Exhibit 10.5
MANAGEMENT CONTINUITY AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of the
______day of _________________, 2006 (the "Effective Date"), by and among PSB
Group, Inc., a bank holding company organized under the laws of the State of
Michigan (the "Holding Company"), Peoples State Bank, a banking association
chartered under the laws of the State of Michigan with its main office located
in Madison Heights, Michigan (the "Bank") and Xxxxxxxxx X. Xxxxxx ("Executive").
SECTION 1. EMPLOYMENT. The Bank currently employs Executive on an at will
basis. The current terms and conditions of the Executive's Employment are set
forth below in this Section 1. Except in the event of a Change of Control of the
Holding Company, Executive shall be an at will employee of the Bank and may
terminate her employment at any time and the Bank shall retain the same right.
(A) POSITIONS. Executive serves Bank as Senior Vice President and
Human Resources Director as of the Effective Date.
(B) DUTIES. Executive's duties, authority and responsibilities as
Senior Vice President and Human Resources Director of the Bank include all
duties, authority and responsibilities customarily held by such officer of
comparable banks, subject always to the charter and bylaw provisions and the
policies of the Bank and the directions of its Board of Directors (the "Board").
(C) CARE AND LOYALTY. Executive will devote her best efforts and full
business time, energy, skills and attention to the business and affairs of the
Bank, and will faithfully and loyally discharge her duties to the Bank.
SECTION 2. COMPENSATION. The Bank shall compensate Executive for her
services as follows during the term of this Agreement:
(A) BASE COMPENSATION. Executive will receive an annual base salary of
$88,230 during 2006. The Board will review Executive's base salary annually
during the term of this Agreement to determine whether it should be maintained
at its existing level, increased or decreased. In no event shall the Executive's
annual base salary following a Change of Control be decreased.
(B) DISCRETIONARY PERFORMANCE BONUS. The Bank will consider Executive
for a bonus at the end of each year based on performance criteria established by
the Board and/or Executive's senior officers and any other factors deemed by the
Board to be appropriate. Bonuses will be awarded, if at all, in the sole
discretion of the Board, and nothing in this Agreement will require the payment
of a bonus in any given year.
(C) OTHER BENEFITS. Executive will be entitled to participate in all
plans and benefits that are now or later made available by the Bank or the
Holding Company to its officers of equal or junior ranking generally.
(D) WITHHOLDING. Executive acknowledges that the Bank may withhold any
applicable federal, state or local withholding or other taxes from payments that
become due to her.
SECTION 3. TERM AND TERMINATION.
(A) TERM AND AUTOMATIC RENEWAL. The term of this Agreement will be one
year commencing as of the Effective Date. This Agreement will automatically
renew for one additional year on each anniversary of the Effective Date unless
this Agreement and Executive's employment hereunder are terminated in accordance
with the provisions of this Section 3. Upon a Change of Control of the Holding
Company, the term of this Agreement shall be a fixed term which shall commence
upon the effective date of the Change of Control and end on the 3rd anniversary
thereof.
(B) TERMINATION WITHOUT CAUSE. Either the Bank or Executive may
terminate this Agreement and Executive's employment for any reason by delivering
written notice of termination to the other party no less than ninety days before
the effective date of termination, which date will be specified in the notice of
termination. If the Bank terminates Executive's employment prior to a Change of
Control or Executive voluntarily terminates her employment under this Agreement
other than pursuant to Sections 3(d), then the Bank shall only be required to
pay Executive such base salary as shall have accrued through the effective date
of such termination and the Bank shall have no further obligations to Executive.
(C) TERMINATION FOR CAUSE. The Bank may terminate this Agreement and
Executive's employment for Cause by delivering written notice of termination to
Executive no less than 30 days before the effective date of termination. "Cause"
for termination will exist if: (i) Executive engages in one or more unsafe and
unsound banking practices or material violations of a law or regulation
applicable to the Bank or the Holding Company, any repeated violations of a
policy of the Bank or the Holding Company after being warned in writing by the
Board and/or a senior officer not to violate such policy, any single violation
of a policy of the Bank or the Holding Company if such violation materially and
adversely affects the business or affairs of the Bank or the Holding Company, or
a direction or order of the Board and/or one of Executive's senior officers;
(ii) Executive engages in a breach of fiduciary duty or act of dishonesty
involving the affairs of the Bank or the Holding Company; (iii) Executive is
removed or suspended from banking pursuant to Section 8(e) of the Federal
Deposit Insurance Act or any other applicable State or Federal law; (iv)
Executive commits a material breach of her obligations under this Agreement; or
(v) Executive fails to perform her duties to the Bank with the degree of skill,
care or competence expected by the Board and/or Executive's senior officers. If
Executive's employment is terminated pursuant to this Section 3(c), then the
Bank shall only be required to pay Executive such base salary as shall have
accrued through the effective date of such termination and the Bank shall have
no further obligations to Executive.
(D) CONSTRUCTIVE DISCHARGE. Following a Change of Control, if
Executive is Constructively Discharged, she may terminate this Agreement and her
employment by delivering written notice to the Bank no later than 30 days before
the effective date of termination. "Constructive Discharge" means the occurrence
of any one or more of the following, without Executive's prior written consent:
(i) Executive is not reelected to or is removed as Senior Vice
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President and Human Resources Director of the Bank; (ii) the Bank fails to vest
Executive with or removes from her the duties, responsibilities, authority or
resources that she reasonably needs to competently perform her duties as Senior
Vice President and Human Resources Director of the Bank; (iii) the Bank notifies
Executive that it is terminating this Agreement pursuant to Section 3(b); (iv)
the Bank changes the primary location of Executive's employment to a place that
is more than 50 miles from Madison Heights, Michigan; or (v) the Bank otherwise
commits a material breach of its obligations under this Agreement and fails to
cure the breach within 30 days after Executive gives the Bank written notice of
the breach.
(E) DEFINITION OF CHANGE OF CONTROL.
(I) A "Change of Control" will be deemed to have occurred if: (A)
any person (as such term is defined in Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act")) acquires beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of more than
50% of the combined voting power of the then outstanding voting securities of
the Holding Company; or (B) the individuals who were members of the Board of
Directors of the Holding Company on the Effective Date (the "Current Board
Members") cease for any reason (other than the reasons specified in Subsection
3(e)(ii) below) to constitute a majority of the Board of the Holding Company or
its successor; however, if the election or the nomination for election of any
new director of the Holding Company or its successor is approved by a vote of a
majority of the individuals who are Current Board Members, such new director
shall, for the purposes of this Section 3(e)(i), be considered a Current Board
Member; or (C) the Holding Company's shareholders approve (1) a merger or
consolidation of the Holding Company and the shareholders of the Holding Company
immediately before such merger or consolidation do not, as a result of such
merger or consolidation, own, directly or indirectly, more than 50% of the
combined voting power of the then outstanding voting securities of the entity
resulting from such merger or consolidation in substantially the same proportion
as their ownership of the combined voting power of the outstanding securities of
the Holding Company immediately before such merger or consolidation; or (2) a
complete liquidation or dissolution or an agreement for the sale or other
disposition of all or substantially all of the assets of the Holding Company.
(II) Notwithstanding and in lieu of Section 3(e)(i), a Change of
Control will not be deemed to have occurred: (A) solely because more than 50% of
the combined voting power of the then outstanding voting securities of the
Holding Company are acquired by (1) a trustee or other fiduciary holding
securities under one or more employee benefit plans maintained for employees of
the Bank or the Holding Company, or (2) any person pursuant to the will or trust
of any existing shareholder of the Holding Company, or who is a member of the
immediate family of such shareholder, or (3) any corporation which, immediately
prior to or following such acquisition, is owned directly or indirectly by
persons who were shareholders of the Holding Company immediately prior to the
acquisition in the same proportion as their ownership of stock in the Holding
Company immediately prior to such acquisition; or (B) if Executive agrees in
writing that the transaction or event in question does not constitute a Change
of Control for the purposes of this Agreement.
(F) TERMINATION UPON DISABILITY. The Bank will not terminate this
Agreement and Executive's employment if Executive becomes disabled within the
meaning of the Bank's then current employee disability program or, at the Bank's
election, as determined by
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a physician selected by the Bank, unless as a result of such disability,
Executive is unable to perform her duties with the requisite level of skill and
competence for a period of six consecutive months. Thereafter, the Bank may
terminate this Agreement for Cause in accordance with Subsection 3(c)(v).
(G) TERMINATION UPON DEATH. This Agreement will terminate if Executive
dies during the term of this Agreement, effective on the date of her death. Any
payments that are owing to Executive under this Agreement or otherwise at the
time of her death will be made to whomever Executive may designate in writing as
her beneficiary, or absent such a designation, to the executor or administrator
of her estate.
(H) SEVERANCE BENEFITS. The Bank will pay severance benefits to
Executive as follows:
(I) Following a Change of Control of the Holding Company, if this
Agreement is terminated pursuant to Section 3(b) or 3(d) and the remaining term
of the Agreement under Section 3(a) is two or more years, the Bank or its
successor will pay Executive a Severance Benefit equal to two times the sum of
the Executive's Average Cash Compensation and the annual contributions the Bank
or the Holding Company would have made on the Executive's behalf under the
Bank's and the Holding Company's qualified retirement plans. Following a Change
of Control of the Holding Company, if this Agreement is terminated pursuant to
Section 3(b) or 3(d) and the remaining term of the Agreement under Section 3(a)
is less than two years, but more than one year, the Bank or its successor will
pay Executive a Severance Benefit equal to the number of years remaining,
rounded to the nearest month, times the sum of the Executive's Average Cash
Compensation and the annual contributions the Bank or the Holding Company would
have made on the Executive's behalf under the Bank's and the Holding Company's
qualified retirement plans. Following a Change of Control of the Holding
Company, if this Agreement is terminated pursuant to Section 3(b) or 3(d) and
the remaining term of the Agreement under Section 3(a) is one year or less, the
Bank or its successor will pay Executive a Severance Benefit equal to one times
the sum of the Executive's Average Cash Compensation and the annual
contributions the Bank or the Holding Company would have made on the Executive's
behalf under the Bank's and the Holding Company's qualified retirement plans.
The Executive's Average Cash Compensation shall be the average of the
Executive's base salary and bonus payments during the five calendar year period
ending before the date of the Change of Control, or if the Executive has not
been employed for all of such five calendar years then the base salary and bonus
payments shall be the average of such amounts over the period the Executive was
employed by the Bank. The Bank or the Holding Company will also continue to
provide Executive and her dependents, at the expense of the Bank or the Holding
Company, with continuing coverage under all existing life, health and disability
programs for a period of years equal to the number by which sum of the
Executive's Average Cash Compensation plus qualified retirement plan
contributions is multiplied under this Section 3(h)(i).
(II) All payments that become due to Executive under this Section
3(h) will be made in equal monthly installments unless the Executive timely
elects to receive those payments in one lump sum. An election will be considered
timely if the Executive delivers it to the Bank at least 90 days prior to the
date of a Change of Control and in the calendar year preceding the date of a
Change of Control. The Bank will be obligated to make all payments that become
due to Executive under this Section 3(h) whether or not she obtains other
employment
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following termination or takes steps to mitigate any damages that she claims to
have sustained as a result of termination. The payments and other benefits
provided for in this Section 3(h) are intended to supplement any compensation or
other benefits that have accrued or vested with respect to Executive or for her
account as of the effective date of termination. In the event that the Bank is
unable to make any payment to the Executive under this subsection (ii) (other
than by reason of subsection (iii), the Holding Company shall be obligated to
make such payment to Executive.
(III) The Bank and Executive intend that no portion of any
payment under this Agreement, or payments to or for the benefit of Executive
under any other agreement or plan, be deemed to be an "Excess Parachute Payment"
as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), or its successors. It is agreed that the present value of any payments
to or for the benefit of Executive in the nature of compensation, as determined
by the legal counsel or certified public accountants for the Bank in accordance
with Section 280G(d)(4) of the Code, receipt of which is contingent on the
Change of Control of the Holding Company, and to which Section 280G of the Code
applies (in the aggregate "Total Payments"), shall not exceed an amount equal to
one dollar less than the maximum amount which the Bank or the Holding Company
may pay without loss of deduction under Section 280G(a) of the Code.
(IV) The Bank may elect to defer any payments that may become due
to Executive under this Section 3(h) if, at the time the payments become due,
the Bank is not in compliance with any regulatory-mandated minimum capital
requirements or if making the payments would cause the Bank's capital to fall
below such minimum capital requirements. In this event, the Bank will resume
making the payments as soon as it can do so without violating such minimum
capital requirements.
(I) AUTOMATIC TERMINATION OF AGREEMENT. Notwithstanding any other
provision of this Agreement to the contrary, this Agreement shall terminate
immediately upon the Bank's composite CAMELS rating becoming 3 or worse.
SECTION 4. CONFIDENTIALITY. Executive acknowledges that the nature of her
employment will require that she produce and have access to records, data, trade
secrets and information that are not available to the public regarding the
Holding Company and its subsidiaries and affiliates ("Confidential
Information"). Executive will hold in confidence and not directly or indirectly
disclose any Confidential Information to third parties unless disclosure becomes
reasonably necessary in connection with Executive's performance of her duties
hereunder, or the Confidential Information lawfully becomes available to the
public from other sources, or she is authorized in writing by the Holding
Company to disclose it, or she is required to make disclosure by a law or
pursuant to the authority of any administrative agency or judicial body. All
Confidential Information and all other records, files, documents and other
materials or copies thereof relating to the business of the Holding Company or
any of its subsidiaries or affiliates that Executive prepares or uses will
always be the sole property of the Holding Company. Executive will promptly
return all originals and copies of such Confidential Information and other
records, files, documents and other materials to the Holding Company if her
employment with the Bank is terminated for any reason.
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SECTION 5. ANTI-SOLICITATION COVENANT.
(A) RESTRICTIVE COVENANT. Executive agrees that, for a period equal to
one year after the termination of this Agreement or if severance payments become
payable pursuant to Section 3(h) of this Agreement for a period equal to the
period over which such payments would be made assuming the Executive does not
elect payment in the form of a lump sum, she will not solicit or induce any
employee or agent of the Holding Company or any of its subsidiaries to terminate
employment with the Holding Company or any of its subsidiaries and become
employed by a Competitor. "Competitor" means any person, firm, partnership,
corporation, trust or other entity that owns, controls or is a bank, savings and
loan association, credit union or similar financial institution (a "Financial
Institution") that is physically located and conducts substantial lending and
deposit taking activities within a 50 mile radius of the Bank's main office.
(B) SUCCESSORS. In the event that a successor to the Holding Company
or the Bank succeeds to or assumes the Holding Company's and the Bank's rights
and obligations under this Agreement, Section 5(a) will apply only to the
primary service area of the Bank as it existed immediately before the succession
or assumption occurred and will not apply to any of the successor's other
offices.
(C) INJUNCTIVE RELIEF. Executive agrees that a violation of this
Section 5 would result in direct, immediate and irreparable harm to the Bank,
and in such event, agrees that the Bank and the Holding Company, in addition to
their other rights and remedies, would be entitled to injunctive relief
enforcing the terms and provisions of this Section 5.
SECTION 6. INDEMNITY; OTHER PROTECTIONS.
(A) INDEMNIFICATION. The Bank will indemnify Executive (and, upon her
death, her heirs, executors and administrators) to the fullest extent permitted
by law against all expenses, including reasonable attorneys' fees, court and
investigative costs, judgments, fines and amounts paid in settlement
(collectively, "Expenses") reasonably incurred by her in connection with or
arising out of any pending, threatened or completed action, suit or proceeding
in which she may become involved by reason of her having been an officer or
director of the Bank unless such Expenses result from acts by the Executive
which would give the Bank the right to terminate this Agreement and Executive's
employment for Cause pursuant to Section 3(c) of this Agreement. The
indemnification rights provided for herein are not exclusive and will supplement
any rights to indemnification that Executive may have under any applicable bylaw
or charter provision of the Bank or the Holding Company, or any resolution of
the Bank or the Holding Company, or any applicable statute.
(B) ADVANCEMENT OF EXPENSES. In the event that Executive becomes a
party, or is threatened to be made a party, to any pending, threatened or
completed action, suit or proceeding for which the Bank is permitted or required
to indemnify her under this Agreement, any applicable bylaw or charter provision
of the Bank or the Holding Company, any resolution of the Bank or the Holding
Company, or any applicable statute, the Bank will, to the fullest extent
permitted by law, advance all Expenses incurred by Executive in connection with
the investigation, defense, settlement, or appeal of any threatened, pending or
completed action, suit or proceeding, subject to receipt by the Bank of a
written undertaking from Executive to reimburse the Bank for all Expenses
actually paid by the Bank to or on behalf of Executive in the
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event it shall be ultimately determined that neither the Bank nor the Holding
Company can lawfully indemnify Executive for such Expenses, and to assign to the
Bank all rights of Executive to indemnification under any policy of directors'
and officers' liability insurance to the extent of the amount of Expenses
actually paid by the Bank to or on behalf of Executive.
(C) LITIGATION. Unless precluded by an actual or potential conflict of
interest, the Bank will have the right to recommend counsel to Executive to
represent her in connection with any claim covered by this Section 6. Further,
Executive's choice of counsel, her decision to contest or settle any such claim,
and the terms and amount of the settlement of any such claim will be subject to
the Bank's prior written approval, which approval shall not be unreasonably
withheld by the Bank.
SECTION 7. GENERAL PROVISIONS.
(A) SUCCESSORS; ASSIGNMENT. This Agreement will be binding upon and
inure to the benefit of Executive, the Bank and the Holding Company and their
respective personal representatives, successors and assigns. For the purposes of
this Agreement, any successor or assign of the Bank and the Holding Company
shall be deemed to be the "Bank" and the Holding Company." The Bank and the
Holding Company will require any successor or assign of the Bank or the Holding
Company or any direct or indirect purchaser or acquiror of all or substantially
all of the business, assets or liabilities of the Bank or the Holding Company,
whether by transfer, purchase, merger, consolidation, stock acquisition or
otherwise, to assume and agree in writing to perform this Agreement and the
Bank's and the Holding Company's obligations hereunder in the same manner and to
the same extent as the Bank and the Holding Company would have been required to
perform them if no such transaction had occurred.
(B) ENTIRE AGREEMENT; SURVIVAL. This Agreement constitutes the entire
agreement between the Executive and the Bank concerning the subject matter
hereof, and supersedes all prior negotiations, undertakings, agreements and
arrangements with respect thereto, whether written or oral. The provisions of
this Agreement will be regarded as divisible and separate; if any provision is
ever declared invalid or unenforceable, the validity and enforceability of the
remaining provisions will not be affected. This Agreement may not be amended or
modified except by a writing signed by Executive, the Bank and the Holding
Company, and except for the employment obligations set forth in Section 1, all
rights and obligations of Executive, the Bank and the Holding Company hereunder
shall survive the termination of this Agreement.
(C) GOVERNING LAW AND ENFORCEMENT. This Agreement will be construed
and the legal relations of the parties hereto shall be determined in accordance
with the laws of the State of Michigan without reference to the law regarding
conflicts of law.
(D) ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration
conducted at a location selected by Executive within 50 miles from Madison
Heights, Michigan, in accordance with the rules of the American Arbitration
Association.
(E) LEGAL FEES. All reasonable legal fees paid or incurred in
connection with any dispute or question of interpretation relating to this
Agreement shall be paid to the party who is successful on the merits by the
other party.
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(F) WAIVER. No waiver by either party at any time of any breach by the
other party of, or compliance with, any condition or provision of this Agreement
to be performed by the other party, shall be deemed a waiver of any similar or
dissimilar provisions or conditions at the same time or any prior or subsequent
time.
(G) NOTICES. Notices pursuant to this Agreement shall be in writing
and shall be deemed given when received; and, if mailed, shall be mailed by
United States registered or certified mail, return receipt requested, postage
prepaid; and if to the Bank, addressed to the principal headquarters of the
Bank, attention: President and CEO; if to the Holding Company, addressed to the
principal headquarters of the Holding Company, attention: President and CEO; or,
if to Executive, to the address set forth below Executive's signature on this
Agreement, or to such other address as the party to be notified shall have given
to the other.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PEOPLES STATE BANK
By:
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Xxxxxxx X. Xxxxxxx, President & Xxxxxxxxx X. Xxxxxx
CEO
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Address
PSB GROUP, INC.
By:
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Xxxxxxx X. Xxxxxxx, President &
CEO
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