Exhibit 10.7
METROPOLITAN BANK AND TRUST COMPANY
RETENTION PAY PLAN
THIS RETENTION PAY PLAN is entered into this _24th___ day of September,
2002, by Metropolitan Bank and Trust Company (the "Bank") for the benefit of
certain key employees of the Bank listed on Schedule A hereto (each of whom
shall be referred to herein as "Employee"). Any reference to the Company herein
shall refer to Metropolitan Financial Corporation.
RECITALS
WHEREAS, the Bank desires to be ensured of the Employees' continued
active participation in the business of the Bank and the Company in the event of
a Change in Control; and
WHEREAS, in order to induce the Employee to remain in the employ of the
Bank and to provide further incentive to preserve and maintain the Bank's
ongoing operations and project stability and soundness to the Bank's customers
and employees, the Bank desires to provide benefits which shall be due the
Employee in the event his or her employment with the Bank is terminated under
specified circumstances.
NOW THEREFORE, the Metropolitan Bank and Trust Company Retention Pay
Plan (the "Plan") provides as follows:
1. PURPOSE. The Plan provides financial benefits to certain executive
officers and key employees who involuntarily lose their positions at the Bank or
the Company, or any successor to the Bank or the Company, within one (1) year
following a Change in Control.
2. DEFINITIONS. The following words and terms shall have the meanings
se forth below for the purposes of this Plan:
(a) ACQUIROR. Any company, bank or person that acquires
"Control" of the Company or Bank within the meaning of 12
C.F.R. Section 574.4.
(b) CAUSE. Termination of the Employee's employment for
"Cause" shall mean termination because of personal dishonesty,
incompetence, willful misconduct, any breach of fiduciary duty
involving personal profit, intentional failure to perform
stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses)
or final cease-and-desist order.
(c) CHANGE IN CONTROL. "Change in Control" shall mean a change
in control of a nature that: (i) would be required to be
reported in response to Item 1(a) of the current report on
Form 8-K, as in effect on the date hereof, pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"); or (ii) without limitation such a Change in
Control shall be deemed to have occurred at such time as a
plan of reorganization, merger, consolidation, sale of all or
substantially all the
assets of the Bank or the Company or similar transaction in
which the Bank or Company is not the surviving institution
occurs.
(d) DISABILITY. Termination by the Bank of the Employee's
employment based on "Disability" shall mean termination
because of any physical or mental impairment which qualifies
the Employee for disability benefits under the applicable
long-term disability plan maintained by the Bank or any
subsidiary or, if no such plan applies, which would qualify
the Employee for disability benefits under the Federal Social
Security System.
(e) RETIREMENT. "Retirement" shall mean termination of the
Employee's employment at age 65 or in accordance with any
retirement policy established by the Bank. Upon termination of
the Employee upon Retirement, no amounts or benefits shall be
due the Employee under this Plan, and the Employee shall be
entitled to all benefits under any retirement plan of the Bank
and other plans to which the Employee is a party.
3. PARTICIPATION. Participation in the Plan shall be approved by the
Board of Directors of the Bank ("Board") and limited to the Employees listed in
the attached Schedule A.
4. ELIGIBILITY FOR BENEFITS. An Employee listed on the attached
Schedule A shall be eligible to receive the benefits under the Plan if, within
one (1) year following a Change in Control: (i) the Employee's employment is
involuntarily terminated other than for Cause, Disability, Retirement or the
Employee's death; (ii) Employee resigns after being notified that Employee's
salary will be reduced by more than ten percent (10%) of his or her salary in
effect as of the Change in Control; or (iii) Employee resigns because Employee's
responsibilities or job position are substantially reduced from that in effect
as of the Change in Control.
5. BENEFITS UPON TERMINATION. If any of the events in clauses (i)
through (iii) of Section 4 occurs with respect to an Employee following a Change
in Control, the Acquiror shall pay the amounts set forth in the attached
Schedule A.
6. METHOD OF PAYMENT. The Employee shall receive his or her benefits in
a single lump sum payment.
7. SOURCE OF BENEFITS. The Acquiror shall pay the Employee's benefits
under the Plan from its general assets.
8. ARBITRATION. Any dispute or controversy arising under or in
connection with this Plan shall be settled exclusively by arbitration, conducted
before a panel of three arbitrators sitting in a location selected by the Bank
within fifty (50) miles from the location of the Bank's main office, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Employee shall be entitled to seek
specific performance of his right to be paid until the date of his or her
termination during the pendency of any dispute or controversy arising under or
in connection with this Plan, other than in the case of a termination for Cause.
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9. REQUIRED PROVISIONS.
(a) The Bank may terminate the Employee's employment at any time. The
Employee shall not have the right to receive compensation or other
benefits for any period after termination for Cause as defined
hereinabove.
(b) If the Employee is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs
by a notice served under Section 8(e)(3) (12 USC section 1818(e)(3))
or 8(g)(1) (12 US section 1818(g)(1)) of the Federal Deposit Insurance
Act, or under Ohio Revised Code Section 1511.18, the Bank's
obligations under the Plan shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges
in the notice are dismissed, the Bank may in its discretion (i) pay
the Employee all or part of the compensation withheld while its
contract obligations were suspended and (ii) reinstate (in whole or
in part) any of its obligations which were suspended.
(c) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) (12 USC section 1818(e)(4)) or 8(g)(1) (12 USC
section 1818(g)(1)) of the Federal Deposit Insurance Act, or under
Ohio Revised Code Section 1511.18, all obligations of the Bank
under the Plan shall terminate as of the effective date of the
order, but vested rights of the contracting parties shall not be
affected.
(d) If the Bank is in default as defined in Section 3(x)(1) (12 USC
section 1813(x)(1)) of the Federal Deposit Insurance Act, all
obligations of the Bank under this Plan shall terminate as of the
date of default, but this paragraph shall not affect any vested
rights of the Plan participants.
(e) All obligations of the Bank under this contract shall be
terminated, except to the extent determined that continuation of the
contract is necessary for the continued operation of the Bank, (i) by
the Director of the OTS or his or her designee at the time the FDIC
enters into an agreement to provide assistance to or on behalf of the
Bank under the authority contained in Section 13(c) (12 USC section
1823(c)) of the Federal Deposit Insurance Act; or (ii) by the
Director or his or her designee at the time the Director or his or
her designee approves a supervisory merger to resolve problems
related to operation of the Bank or when the Bank is determined by
the Director to be in an unsafe or unsound condition. Any rights of
the parties that have already vested, however, shall not be
affected by such action.
(f) Notwithstanding anything herein contained to the contrary, any
payments to the Employee by the Bank, whether pursuant to this Plan or
otherwise, are subject to and conditioned upon their compliance with
Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section
1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part
359.
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(g) Following a Change in Control, the foregoing paragraphs of this
Section 9, shall be read by substituting the term "Acquiror" for the
term "Bank" wherever the latter appears herein.
10. AMENDMENT. The Bank reserves the right to amend the Plan at any
time, with or without advance notice, provided such amendment does not reduce
the benefits to any Employee under the Plan.
11. GOVERNING LAW. This validity, interpretation, construction and
performance of the Plan shall be governed by the laws of the State of Ohio,
except to the extent that such laws contravene or are inconsistent with Federal
laws.
12. SUCCESSORS AND ASSIGNS. The provisions of this Plan shall bind and
inure to the benefit of the Bank and its successors and assigns. The term
"successors" as used herein shall include an Acquiror or any corporate or other
business entity which shall, whether by merger, consolidation, purchase or
otherwise acquire all or substantially all of the business and assets of the
Bank, and successors of any such corporation or other business entity.
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IN WITNESS WHEREOF, the Bank has caused the Plan to be executed by its
duly authorized officers and the corporate seal to be affixed and duly attested,
as of the _24th___ day of September, 2002.
Effective Date: September 24, 2002.
ATTEST: METROPOLITAN BANK AND TRUST
COMPANY
/s/ David G. Slezak /s/ Kenneth T. Koehler
- -------------------------- ----------------------------------
Secretary President
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SCHEDULE A
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METROPOLITAN BANK AND TRUST COMPANY
RETENTION PAY PLAN
FULL NAME TITLE & POSITION AMOUNT
- --------- ---------------- ------
Kenneth T. Koehler President and Chief $300,000
Executive Officer
Leonard D. Kichler Executive Vice President - 100,000
Relationship Banking
Note: The above are the executive officers of the Registrant that participate in
the subject Plan.
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