EX-10.3



 





Exhibit 10.3



Severance Agreement




     This Severance Agreement (this “Agreement”) is entered into effective as of this                      day of
                    , 2008, by and between Middlefield Banc
Corp., an Ohio corporation (“Middlefield”), and James R. Heslop II, its Executive Vice President
and Chief Operating Officer (the “Executive”).



     Whereas, recognizing the contributions made and expected to be made by the Executive
to the profitability, growth, and financial strength of Middlefield and subsidiaries, intending to
assure itself of the current and future continuity of management, intending to establish minimum
severance benefits for certain officers and other key employees, including the Executive, intending
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, and finally
desiring to provide additional inducement for the Executive to remain in the employment of
Middlefield, Middlefield entered into a Severance Agreement with the Executive dated as of July 11,
2006,



     Whereas, Middlefield and the Executive intend that this Agreement supersede and
replace in its entirety the July 11, 2006 Severance Agreement, 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. (a) If a Change in Control occurs before the Executive’s employment
termination, Middlefield shall make a lump-sum payment to the Executive in cash in an amount equal
to 2.5 times the Executive’s annual compensation. For this purpose annual compensation means (x)
the Executive’s annual base salary on the date of the Change in Control, plus (y) the average of
the cash bonus and cash 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 and regardless of whether the bonus or incentive compensation is subject to
elective deferral or vesting. 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. Subject to section 17, the payment required under this section 1(a) is payable
within five business days after the date of the Change in Control. The Executive shall be entitled
to a payment under this section 1(a) on no more than one occasion.



     (b) If the Executive’s employment terminates within 24 months after the Change in
Control, Middlefield shall also (x) cause the Executive to become fully vested in any 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 and (y) continue or cause to be
continued life, health, and disability insurance coverage substantially identical to the coverage
maintained for the Executive before termination and in accordance with the same schedule prevailing
before employment 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. If under the terms of the life, health, or disability policy coverage maintained by
Middlefield it is not possible to continue the Executive’s coverage after termination or if when
employment termination occurs the Executive is a specified employee within the meaning of section
409A of the Internal Revenue Code of 1986, if



 









 





any of the continued insurance benefits specified in this section 1(b) would be considered deferred
compensation under section 409A, and finally if an exemption from the six-month delay requirement
of section 409A(a)(2)(B)(i) is not available for that particular insurance benefit, instead of
continued insurance coverage under this section 1(b) Middlefield shall pay to the Executive in a
single lump sum an amount in cash equal to the present value of the Employer’s projected cost to
maintain that particular insurance benefit had the Executive’s employment not terminated, assuming
continued coverage for the lesser of 24 months or the number of months until the Executive attains
age 65. The lump-sum payment shall be made 30 days after employment termination or, if a six-month
delay is required by section 409A, on the first day of the seventh month after the month in which
the Executive’s employment terminates.




     2. Change in Control Defined. For purposes of this Agreement Change in Control means a change
in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of
general application thereunder issued by the Department of the Treasury, including –



     (a) Change in ownership: a change in ownership of Middlefield occurs on the date any one
person or group accumulates ownership of Middlefield stock constituting more than 50% of the total
fair market value or total voting power of Middlefield stock, or



     (b) Change in effective control: (x) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Middlefield stock possessing 30% or more of the
total voting power of Middlefield stock, or (y) a majority of Middlefield’s board of directors is
replaced during any 12-month period by directors whose appointment or election is not endorsed in
advance by a majority of Middlefield’s board of directors, or



     (c) Change in ownership of a substantial portion of assets: a change in ownership of a
substantial portion of Middlefield’s assets occurs if in a 12-month period any one person or more
than one person acting as a group acquires from Middlefield assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all of Middlefield’s assets
immediately before the acquisition or acquisitions. For this purpose, gross fair market value
means the value of Middlefield’s assets, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the assets.



     3. No Benefits After Termination with Cause. (a) Despite anything in this Agreement to the
contrary, the Executive shall not be entitled to benefits under this Agreement if the Executive’s
employment terminates with Cause. For purposes of this Agreement the term Cause means the
Executive shall have committed any of the following acts –




     1) an act of fraud, embezzlement, or theft while employed by Middlefield or a
subsidiary, or conviction of the Executive for or plea of no contest to a felony or
conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual
incarceration of the Executive for 45 consecutive days or more, or




     2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of
the Executive’s duties as an officer of Middlefield or a subsidiary; willful or reckless
failure by the Executive to adhere to Middlefield’s or subsidiary’s written policies;
intentional wrongful damage by the Executive to the business or property of Middlefield or
subsidiary, including without limitation its reputation, which in Middlefield’s sole judgment
causes material harm to Middlefield or subsidiary; breach by the Executive of fiduciary
duties to Middlefield and its stockholders, whether in the Executive’s capacity as an officer
or as a director of Middlefield or subsidiary, or



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     3) removal of the Executive from office or permanent prohibition of the Executive from
participating in the affairs of Middlefield’s subsidiary bank or banks by an order issued
under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or
(g)(1), or




     4) intentional wrongful disclosure of secret processes or confidential information of
Middlefield or affiliates, which in Middlefield’s sole judgment causes material harm to
Middlefield or affiliates, or




     5) 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, or




     6) the occurrence of any event that results in the Executive being excluded from
coverage, or having coverage limited for the Executive as compared to other executives of
Middlefield or affiliates, under a blanket bond or other fidelity or insurance policy
covering directors, officers, or employees, or




     7) intentional wrongful engagement in any competitive activity. For purposes of this
Agreement, competitive activity means the Executive’s participation, without the consent of
Middlefield’s board of directors, in the management of any business enterprise if (x) the
enterprise engages in substantial and direct competition with Middlefield, (y) the
enterprise’s revenues derived from any product or service competitive with any product or
service of Middlefield or a subsidiary amounted to 10% or more of the enterprise’s revenues
for its most recently completed fiscal year, and (z) 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 represent 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.



     (b) For purposes of this Agreement, no act or failure to act on the Executive’s part 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
Middlefield’s best interests. Any act or failure to act based upon authority granted by
resolutions duly adopted by the board of directors or based upon the advice of counsel for
Middlefield shall be conclusively presumed to be in good faith and in Middlefield’s best interests.
For purposes of this Agreement the term subsidiary means any entity in which Middlefield directly
or indirectly beneficially owns 50% or more of the outstanding voting securities.



     (c) The Executive shall not be deemed under this Agreement to have been terminated with Cause
unless and until there is 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 (excluding the Executive) of
Middlefield then in office at a meeting of the board of directors called and held for such purpose,
which resolution shall (x) contain findings that, in the good faith opinion of the board, the
Executive has committed an act constituting Cause and (y) specify the particulars thereof. Notice
of that meeting and the proposed determination of Cause shall be given to the Executive a
reasonable time before the board’s meeting. The Executive and the Executive’s 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 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.



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     4. No Benefits after Termination Because of Death or Disability. Despite anything in
this Agreement to the contrary, the Executive shall not be entitled to benefits under this
Agreement if the Executive dies while actively employed by Middlefield or a subsidiary or if 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 the Executive’s duties. The benefits, if any, payable to the
Executive or the Executive’s beneficiary or estate relating to the Executive’s 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 on the effective date. On the first anniversary of the effective date of this
Agreement and on each anniversary thereafter this 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 attains 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.



     6. This Agreement Is Not an Employment Contract. The parties hereto acknowledge and agree
that (x) this Agreement is not a management or employment agreement and (y) 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.



     7. Payment of Legal Fees. Middlefield is aware that after a Change in Control
management could cause or attempt to cause Middlefield to refuse to comply with its obligations
under this Agreement, or could institute or cause or attempt to cause Middlefield to institute
litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take
other action to deny Executive the benefits intended under this Agreement. In these circumstances
the purposes of this Agreement would be frustrated. Middlefield desires that the Executive not be
required to incur the expenses associated with the enforcement of rights under this Agreement,
whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive hereunder.
Middlefield desires that the Executive not be forced to negotiate settlement of rights under this
Agreement under threat of incurring expenses. Accordingly, if after a Change in Control occurs it
appears to the Executive that (x) Middlefield has failed to comply with any of its obligations
under this Agreement, or (y) Middlefield or any other person has taken any action to declare this
Agreement void or unenforceable, or instituted any litigation or other legal action designed to
deny, diminish, or to recover from the Executive the benefits intended to be provided to the
Executive hereunder, Middlefield irrevocably authorizes the Executive from time to time to retain
counsel of the Executive’s choice, at Middlefield’s expense as provided in this section 7, to
represent the Executive in 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. Despite any existing or previous attorney-client
relationship between Middlefield and any counsel chosen by the Executive under this section 7,
Middlefield irrevocably consents to the
Executive entering into an attorney-client relationship with that counsel and Middlefield and
the Executive agree that a confidential relationship shall exist between the Executive and that
counsel. The fees and expenses of counsel selected from time to time by the Executive as provided
in this section 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 counsel in
accordance with counsel’s customary practices, up to a maximum aggregate amount of $500,000,
whether suit be brought or not, and whether or not incurred in trial, bankruptcy, or appellate
proceedings. Middlefield’s obligation to pay the Executive’s legal fees under this section 7
operates separately from and in addition to any legal fee reimbursement obligation Middlefield may
have with the Executive under any separate severance or other



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agreement. Despite any contrary
provision of this Agreement however, Middlefield shall not be required to pay or reimburse the
Executive’s legal expenses if doing so would violate section 18(k) of the Federal Deposit Insurance
Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].




     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 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. 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 had no succession occurred.



     (b) This Agreement is enforceable by the Executive’s heirs. This Agreement shall inure to the
benefit of and be enforceable by the Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, and legatees.



     (c) This Agreement is personal 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 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. Any notice under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, delivered by mail properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be
properly addressed to the Executive if addressed to the address of the Executive on the books and
records of Middlefield at the time of the delivery of the notice, and properly addressed to
Middlefield if addressed to the board of directors, Middlefield Banc Corp., 15985 East High Street,
Middlefield, Ohio, 44062-0035 Attention: Corporate Secretary.



     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 the waiver, modification, or discharge is agreed to in a writing 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 waiver of compliance with any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.



     13. Severability. The provisions of this Agreement are 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 solely to the extent necessary to make it valid and enforceable.



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     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. No rights are granted to the Executive under this
Agreement other than those specifically set forth. No agreements or representations, oral or
otherwise, expressed or implied concerning the subject matter hereof have been made by either party
that are not set forth expressly in this Agreement. This Agreement supersedes and replaces in its
entirety the July 11, 2006 Severance Agreement between Middlefield and the Executive, and from and
after the date of this Agreement the July 11, 2006 Severance Agreement shall be of no further force
or effect.



     16. No Mitigation Required. Middlefield hereby acknowledges that it will be difficult and
could be impossible (x) for the Executive to find reasonably comparable employment after
termination and (y) 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.
Middlefield further acknowledges that the payment of benefits by Middlefield under this Agreement
is reasonable and shall be liquidated damages. 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.



     17. Internal Revenue Code Section 409A. Middlefield and the Executive intend that their
exercise of authority or discretion under this Agreement shall comply with section 409A of the
Internal Revenue Code of 1986. If when the Executive’s employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any
payments or benefits under this Agreement will result in additional tax or interest to the
Executive because of section 409A, then despite any provision of this Agreement to the contrary the
Executive shall not be entitled to the payments or benefits until the earliest of (x) the date that
is at least six months after termination of the Executive’s employment for reasons other than the
Executive’s death, (y) the date of the Executive’s death, or (z) any earlier date that does not
result in additional tax or interest to the Executive under section 409A. As promptly as possible
after the end of the period during which payments or benefits are delayed under this provision, the
entire amount of the delayed payments
shall be paid to the Executive in a single lump sum. If any provision of this Agreement does
not satisfy the requirements of section 409A, such provision shall be applied in a manner
consistent with those requirements, despite any contrary provision of this Agreement. If any
provision of this Agreement would subject the Executive to additional tax or interest under section
409A, Middlefield shall reform the provision. However, Middlefield shall maintain to the maximum
extent practicable the original intent of the applicable provision without subjecting the Executive
to additional tax or interest, and Middlefield shall not be required to incur any additional
compensation expense as a result of the reformed provision. References in this Agreement to
section 409A of the Internal Revenue Code of 1986 include rules, regulations, and guidance of
general application issued by the Department of the Treasury under Internal Revenue Code section
409A.



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     In Witness Whereof, the parties have executed this Severance Agreement as of
the date first written above.



	 	 	 	 	 	 	 	 	 
	Executive	 	 	 	Middlefield Banc Corp.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	James R. Heslop II

	 	 	 	 	 	Thomas G. Caldwell	 	 
	 

	 	 	 	Its:
	 	President and Chief Executive Officer	 	 







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