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FBMI » Topics » Restrictions on Executive Compensation Under Federal Law

This excerpt taken from the FBMI DEF 14A filed Mar 24, 2009.

Restrictions on Executive Compensation Under Federal Law

        On January 30, 2009, the Corporation sold $33 million of its preferred stock and warrants to the U.S. Treasury under the Capital Purchase Program of the Troubled Asset Relief Program (“TARP”). Participants in TARP are subject to a number of limitations and restrictions on executive compensation, including certain provisions of the recently enacted American Recovery and Reinvestment Act of 2009 (“ARRA”). Under the ARRA, the Department of Treasury is required to establish standards regarding executive compensation relative to the requirements listed below. We expect that these standards will result in the clarification of some of the restrictions and conditions on executive compensation. The substance of this Compensation Discussion and Analysis is based upon the existing guidance issued by the Treasury Department as well as our current understanding of the substance of ARRA.

        As a general matter, and subject to the promulgation of the above-referenced standards, until such time that the Corporation is no longer a TARP participant, we will be subject to the following requirements, among others, for 2009:

  • Our incentive compensation program may not include incentives for our Named Executives (defined below) to take unnecessary and excessive risks that threaten the value of the Corporation;
  • The Corporation is entitled to recover any bonus, retention award, or incentive compensation paid to any of its 25 most highly compensated employees based upon statements of earnings, revenues, gains, or other criteria that are later found to be materially inaccurate;
  • The Corporation is prohibited from making any golden parachute payments (as defined in the statue) to any of its 10 most highly compensated employees;
  • Our compensation program may not encourage the manipulation of reported earnings to enhance the compensation of our employees; and
  • The Corporation may not pay or accrue any bonus, retention award, or incentive compensation to any of our Named Executives, other than payments made in the form of restricted stock, subject to the further condition that any such awards may not vest while the Corporation is a participant in TARP and that any award not have a value greater than one-third of the Named Executives total annual compensation.

        The foregoing discussion is intended to provide a background and context for the information that follows regarding our existing compensation programs to those persons who served as our executive officers during 2008 and to assist in understanding the information included in the executive compensation tables included below in our proxy statement.

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