive’s Base Annual Salary | ||
Bank Has An -
|
Overall Ranking in
Top 90% of Ohio-Headquartered Commercial Banks as Reported by Xxxx Xxxx & Co. |
6.5% of the Executive’s Base Annual Salary | ||
Bank Has An -
|
Overall Ranking in
Top 100% of Ohio-Headquartered Commercial Banks as Reported by Xxxx Xxxx & Co. [ranked #1] |
7.5% of the Executive’s Base Annual Salary |
The Bank’s target Peer Rank for Performance Goal #2 is an overall ranking in the top 50% of all
Ohio-headquartered publicly traded commercial banks as evaluated in the Xxxx Xxxx & Co. quarterly
reports titled “The Midwest Manifesto” (the “Reports”) for the applicable Plan Year. In the
Reports, Xxxx Xxxx & Co. ranks publicly traded commercial banks headquartered in Ohio based on
seven factors: earnings per share growth, return on equity, return on assets, efficiency ratio, net
charge-offs as a percentage of average loans, and loan and deposit growth. At a minimum, the
Executive is entitled to an Annual Contribution for Performance Goal #2 equal to 2.5% of Base
Annual Salary. For the Executive to receive a greater Annual Contribution under Performance Goal
#2, the Bank must have an overall ranking in the top 60% of Ohio-headquartered commercial banks as
reported by Xxxx Xxxx & Co. for the Plan Year. For every additional 10% that the Bank’s peer
ranking improves in any Plan Year, up to being ranked first, the Executive’s Annual Contribution
amount also increases by 1%. Thus, the maximum Annual Contribution for achievement of Performance
Goal #2 is 7.5% of the Executive’s Base Annual Salary.
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If Xxxx Xxxx & Co. ceases to exist or no longer prepares peer group analyses, peer rank will
be established using the Uniform Bank Performance Report (“UBPR”) as reported on the Federal
Financial Institutions Examination Council’s website at xxx.xxxxx.xxx/XXXX.xxx. The UBPR is an
analytical tool created for bank supervisory, examination, and management purposes. In a concise
format, the UPBR shows the impact of management decisions and economic conditions on a bank’s
performance and balance-sheet composition. The performance and composition data contained in the
report can be used as an aid in evaluating the adequacy of earnings, liquidity, capital, asset and
liability management, and growth management.
At a minimum, the Executive’s Annual Contribution in any Plan Year shall not be less than 5%
of the Executive’s Base Annual Salary (i.e., the 2.5% of Base Annual Salary Annual Contribution
under Performance Goal #1 plus the 2.5% of Base Annual Salary Annual Contribution under Performance
Goal #2). At a maximum, the Executive’s Annual Contribution in any Plan Year shall not exceed 15%
of the Executive’s Base Annual Salary (i.e., the 7.5% of Base Annual Salary Annual Contribution
under Performance Goal #1 plus the 7.5% of Base Annual Salary Annual Contribution under Performance
Goal #2).
Changes in the Performance Goals approved by the board of directors shall become effective no
more frequently than annually. The Plan Administrator’s determination that the Performance Goals
for a Plan Year have or have not been achieved shall be conclusive and binding.
17