Exhibit 10.1
EFFECTIVE DATE: 12/21/06
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
(XXXXX X. XXXXXX)
This Agreement, dated as of the 21st day of December 2006 (the "Effective
Date") by and between MACKINAC FINANCIAL CORPORATION, a Michigan corporation
(the "Company"), and XXXXX X. XXXXXX ("Employee").
WITNESSETH:
WHEREAS, the Company currently employs Employee pursuant to an Employment
Agreement dated December 14, 2004, as amended by First Amendment to Employment
Agreement dated January 12, 2005 (the "First Agreement"); and
WHEREAS, Employee and Company have agreed to extend Employee's employment
by Company 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. As President and Chief Executive Officer of the
Company's wholly-owned subsidiary, mBank (the "Bank"), Employee shall have the
duties and responsibilities commensurate with such titles and offices,
including, without limitation, all such duties and responsibilities as now are
or hereafter may be set forth with respect to such offices in the bylaws of the
Bank or in the directives of the Board of Directors of the Company (the "Company
Board") or Board of Directors of the Bank. Employee shall also serve as a
President of the Company and shall have the duties and responsibilities
commensurate with such title and offices. As of the Effective Date, this
Agreement shall amend, supersede and replace in its entirety any other written
or oral Employment Agreements between Company and Employee, including,
without limitation, that certain agreement dated December 14, 2004, as amended,
and all such agreements shall be of no further force and effect. During the
Employment Period (as hereinafter defined), Employee also shall serve as an
officer of such other affiliates of the Bank or the Company and in such other
capacities as he may be requested by the Company Board and shall assume such
duties and responsibilities as from time to time may be assigned to him by the
Company Board, all without additional compensation therefore. Throughout the
Employment Period, 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, unless earlier terminated as provided
in this Agreement, through January 31, 2010 (the "Employment Period").
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 $209,000.00 per year (to be reviewed
annually by the Company Board), payable at the intervals at which other
executive officers of the Company and Bank are paid;
(b) an additional incentive bonus (if earned) payable during the
Employment Period prior to fiscal year-end in accordance with the Company's
or Bank's policy or plan.
4. Relocation Benefits. If Employee is directed by Bank to relocate his
principal office location by fifty (50) miles or more from Manistique, Michigan
during the Employment Period, the Company shall pay or reimburse Employee's
reasonable relocation expenses as determined and approved by the Chairman of the
Company, and if requested by Employee, within sixty (60) days of the Company's
direction to relocate his principal office, the Company shall
purchase Employee's principal residence for its appraised fair market value,
which appraisal shall be paid for by Company. The Company shall be responsible
for all costs associated with such purchase.
5. Employee Benefits; Disability Insurance.
(a) During the Employment Period, Employee 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 no less than
five (5) weeks of paid vacation per calendar year during the Employment Period.
Vacation time not taken shall not be accumulated and carried forward to a
subsequent calendar year.
(b) To provide for Employee in the event of Employee's disability, Employer
will purchase, to the extent available, a supplemental disability insurance
policy for the benefit of the Employee that will provide Employee with the
difference between 80% of Employee's then current base salary and the amount
available under the Company's long term disability policy until the earlier of
Employee's (i) death and (ii) attainment of age 65.
6. Certain Expenses. With the approval of the Chairman of the Company, and
in accordance with the Company's practices and policies as then effect during
the Employment Period as same are applied to executive officers, the Company
shall pay or reimburse Employee for reasonable travel, entertainment, and other
incidental expenses (including, the cost of business publications and
professional associations), incurred on or in furtherance of the business of the
Company or the Bank.
7. Certain Continuing Obligations of Employee. Throughout the Employment
Period 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, including, without limitation, the Bank, which
may then be in the possession or under the control of Employee.
At the request of the Company Board, whether or not made during the
Employment Period, 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) 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 one (1)
year;
(iii) By either the Employee or the Company, without or with
Cause (as hereinafter defined), by thirty (30) days' prior written
notice to the other, effective as of the date specified in such
notice; or
(iv) In the event of a Change in Control (as hereinafter defined)
unless prior to the effectiveness of the Change in Control, Employee
enters into a new employment agreement or other arrangement acceptable
to Employee which terminate this Agreement and Employee's right to the
compensation and benefits described in Section 9(d) of this Agreement.
Employee covenants and agrees to negotiate a new employment agreement
in good faith.
(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 Sections 11, 12 and
13 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 (either
voluntarily by Employee or for Cause by the Company) under Section
8(a)(iii) above, then Employee shall be entitled to the cash compensation
under Section 3(a) above, and the benefits and
reimbursements to which Employee is entitled under Sections 5(a) and 6
above, through the date of termination of employment.
(b) If Employee's employment is terminated, or by the Company without
Cause under Section 8(a)(iii) above, Employee shall be entitled to a lump
sum cash compensation equal to his then compensation under Section 3(a)
above, plus the greater of (i) the highest incentive bonus received by
Employee under Section 3(b) above, and (ii) the highest incentive bonus
received by Employee from the period January 1, 2005 through the Effective
Date; together with the benefits and reimbursements under Sections 5(a) and
6 above, for a period of one year following the effective date of such
termination of employment. Unless otherwise prohibited or restricted by
statute, regulation, or regulatory agency overseeing banks or bank holding
companies, the lump sum compensation due Employee under this Section 9(b)
shall be paid to Employee within fifteen (15) days of the event giving rise
to the required payment.
(c) If Employee's employment is terminated due to Employee's
disability under Section 8(a)(ii) above, Employee shall be entitled to
receive the insurance benefits described in Section 5(b)(ii) above.
(d) If Employee's employment is terminated upon a Change of Control
under Section 8(a)(iv) above (by Employee or by the Company other than for
Cause), Employee shall be entitled to (a) a cash payment equal to 299% of
Employee's then current base salary under Section 3(a) above immediately,
and (b) the benefits and reimbursements under Sections 5(a) and 6 above for
a period of one (1) year following a Change in Control.
(e) 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:
(a) "Cause" means any of the following:
(i) 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;
(ii) 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 the issuance of any court
or administrative order enjoining or prohibiting Employee from
violating any such law or regulation;
(iii) 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;
(iv) Embezzlement of any property belonging or entrusted to the
Company or the Bank, or any of their affiliates;
(v) 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; or
(vi) Any act or omission of kind or nature determined in good
faith by the Company Board to be of significant 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.
(b) "Change in Control" shall occur if at any time:
(a) Any person or group (as such terms are used in connection
with Section 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 or Bank representing twenty-five percent (25%) or
more of the combined voting power of the Company's or Bank's then
outstanding securities;
(b) 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; or
(c) A merger, consolidation, or reorganization is consummated
with any other corporation pursuant to which the shareholders of
the Company or the Bank 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.
11. Integration; Amendment. This Agreement contains the entire agreement of
the parties relating to the subject matter hereof and thereof, and supersedes
and replaces in their
entirety any prior agreements or understandings concerning such subject matter,
including without limitation the First Agreement. This Agreement may not be
waived, changed, modified, extended, or discharged orally, but only by 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. Noncompetition and Nonsolicitation. Notwithstanding anything to the
contrary contained elsewhere in this Agreement:
(a) In view of Employee's importance to the success of the Company and
the Bank, Employee and the Company agree that the Company and the Bank
would likely suffer significant harm from Employee's competing with the
Company or the Bank during Employee's term of employment and for some
period of time thereafter. Accordingly, Employee agrees that Employee shall
not engage in competitive activities while employed by the Company or the
Bank and, in the event Employee's employment is terminated voluntarily by
Employee or without cause by the Company pursuant to Section 8(a)(iii)
above, during the Restricted Period. Employee shall be deemed to engage in
competitive activities if he shall, without the prior written consent of
the Company, (i) within a fifty
(50) mile radius of the main office or any branch office of the Bank,
render services directly or indirectly, as an employee, officer, director,
consultant, advisor, partner, or otherwise, for any organization or
enterprise which competes directly or indirectly with the business of
Company or any of its affiliates in providing financial products or
services (including, without limitation, banking, insurance, or securities
products or services) to consumers and businesses, or (ii) directly or
indirectly acquires any financial or beneficial interest in (except as
provided in the next sentence) any organization which conducts or is
otherwise engaged in a business or enterprise within a fifty (50) mile
radius of the main office or any branch office of the Bank, which competes
directly or indirectly with the business of the Company or the Bank or any
of their affiliates in providing financial products or services (including,
without limitation, banking, insurance or securities products or services)
to consumers and businesses. Notwithstanding the preceding sentence,
Employee shall not be prohibited from owning less than five (5%) percent of
any publicly traded corporation whether or not such corporation is in
competition with the Company. For purposes hereof, the term "Restricted
Period" shall equal the longer of (y) twelve (12) months, or (z) the period
during which Employee receives salary and benefits under Section 8(a)(iii)
above (as provided in Section 9(b)), in each case commencing as of the date
of Employee's termination of employment.
14. 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.
15. Regulatory Approval. The Company and Employee agree to use their
respective best efforts to obtain such approval of bank regulatory authorities
if required for this Agreement and the payment of any termination payments.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
MACKINAC FINANCIAL CORPORATION
/S/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx
Its: Chairman and Chief
Executive Officer
/S/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
