ex_344416.htm


Exhibit 10.6


 


SEVERANCE AGREEMENT


 


THIS SEVERANCE AGREEMENT is entered into effective February 19, 2013 (the "Effective Date") by and between Farmers and Merchants Bank (the "Bank"), and Mark C. Krebs (the "Employee").


 


WHEREAS, the Employee is employed by the Bank as its Senior Vice President — Chief Financial Officer; and


 


WHEREAS, the Bank desires to enter into this Agreement as additional incentive to the Employee to continue as Senior Vice President — Chief Financial Officer of the Bank; and


 


WHEREAS, the parties desire by this writing to set forth their understanding as to their respective rights and obligations in the event of termination of Employee's employment under the circumstances set forth in this Agreement.


 


NOW, THEREFORE, it is AGREED as follows:


 


1.         Change in Control.


 


(a)         Payment in the Event of Change in Control.


 


(1)    If: (A) the Employee voluntarily terminates employment with the Bank for any reason in connection with or within the thirty (30) day period beginning on the date of a Change in Control (as defined in Subsection (d)(1) below), (B) the Employee voluntarily terminates employment with the Bank for Good Reason (as defined in Subsection (d)(2) below) within twelve (12) months after a Change in Control; or (C) the Employee's employment is terminated by the Bank without the Employee's prior written consent and for a reason other than Just Cause (as defined in Subsection (d)(3) hereof) in connection with or within twelve (12) months after a Change in Control, then the Employee shall, subject to Subsection (2) below, be paid an amount equal to the difference between (i) the product of 2.99 times his "base amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code") and regulations promulgated thereunder (the "Maximum Amount"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the Change in Control. Such amount shall be paid in a single lump sum within thirty (30) days of the Employee's termination of employment.


 


(2)    As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Bank which should not have been made ("Overpayment") or that additional payments will not have been made by the Bank which should have been made ("Underpayment"), in each case, consistent with the calculations required to be made under Subsection (1) hereof In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio, which the Employee shall repay to the Bank together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Bank to or for the benefit of the Employee together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2)(B) of the Code.


 





 










 








 


 


(b)         Definitions:


 


(1)    "Change in Control" shall mean any one of the following events: (1) the acquisition of ownership, holding or power to vote more than 25 % of the Bank's voting stock, (2) the acquisition of the ability to control the election of a majority of the Bank's directors, (3) the acquisition of a controlling influence over the management or policies of the Bank by any person or by persons acting as a "group" (within the meaning of Section 13(d) of the Securities Exchange Act of 1934), or (4) during any period of two consecutive years, individuals (the "Continuing Directors") who at the beginning of such period constitute the Board of Directors of the Bank (the "Existing Board") cease for any reason to constitute at least two-thirds thereof, provided that any individual whose election or nomination for election as a member of the Existing Board was approved by a vote of at least two-thirds of the Continuing Directors then in office shall be considered a Continuing Director. For purposes of this subparagraph only, the tent' "person" refers to an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization or any other form of entity not specifically listed herein. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely by reason of a transaction by which the Bank forms a holding company and the individual stockholders of the Bank retain substantially identical pro rata ownership percentages of holding company stock following the transaction as their ownership percentages of Bank common stock immediately prior to the transaction. The decision of the Bank's non-employee directors as to whether a Change in Control has occurred shall be conclusive and binding.


 


(2)    "Good Reason." Termination for "Good Reason" shall mean termination of employment by the Employee within ninety (90) days following the occurrence of one of the following events which event occurs without the Employee's prior written consent within twelve (12) months following a Change in Control of the Bank: (i) the requirement that the Employee move his personal residence, or perform his principal executive functions, more than [fifteen (15)] linear miles from his primary office as of the date of the Change in Control; (ii) a material reduction in the Employee's base compensation as in effect on the date of the Change in Control or as the same may be increased from time to time; (iii) the failure by the Bank to continue to provide the Employee with compensation and benefits provided for under existing contracts including this Agreement, or with benefits substantially similar to those provided to him under any of the employee benefit plans in which the Employee now or hereafter becomes a participant, or the taking of any action by the Bank which would directly or indirectly reduce any of such benefits or deprive the Employee of any material fringe benefit enjoyed by him at the time of the Change in Control; (iv) the assignment to the Employee of duties and responsibilities materially different from those normally associated with his position; (v) a failure to elect or reelect the Employee to the Board of Directors of the Bank, if the Employee is serving on the Board on the date of the Change in Control; or (vi) a material diminution or reduction in the Employee's responsibilities or authority (including reporting responsibilities) in connection with his employment with the Bank; or (vii) a material reduction in the secretarial or other administrative support of the Employee.


 





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(3)         "Just Cause." Termination for "Just Cause" shall mean termination because of, in the good faith determination of the Bank's Board of Directors, the Employee's personal dishonesty, incompetence, willful misconduct, 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 minor offences) or final cease-and-desist order, or material breach of any provision of his employment contract with the Bank or this Agreement. The Employee shall have no right to receive compensation under this Agreement after a termination for Just Cause. No act, or failure to act, on the Employee's part shall be considered "willful" unless he has acted, or failed to act, with an absence of good faith and without a reasonable belief that his action or failure to act was in the best interest of the Bank. In the case of a failure to perform duties or breach of agreements, Employee shall be given thirty (30) days prior written notice specifying in reasonable detail the nature of the Employee's failure or breach and shall be given thirty (30) days in which to cure such failure where possible.


 


(c)         Compliance with 12 U.S.C. Section 1828(k). Any payments made to the Employee pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated thereunder.


 


2.         Termination or Suspension Under Federal Law.


 


(a)    If the Employee is removed and/or permanently prohibited from participating in the conduct of the Bank's affairs by an order issued under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act ("FDIA") (12 U.S.C. 1818(e)(4) or (g)(1)), all obligations of the Bank under this Agreement shall teiminate, as of the effective date of the order, but the vested rights of the parties shall not be affected.


 


(b)    If the Bank is in default (as defined in Section 3(x) (1) of the FDIA), all obligations under this Agreement shall terminate as of the date of default; however, this Paragraph 2(b) shall not affect the vested rights of the parties.


 


(c)    All obligations under this Agreement shall terminate, except to the extent that continuation of this Agreement is necessary for the continued operation of the Bank as determined by: (1) the appropriate federal banking agency at the time that the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the FDIA; or (ii) by the appropriate federal banking agency at the time it approves a supervisory merger to resolve problems related to operation of the Bank or when the Bank is determined by the appropriate federal banking agency to be in an unsafe or unsound condition. Such action shall not affect any vested rights of the parties.


 





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(d)    If a notice served under Section 8(e)(3) or (g)(1) of the' FDIA (12 U.S.C. 1818(e)(3) and (g)(1)) suspends and/or temporarily prohibits the Employee from participating in the conduct of the Bank's affairs, the Bank's obligations under this Agreement shall be suspended as of the date of such service, unless stayed by appropriate proceedings. If the charges in the notice are dismissed, the Bank shall (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.


 


(e)    The terms of this Section 2 shall prevail over any other provisions of this Agreement.


 


3.         Expense Reimbursement.


 


In the event that any dispute arises between the Employee and the Bank as to the terms or interpretation of this Agreement, whether instituted by formal legal proceedings or otherwise, including any action that the Employee takes to enforce the terms of this Agreement or to defend against any action taken by the Bank, the Employee shall be reimbursed for all costs and expenses, including reasonable attorneys' fees, arising from such dispute, proceedings or actions, provided that the Employee shall obtain a final judgment in favor of the Employee in a court of competent jurisdiction or in binding arbitration under the rules of the American Arbitration Bank. Such reimbursement shall be paid within ten (10) days of Employee's furnishing to the Bank written evidence, which may be in the form, among other things, of a cancelled check or receipt, of any costs or expenses incurred by the Employee.


 


4.         Term. This Agreement shall remain in effect for the period commencing on the Effective Date and ending on the earlier of (1) the date that is thirty-six (36) months after the Effective Date, and (ii) the date on which the Employee terminates employment with the Bank; provided that the Employee's rights hereunder shall continue following the termination of this employment with the Bank under any of the circumstances described in Section 1(a) and/or (b) hereof. Additionally, on each anniversary date from the Effective Date, the term of this Agreement shall be extended for an additional one-year period beyond the then effective expiration date, provided that the Employee is elected an officer of the Bank at the meeting of the Bank's Board of Directors called for the purpose of electing the officer position which the Employee holds.


 


5.         Successors and Assigns.


 


(a)    This Agreement shall inure to the benefit of and be binding upon any corporate or other successor of the Bank which shall acquire, directly or indirectly, by merger, consolidation, purchase or otherwise, all or substantially all of the assets or stock of the Bank.


 


(b)    Since the Bank is contracting for the unique and personal skills of the Employee, the Employee shall be precluded from assigning or delegating his rights or duties hereunder without first obtaining the written consent of the Bank.


 


6.         Amendments. No amendments or additions to this Agreement shall be binding unless made in writing and signed by all of the parties, except as herein otherwise specifically provided.


 





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7.         Applicable Law. Except to the extent preempted by Federal law, the laws of the State of Maryland shall govern this Agreement in all respects, whether as to its validity, construction, capacity, performance or otherwise.


 


8.         Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.


 


9.         Entire Agreement. This Agreement, together with any understanding or modifications thereof as agreed to in writing by the parties, shall constitute the entire agreement between the parties hereto.


 


IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first hereinabove written.


 


 


	
			ATTEST: 

				 	
			FARMERS AND MERCHANTS BANK

				
			 

			
	
			 

				 	
			 

				
			 

				
			 

			
	
			 

				 	
			 

				
			 

				
			 

			
	
			 /s/

				 	
			By: 

				
			/s/ 

				
			 

			
	
			 Secretary

				 	
			 

				
			 Its Chairman of the Board

				
			 

			
	
			 

				 	
			 

				
			 

				
			 

			
	 	 	 	 	 



	
			WITNESS: 

				 	
			EMPLOYEE:

				
			 

			
	
			 

				 	
			 

				
			 

				
			 

			
	
			 

				 	
			 

				
			 

				
			 

			
	
			 /s/

				 	
			By: 

				
			/s/ 

				
			 

			
	
			 

				 	
			Mark C. Krebs

				
			 

			
	
			 

				 	
			 

				
			 

				
			 

			



                                                    

              





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