Exhibit 10.9
AMENDED AND RESTATED
AGREEMENT AND GENERAL RELEASE
This Amended and Restated Agreement and General Release (the
"Agreement") is made between Bank West Financial Corporation, a Michigan
corporation, Bank West, a Michigan savings bank, both with offices at 0000 Xxxxx
Xxxx Xxxx, XX, Xxxxx Xxxxxx, XX 00000-0000 (collectively called the "Employer")
and Xxxx X. Xxxxxxxx, whose address is 0000 Xxxxxxxxx Xxxx XX, Xxxxxxxx, XX
00000 (the "Employee").
Factual Background
Employer and Employee are parties to an Employment Agreement dated
March 30, 1995 (the "Employment Agreement"). Since that time, Employee has been
and is now in the employ of Employer. Employer currently does not intend to
extend the Employment Agreement with Employee beyond March 29, 2000 expiration
date. Employer and Employee desire to mutually terminate the Employment
Agreement upon the terms and conditions of this Agreement. With the exception of
the acceptance and revocation terms set forth in Section 17(e), the terms and
conditions of this Agreement amend and replace the terms and conditions of the
Agreement and General Release offered by Employer on February 3, 1999.
Agreement
NOW, THEREFORE, in consideration of the mutual agreements and
commitments contained in this Agreement, the parties agree as follows:
1. Termination of Employment. Employee agrees to terminate and resign
from his employment with Employer effective as of the close of business on March
4, 1999 (the "Separation Date"). Employee acknowledges and agrees that he has
the option to remain employed with Employer until the Employment Agreement
expires on March 29, 2000, but is choosing to voluntarily terminate his
employment pursuant to this Agreement. As soon as reasonably practicable after
the Separation Date, Employer will reimburse Employee for an reimbursable
business expenses incurred through the Separation Date, in accordance with
Employer's expense reimbursement policies. No expenses incurred beyond the
Separation Date shall be reimbursed by the Employer.
2. Effect of Recission or Non-Acceptance. Employer acknowledges and
agrees that should Employee choose to rescind this Agreement pursuant to Section
17(e), or choose not to accept this Agreement, Employee may remain employed with
Employer in accordance with the terms of the Employment Agreement.
3. Severance Pay. Employer shall pay Employee severance pay of $225,000
in the following manner. Employee shall pay Employee 52 equal installments of
$4,326.92 commencing March 19, 1999 and continuing every other Friday of each
month after that until March 2, 2001, payment shall be the last payment to
Employee by Employer and following that payment the severance pay shall be
considered paid in full.
4. Withholding. Employer shall withhold from the payments to Employee
under this Agreement any and all applicable withholding, payroll, and other
taxes and similar charges as required by law, as well as appropriate Employee
deductions or contributions to continuing employee benefit plans.
5. Termination of Employment Agreement. The Employment Agreement shall
be terminated as of the Separation Date and shall be superseded in all respects
by this Agreement.
6. Termination of Certain Employee Benefits. Except as specifically
stated in this Agreement, at the close of business on the Separation Date,
Employee shall no longer be a participant in nor receive the benefits of any
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pension or other retirement benefit plan, profit sharing, stock option, employee
stock ownership, or other plans, benefits and privileges given to employees and
executives of the Employer.
7. Employee Benefit Continuation. Commencing March 5, 1999, and
continuing for 12 months thereafter, Employee shall continue to receive medical
and dental coverage under Employer's Comprehensive Health Insurance Plan under
the same terms as were provided to Employee by Employer as of the Separation
Date. Employee is not waiving his right to continue to be eligible for coverage
for an additional six (6) months beyond the term stated above, subject, however,
to Employee's continued timely payment of the full COBRA rate to continue
coverage during that six month period.
8. News Release. Employer shall issue a news release announcing
Employee's resignation. Employer agrees to consult with Employee regarding the
content and presentation of the news release.
9. Other Plans.
(a) Defined Benefit Pension Plan. Employee's
service credit under the Defined Benefit Pension Plan for
employees of Employer will cease accruing effective with the
Separation Date.
(b) Life Insurance. Employee or Employee's
spouse owns a life insurance policy on Employee's life in the
amount of $300,000. Employer has been paying the premium on
this policy. Effective with the Separation Date, Employer will
no longer make the premium payments on this policy and the
policy shall become the sole responsibility of Employee.
Employer agrees to assign all rights in the policy to Employer
and/or Employee's spouse.
10. Other Employer Property. On or before the Separation Date, Employee
shall return any credit cards, telephone cards and similar items provided by
Employer and any other property of the Employer in his possession.
11. Surrender of Confidential Information. Employee shall promptly
surrender to the Employer any and all records, files, correspondence, reports
and computer disks relating to the Employer's operations, maintenance, products,
marketing, research and development, production and general business plans and
schedules, production specifications, individual customer specifications,
individual customer pricing policies, accounts receivable information,
accounting and financial information such as costs and profit margins, as well
as the Employer's methods of production, maintenance, distribution, sales,
sources of supply, customers, customer lists, customer quotes, customer needs,
customer complaints, customer products and potential products or uses of the
Employer's products, and confidential price characteristics and policies in his
possession.
12. Utmost and Continued Good Faith. The parties agree to utilize the
utmost good faith in performing their respective obligations under this
Agreement. Neither party shall take any action or make any statement reasonable
calculated to adversely affect the other party's financial well-being or to
disparage, damage, injure, impugn the integrity or reputation, or call into
question the character, of the other party, including in the case of Employer,
its affiliates, subsidiaries, officers, directors, agents, employees, successors
and assigns. Employee agrees to cooperate in any way possible with Employer
during any current or pending transition of management, with Employer and
Employer's attorneys as a witness, party or in any other capacity, in any
pending litigation (including but not limited to Xxxxxx v. Bank West), and in
any pending or future regulatory inquiries or examinations of Employer's
operations. Employer shall reimburse Employee for mileage (31 cents/mile),
telephone, photocopying and postage expenses reasonably incurred in so doing.
The foregoing shall not be deemed to prohibit either party from instituting
formal legal proceedings to enforce the obligations of the other party under
this Agreement.
13. Proprietary Information. Employee agrees that he shall treat as
confidential, and shall not under any circumstances disclose, or use for his own
advantage or benefit, any confidential information and confidential documents
relating in any way to the business affairs of the Employer of which he may
currently have knowledge or
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of which he had knowledge during the course of his employment. For purposes of
this Agreement, the terms "confidential information" and "confidential
documents" shall include but not limited to, all employee data including salary
information, customer lists, inventions, designs, research and development
plans, product and business plans, budget and strategy plans, trade secrets, and
other proprietary information.
14. Non-Competition. Employee agrees that for a period of two years
following the Separation Date he will not solicit, without Employer's consent,
any person who was an employee of the Company at any time during the one-year
period immediately preceding the termination of the Employee's employment.
15. No Disclosure of Agreement. Employee agrees not to disclose, either
directly or indirectly, any information whatsoever regarding the terms and
conditions of this Agreement to any person other than to Employee's attorney,
accountant, or spouse. Employee agrees to inform such attorney, accountant, or
spouse of the confidentiality of such information.
16. No Re-employment. Employee shall not apply in the future for any
employment with the Employer or with a subsidiary, division or affiliated entity
of such corporation.
17. Employee's Release.
(a) In consideration for the severance payment, benefits and
other emoluments specifically itemized in this Agreement, Employee releases and
forever discharges Employer, its affiliates, subsidiaries, officers, directors,
agents, employees, successors and assigns, from any and all actions, causes of
action, suits, claims, charges or complaints which Employee may have or claim to
have against any of them as a result of Employee's employment with and/or
separation from employment with Employer. Employee further covenants and
promises that he will not file or cause to be filed on his behalf any charge,
complaint or legal action of any nature before any court or administrative
agency to assert any claim against Employer arising out of Employee's employment
or separation from employment from Employer.
(b) Employee acknowledges that this General Release includes
but is not limited to claims arising under federal, state or local laws
prohibiting employment discrimination or claims growing out of any legal
restrictions on Employer's right to terminate its employees. Employee expressly
waives and releases any and all claims or rights to unemployment compensation
and any and all claims or rights arising under the Civil Rights Act of 1964 and
1991, the Employee Retirement Income Security Act of 1974, the Americans with
Disabilities Act of 1990, the Rehabilitation Act of 1973, the Age Discrimination
in Employment Act, the Michigan Xxxxxxx-Xxxxxx Civil Rights Act, and the
Michigan Handicappers' Civil Rights Act, and all other relevant state and
federal statutes. With the exception of any claims arising under this Agreement,
this release also includes any claims for costs, interest or attorneys' fees,
past and future wages, severance pay, bonuses, unvested pension, profit-sharing,
vacation pay, medical insurance, life and disability insurance, and all other
benefits resulting from the action or inaction of either of the parties on or
before the Separation Date.
(c) Employee understands that he is not waiving any rights or
claims that may rise after this Agreement is executed, and further understands
that the above described consideration is in addition to anything of value to
which Employee is already entitled.
(d) Employee acknowledges that Employer has advised Employee
to consult with an attorney prior to executing this Agreement.
(e) Employee understands and has been advised by Employer that
Employee is entitled to a period of twenty-one (21) days to consider this
Agreement and further that Employee is entitled to revoke this Agreement within
seven (7) days after signing this Agreement and that this Agreement shall not
become effective or enforceable until the revocation period is expired. Employee
agrees that the operative starting date with respect to his
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rights under this section shall be February 3, 1999, the date the Agreement and
General Release was offered by Employer.
(f) Employee hereby resigns as a director, officer and
employee, and from all other official positions with Employer as of the
Separation Date.
18. Severability. It is agreed that the covenants of this Agreement are
severable, and that if any single clause or clauses shall be found
unenforceable, the entire Agreement shall not fail but shall be construed and
enforced without any severed clauses in accordance with the tenor of this
Agreement.
19. Entire Agreement. This agreement contains the sole and entire
agreement between the parties with respect to the subject matter contained in it
and is intended to supersede, extinguish, override and terminate any prior
agreement or agreements between the parties. The parties acknowledge and agree
that non of them has made any representation with respect to the subject matter
of this Agreement or any representations inducing its execution and delivery,
except such representations as are specifically set forth in the Agreement and
each of the parties acknowledges that he or it has relied on his or its own
judgment in entering into same. The parties further acknowledge that any prior
statements or representations that may have been made by any them to the other
with respect to the subject matter of this Agreement are void and of no effect
and that none of them has relied on such prior statements or representations in
connection with his or its dealing with the other with respect to this
Agreement.
20. Remedies. The parties agree that if there is a breach of this
Agreement, the remedies at law will be inadequate and the non-breaching party
shall be entitled to see redress by court proceedings in the form of an
injunction restraining the breaching party and/or providing for specific
performance without any bond or other security being required. The non-breaching
party shall also be entitled to such damages as that party may show by
appropriate evidence. Nothing in this Agreement shall be construed as preventing
the non-breaching party from pursuing, or seeking any damages at law or in
equity which it may have, and Employer may, in any event, be entitled upon any
breach to terminate any payments remaining to be paid pursuant to the provisions
of this Agreement.
2l. Effective Date. This Agreement shall become effective on the eighth
(8th) day following the day on which Employee signs and dates it (the "Effective
Date"). At any time prior to the Effective Date, Employee may revoke the
Agreement by providing Employer written notice of revocation.
22. No Duty to Mitigate. Employer agrees that Employee shall have no
duty to mitigate the amount of any benefits received under this Agreement by
seeking other employment or otherwise. The amount of any such benefits shall not
be reduced by any compensation earned by Employee as a result of employment by
another employer after the Separation Date.
23. Miscellaneous.
(a) The parties agree that this Agreement shall be construed
in accordance with the laws of the State of Michigan.
(b) This Agreement may not be amended except in writing,
signed by all parties.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors, assigns, executors,
administrators and heirs.
(d) Any notices required by this Agreement shall be in writing
and delivered by hand or sent by certified mail, return receipt requested:
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to the Employee at: 0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxxx, XX 00000
To the Employer at: 0000 Xxxxx Xxxx Xxxx, X.X.
Xxxxx Xxxxxx, XX 00000-0000
Attention: Chief Financial Officer
or to such other address as a party shall specify by written notice to the
other.
24. Acknowledgment. Employee acknowledges that he has carefully read
and fully understands all of the provisions of this Agreement and acknowledges
that he has knowingly and voluntarily executed this Agreement of his own free
will and volition, without any pressure or duress from Employer or any other
party, and was not under the influence of any medication which would impair his
ability to make a rational, informed decision regarding the execution of this
Agreement.
Bank West Financial Corporation,
a Michigan corporation
Dated: February 24, 1999 By: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Its: Chairman
Bank West,
a Michigan savings bank
Dated: February 24, 1999 By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxxx
Its: Chairman
Dated: March 4, 1999 /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
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