EXHIBIT 10.7
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into January 13, 1998, but as of the
Effective Date hereinafter defined, by and between VALLEY RIDGE FINANCIAL
CORPORATION ("VRFC") and XXXXXXX X. XXXXX ("Employee");
WHEREAS, VRFC has retained the services of the Employee as a
senior executive officer, and the Employee has accepted such employment;
and
WHEREAS, the parties have operated in an employment relationship
for several years; and
WHEREAS, the parties desire to enter into this Agreement, which
is intended to set forth in its entirety the terms and conditions of the
employment relationship between VRFC and the Employee; and
WHEREAS, the board of directors of VRFC has approved this
Agreement and authorized the chairman of the board to enter into this
Agreement with the Employee;
NOW, THEREFORE, IT IS AGREED as follows:
1. EMPLOYMENT. The Employee is employed to render such executive
services to VRFC as may from time to time be reasonably directed by VRFC's
Chairman of the Board and/or the VRFC board of directors. Among his other
duties, it is contemplated that he will serve as the President and Chief
Executive Officer of VRFC and VRFC's subsidiary, Valley Ridge Bank
("Subsidiary Bank").
2. COMPENSATION. VRFC agrees to pay the Employee during the term of
this Agreement a salary in the sum of at least One Hundred Sixteen Thousand
Seven Hundred Sixty-one Dollars ($116,761) per annum ("Minimum Salary")
provided, however, that any salary and bonuses (other than bonuses provided for
in section 3 of this agreement) paid to the Employee by any subsidiary of VRFC
shall be deemed to reduce the salary paid to the Employee pursuant to this
section 2. The salary provided herein shall be payable in accordance with the
periodic payment procedures for all employees of VRFC. The Employee's salary
shall be reviewed by the board of directors of VRFC not less often than annually
beginning on the date one (1) year subsequent to the Effective Date ("First
Anniversary Date") and may be increased (but not decreased) from time to
time in such amounts as the board in its discretion may determine; any such
increased salary shall become the new Minimum Salary. The Employee's
salary shall be subject to the usual payroll withholding required with
respect to compensation paid by a corporation to an employee.
3. DISCRETIONARY BONUSES. In addition to the salary provided for in
section 2, the Employee shall be entitled to participate in discretionary
bonuses as may be from time to time authorized and declared by the board of
directors of VRFC or the Subsidiary Bank to their respective executive
employees. No other compensation provided for in this Agreement shall be
deemed a substitute for the Employee's right to participate in such bonuses
when and as declared by the board of directors.
4. RETIREMENT, EMPLOYEE BENEFIT PLANS, AND FRINGE BENEFITS.
(a) The Employee shall be entitled to participate in any
plan of VRFC or the Subsidiary Bank relating to pension, thrift,
deferred profit-sharing, group life insurance, medical coverage,
education, or other retirement or employee benefits that VRFC or
the Subsidiary Bank may adopt for the benefit of its executive
employees.
(b) The Employee shall be eligible to participate in any
other fringe benefits which may be, or may later become,
applicable to VRFC's or the Subsidiary Bank's executive or
salaried employees, including, but not limited to, the following:
health plans; insurance plans; use of a company automobile;
membership in various social business and trade organizations; a
reasonable expense account; the payment of reasonable expenses
for attending annual and periodic meetings of trade associations;
and any other benefits which are commensurate with the
responsibilities and functions to be performed by the Employee
under this Agreement.
(c) VRFC shall continue to pay the $6,000 annual premium to
keep the Northwestern Mutual Life Insurance Policy owned by
Employee in effect.
(d) VRFC shall continue to pay the premiums to maintain
Employee's disability insurance coverage under the current
Provident Companies executive disability policy.
5. TERM. The initial term of this Agreement shall be a period of
five years commencing on the Effective Date, subject to earlier termination
as provided herein. Beginning on the first anniversary of the Effective
Date, and on each anniversary thereafter, the term of this Agreement shall
be extended for a period of one year in addition to the then-remaining
term, UNLESS the Bank has given notice to the Employee in writing at least
90 days prior to such anniversary that the term of this Agreement shall not
be extended further; if such notice is given, this Agreement will expire at
the end of the then-remaining term. Reference herein to the term of this
Agreement shall refer to both such initial term and such extended terms.
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6. EFFECTIVE DATE. For purposes of this Agreement the "Effective
Date" is January 13, 1998.
7. STANDARDS. The Employee shall perform his duties under this
Agreement in accordance with reasonable standards established from time to
time by the board of directors of VRFC.
8. VACATIONS. The Employee shall be entitled, without loss of pay,
to absent himself voluntarily from the performance of his employment under
this Agreement, all such voluntary absences to count as vacation time,
provided that:
(a) The Employee shall be entitled to annual vacation time
of not less than five (5) weeks per year, and five (5) personal
days each year.
(b) The timing of vacations shall be scheduled in a
reasonable, mutually agreeable manner. The Employee shall not be
entitled to receive any additional compensation from VRFC on
account of his failure to take vacation time, nor shall he be
entitled to accumulate vacation time from one calendar year to
the next, except that Employee may carry over up to one (1) week
of vacation each year to be used during the first six (6) months
of the following year.
(c) In addition to the aforesaid vacation time, the
Employee shall be entitled, without loss of pay, to disability
leave with pay for any continuous absence of up to ninety (90)
days due to disability; after 90 continuous days, paragraph 10
shall apply. Employee may also absent himself voluntarily from
the performance of his employment with VRFC for such additional
periods of time and for such valid and legitimate reasons as the
board of directors in its sole discretion may determine.
Further, the board of directors shall be entitled to grant to the
Employee, at the Employee's request, additional leaves of absence
with or without pay at such time or times and upon such terms and
conditions as the board, in its discretion, may determine.
9. TERMINATION OF EMPLOYMENT.
(a) The Employee's employment under this Agreement may be
terminated at any time by the board of directors of VRFC for
"Cause" (as defined below). The Employee shall have no right to
receive severance pay or any other remuneration whatsoever under
this Agreement for any period after voluntary termination without
"Good Reason" (as defined below) or termination for Cause. For
purposes of Agreement, for "Cause" shall mean termination for
only the following reasons:
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(i) Willful misconduct materially adverse to VRFC or
the Subsidiary Bank;
(ii) Willful breach of a fiduciary duty involving
personal profit;
(iii) Willful violation of any law, rule, or
regulation materially relating to the operation of VRFC or
the Subsidiary Bank;
(iv) The order of any court or supervising agency with
jurisdiction over the affairs of VRFC or the Subsidiary
Bank; or
(v) The Employee's intentional material violation of
any material provision of this Agreement, if Employee fails
to cure the breach within a reasonable time after written
notice from VRFC's board of directors informing him of the
breach.
For purposes of this Agreement, no act or failure to
act on the Employee's behalf shall be considered "willful" or
"intentional" unless done, or admitted to be done, by him not in
good faith and unless he knew or should have known that his
action or omission was not in, or was opposed to, the best
interests of VRFC or the Subsidiary Bank; provided, that any act
or omission to act on the Employee's behalf in reliance upon an
opinion of counsel to VRFC shall not be deemed to be willful.
The Employee shall not be deemed to have been terminated for
cause unless or until there shall have been delivered to him a
copy of a certification of a majority of the non-officer members
of the VRFC's board of directors finding that, in the good faith
opinion of such majority, the employee was guilty of conduct
deemed to be cause and specifying the details thereof, after
reasonable notice to the Employee and an opportunity for him,
together with his counsel, to be heard before such majority. No
such determination of the board shall affect Employee's right to
determination through the legal system of whether there was in
fact cause for termination.
(b) The Employee may terminate his employment at any time
upon ninety (90) days' written notice to VRFC or upon such
shorter period as may be agreed upon between the Employee and the
board of directors of VRFC. In the event of such termination
without Good Reason, VRFC shall be obligated only to continue to
pay the Employee's salary and provide the other benefits provided
by this Agreement up to the date of the termination.
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(c) The Employee may terminate his employment with VRFC for
"Good Reason", which shall mean, the occurrence of any of the
following events without Employees consent:
(i) A material demotion or other adverse change made
by VRFC in the Employee's status or position as a senior
executive officer of VRFC or the Subsidiary Bank;
(ii) The assignment to the Employee of any duties or
responsibilities which are materially inconsistent with such
status or position, or a material reduction in the duties
and responsibilities previously exercised by the Employee;
(iii) The imposition of any requirement, whether by
relocation of VRFC's offices or otherwise, that the Employee
perform his normal day-to-day duties and responsibilities
outside of an area within a thirty (30) mile radius of Kent
City, Michigan;
(iv) Failure of VRFC to elect the Employee as chief
executive officer and a director of the Subsidiary Bank; or
(v) Material breach by VRFC of any material provision
of Agreement, if VRFC fails to cure the breach within a
reasonable time after Employee has given VRFC's board of
directors written notice of the breach.
Before terminating his employment for good reason pursuant to
this section 9(c), the Employee shall give written notice to
VRFC's board of directors of the act or omission constituting
"Good Reason," within 60 days after the occurrence of such act or
omission. If the board of directors promptly corrects such act
or omission, and takes reasonable measures to prevent its
recurrence, Employee shall not be entitled to terminate the
employment with Good Reason. Otherwise, Employee may terminate
the employment for Good Reason within 60 days after such notice
to the board of directors. If Employee fails to give notice as
provided above, Employee may not terminate the Employment for
Good Reason on account of such act or omission.
(d) If the Employee's employment is terminated by VRFC
without Cause or terminated by the Employee for Good Reason, the
Employee shall be entitled to continuation of his salary and
benefits until the end of the Term of this Agreement as if
termination of his employment had not occurred.
Payment of salary and continuation of benefits as
provided in this subparagraph 9(d) shall continue regardless of
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whether the Employee finds new employment following such
termination, and without reduction due to any earnings of
Employee from any other employment or self employment, as long as
the new employment or self employment is not materially
competitive with VRFC or the Subsidiary Bank. Any amounts
received under VRFC's director deferred compensation program, any
retirement plans or VRFC's Supplemental Executive Retirement Plan
(SERP) shall not reduce the pay continuation under this paragraph
9(d). The salary continuation provided in this subparagraph 9(d)
shall be reduced, however (but not below zero) by any disability
benefits received by the Employee during the Severance Pay Period
(other than benefits received under the policy referred to in
paragraph 4(d) of this Agreement). If continuation of a specific
benefit is not possible under applicable law, Employee shall be
provided with an equal substitute benefit or, if that is not
possible, with cash in lieu of such benefit; such substitute
benefit or cash shall be structured or supplemented as necessary
to place Employee in the same economic position, after all
applicable taxes, as if the benefit had been continued.
If any payment to or benefit continuation for the
Employee (or the Employee's estate or beneficiary, pursuant to
paragraph 12(b) constitutes a "parachute payment "under Internal
Revenue Code section 280(G) and, when added to all other payments
to the Employee that are "parachute payments" would result in
"excess parachute payments" to Employee (as defined under IRC
280(G) being nondeductible by the Corporation under IRC
280(G), then the payments and benefit continuation
provided for under this section 9(d) shall be reduced (but not
below 0) or delayed until there are no such excess parachute
payments. The amount of any reduction or delay shall be
determined by VRFC's certified public accountants, in
consultation with the Employee.
(e) In the event of the death of the Employee while still
employed under this Agreement the Employee's estate or
beneficiary shall not be entitled to salary and benefit
continuation under section 9(d), but shall be entitled to receive
the salary due the Employee through the last day of the calendar
month in which his death shall have occurred, plus such other
benefits as shall have accrued under this Agreement up to the
date of death, plus an additional amount equal to the Employee's
annual salary as of the date of death.
(f) If the Employee is temporarily prohibited from
participating in the conduct of the affairs of VRFC or the
Subsidiary Bank at the request of or by the order of any court or
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supervising agency with jurisdiction over VRFC, VRFC's
obligations under this Agreement shall not terminate and the
Employee shall be placed on administrative leave with or without
pay in the discretion of the board of directors. If the charges
in the proceeding out of which such request or order is issued
mature into a permanent prohibition order, unless stayed by
appropriate proceedings, VRFC's obligations hereunder shall
terminate as of the effective date of such permanent order.
(g) If the Employee is permanently prohibited from
participating in the conduct of VRFC's affairs or those of the
Subsidiary Bank by the final order of any court or supervising
agency with jurisdiction over VRFC, all obligations of VRFC under
this Agreement shall terminate, as of the effective date of the
order; vested rights of the parties shall not be affected, but
Employee shall not be entitled to salary or benefit continuation
under section 9(d) of this Agreement if his employment is
terminated pursuant to this section 9(g).
(h) All obligations under this Agreement may be terminated,
except to the extent it is determined that continuation of the
Agreement is necessary for the continued operation of VRFC or the
Subsidiary Bank:
(i) By the Federal Deposit Insurance Corporation
("FDIC") at the time the FDIC enters into an agreement to
provide assistance to or on behalf of VRFC or the Subsidiary
Bank; and
(ii) By the Federal Reserve Board ("FRB"), or any other
agency, at the time the FRB approves a supervisory merger to
resolve problems related to the operation of VRFC or when
VRFC or the Subsidiary Bank is determined by the FRB to be
in an unsafe or unsound condition. Any rights of the
parties that have already vested, shall not be affected by
such action, but Employee shall not be entitled to salary or
benefit continuation under Section 9(d) of this Agreement if
his employment is terminated pursuant to this section 9(h).
10. DISABILITY. If the Employee shall become and remain disabled or
incapacitated to the extent that he is unable to perform his duties under
this Agreement for a continuous period of ninety (90) days or more, then,
in that event, from the time that such period shall have elapsed until such
disability or incapacity shall have ceased:
(a) he shall be entitled to receive disability benefits of
the type provided for executive employees of VRFC and the
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Subsidiary Bank (including at least the benefits provided by the
disability policy referred to in paragraph 4(d) of this
Agreement); and
(b) he shall not be entitled to receive salary payments
pursuant to this Employment Agreement.
If Employee remains disabled or incapacitated as defined above
for a continuous period of 6 months, or for a total of 12 months in any two
calendar year period, the Board of Directors of VRFC may terminate
Employee's employment without salary or benefit continuation under section
9(d).
11. ATTORNEY FEES. In the event that VRFC exercises its right of
Termination for Cause, but it is determined by a court of competent
jurisdiction or by an arbitrator that cause did not exist for such
termination, or if in any event it is determined by any such court or
arbitrator that VRFC or the Subsidiary Bank has failed to make timely
payment of any amounts owed to the Employee under this Agreement, the
Employee shall be entitled to reimbursement for all reasonable costs,
including attorneys' fees, incurred in challenging such termination or
collecting such amounts. Such reimbursement shall be in addition to any
rights to which the Employee is otherwise entitled under this Agreement.
12. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties
hereto, and neither party may assign or delegate any of its
rights or obligations hereunder without first obtaining the
written consent of the other party; provided, however, that VRFC
shall require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of VRFC or the
Subsidiary, by an assumption agreement in form and substance
satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that VRFC would be required to perform it if no such succession
or assignment had taken place. Failure of VRFC to obtain such an
assumption agreement prior to the effectiveness of any such
succession or assignment shall be a breach of this Agreement and
shall entitle the Employee to compensation from VRFC in the same
amount and on the same terms as the compensation pursuant to
section 9(d) hereof. For purposes of implementing the provisions
of this section 12(a), the date on which any such succession
becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's
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personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the
Employee should die while any amounts would still be payable to the
Employee hereunder if the Employee had continued to live (including
but not limited to salary and benefit continuation to which Employee
becomes conditioned under section 9(d) as a result of a covered
termination of the Employment before Employee's death) all such
amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Employee's devisee, legatee or
other designee or if there is no such designee, to the Employee's
estate.
13. OTHER CONTRACTS. All other prior agreements regarding conditions
of employment, whether written or oral, are hereby superseded by this
Agreement.
14. NOTICES. Any notices under this Agreement shall be deemed given
when in writing and delivered personally or sent by certified mail, postage
prepaid, to the last known address of the party to whom notice is given.
If sent by mail, notice shall be deemed given on the second day after
mailing.
15. AMENDMENTS. No amendments or additions to this Agreement shall
be binding unless in writing and signed by both parties, except as herein
otherwise provided.
16. PARAGRAPH HEADINGS. The paragraph headings used in this
Agreement are included solely for convenience and shall not affect or be
used in connection with the interpretation of this Agreement.
17. 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.
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18. GOVERNING LAW. Agreement shall be governed by the laws of the
United States of America and the State of Michigan.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the day and year first above written.
VALLEY RIDGE FINANCIAL CORPORATION
By/s/ XXXXXX X. XXXXXXXXX
Xxxxxx Xxxxxxxxx,
Chairman of the Board
Employer
/s/ XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx
Employee
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