Exhibit 10.1
CHAIRMAN AGREEMENT
THIS CHAIRMAN AGREEMENT is entered into as of the 12th day of April,
2002 by and between NORTH COUNTRY FINANCIAL CORPORATION (the "Company"), with
its principal executive offices located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxx, and XXXXXX X. XXXX (the "Executive").
RECITALS
The Executive has elected to retire from his position as Chief
Executive Officer ("CEO") of the Company and of North Country Bank & Trust (the
"Bank") effective April 30, 2002. Starting on May 1, 2002, the Company and the
Executive desire the Executive to serve as the non-executive Chairman of the
Company and the Bank (the "Chairman"). The purpose of this Chairman Agreement is
to set forth the terms, conditions and parameters associated with the Executive
serving as the Chairman.
NOW, THEREFORE, in consideration of the premises and mutual consents
and agreements contained herein, the parties hereto hereby agree as follows:
1. Duties. The Executive will serve as the Chairman for the period
beginning on May 1, 2002 and ending on April 30, 2003 (the "Term"). The
Executive's primary duties will be (a) to perform those duties delegated to the
Chairman under the By-Laws of the Company and the Bank, (b) to work with others
at the Company and the Bank, as well as with customers of the Bank, to resolve
delinquent and problem loans and make recommendations as to and otherwise
address non-performing assets, and (c) to perform such other duties as shall be
delegated to him by the Board of Directors of the Company or the Bank.
2. Status as Independent Contractor. The parties hereto acknowledge and
agree that the Executive shall be an independent contractor during the Term and
that he shall not be deemed an employee of the Company. In acknowledging that he
is providing services as an independent contractor, the Executive acknowledges
and agrees that, except as specifically provided in an Amended and Restated
Consulting Agreement dated December 21, 2002 between the Company and the
Executive (the "Consulting Agreement"), he shall not be entitled to participate
in any insurance, qualified or nonqualified benefit plans or other fringe
benefits provided by the Company to its employees and that, except as required
by federal, state or local law, the Company shall not be required to withhold
nor shall the Company withhold any income, social security, unemployment or
other taxes or similar payments from the amounts payable to the Executive
hereunder. In the event the Company shall be required by law to withhold any
such taxes or payments from amounts payable to the Executive hereunder, the
amounts payable to the Executive shall be reduced accordingly.
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3. Compensation. The Executive will be paid $37,500 per month, payable
in arrears, starting on June 1, 2002 and ending on May 1, 2003 for serving as
Chairman. With the exception of compensation and benefits that he may receive
pursuant to the Consulting Agreement, the Executive will not be entitled to any
other compensation or benefits from the Company other than the regular Board of
Directors retainer and fees for serving on the Boards of the Company and the
Bank.
4. Reimbursement of Expenses and Office Space. The Company shall pay or
reimburse the Executive for all reasonable travel and other expenses incurred by
the Executive in the performance of his duties hereunder upon submission to the
Company of substantiation sufficient to comply with the applicable rules
promulgated under the Internal Revenue Code from time to time. Upon the
Executive's request, the Company shall, during the Term and at its expense,
furnish the Executive with secretarial services and office space sufficient for
the Executive to perform his duties hereunder at a location mutually convenient
for the Company and the Executive.
5. Consequences of the Executive's Death or Disability, Voluntary
Termination or Termination by the Company for Cause.
A. Death or Disability. The Executive's obligations under this
Chairman Agreement shall terminate upon the death or Disability of the
Executive. In the event of the death or Disability of the Executive,
the Company's obligations to pay the compensation discussed in
Paragraph 3 shall not terminate and shall continue for the Term hereof.
The Company shall have the obligation to reimburse the Executive for
expenses allowed under Paragraph 4 hereof which were incurred prior to
the date of death or Disability. For purposes of this Chairman
Agreement, the Executive shall have suffered a "Disability" if he is
disabled within the meaning of the Company's long-term disability plan.
If the Company does not have such a plan, the Executive shall have
suffered a "Disability" if he is unable to perform his duties with or
without reasonable accommodation for ninety (90) consecutive business
days or one hundred twenty (120) business days in the aggregate during
a 365-day period as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Executive
or the Executive's legal representative, provided if the parties are
unable to agree, the parties shall request that the President of the
Xxxxxxxxxxx County Medical Society choose such physician.
B. Voluntary Termination. This Chairman Agreement may be
voluntarily terminated upon the mutual written agreement between the
parties. In such case, the Company's obligation to pay the compensation
discussed in Paragraph 3 shall not terminate and shall continue for the
Term. However, in the event that the Executive voluntarily terminates
or ceases to fulfill the Executive's obligations pursuant to this
Chairman Agreement, other than for good cause attributable to the
Company, then and in such case, the Executive shall no longer
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be entitled to receive any further compensation provided under
Paragraph 3 hereof.
C. Termination by the Company for Cause. The Company may
terminate the Executive's services hereunder for Cause. There will be
Cause for termination under any of the following circumstances: (i) any
act of Personal Dishonesty (as hereinafter defined) by the Executive;
(ii) any act of Willful Misconduct (as hereinafter defined) by the
Executive; (iii) any act by the Executive constituting a breach of his
fiduciary duty to the Company which results in gain to, or personal
enrichment of, the Executive at the Company's expense; or (iv) any
breach by the Executive of Paragraph 6A through 6D of the Consulting
Agreement (noncompetition, confidential information, and
nonsolicitation). For purposes of this Chairman Agreement: "Personal
Dishonesty" means conduct on the part of the Executive which evinces a
want of integrity or an intentional breach of trust and which directly
causes material injury to the Company; and "Willful Misconduct" means
conduct on the part of the Executive which evinces a deliberate
disregard of the interest of the Company and which causes material
injury to the Company. The Executive acknowledges and agrees that if he
is terminated for cause pursuant to this Paragraph 5C, he shall no
longer be entitled to receive any further compensation provided under
Paragraph 3 hereof.
D. Termination Notice and Procedure. Any termination by the
Company for Cause pursuant to Xxxxxxxxx 0X hereof shall be made by
written Notice of Termination to the Executive delivered by hand or
certified mail (postage prepaid), return receipt requested, addressed,
to the Executive at the address set forth on the signature page of this
Chairman Agreement (or such other address as shall be specified in
writing by either party to the other). Any such Notice of Termination
shall be made in accordance with the following procedures:
(i) Any Notice of Termination for Cause shall
indicate the specific termination provision in this Chairman
Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances alleged to provide a basis for
termination.
(ii) Any Notice of Termination for Cause shall be
approved by a resolution duly adopted by a majority of the
Directors of the Company (or any successor corporation) then
in office, specifying in detail the basis for such
termination.
(iii) In the event of a purported termination by the
Company for Cause, if within thirty (30) days following the
date of receipt of the Notice of Termination, the Executive
notifies the Company that a dispute exists concerning the
basis for termination, this Chairman Agreement shall not be
terminated until the dispute is finally resolved either by
mutual written
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agreement of the parties, or by arbitration pursuant to
Paragraph 9E hereof.
6. Release as Precondition to this Chairman Agreement.
Notwithstanding the foregoing, the Company will not pay to the
Executive, and the Executive will not have any right to receive any
payments described in Paragraphs 3 and 4, above, unless and until the
Executive or his legal representative (in the case of the Executive's
death or if the Executive is disabled such that he is unable to
consent) executes, and there shall be effective following any statutory
period for revocation, a release, in a form reasonably acceptable to
the Company, that irrevocably and unconditionally releases, waives, and
fully and forever discharges the Company and its past and current
shareholders, members of the Board of Directors, officers, employees,
and agents from and against any and all claims, liabilities,
obligations, covenants, rights, demands and damages of any nature
whatsoever, whether known or unknown, anticipated or unanticipated,
relating to or arising out of the Executive's employment with the
Company, including without limitation claims arising under the Age
Discrimination in Employment Act of 1977, as amended, Title VII of the
Civil Rights Act of 1974, as amended, the Civil Rights Act of 1991, as
amended, the Equal Pay Act, as amended, and any other federal, state,
or local law or regulation.
7. Effect on Other Agreements. An Amended and Restated Employment
Agreement between the Executive and the Company dated December 21, 2002 (the
"Employment Agreement") will terminate at the close of business on April 30,
2002, unless otherwise earlier terminated, and thereafter, the Executive will
not be entitled to any further cash payments or benefits thereunder other than
those accrued prior to May 1, 2002. Specifically, the Executive will not be
entitled to any payments under Section 8 of the Employment Agreement. The term
of the Consulting Agreement will begin, in accordance with its terms, on May 1,
2002, immediately subsequent to the retirement by the Executive from his
employment as CEO of the Company and the Bank. This Chairman Agreement does not
affect or supersede any provision of the Consulting Agreement.
8. Successors. This Chairman Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive. This Chairman Agreement shall inure to the benefit of and be binding
upon the Company and its successors.
9. Miscellaneous.
(a) This Chairman Agreement shall be governed by and construed
in accordance with the laws of the State of Michigan, without reference
to principles of conflict of laws. The captions of this Chairman
Agreement are not part of the provisions hereof and shall have no force
or effect. This Chairman Agreement may not be amended or modified
otherwise than by a written agreement executed by
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the Company and the Executive or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party,
delivered by overnight courier, or by certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxxx X. Xxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
If to the Company: North Country Financial Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Compensation Committee
Chairperson
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Chairman Agreement shall not affect the validity or enforceability
of any other provision of this Chairman Agreement. By way of example
and not by wary of limitation, if any payments provided for hereunder
are found to be beyond limits permissible to be paid by the Company or
the Bank by statute or regulation, it is intended that the payments
shall be made to the maximum of any such lesser amount as is
permissible to be paid by the Company or the Bank.
(d) The failure by the Executive or the Company to insist upon
strict compliance with any provision hereof shall not be deemed to be a
waiver of such provision or any other provision thereof.
(e) Any controversy or claim arising out of or relating to
this Chairman Agreement or the breach hereof, other than a controversy
or claim arising in connection with Section 5C hereof where the Company
is seeking injunctive relief, shall be settled exclusively by
arbitration by a single arbitrator mutually agreed to by the disputing
parties in accordance with the Commercial Arbitration Rules of the
American Arbitration Association as then in effect. Such arbitration
shall be held in Traverse City, Michigan or such other place as is
mutually agreed to by the disputing parties. Judgment on the award
rendered by the arbitrator may be entered in any Court having
jurisdiction thereof. The Arbitrator may award costs
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and reasonable attorneys' fees to the prevailing party in any
arbitration conducted pursuant to this Chairman Agreement.
(f) This Chairman Agreement contains the entire understanding
of the Company and the Executive with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Chairman
Agreement as of the date first above written.
COMPANY: NORTH COUNTRY FINANCIAL CORPORATION:
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxxx, its President & Authorized
Signatory
EXECUTIVE: XXXXXX X. XXXX:
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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