Exhibit 10.4
SEVERANCE AGREEMENT
This SEVERANCE AGREEMENT (this "Agreement") is entered into as of this
12th day of August, 2003, by and between Middlefield Banc Corp., an Ohio
corporation ("Middlefield"), and Jay P. Giles, Senior Vice President (the
"Executive") of The Middlefield Banking Company, an Ohio-chartered, FDIC-insured
nonmember bank and wholly owned subsidiary of Middlefield.
WHEREAS, the Executive is employed by The Middlefield Banking Company
and the Executive has made and is expected to continue to make major
contributions to the profitability, growth, and financial strength of
Middlefield and its subsidiaries,
WHEREAS, Middlefield recognizes that, as is the case for most
companies, the possibility of a Change in Control (as defined in Section 1(c))
exists,
WHEREAS, Middlefield desires to assure itself of the current and future
continuity of management and desires to establish minimum severance benefits for
certain of its officers and other key employees, including the Executive, if a
Change in Control occurs,
WHEREAS, Middlefield wishes to ensure that officers and other key
employees are not practically disabled from discharging their duties if a
proposed or actual transaction involving a Change in Control arises,
WHEREAS, Middlefield desires to provide additional inducement for the
Executive to continue to remain in the ongoing employ of Middlefield and
subsidiary, and
WHEREAS, none of the conditions or events included in the definition of
the term "golden parachute payment" that is set forth in Section 18(k)(4)(A)(ii)
of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in
Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR
359.1(f)(1)(ii)] exists or, to the best knowledge of Middlefield, is
contemplated insofar as either of Middlefield or any of its subsidiaries is
concerned,
NOW THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. CHANGE IN CONTROL COMBINED WITH EMPLOYMENT TERMINATION
(a) TERMINATION OF EXECUTIVE WITHIN TWO YEARS AFTER A CHANGE IN
CONTROL. If a Change in Control occurs during the term of this Agreement and if
either of the following also occurs, the Executive shall be entitled to
severance and termination benefits specified in Section 2 of this Agreement --
(1) Termination by Middlefield or Subsidiary: the Executive's
employment with Middlefield or its Subsidiary(ies) is
involuntarily terminated within two years after a Change in
Control, except for termination under Section 4 of this
Agreement. For purposes of this Agreement, "Subsidiary" means
an entity in which Middlefield directly or indirectly
beneficially owns 50% or more of the outstanding voting
securities, or
(2) Termination by the Executive for Good Reason: the Executive
terminates his employment with Middlefield or Subsidiary(ies)
for Good Reason (as defined in Section 3) within two years
after a Change in Control.
If the Executive is removed from office or if his employment terminates
after discussions with a third party regarding a Change in Control commence, and
if those discussions ultimately conclude with a
Change in Control, then for purposes of this Agreement the removal of the
Executive or termination of his employment shall be deemed to have occurred
after the Change in Control.
(b) TERMINATION BY THE EXECUTIVE DURING A 90-DAY PERIOD 12 MONTHS AFTER
A CHANGE IN CONTROL. The Executive shall also be entitled to severance and
termination benefits under Section 2 of this Agreement if he terminates
employment with Middlefield and Subsidiary(ies) for any reason or for no reason
during the 90_day period beginning on the date that is 12 months after a Change
in Control.
(c) DEFINITION OF CHANGE IN CONTROL. For purposes of this Agreement,
"Change in Control" means any of the following events occur:
(1) Merger: Middlefield merges into or consolidates with another
corporation, or merges another corporation into Middlefield,
and as a result less than a majority of the combined voting
power of the resulting corporation immediately after the
merger or consolidation is held by persons who were the
holders of Middlefield's voting securities immediately before
the merger or consolidation. For purposes of this Agreement,
the term person means an individual, corporation, partnership,
trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or other entity,
(2) Acquisition of Significant Share Ownership: a report on
Schedule 13D, Schedule TO, or another form or schedule (other
than Schedule 13G), is filed or is required to be filed under
Sections 13(d) or 14(d) of the Securities Exchange Act of
1934, if the schedule discloses that the filing person or
persons acting in concert has or have become the beneficial
owner of 15% or more of a class of Middlefield's voting
securities (but this clause (2) shall not apply to beneficial
ownership of voting shares held by a Subsidiary in a fiduciary
capacity),
(3) Change in Board Composition: during any period of two
consecutive years, individuals who constitute Middlefield's
board of directors at the beginning of the two-year period
cease for any reason to constitute at least a majority
thereof; provided, however, that -- for purposes of this
clause (3) -- each director who is first elected by the board
(or first nominated by the board for election by stockholders)
by a vote of at least two-thirds (2/3) of the directors who
were directors at the beginning of the period shall be deemed
to have been a director at the beginning of the two-year
period, or
(4) Sale of Assets: Middlefield sells to a third party
substantially all of Middlefield's assets. For purposes of
this Agreement, sale of substantially all of Middlefield's
assets includes sale of The Middlefield Banking Company.
2. SEVERANCE AND TERMINATION BENEFITS
(a) SEVERANCE AND TERMINATION BENEFITS. The severance and termination
benefits to which the Executive is entitled under Section 1 are as follows --
(1) Lump Sum Payment: Middlefield shall make a lump sum payment to
the Executive in an amount in cash equal to two times the
Executive's annual compensation. For purposes of this
Agreement, annual compensation means (a) the Executive's
annual base salary on the date of the Change in Control or the
Executive's termination of employment (at whichever date the
Executive's current annual base salary is greater), plus (b)
the average of the bonuses and incentive compensation earned
for the three calendar years immediately preceding the year in
which the Change in Control occurs, regardless of when the
bonus or incentive compensation is paid. Middlefield
recognizes that the bonus and incentive compensation earned by
the Executive for a particular year's service might be paid in
the year after the calendar year in which the bonus or
incentive compensation is earned. The amount payable to the
Executive hereunder shall not be reduced to account for the
time value of money or discounted to present value. The
payment
required under this Section 2(a)(1) is payable no later than 5
business days after the date the Executive's employment
terminates. If the Executive terminates employment for Good
Reason, the date of termination shall be the date specified by
the Executive in his notice of termination.
(2) Benefit Plans: Middlefield shall cause the Executive to become
fully vested in any qualified and non-qualified plans,
programs or arrangements in which the Executive participated
if the plan, program, or arrangement does not address the
effect of a change in control. Middlefield also shall
contribute or cause a Subsidiary to contribute to the
Executive's Middlefield Banking Company 401(k) Employee
Savings and Investment Plan account the matching and voluntary
contributions, if any, that would have been made had the
Executive's employment not terminated before the end of the
plan year.
(3) Insurance Coverage: Middlefield shall cause to be continued
life, health and disability insurance coverage substantially
identical to the coverage maintained for the Executive before
his termination. The insurance coverage may cease when the
Executive becomes employed by another employer or 24 months
after the Executive's termination, whichever occurs first. At
the end of the 24-month period, the Executive shall have the
option to continue health insurance coverage at his own
expense for a period not less than the number of months by
which the Consolidated Omnibus Budget Reconciliation Act
(COBRA) continuation period exceeds 24 months.
(b) NO MITIGATION REQUIRED. Middlefield hereby acknowledges that it
will be difficult and could be impossible (1) for the Executive to find
reasonably comparable employment after his employment terminates, and (2) to
measure the amount of damages the Executive suffers as a result of termination.
Additionally, Middlefield acknowledges that its general severance pay plans do
not provide for mitigation, offset or reduction of any severance payment
received thereunder. Accordingly, Middlefield further acknowledges that the
payment of severance and termination benefits by Middlefield under this
Agreement is reasonable and will be liquidated damages, and the Executive shall
not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, nor will any profits,
income, earnings or other benefits from any source whatsoever create any
mitigation, offset, reduction or any other obligation on the part of the
Executive hereunder or otherwise.
3. GOOD REASON
For purposes of this Agreement, "Good Reason" means the occurrence of
any of the events or conditions described in clauses (a) through (f) hereof
without the Executive's express written consent --
(a) CHANGE IN OFFICE OR POSITION OR TERMINATION AS A DIRECTOR: failure
to elect or reelect or otherwise to maintain the Executive in the office or
position, or a substantially equivalent office or position, of or with
Middlefield and Subsidiary(ies) that the Executive held immediately before the
Change in Control, or the removal or failure to nominate the Executive as a
director of Middlefield (or any successor thereto) if the Executive shall have
been a director of Middlefield immediately before the Change in Control,
(b) ADVERSE CHANGE IN THE SCOPE OF HIS DUTIES OR COMPENSATION AND
BENEFITS:
(1) a significant adverse change in the nature or scope of the
authorities, powers, functions, responsibilities or duties
associated with the Executive's position with Middlefield and
Subsidiary(ies) compared to the nature or scope of the
authorities, powers, functions, responsibilities or duties
associated with the position immediately before the Change in
Control,
(2) a reduction in the aggregate of the Executive's annual
compensation received from Middlefield and Subsidiary(ies), or
(3) the termination or denial of the Executive's rights to
benefits under Middlefield's or Subsidiary's(ies') benefit,
compensation and incentive plans and arrangements or a
reduction in the scope or value thereof, which situation is
not remedied within 10 calendar days after written notice to
Middlefield from the Executive,
(c) ADVERSE CHANGE IN CIRCUMSTANCES: the Executive determines that a
change in circumstances has occurred after a Change in Control, including
without limitation a change in the scope of the business or other activities for
which the Executive is responsible compared to his responsibilities immediately
before the Change in Control, (1) which renders the Executive substantially
unable to carry out, substantially hinders the Executive's performance of, or
causes the Executive to suffer a substantial reduction in, any of the
authorities, powers, functions, responsibilities or duties associated with the
office or position held by the Executive immediately before the Change in
Control, and (2) which situation is not remedied within 10 calendar days after
written notice to Middlefield from the Executive of such determination. Provided
his determination is made in good faith, the Executive's determination will be
conclusive and binding upon the parties hereto. The Executive's determination
will be presumed to have been made in good faith, unless Middlefield establishes
by clear and convincing evidence that it was not made in good faith,
(d) LIQUIDATION AND MERGER OF MIDDLEFIELD: the liquidation,
dissolution, merger, consolidation or reorganization of Middlefield or transfer
of all or substantially all of the business or assets of either Middlefield or
The Middlefield Banking Company, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or otherwise) to
which all or substantially all of the business or assets have been transferred
(directly or by operation of law) assumes all duties and obligations of
Middlefield under this Agreement,
(e) RELOCATION OF THE EXECUTIVE: Middlefield relocates its principal
executive offices, or requires the Executive to have his principal location of
work changed, to any location that is more than 15 miles from the location
thereof immediately before the Change in Control, or requires the Executive to
travel away from his office in the course of discharging his responsibilities or
duties hereunder at least 20% more (in terms of aggregate days in any calendar
year or in any calendar quarter when annualized for purposes of comparison to
any prior year) than was required of Executive in any of the three full years
immediately before the Change in Control, or
(f) BREACH OF THIS AGREEMENT: without limiting the generality or effect
of the foregoing, any material breach of this Agreement by Middlefield or any
successor thereto.
4. TERMINATION FOR WHICH NO SEVERANCE OR TERMINATION BENEFITS ARE PAYABLE
(a) NO SEVERANCE FOR TERMINATION FOR CAUSE. Anything in this Agreement
to the contrary notwithstanding, under no circumstance shall the Executive be
entitled to severance or termination benefits if his employment terminates for
Cause.
(1) Cause Means Commission of Any of the Following Acts: For
purposes of this Agreement, "Cause" means the Executive shall
have committed any of the following acts
(a) Fraud, Embezzlement, Theft or Other Crime: an act of
fraud, embezzlement or theft in connection with his
duties or in the course of his employment with
Middlefield or a Subsidiary, or commission of a
felony or commission of a misdemeanor involving moral
turpitude,
(b) Negligence, Disloyalty or Violation of Law or Policy:
the Executive's gross negligence or gross neglect of
duties, disloyalty, dishonesty, or willful violation
of any law or significant policy of Middlefield
committed in connection with the Executive's
employment and resulting in an adverse effect on
Middlefield or a Subsidiary,
(c) Disclosure of Trade Secrets: intentional wrongful
disclosure of secret processes or confidential
information of Middlefield or a Subsidiary, causing
material harm to Middlefield or the Subsidiary,
(d) Competing with Middlefield: intentional wrongful
engagement in any competitive activity. For purposes
of this Agreement, competitive activity means the
Executive's participation, without the written
consent of a senior executive officer of Middlefield,
in the management of any business enterprise if (1)
the enterprise engages in substantial and direct
competition with Middlefield, (2) the enterprise's
revenues derived from any product or service
competitive with any product or service of
Middlefield or Subsidiary(ies) amounted to 10% or
more of the enterprise's revenues for its most
recently completed fiscal year, and (3) Middlefield's
revenues from the product or service amounted to 10%
of Middlefield's revenues for its most recently
completed fiscal year. A competitive activity does
not include mere ownership of securities in an
enterprise and the exercise of rights appurtenant
thereto, provided the Executive's share ownership
does not give him practical or legal control of the
enterprise. For this purpose, ownership of less than
5% of the enterprise's outstanding voting securities
shall conclusively be presumed to be insufficient for
practical or legal control, and ownership of more
than 50% shall conclusively be presumed to constitute
practical and legal control.
If the Executive is now or hereafter becomes
subject to an agreement not to compete with
Middlefield or Subsidiary(ies), a breach by the
Executive of that other non-competition agreement
shall be grounds for denial of severance and
termination benefits for Cause under this clause (d)
of Section 4(a)(1). But if the Executive engages in a
competitive activity under circumstances justifying
denial of severance or termination benefits for Cause
under this clause (d), that shall not necessarily be
grounds for concluding that the Executive has also
breached the other non-competition agreement to which
he is or may become subject. This clause (d) is not
intended to and shall not be construed to supersede
or amend any provision of an employment or
non-competition agreement to which the Executive is
or may become subject. This clause (d) does not grant
to the Executive any right or privilege to engage in
other activities or enterprises, whether in
competition with Middlefield or otherwise, or
(e) Termination for Cause under an Employment Agreement:
any actions that have caused the Executive to be
terminated for cause under any employment agreement
existing on the date hereof or hereafter entered into
between the Executive and Middlefield or a
Subsidiary.
(2) Definition of "Intentional": For purposes of this Agreement,
no act or failure to act on the part of the Executive shall be
deemed to have been intentional if it was due primarily to an
error in judgment or negligence. An act or failure to act on
the Executive's part shall be considered intentional if it is
not in good faith and if it is without a reasonable belief
that the action or failure to act is in the best interests of
Middlefield.
(3) Termination for Cause Can Occur Solely by Formal Board Action.
The Executive shall not be deemed under this Agreement to have
been terminated for Cause unless and until there shall have
been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of at least three_fourths
(3/4) of the directors of Middlefield then in office at a
meeting of the board of directors called and held for such
purpose, which resolution shall (a) contain findings that, in
the good faith opinion of the board, the Executive has
committed an act constituting Cause and (b) specify the
particulars thereof
in detail. Notice of that meeting and the proposed
determination of Cause shall be given to the Executive a
reasonable amount of time before the board's meeting. The
Executive and his counsel (if the Executive chooses to have
counsel present) shall have a reasonable opportunity to be
heard by the board at the meeting. Nothing in this Agreement
limits the Executive's or his beneficiaries' right to contest
the validity or propriety of the board's determination of
Cause, and they shall have the right to contest the validity
or propriety of the board's determination of Cause even if
that right does not exist under any employment agreement of
the Executive.
(b) NO SEVERANCE UNDER THIS AGREEMENT FOR THE EXECUTIVE'S DEATH OR
DISABILITY. Anything in this Agreement to the contrary notwithstanding, under no
circumstance shall the Executive be entitled to severance payments or
termination benefits under this Agreement if --
(1) Death: the Executive dies while actively employed by
Middlefield or a Subsidiary, or
(2) Disability: the Executive becomes totally disabled while
actively employed by Middlefield or a Subsidiary. For purposes
of this agreement, the term "totally disabled" means that
because of injury or sickness, the Executive is unable to
perform his duties.
The benefits, if any, payable to the Executive or his beneficiary(ies)
or estate relating to his death or disability shall be determined solely by such
benefit plans or arrangements as Middlefield or Subsidiary may have with the
Executive relating to death or disability, not by this Agreement.
5. TERM OF AGREEMENT
The initial term of this Agreement shall be for a period of three
years, commencing August 12, 2003. On the first anniversary of the August 12,
2003 effective date of this Agreement, and on each anniversary thereafter, the
Agreement shall be extended automatically for one additional year unless
Middlefield's board of directors gives notice to the Executive in writing at
least 90 days before the anniversary that the term of this Agreement will not be
extended. If the board of directors determines not to extend the term, it shall
promptly notify the Executive. References herein to the term of this Agreement
mean the initial term and extensions of the initial term. Unless terminated
earlier, this Agreement shall terminate when the Executive reaches age 65. If
the board of directors decides not to extend the term of this Agreement, this
Agreement shall nevertheless remain in force until its term expires. The board's
decision not to extend the term of this Agreement shall not -- by itself -- give
the Executive any rights under this Agreement to claim an adverse change in his
position, compensation or circumstances or otherwise to claim entitlement to
severance or termination benefits under this Agreement.
6. THIS AGREEMENT IS NOT AN EMPLOYMENT CONTRACT
The parties hereto acknowledge and agree that (a) this Agreement is not
a management or employment agreement and (b) nothing in this Agreement shall
give the Executive any rights or impose any obligations to continued employment
by Middlefield or any Subsidiary or successor of Middlefield, nor shall it give
Middlefield any rights or impose any obligations for the continued performance
of duties by the Executive for Middlefield or any Subsidiary or successor of
Middlefield.
7. PAYMENT OF LEGAL FEES
Middlefield desires that the Executive not be required to incur legal
fees and the related costs and expenses associated with the interpretation,
enforcement or defense of Executive's rights under this Agreement by litigation
or otherwise, because the amounts thereof would substantially detract from the
benefits intended to be extended to the Executive under this Agreement.
Therefore, even if the Executive does not prevail in whole or in part in
litigation or other legal action associated with the interpretation, enforcement
or defense of Executive's rights under this Agreement, Middlefield hereby agrees
to pay and be solely financially responsible for any and all attorneys' and
related fees, costs and expenses incurred by the Executive in the litigation or
other legal action, up to a maximum of $500,000. The fees and expenses
of counsel selected by the Executive shall be paid or reimbursed to the
Executive by Middlefield on a regular, periodic basis, upon presentation by the
Executive of a statement or statements prepared by such counsel in accordance
with counsel's customary practices. Anything herein to the contrary
notwithstanding, nothing in this Agreement authorizes Middlefield to pay or the
Executive to demand payment of fees, costs and expenses if and to the extent
payment of fees, costs and expenses constitutes a "prohibited indemnification
payment" within the meaning of Federal Deposit Insurance Corporation Rule
359.1(l)(1) [12 CFR 359.1(l)(1)]. Middlefield's obligation in this Section 7 to
pay the Executive's legal fees operates separately from and in addition to any
legal fee reimbursement obligation Middlefield or a Subsidiary may have under
any separate employment or other agreement between the Executive and
Middlefield.
Middlefield irrevocably authorizes the Executive to retain from time to
time counsel of Executive's choice to advise and represent him in the
interpretation, enforcement or defense of the parties' rights and
responsibilities under this Agreement, if --
(1) the Executive concludes that Middlefield has failed to comply
with any of its obligations under this Agreement, or
(2) if Middlefield or any other person takes or threatens to take
any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding
designed to deny, or to recover from, the Executive the
benefits provided or intended to be provided to the Executive
under this Agreement,
including without limitation the initiation or defense of any litigation or
other legal action, whether by or against Middlefield or any director, officer,
stockholder or other person affiliated with Middlefield, in any jurisdiction.
8. WITHHOLDING OF TAXES
Middlefield may withhold from any benefits payable under this Agreement
all Federal, state, local or other taxes as may be required by law, governmental
regulation or ruling.
9. SUCCESSORS AND ASSIGNS
(a) THIS AGREEMENT IS BINDING ON MIDDLEFIELD'S SUCCESSORS. This
Agreement shall be binding upon Middlefield and any successor to Middlefield,
including any persons acquiring directly or indirectly all or substantially all
of the business or assets of Middlefield by purchase, merger, consolidation,
reorganization or otherwise. Any such successor shall thereafter be deemed to be
the "Corporation" for purposes of this Agreement. But this Agreement and
Middlefield's obligations under this Agreement are not otherwise assignable,
transferable or delegable by Middlefield. By agreement in form and substance
satisfactory to the Executive, Middlefield shall require any successor to all or
substantially all of the business or assets of Middlefield expressly to assume
and agree to perform this Agreement in the same manner and to the same extent
Middlefield would be required to perform if no such succession had occurred.
(b) THIS AGREEMENT IS ENFORCEABLE BY THE EXECUTIVE AND HIS HEIRS. This
Agreement will inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributes and legatees.
(c) THIS AGREEMENT IS PERSONAL IN NATURE AND IS NOT ASSIGNABLE. This
Agreement is personal in nature. Without written consent of the other party,
neither party shall assign, transfer or delegate this Agreement or any rights or
obligations under this Agreement except as expressly provided in this Section 9.
Without limiting the generality or effect of the foregoing, the Executive's
right to receive payments hereunder is not assignable or transferable, whether
by pledge, creation of a security interest, or otherwise, except for a transfer
by Executive's will or by the laws of descent and distribution. If the Executive
attempts an assignment or transfer that is contrary to this Section 9,
Middlefield shall have no liability to pay any amount to the assignee or
transferee.
10. NOTICES
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed, certified or registered mail, return receipt requested, with postage
prepaid to the following addresses or to such other address as either party may
designate by like notice.
(a)If to Middlefield, to: Middlefield Banc Corp.
15985 East High Street
P.O. Box 35
Middlefield, Ohio 44062
Attn: Corporate Secretary
(b)If to the Executive, to: Mr. Jay P.Giles
15985 East High Street
Middlefield, Ohio 44062
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
11. CAPTIONS AND COUNTERPARTS
The headings and subheadings used in this Agreement are included solely
for convenience and shall not affect the interpretation of this Agreement. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same agreement.
12. AMENDMENTS AND WAIVERS
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in a writing or
writings signed by the Executive and by Middlefield. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
Agreement.
13. SEVERABILITY
The provisions of this Agreement shall be deemed severable. The
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. Any provision held to
be invalid or unenforceable shall be reformed to the extent (and only to the
extent) necessary to make it valid and enforceable.
14. GOVERNING LAW
The validity, interpretation, construction and performance of this
Agreement shall be governed by and construed in accordance with the substantive
laws of the State of Ohio, without giving effect to the principles of conflict
of laws of such State.
15. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between Middlefield and
the Executive concerning the subject matter hereof. No rights are granted to the
Executive under this Agreement other than those specifically set forth herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
WITNESSES: MIDDLEFIELD BANC CORP.
By:
James R. Heslop, II
Its: Executive Vice President/
Chief Operating Officer
WITNESSES: EXECUTIVE
Jay P. Giles
County of Geauga )
) ss:
State of Ohio )
Before me this 12th day of August, 2003, personally appeared the above
named Thomas G. Caldwell and Jay P. Giles, who acknowledged that they did sign
the foregoing instrument and that the same was their free act and deed.
__________________________
(Notary Seal) Notary Public
My Commission Expires:
EXHIBIT 10.14
THE MIDDLEFIELD BANKING COMPANY
EXECUTIVE SURVIVOR INCOME AGREEMENT
THIS EXECUTIVE SURVIVOR INCOME AGREEMENT (this "Agreement') is made
this 20 day of June , 2003, by and between The Middlefield Banking Company, an
Ohio-chartered, FDIC-insured nonmember bank with its main office in Middlefield,
Ohio (the "Bank"), and Donald L. Stacy (the "Executive").
WHEREAS, to encourage the Executive to remain an employee of the Bank,
the Bank is willing to provide benefits to the Executive's beneficiary(ies) (i)
if the Executive dies before the age of 85 while employed by the Bank, or (ii)
if the Executive dies before age 85 but after having terminated employment on or
after Early Retirement Age, or because of Disability, or within 12 months after
a Change in Control. The Bank will pay the benefits from its general assets, but
only so long as one of its general assets is a life insurance policy on the
Executive's life.
AGREEMENT
The Executive and the Bank agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Change in Control" means the definition of Change in Control
specified in any employment or severance agreement existing on the date hereof
or hereafter entered into between the Executive and the Bank. If the Executive
is not a party to an employment or severance agreement containing a definition
of Change in Control, Change in Control means any of the following events
occur--
(1) Merger: Middlefield Banc Corp. ("Middlefield") merges into or
consolidates with another corporation, or merges another
corporation into Middlefield, and as a result less than a
majority of the combined voting power of the resulting
corporation immediately after the merger or consolidation is
held by persons who were the holders of Middlefield's voting
securities immediately before the merger or consolidation. For
purposes of this Agreement, the term person means an
individual, corporation, partnership, trust, association,
joint venture, pool, syndicate, sole proprietorship,
unincorporated organization, or other entity,
(2) Acquisition of Significant Share Ownership: a report on
Schedule 13D, Schedule TO, or another form or schedule (other
than Schedule 13G), is filed or is required to be filed under
Sections 13(d) or 14(d) of the Securities Exchange Act of
1934, if the schedule discloses that the filing person or
persons acting in concert has or have become the beneficial
owner of 15% or more of a class of Middlefield's voting
securities (but this clause (2) shall not apply to beneficial
ownership of voting shares held by a subsidiary in a fiduciary
capacity),
(3) Change in Board Composition: during any period of two
consecutive years, individuals who constitute Middlefield's
board of directors at the beginning of the two-year period
cease for any reason to constitute at least a majority
thereof; provided, however, that -- for purposes of this
clause (3) -- each director who is first elected by the board
(or first nominated by the board for election by stockholders)
by a vote of at least two-thirds (2/3) of the directors who
were directors at the beginning of the period shall be deemed
to have been a director at the beginning of the two-year
period, or
(4) Sale of Assets: Middlefield sells to a third party
substantially all of Middlefield's assets. For purposes of
this Agreement, sale of substantially all of Middlefield's
assets includes sale of The Middlefield Banking Company.