EXHIBIT 10(b)
AGREEMENT
This Agreement (the "Agreement") is made as of the 20th day of June,
2003, between Dearborn Bancorp, Inc., a Michigan corporation (hereinafter called
the "Company") and ________________________ (hereinafter called "Employee").
WHEREAS, should the Company receive any proposal for a Change in
Control, as defined in Section 1 hereof, the Board of Directors of the Company
(the "Board") believes it imperative that the Company and the Board be able to
rely upon Employee to continue in his or her position, and that they be able to
receive and rely upon Employee's advice, if they request it, as to the best
interests of the Company and its shareholders, without concern that Employee
might be distracted or his or her advice affected by the personal uncertainties
and risks created by such a proposal;
NOW, THEREFORE, to induce Employee to remain in the employ of the
Company, and for other good and valuable consideration, the Company and Employee
agree as follows:
1. Definitions.
(i) "Change in Control" shall mean the occurrence of any of
the following events:
(a) a third "person," including a "group," becomes the
"beneficial owner" (as these terms are defined in or for the purposes
of Section 13(d) of the Securities Exchange Act of 1934, as in effect
on the date hereof) of shares of the Company having more than
50% of the total number of votes that may be cast for the election of
Directors of the Company;
(b) the merger or consolidation of the Company with or into
any other corporation or entity or the merger or consolidation of any
other corporation or entity into or with the Company, in which merger
or consolidation those persons who are shareholders of the Company
immediately prior to such merger or consolidation do not receive, as a
result of such merger or consolidation, more than 50% in voting power
of the outstanding capital stock of the surviving corporation;
(c) any sale or transfer in a single transaction or series of
related transactions (other than a public offering of securities) of
more than 50% of fair market value of the Company's assets; or
(d) the Board determines in its sole and absolute discretion
that there has been a change in control of the Company.
(ii) "Controlling portion of the Company's stock" shall mean
shares of the Company having more than 50% of the total number of votes that may
be cast for the election of Directors of the Company.
(iii) "Company" shall mean Dearborn Bancorp, Inc. and its
wholly-owned subsidiaries and any successor (whether such succession is direct
or indirect, by purchase, merger, consolidation, liquidation or otherwise) to
all or substantially all of the business and/or assets of the Company and its
wholly-owned subsidiaries.
(iv) "Good Reason," when used with reference to a voluntary
termination by Employee of Employee's employment with the Company, shall mean:
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(a) the assignment to Employee of any duties substantially
inconsistent with, or the reduction of powers or functions associated
with, Employee's positions, duties, responsibilities and status with
the Company as they existed immediately prior to a Change in Control;
(b) a reduction by the Company in Employee's base salary as in
effect on the date hereof or as the same may be increased from time to
time;
(c) a change in Employee's principal work location other than
within a radius of forty miles from his principal work location, except
for required travel on the Company's business to an extent
substantially consistent with Employee's business travel obligations
immediately prior to a Change in Control;
(d) the failure by the Company to obtain an agreement to
expressly assume this Agreement from any successor (whether such
succession is direct or indirect by purchase, merger, consolidation,
liquidation or otherwise) to substantially all of the business and/or
assets of the Company or from a person or group (as these terms are
defined in or for the purposes of Section 13(d) of the Securities
Exchange Act of 1934, as in effect on the date hereof) acquiring a
controlling portion of the Company's stock; or
(e) any purported termination of Employee's employment by the
Company during the Contract Period which is not effected pursuant to
the requirements of this Agreement.
(v) "Contract Period" shall mean the period commencing on
January 1, 2003 and continuing for five (5) years. The Contract Period shall
automatically extend each year following the initial five year period for
additional one-year periods unless either the Company or
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the Employee delivers written notice to the other terminating this Agreement at
least sixty days prior to the commencement date of each extension period.
(vi) "Disability" shall mean a physical or mental incapacity
of Employee which entitles Employee to benefits under the long term disability
plan applicable to Employee and maintained by the Company as in effect
immediately prior to the Change in Control. However, if the Company has no such
plan at that time, "Disability" shall mean any physical or mental condition that
renders Employee unable to substantially perform Employee's duties with the
Company for a period exceeding six (6) consecutive months or for a period
exceeding four (4) months if a physician selected by the Company, and reasonably
satisfactory to Employee, specializing in the area of the disability in question
determines in good faith that Employee will be permanently unable to
substantially perform Employee's duties with the Company.
(vii) "Cause," when used in connection with the termination of
Employee's employment by the Company, shall mean (a) the willful and continued
failure by Employee substantially to perform Employee's duties and obligations
to the Company (other than any such failure resulting from Employee's
Disability), (b) the willful engaging by Employee in misconduct which is
materially injurious to the Company, monetarily or otherwise, or (c) a
conviction for or plea of nolo contendere to a felony under the laws of any
state within the United States or of the United States. For purposes of this
definition, no act, or failure to act, on Employee's part shall be considered
"willful" unless done, or omitted to be done, by Employee in bad faith and
without reasonable belief that Employee's action or omission was in the best
interests of the Company.
(viii) "Without Cause," when used in connection with the
termination of Employee's employment by the Company, shall mean any termination
of employment of Employee by the Company which is not a termination of
employment for Cause or for Disability.
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(ix) "Termination Date" shall mean the effective date as
provided hereunder of the termination of Employee's employment.
2. Application of this Agreement: Term of Agreement. This Agreement
shall apply with respect to any termination of employment of Employee which
occurs during the Contract Period. It shall not apply to any termination of
employment of Employee which occurs other than during the Contract Period. This
Agreement shall terminate automatically upon termination of employment of
Employee by reason of Employee's death. Continuation of employment with a
successor to the Company, as described in Section 1 (iii), shall not alone
constitute termination of Employee's employment. Any such termination shall not
affect obligations incurred prior to the date of termination, including any
obligation to provide benefits under Section 5.
3. Termination of Employment of Employee By the Company During the
Contract Period.
(i) During the Contract Period, the Company shall have the
right to terminate Employee's employment hereunder for Cause, for Disability or
Without Cause upon compliance with the procedures hereinafter specified.
(ii) Termination of Employee's employment for Disability shall
become effective no sooner than thirty (30) days after a notice of intent to
terminate Employee's employment, specifying Disability as the basis for such
termination, is given to Employee by the Board or by a Committee of the Board.
(iii) Termination of Employee's employment for Cause shall not
be deemed effective unless and until there shall have been delivered to Employee
a copy of a notice of termination from the Chief Executive Officer of the
Company, after reasonable notice to Employee and an opportunity for Employee,
together with Employee's counsel, to be heard before the Chief
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Executive Officer, finding that in the good faith opinion of the Chief Executive
Officer Cause existed and specifying the particulars thereof in detail.
(iv) The Company shall have the absolute right to terminate
Employee's employment Without Cause at any time by vote of a majority of the
whole Board. Termination of Employee's employment Without Cause shall be
effective five (5) business days after the date of the Company's giving to
Employee a notice of termination, specifying that such termination is Without
Cause.
(v) Upon a termination of Employee's employment for Cause or
for Disability, Employee shall have no right to receive any compensation or
benefits hereunder. Upon a termination of Employee's employment Without Cause,
Employee shall be entitled to receive the benefits provided in Section 5 hereof.
4. Termination of Employment By Employee During Contract Period. During
the Contract Period, Employee shall be entitled to terminate employment with the
Company for any reason and, if such termination is for Good Reason, to receive
the benefits provided in Section 5 hereof. Employee shall give the Company
notice of voluntary termination of employment, which notice need specify only
Employee's desire to terminate employment and, if such termination is for Good
Reason, also set forth in reasonable detail the facts and circumstances claimed
by Employee to constitute Good Reason. Any notice by Employee pursuant to this
Section shall be effective five (5) business days after the date it is given by
Employee.
5. Benefits Upon Termination in Certain Circumstances. Upon the
termination of the employment of Employee by the Company pursuant to Section
3(iv) or by Employee for Good Reason pursuant to Section 4 hereof, Employee
shall be entitled to receive the following benefits:
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(i) The Company shall pay to Employee, not later than the
Termination Date, a lump sum cash amount equal to the sum of (a) the full base
salary earned by Employee through the Termination Date and unpaid at the
Termination Date, (b) the amount of any base salary attributable to vacation
earned by Employee but not taken before the Termination Date, and (c) all other
amounts earned by Employee and unpaid at the Termination Date.
(ii) The Company shall pay to Employee (i) a cash amount equal
to the Employee's annual base salary in effect immediately prior to the
Termination Date and (ii) a cash amount equal to the highest annual bonus
awarded to the Employee during the previous three years of employment prior to
the Termination Date. Such sum shall be paid in a lump sum.
(iii) The Company shall also pay to Employee all legal fees
and expenses incurred by Employee as a result of successfully enforcing any
right or benefit provided to Employee by this Agreement.
(iv) The Company shall pay, when due, for outplacement
services as requested by Employee to assist in locating new employment, up to a
maximum amount of $15,000.
(v) The Company shall cause any outstanding stock options held
by Employee to purchase common stock of the Company to become fully vested as of
the Termination Date.
(vi) For a twelve month period after the Termination Date, the
Company shall continue to provide Employee all benefits (excluding cash
compensation) the Employee was receiving prior to the Termination Date.
(vii) The Company shall maintain in full force and effect for
Employee's continued benefit until the earlier of (a) the end of the Contract
Period or (b) Employee's commencement of employment with a new employer, any
medical insurance plans or medical insurance arrangements in which Employee was
entitled to participate at the Termination Date,
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provided that Employee's continued participation is possible under the general
terms and provisions of such plans or arrangements. In the event that Employee's
participation in any such plans or arrangements is barred, the Company shall
arrange to provide Employee with benefits substantially similar to those which
Employee is entitled to receive under such plans or arrangements. Should the
medical insurance plans or arrangements provided by Employee's new employer not
entitle Employee or Employee's dependents (a) to any coverage during an initial
qualification period or (b) to coverage for any condition which is considered a
pre-existing condition under the new employer's plan and which was covered under
the Company's medical insurance plans or arrangements at the Termination Date,
then notwithstanding Employee's employment, the Company shall continue to
provide medical benefits as stated above in this Section 5(vii) during such
qualification period (if clause (a) of this sentence is applicable) and at least
for such pre-existing condition (if clause (b) of this sentence is applicable).
(viii) The Company shall assign to Employee without any cost
to Employee the Company's interest in any insurance policies issued on the life
of Employee.
6. Other Employment. Employee shall not be required to mitigate the
amount of any payment or benefit provided for in Section 5 by seeking other
employment or otherwise. The amount of any such payment or benefit shall not be
reduced by any compensation earned or benefit received by Employee as the result
of other employment.
7. Life Insurance. During the Contract Period the Company will continue
to maintain in effect and pay the premiums on any insurance policies on the life
of Employee which are in effect on the effective date of a Change in Control.
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8. Successors: Binding Agreement.
(i) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, liquidation or otherwise) to all
or substantially all of the business and/or assets of the Company, or any person
or group (as these terms are defined in or for the purposes of Section 13(d) of
the Securities Exchange Act of 1934, as in effect on the date hereof acquiring a
controlling portion of the Company's stock, to agree to expressly assume the
obligation of the Company to perform this Agreement upon or prior to such
succession taking place. A copy of such assumption and agreement shall be
delivered to Employee promptly after its execution by the successor or such
person or group. Failure of the Company to obtain such agreement upon or prior
to the effectiveness of any such succession shall be a breach of this Agreement
and shall entitle Employee to the benefits as set forth in Section 5. Further,
if the Company fails to obtain such agreement upon or prior to the effectiveness
of any such succession, the Company shall place in trust or escrow, with an
independent third party as trustee or escrow agent, for the benefit of Employee
cash in an amount equal to the total of the following: the maximum amounts which
are or may become payable to Employee by reason of Section 5(i), (ii), and (iv).
This amount shall not be discounted to any present value. All or any portion of
such amount held in trust or escrow shall be paid to Employee at the times
required by Section 5 hereof, and any remaining balance shall be returned to the
Company only after there are no obligations of the Company under Section 5 that
may be required to be performed in the future.
(ii) This Agreement is personal to Employee and Employee may
not assign or transfer any part of Employee's rights or duties hereunder, or any
compensation due to Employee hereunder, to any other person, except that this
Agreement shall inure to the benefit of and be
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enforceable by Employee's personal or legal representatives, executors,
administrators, heirs, distributees, devisees, legatees or beneficiaries.
9. Modification: Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in a writing signed by Employee and by the Company. Waiver by any
party of any breach of or failure to comply with any provision of this Agreement
by the other party shall not be construed as, or constitute, a continuing waiver
of such provision, or a waiver of any other breach of, or failure to comply
with, any other provision of this Agreement.
10. Arbitration of Disputes.
(i) Any disagreement, dispute, controversy or claim arising
out of or relating to this Agreement or the interpretation or validity hereof
shall be settled exclusively and finally by arbitration. It is specifically
understood and agreed that any disagreement, dispute or controversy which cannot
be resolved between the parties, including without limitation any matter
relating to the interpretation of this Agreement, may be submitted to
arbitration irrespective of the magnitude thereof, the amount in controversy or
whether such disagreement, dispute or controversy would otherwise be considered
justiciable or ripe for resolution by a court or arbitral tribunal.
(ii) The arbitration shall be conducted in accordance with the
Commercial Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA").
(iii) The arbitral tribunal shall consist of one arbitrator.
The parties to the arbitration jointly shall directly appoint such arbitrator
within thirty (30) days of initiation of the arbitration. If the parties shall
fail to appoint such arbitrator as provided above, such arbitrator shall be
appointed by the AAA as provided in the Arbitration Rules and shall be a person
who has had
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substantial experience in mergers and acquisitions. The Company shall pay all of
the fees, if any, and expenses of such arbitrator.
(iv) The arbitration shall be conducted in the metropolitan
Detroit, Michigan area or in such other city in the United States of America as
the parties to the dispute may designate by mutual written consent.
(v) At any oral hearing of evidence in connection with the
arbitration, each party thereto or its legal counsel shall have the right to
examine its witnesses and to cross-examine the witnesses of any opposing party.
No evidence of any witness shall be presented in form unless the opposing party
or parties shall have the opportunity to cross-examine such witness, except as
the parties to the dispute otherwise agree in writing or except under
extraordinary circumstances where the interests of justice require a different
procedure.
(vi) Any decision or award of the arbitral tribunal shall be
final and binding upon the parties to the arbitration proceeding. The parties
hereto agree that the arbitral award may be enforced against the parties to the
arbitration proceeding or their assets wherever they may be found and that a
judgment upon the arbitral award may be entered in any court having
jurisdiction.
(vii) Nothing herein contained shall be deemed to give the
arbitral tribunal any authority, power, or right to alter, change, amend,
modify, add to, or subtract from any of the provisions of this Agreement.
11. Notice. All notices, requests, demands and other communications
required or permitted to be given by either party to the other party by this
Agreement (including, without limitation, any notice of termination of
employment and any notice under the Arbitration Rules of an intention to
arbitrate) shall be in writing and shall be deemed to have been duly given when
delivered personally or received by certified or registered mail, return receipt
requested, postage
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prepaid, at the address of the other party, as follows: in the case of the
Employee to the residence or last address of the Employee as provided in writing
to the Company; and in the case of the Company to its principal office.
12. Severability. If any term or provision of this Agreement or the
application hereof to any person or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Agreement or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
13. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not be a part of or control or affect
the meaning of this Agreement.
14. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original.
15. Governing Law. This Agreement shall in all respects be governed by,
and construed and enforced in accordance with, the laws of the State of
Michigan, without regard to the conflicts of laws principles of such state.
16. Payroll and Withholding Taxes. All payments to be made or benefits
to be provided hereunder by the Company shall be subject to reduction for any
applicable payroll-related or withholding taxes.
17. Entire Agreement. This Agreement supersedes any and all other oral
or written agreements heretofore made relating to the subject matter hereof and
constitutes the entire agreement of the parties relating to the subject matter
hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DEARBORN BANCORP, INC.
________________________________ By:________________________________
(Employee Signature) Xxxxxxx X. Xxxx
President
(Employee)
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