EXHIBIT 10.4
MANAGEMENT CONTINUITY AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of the
16th day of May, 2003 (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 Xxxxx 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 his employment at any time and the Bank shall retain the same right.
(a) POSITIONS. Executive serves Bank as Senior Vice
President and Chief Financial Officer as of the Effective Date.
(b) DUTIES. Executive's duties, authority and
responsibilities as Senior Vice President and Chief Financial Officer 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 his best
efforts and full business time, energy, skills and attention to the business and
affairs of the Bank, and will faithfully and loyally discharge his duties to the
Bank.
SECTION 2. COMPENSATION. The Bank shall compensate Executive for his
services as follows during the term of this Agreement:
(a) BASE COMPENSATION. Executive will receive an annual
base salary of $113,000 during 2003. 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.
(c) 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 him.
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 his
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 his obligations
under this Agreement; or (v) Executive fails to perform his 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, he may terminate this
Agreement and his 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
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following, without Executive's prior written consent: (i) Executive is not
reelected to or is removed as Senior Vice President and Chief Financial Officer
of the Bank; (ii) the Bank fails to vest Executive with or removes from him the
duties, responsibilities, authority or resources that he reasonably needs to
competently perform his duties as Senior Vice President and Chief Financial
Officer 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.
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(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 a physician selected by the
Bank, unless as a result of such disability, Executive is unable to perform his
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
his death. Any payments that are owing to Executive under this Agreement or
otherwise at the time of his death will be made to whomever Executive may
designate in writing as his beneficiary, or absent such a designation, to the
executor or administrator of his 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 his 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).
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(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 he obtains
other employment following termination or takes steps to mitigate any damages
that he 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 his 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
his employment will require that he 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 his duties
hereunder, or the Confidential Information lawfully becomes available to the
public from other sources, or he is authorized in writing by the Holding Company
to disclose it, or he 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
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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 his
employment with the Bank is terminated for any reason.
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, he 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 his death, his 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 him in connection
with or arising out of any pending, threatened or completed action, suit or
proceeding in which he may become involved by reason of his 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
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or proceeding for which the Bank is permitted or required to indemnify him 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 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 him in connection with any claim covered by
this Section 6. Further, Executive's choice of counsel, his 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,
including not by way of limitation the prior agreement between the Bank and
Executive dated February 18, 2003. 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.
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(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.
(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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PEOPLES STATE BANK
By: /s/ Xxxxxx Xxxx /s/ Xxxxx Xxxxxx
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Xxxxxx Xxxx, President & CEO Xxxxx Xxxxxx
0000 Xxxxxxxxxx Xx
Xxxxxxxx Xxx, XX 00000
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Address
PSB GROUP, INC.
By: /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, President & CEO
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