EXHIBIT 10.11
Employment Agreement dated
December 15, 2005
between the Corporation
and Xxxxx X. Xxxxxxx
EMPLOYMENT AGREEMENT
(XXXXX X. XXXXXXX)
This Employment Agreement, dated as of the 15th day of December, 2004, is
by and among NORTH COUNTRY FINANCIAL CORPORATION, a Michigan corporation (to be
renamed Mackinac Financial Corporation) (the "Company"), and XXXXX X. XXXXXXX
("Employee").
WITNESSETH:
WHEREAS, the Company desires to engage the services of Employee, and
Employee is willing to accept such employment, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings set forth herein the parties hereto agree as follows:
1. Employment and Duties. In accordance with actions taken and authorized
by the Board of Directors of the Company (the "Company Board"), effective upon
the latest to occur of (i) the closing of the transactions provided for in the
Stock Purchase Agreement dated August 10, 2004, as amended, between the Company
and NCFC Recapitalization, LLC, and (ii) receipt of all necessary Regulatory
Approvals (as such term is defined in the Stock Purchase Agreement) with regard
to this Agreement (the "Effective Date"), Employee shall become employed and
appointed as Vice President and Controller of the Company and the Company's
wholly owned subsidiary, North Country Bank and Trust (to be renamed Mackinac
Bank) (the "Bank"), and shall have the duties and responsibilities commensurate
with such titles and offices, including, without limitation, as well as all such
duties and responsibilities as now are or hereafter may be set forth with
respect to such offices in the by-laws of the Company and the Bank, the
directives
of the Board of Directors of the Company or the Bank, or by the Chief Executive
Officer of the Company. At the Effective Date, this Agreement shall supersede
and replace in its entirety that certain document entitled "Summary of
Employment Terms for Xxxxx X. Xxxxxxx" dated October 8, 2003 (the "Summary of
Terms"), which Summary of Terms shall be of no further force and effect. During
the period of his employment hereunder, Employee also shall serve as an officer
of such other affiliates of or the Company and in such other capacities as he
may be requested by the Company Board and shall assume such additional duties
and responsibilities as from time to time may be assigned to him by the Company
Board, all without additional compensation therefor. Throughout the period of
his employment hereunder, Employee shall devote his business time, attention,
and energy on a full-time basis exclusively to the affairs of the Bank and the
Company and its affiliates.
2. Term of Employment. The employment of Employee hereunder shall commence
on the Effective Date and shall continue thereafter through the end of the
thirty-sixth (36th) month following the Effective Date (the "Employment
Period"), unless earlier terminated as hereinafter provided. After the initial
Employment Period, the term of this Agreement shall be automatically extended
for additional one-year periods unless written notice is given by one party to
the other of his or its intention not to renew this Employment Agreement at the
end of the initial Employment Period or any extended term, as the case may be.
3. Cash Compensation. As full cash compensation for all services to be
performed by Employee hereunder, the Company shall pay to Employee the
following:
(a) Salary of not less than $135,000 per year (to be reviewed
annually by the Company Board), payable at the intervals at which other
executive officers of the Company and the Bank are paid;
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(b) A bonus of $100,000, which shall be paid as follows:
(i) $50,000 shall be paid on the Effective Date; and
(ii) The remaining $50,000 shall be paid on the first
anniversary of the Effective Date, so long as Employee is still
employed by the Company on such date; and
(c) An additional incentive bonus (if earned) payable after fiscal
year-end in accordance with the Company's or Bank's policy or plan.
4. Stock Options. On or within 30 days after the Effective Date, Employee
shall be awarded options to purchase 5,000 shares (adjusted for a 1 for 20
reverse stock split to be effective on the Effective Date) of the Company's
Common Stock under the Company's 2000 Stock Incentive Plan (the "Plan") on such
terms and conditions specified in an appropriate stock option agreement (the
"Option Agreement") and the Plan. The Option Agreement shall provide that twenty
percent (20%) of the options shall vest immediately, and the remaining options
will vest in increments over a four year period and upon Employee meeting
certain performance criteria to be specified in the Option Agreement.
5. Employee Benefits. During the period of his employment hereunder,
Employee also shall be entitled to participate in such Company employee benefit
plans as from time to time are maintained, sponsored, or made available to the
executive employees of the Company and the Bank generally, in each case on the
same terms and subject to the same conditions and limitations generally
applicable to other executive officers with respect to participation therein.
Employee shall be entitled to four (4) weeks of paid vacation per calendar year
during the period of his employment hereunder. Vacation time not taken shall not
be accumulated and carried forward to a subsequent calendar year.
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6. Certain Expenses. The Company shall pay or reimburse Employee for the
reasonable travel, entertainment and other incidental expenses (including the
cost of business publications and professional associations) incurred on
business of the Company or the Bank with the approval of the Chief Executive
Officer of the Bank, and in accordance with the Company's practices as in effect
during the term of this Agreement as applied to executive officers. During the
period of his employment under this Employment Agreement, the Bank will pay
$450.00 per month toward the lease or use of an automobile but Employee shall
pay the cost of fuel, insurance and maintenance on such automobile. For the
period ending on the first to occur of (i) termination of this Employment
Agreement for any reason whatsoever, (ii) six (6) months from the Effective
Date; or (iii) Employee relocating his principal residence to a location within
twenty-five (25) miles of the main office of the Bank, the Bank shall pay or
reimburse Employee's reasonable living expenses (housing and meals) while
working at the Bank's main office in an amount not to exceed $1,000.00 per
month.
7. Certain Continuing Obligations of Employee. Throughout the period of
his employment hereunder and thereafter, Employee agrees to keep confidential
all trade secrets, customer lists, business strategies, financial and marketing
information, and other data concerning the private affairs of the Company and
the Bank or any of their affiliates, made known to or developed by Employee
during the course of his employment hereunder ("Confidential Information"), not
to use any Confidential Information or supply Confidential Information to others
other than in furtherance of the Company's or Bank's business, and to return to
the Company upon termination of his employment all copies, in whatever form, of
all Confidential Information and all other documents relating to the business of
the Company or any of its affiliates which may then be in the possession or
under the control of Employee.
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At the request of the Company Board, whether or not made during the period
of his employment hereunder, Employee agrees to execute such confidentiality
agreements, assignments of intellectual property rights, and other documents as
hereafter may be reasonably determined by the Company Board to be appropriate to
carry out the purposes of this Section.
8. Termination of Employment; Effect.
(a) Employee's employment hereunder will be terminated in any of the
following ways:
(i) Immediately upon the death of the Employee;
(ii) Immediately upon the Employee becoming disabled due to
his physical or mental condition to regularly and satisfactorily
perform his duties hereunder (as determined by the Company Board)
for a period of thirty (30) continuous days;
(iii) By either the Employee or the Company giving notice of
his or its intention not to extend this Agreement's term as provided
in Section 2 above, in which case Employee's employment will
terminate at the end of the Employment Period or extended term, as
the case may be;
(iv) By either the Employee or the Company, without or with
Cause (as hereinafter defined), by 30 days' prior written notice to
the other, effective as of the date specified in such notice; or
(v) Thirty (30) days after written notice by either the
Company or Employee after a Change of Control if (A) Employee
terminates his employment for Good Reason; or (B) the Company
terminates Employee's employment otherwise than for Cause or
Employee's disability.
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(b) Upon the termination of Employee's employment in any of the ways
provided in subsection (a), then this Agreement and all rights and
obligations of Employee and the Company hereunder (as opposed to rights
and obligations under any Company employee benefit plan in which Employee
participated) shall terminate and cease immediately, except for (i)
Employee's rights to the payments provided in Section 9 below; and (ii)
the rights and obligations set forth in Section 7 above and Section 12
below.
9. Payments On Termination. Employee shall be entitled to the
following payments and benefits upon termination of his employment:
(a) If Employee's employment is terminated under Section 8(a)(i)
above (by reason of death), or if Employee's employment is terminated by
Employee or the Company under Section 8(a)(iii) above (no extension), or
if Employee's employment is terminated (either voluntarily by Employee or
for Cause by the Company) under Section 8(a)(iv) above, then Employee
shall be entitled to the cash compensation under Section 3(a) above, and
the benefits and reimbursement to which Employee is entitled under
Sections 5 and 6 above, through the date of termination of employment.
(b) If Employee's employment is terminated under Section 8(a)(ii)
above (disability), or by the Company without Cause under Section 8(a)(iv)
above, Employee shall be entitled to the cash compensation payable under
Section 3(a) above, and the benefits and reimbursement to which Employee
is entitled under Section 5 above, for a period of one year following the
effectiveness of such termination of employment; provided, however, that
in the event termination of employment occurs during the initial
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Employment Period, such payments and benefits shall continue for the
longer of (i) the balance of the initial Employment Period, or (ii) one
year following termination.
(c) If Employee's employment is terminated after a Change of Control
under Section 8(a)(v) above (by Employee for Good Reason; by the Company
other than for Cause), Employee shall be entitled to a cash payment equal
to 200% of the annual base salary under Section 3(a) above then in effect;
provided, that if such termination occurs during the initial Employment
Period, then there shall be added to such payment the amount, if any, by
which the present value of the payments provided in Section 9(b) above
(determined as of the termination date) exceed 200% of Employee's then
annual base salary. In the event the payments required under this
Agreement, when added together with any other amounts required to be
included by Employee under the provisions of the Internal Revenue Code of
1986, as amended, result in an "Excess Parachute Payment," as that term is
defined in Section 280G of the Code, then the amount of the payments
provided for in this Agreement shall be reduced in an amount which
eliminates any and all excise tax to be imposed under Section 4999 (or any
successor thereto) of the Code.
10. Definitions. For purposes of this Agreement, "Cause" means any of
the following:
(a) Material breach of any of the terms of this Agreement or of the
Company's or Bank's policies and procedures applicable to employees and/or
directors;
(b) Conviction of or plea of guilty or nolo contendere to a crime
involving moral turpitude or involving any violation of securities or
banking law or regulation, or
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the issuance of any court or administrative order enjoining or prohibiting
Employee from violating any such law or regulation;
(c) Receipt of any written criticism of the performance of the
Employee by any regulatory agency having jurisdiction over the Company or
the Bank which in the good faith judgment of the Company Board may
adversely affect the Company, the Bank or any of their affiliates, or has
irreparably damaged Employee's continued ability to function effectively
in any of the capacities contemplated by this Agreement;
(d) Repeated or habitual intoxication with alcohol or drugs while on
the premises of the Company or the Bank or any of their affiliates, or
during the performance by Employee of any of his duties hereunder;
(e) Embezzlement of any property belonging or entrusted to the
Company or the Bank, or any of their affiliates;
(f) Willful misconduct or gross neglect of duties, or failure to act
with respect to duties or actions previously communicated to Employee in
writing by the Company Board;
(g) Any other act or omission of kind or nature similar to any of
the foregoing, or determined in good faith by the Company Board to be of
comparable seriousness, which in the good faith judgment of the Company
Board may have adversely affected or may in the future adversely affect
the Company, the Bank or any of their affiliates, or has irreparably
damaged Employee's continued ability to function effectively in any of the
capacities contemplated by this Agreement.
"Change in Control" shall occur if at anytime after the consummation
of the transactions contemplated by the Stock Purchase Agreement,
including the sale of shares of Common Stock of the Company and the
reconstitution of its Board of Directors,
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whether such transactions occur at or after the Closing under the Stock
Purchase Agreement:
i. Any person or group (as such terms are used in connection with
Sections 13(d) and 14(d) of the Exchange Act) becomes the
"beneficial owner" (as defined in Rule 13(d)(3) and 13(d)(5) under
the Exchange Act), directly or indirectly, of securities of the
Company representing twenty-five percent (25%) or more of the
combined voting power of the Company's then outstanding securities;
ii. A merger, consolidation, sale of assets, reorganization, or proxy
contest is consummated and, as a consequence of which, members of
the Company Board in office immediately prior to such transaction or
event constitute less than a majority of the Board thereafter;
iii. During any period of 24 consecutive months, individuals who at the
beginning of such period constitute the Company Board (including for
this purpose any new director whose election or nomination for
election by the Company's stockholders was approved by a vote of at
least one-half of the directors then still in office who were
directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Company Board; or
iv. A merger, consolidation or reorganization is consummated with any
other corporation pursuant to which the shareholders of the Company
immediately prior to the merger, consolidation or reorganization do
not immediately thereafter directly or indirectly own more than
fifty percent (50%) of the combined voting power of the voting
securities entitled to vote in the election of directors of the
merged, consolidated or reorganized entity.
Notwithstanding the foregoing, no trust department or designated fiduciary
or other trustee of such trust department of the Company or a subsidiary
of the Company, or other similar fiduciary capacity of the Company with
direct voting control of the stock shall be treated as a person or group
within the meaning of subsection (i)(a) hereof. Further, no
profit-sharing, employee stock ownership, employee stock purchase and
savings, employee pension, or other employee benefit plan of the Company
or any of its subsidiaries, and no trustee of any such plan in its
capacity as such trustee, shall be treated as a person or group within the
meaning of subsection (i)(a) hereof.
"Good Reason" means any of the following occurrences without the written
consent of Employee: (a) the assignment to Employee of any duties inconsistent
with his duties described in Section 1(a) hereof or any removal of Employee from
or any failure to reelect Employee to his positions described in Section 1
hereof, except in connection with promotions to higher office;
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provided, that the suspension of Employee from the duties of his employment and
any positions held by him during the pendency of any criminal proceedings
against Employee as to which a conviction would constitute "Cause" shall not be
deemed "Good Reason" so long as during the period of such suspension the Company
continues to pay the base salary and provide the additional benefits to which
Employee is entitled; (b) the Company requiring that the Employee relocate his
principal office to a location twenty-five or more miles from Bloomfield Hills,
Michigan; (c) the material reduction at any time of the additional benefits
theretofore provided to Employee; provided, that (i) reductions in the actual
economic value of additional benefits in accordance with the objective terms of
such additional benefits (e.g., changes in the amounts of bonus payments from
time to time in accordance with the objective terms of a bonus formula) shall
not be deemed a reduction of such additional benefits for this purpose, and (ii)
the replacement of additional benefits with other new additional benefits having
substantially equivalent economic value to Employee shall not be deemed a
reduction of additional benefits for this purpose; (d) the failure of the
Company to pay Employee the base salary and provide the additional benefits as
and when required hereof; or (e) any other failure of the Company to perform its
obligations to Employee hereunder if such failure continues uncured for ten (10)
days after written notice thereof, specifying the nature of such failure and
requesting that it be cured, is given by Employee to the Company.
11. Integration; Amendment. This Agreement contains the entire agreement
of the parties relating to the subject matter hereof and thereof, and together
supersede and replace in their entirety any prior agreements or understandings
concerning such subject matter. This Agreement may not be waived, changed,
modified, extended, or discharged orally, but only by
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agreement in writing signed in the case of the Company by the Chairman or Vice
Chairman of the Company Board.
12. Arbitration. Any controversy, dispute, or claim arising out of or
relating to Employee's employment or to this Agreement or breach thereof shall
be settled by arbitration in accordance with the commercial rules of the
American Arbitration Association at its Southfield, Michigan offices. Judgment
upon any award may be entered in any circuit court or other court having
jurisdiction thereof, without notice to the opposite party or parties. Anything
contained herein to the contrary notwithstanding, this agreement to arbitrate
shall not be deemed to be a waiver of the Company's right to secure equitable
relief including injunction (whether as part of or separate from the arbitration
proceeding) if and when otherwise appropriate.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan applicable to contracts made
and to be performed within such State.
14. Regulatory Approval. The Company and Employee agree to use their
respective best efforts to obtain such approval of bank regulatory authorities
as may be required for the payment of any termination payments as shall be or
become subject to the prior approval of such regulatory authorities in
accordance with the provisions of any statute or regulation applicable to the
Company or any affiliate thereof at the time payment is to be made in accordance
with this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NORTH COUNTRY FINANCIAL CORPORATION
By /s/ C. Xxxxx Xxxx
-----------------------------------------
Its President and Chief Executive officer
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
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