EXECUTIVE EMPLOYMENT AGREEMENT
This
EXECUTIVE
EMPLOYMENT AGREEMENT
(“Agreement”) is made and entered into as of this 22nd day of August, 2006, by
and between LOTUS
BANCORP, INC.,
a
Michigan corporation (hereafter the “Company”) and
Xxxxxxx Xxxxx,
a
resident of Rochester Hills, Michigan (hereafter the “Executive”).
WHEREAS,
the
Executive has considerable experience, expertise and training in management
related to banking and services offered by the Company and to be offered through
Lotus Bank, a proposed subsidiary bank of the Company (“Bank”);
WHEREAS,
the
Company desires and intends to cause the Executive to be employed as Chief
Lending Officer & Executive Vice President of the Bank pursuant to the terms
and conditions set forth in this Agreement; and
WHEREAS,
both
the Company and the Executive have read and understood the terms and provisions
set forth in this Agreement, and have been afforded a reasonable opportunity
to
review this Agreement with their respective legal counsel.
NOW,
THEREFORE,
in
consideration of the mutual promises and covenants set forth in this Agreement,
the Executive and the Company agree as follows:
DURATION
1. This
Agreement shall continue in full force and effect for a period beginning on
the
date the Bank opens for business (“Opening Date”) and will expire and terminate
by its own terms on the Expiration Date, which is the later of October 31,
2009
or as of a date three (3) years after the Opening Date unless either party
elects to terminate this Agreement prior to the Expiration Date, in accordance
with the TERMINATION
provisions
set forth below.
2. Both
the
Company and the Executive acknowledge and agree that the parties may agree
to
continue the employment relationship upon such terms as they may mutually agree.
Both parties acknowledge and agree that, in the event that they fail to agree
upon terms for the continuation of the Executive’s employment subsequent to the
Expiration Date, this Agreement and the employment of the Executive shall
automatically terminate on the Expiration Date without any additional liability
or obligation on the part of either party, except as expressly provided
herein.
COMPENSATION
3. All
payments of salary and other compensation to the Executive shall be payable
in
accordance with the Company’s or Bank’s ordinary payroll and other policies and
procedures.
a. For
the
first year after the Opening Date, the Executive will receive a salary of
$105,000.00, payable on a semi-monthly basis in equal amounts of $4,375.00,
and
appropriately prorated for partial months at the commencement and end of the
term of the Agreement.
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b. During
the remaining term of this Agreement, the Executive’s annual salary shall be
reviewed by the Company’s Board of Directors as of the 31st
day of
December of each subsequent year, as provided in Paragraph 6
of this
Agreement.
c. During
the term of this Agreement, it is anticipated that a disinterested majority
of
the Board of Directors of the Company will consider the adoption of an executive
discretionary bonus plan. The Board will have the sole discretion whether to
adopt such a bonus plan and, if so, when bonuses will be paid
thereunder.
d. At
conclusion of the initial stock offering of the Company, the Company shall
grant
to the Executive a number of options exercisable within ten (10) years from
the
date of the grant of such options. Such options, upon the grant of the options,
will enable the Executive to purchase a number of shares of Company common
stock
equal to one percent (1%) of the total number of shares of common stock issued
in the initial stock offering. The exercise price for the stock options to
be
received by the Executive shall be equal to the offering price of the Company
common stock in its initial offering. The terms of the Company’s stock option
plan shall control in the event of any conflict with the terms of this
Agreement. The options shall be evidenced by a stock option agreement, which
shall have terms as are consistent with those set forth above and such
additional terms as may be set forth in the stock option agreement or the stock
option plan pursuant to which the options are granted. To the maximum extent
permitted by law, the options will be treated as incentive stock
options.
Both
the
Company and the Executive acknowledge that such compensation and the other
covenants and agreements of the Company contained herein are fair and adequate
compensation for the Executive’s services, and for the mutual promises described
below.
e. Executive
shall be also be entitled to participate in any benefit programs applicable
to
all employees of the Company or Bank, as applicable, or to executive employees
of the Company or Bank in accordance with Company or Bank policy and the
provisions of said programs. Such benefits may include employee and dependent
health and dental insurance, disability insurance with coverage equal to the
Executive’s current salary at the time of any disability, and profit sharing and
other retirement plans.
f. The
Company or Bank shall also provide the Executive with a salary continuation
plan, with such terms as are approved by the Board of Directors of the Bank
or
the Company, as the case might be. The Company shall also permit Executive
to
participate in a 401K plan once such plan is established by the Company or
the
Bank.
g. The
Executive is eligible for an annual bonus in an amount to be determined based
on
performance goals established annually by the Chief Executive Officer and the
Board of Directors; provided, however that the Executive shall only be eligible
for the annual bonus if the Bank’s Composite CAMELS rating is 1 or 2 from the
applicable bonus year.
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4. The
Company shall reimburse the Executive for all reasonable expenses, including,
but not limited to, travel expenses, lodging expenses, meals and entertainment
expenses, cell phone and trade association memberships; provided, however,
that
the Executive shall be required to submit receipts or other acceptable
documentation to the Cashier or other appropriate bank officer to verify such
expenses prior to any reimbursements.
5. Subject
to the provisions of Paragraph 7
of this
Agreement, Executive shall be entitled to four (4) weeks of paid vacation per
twelve month period on a non-cumulative basis. In addition, in the event that
neither the Company nor the Bank has a health insurance plan as of the Opening
Date, the Company shall reimburse the Executive, not less frequently than
monthly, upon presentment of appropriate documentation, the amount paid by
the
Executive to continue, without interruption, family medical benefits under
COBRA, up to $1,000 per month. In the event that neither the Company nor the
Bank has a health insurance plan prior to the time that Executive’s COBRA
continuation health insurance expires, the Company shall reimburse the
Executive, not less frequently than monthly, upon presentment of appropriate
documentation, the amount paid by the Executive to continue, without
interruption, family medical benefits of similar nature to those continued
under
COBRA coverage, up to $1,000 per month. In each case, family medical benefits
shall extend to the spouse of the Executive, dependent children under the age
of
nineteen who live at home and dependent children under the age of twenty-one
who
are full-time students at an accredited college or university.
6. During
the term of this Agreement, Executive’s compensation will be subject to an
annual review consistent with safe and sound banking practices and in the
discretion of the Board of Directors of the Company but, in no event, will
the
Executive’s salary and vacation be less than the amounts set forth in
Paragraphs 3,
4,
and
5
at any
time during the term of this Agreement.
7. All
employee benefits provided to the Executive by the Company or Bank incident
to
the Executive’s employment shall be governed by the applicable plan documents,
summary plan descriptions or employment policies, and may be modified, suspended
or revoked at any time, in accordance with the terms and provisions of the
applicable documents.
8. The
Company shall have the right to deduct from any payment of compensation to
Executive hereunder any federal, state or local taxes required by law to be
withheld with respect to such payments and any other amounts specifically
authorized to be withheld or deducted by Executive.
RESPONSIBILITIES
9. The
Executive shall be employed as Chief Lending Officer and Executive Vice
President of the Bank. The Executive covenants and agrees that he will
faithfully devote his best efforts and his primary focus to his positions with
the Bank and the Company and their respective subsidiaries.
10. The
Executive acknowledges and agrees that the duties and responsibilities of the
Executive required by his position as Chief Lending Officer are wholly within
the discretion of the Chief Executive Officer, and may be modified, or new
duties and responsibilities imposed by the Chief Executive Officer, at any
time,
without the approval or consent of the Executive. However, these new duties
and
responsibilities may not constitute immoral or unlawful acts. In addition,
the
new duties and responsibilities must be consistent with the Executive’s role as
Chief Lending Officer of a financial institution.
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11. The
Executive acknowledges and agrees that, during the term of this Agreement,
he
has a fiduciary duty of loyalty to the Company and the Bank, and that he will
not engage in any activity during the term of this Agreement, which will or
could, in any significant way, harm the business, business interests, or
reputation of the Company or the Bank.
NONCOMPETITION
12. The
Executive acknowledges and agrees that he will not, at any time during the
existence of the employment relationship between the Company or the Bank,
directly or indirectly engage in competition with the Company or the Bank,
and
the Executive will not on his own behalf, or as another’s agent, employee,
partner, shareholder or otherwise, engage, in any of the same or similar duties
and/or responsibilities required by the Executive’s positions with the Company
and the Bank, other than as an employee of the Company or the Bank pursuant
to
this Agreement, or as specifically approved by the Board of
Directors.
In
addition, without the prior written consent of the Board of Directors, Executive
shall not usurp for himself any corporate opportunity available to the Company
or the Bank.
The
Executive covenants and agrees that for a period of six months subsequent to
a
voluntary termination of this Agreement by the Executive, other than as a result
of a “constructive termination” as defined in Paragraph 17,
the
Executive shall not directly or indirectly engage in competition with the
Company or the Bank, within Oakland County, (the “post voluntary termination
noncompete area”) and the Executive will not on his own behalf, or as another’s
agent, employee, partner, shareholder or otherwise, engage, within the post
voluntary termination noncompete area in any of the same or similar duties
and/or responsibilities required by the Executive’s positions with the Company
or the Bank. The Executive acknowledges and agrees that the rights provided
by
this Paragraph to the Company and the Bank are cumulative with other rights
granted the Company or the Bank under this Agreement. The Company and the Bank
covenant and agree that if they choose to enforce the provisions of this
Paragraph, the Executive shall be entitled to payment of $52,500.00 or the
equivalent of half the Executive’s then current annual salary, whichever is
greater, less statutory payroll deductions, payable in twelve (12) equal
disbursements in accordance with ordinary payroll policies and procedures,
beginning with the first payroll after the termination becomes
effective.
If
the
Company or the Bank believes, in good faith after consultation with its counsel,
that Executive is in violation or breach of this Agreement, the Company or
the
Bank, as applicable, may refuse to make further non-compete payments under
this
Paragraph 12
and may
seek full restitution of all non-compete payments previously paid by the Company
or the Bank to Executive up to and including the date of such violation or
breach by Executive.
4
The
Executive also acknowledges and agrees that in exchange for the noncompetition
agreement set forth in this Paragraph, the Executive will receive substantial,
valuable consideration including: (i) confidential trade secret and proprietary
information relating to the identity and special needs of the Company’s current
and prospective customers, the Company’s and Bank’s current and prospective
services, the Company’s and Bank’s business projections and market studies, the
Company’s and Bank’s business plans and strategies, the Company’s and Bank’s
studies and information concerning special services unique to the Company and
the Bank; (ii) employment; and (iii) compensation and benefits as described
in this Agreement.
Executive
acknowledges and agrees that the non-competition restriction set forth above
is
ancillary to an otherwise enforceable agreement and supported by independent
valuable consideration as required by law. Executive further acknowledges and
agrees that the limitations as to time, geographical area, and scope of activity
to be restrained by this Paragraph are reasonable and acceptable to him, and
do
not impose any greater restraint than is reasonably necessary to protect the
goodwill and other business interests of the Company and the Bank. Executive
acknowledges and agrees that the primary purpose of the restrictive covenants
contained herein is to protect the proprietary information and goodwill of
the
Company and the Bank.
Executive
acknowledges and agrees that if, at some later date, a court of competent
jurisdiction determines that the non-competition agreement set forth in this
Paragraph does not meet the criteria set forth by law, this paragraph may be
reformed by the court and enforced to the maximum extent permitted under the
laws of the State of Michigan.
If
Executive is found to have violated any of the provisions of any restrictive
covenant contained herein, Executive agrees that the restrictive period of
each
covenant so violated shall be extended by a period of time equal to the period
of such violation by Executive. It is the intent of this Paragraph that the
running of the restrictive period of any covenant shall be tolled during any
period of violation of such covenant so that the Company may obtain the full
and
reasonable protection for which it contracted and so that Executive may not
profit by breach thereof.
NONINTERFERENCE
13. The
Executive covenants and agrees that, for a period of six months subsequent
to
the termination of this Agreement, whether such termination occurs at the
insistence of the Company or the Executive, the Executive shall not: (i)
recruit, hire, or attempt to recruit or hire, directly or by assisting others,
any other employees of the Company or the Bank (for purposes of this covenant,
“other employees” shall refer to employees who are still actively employed by,
or doing business with, the Company or the Bank at the time of the attempted
recruiting or hiring) nor shall the Executive contact or communicate with any
other employees of the Company or the Bank for the purpose of inducing other
employees to terminate their employment with the Company or the Bank or (ii)
solicit, directly or by assisting others, the banking business of any customers
of the Company or the Bank as of the date of such termination.
5
The
Executive acknowledges and agrees that in exchange for the execution of the
noninterference agreement set forth above, the Executive will receive
substantial, valuable consideration including: (i) confidential trade secret
and
proprietary information relating to the identity and special needs of the
Company’s and Bank’s current and prospective customers, the Company’s and Bank’s
current and prospective services, the Company’s and Bank’s business projections
and market studies, the Company’s business plans and strategies, the Company’s
and Bank’s studies and information concerning special services unique to the
Company or the Bank; (ii) employment; and (iii) compensation and benefits
as described in this Agreement. The Executive acknowledges and agrees that
this
constitutes fair and adequate consideration for the execution of the
noninterference agreement set forth above.
REMEDIES
14. In
the
event that the Executive violates any of the provisions set forth in this
Agreement relating to NONINTERFERENCE
and
NONCOMPETITION,
the
Executive acknowledges and agrees that the Company and the Bank would suffer
immediate and irreparable harm and
would
not have an adequate remedy at law for money damages. Accordingly, Executive
agrees that, without the necessity of proving actual damages or posting bond
or
other security, the Company and the Bank shall be entitled to temporary or
permanent injunction or injunctions to prevent breaches of such performance
and
to specific enforcement of such covenants in addition to any other remedy to
which the Company or the Bank may be entitled, at law or in equity. In such
a
situation, the parties agree that the Company and the Bank may pursue any remedy
available, including declaratory relief, concurrently or consecutively in any
order as to any breach, violation, or threatened breach or violation of any
of
the provisions set forth in this Agreement relating to NONINTERFERENCE
and
NONCOMPETITION,
and the
pursuit of any particular remedy or remedies shall not be deemed an election
of
remedies or waiver of the right to pursue any other remedy.
TERMINATION
15. The
Chief
Executive Officer and the Board of Directors of the Company shall be entitled
to
terminate this Agreement, for any reason, by providing the Executive with thirty
(30) days’ written notice of the termination, delivered in person, or by
certified U.S. mail to the Executive’s last known address reflected in the
Company’s personnel records. Such notice shall be effective upon personal
delivery or three days after mailing by certified mail. However, if the
Agreement is terminated at the Company’s insistence without “good cause” as
defined in this Agreement, the Company covenants and agrees to provide the
Executive with the SEVERANCE
set
forth
below in this Agreement.
16. For
purposes of this Agreement, “good cause” shall be defined as the occurrence of
one of the following events:
a. The
Executive violates any provision of this Agreement or is grossly negligent
in
the performance of his duties hereunder, and fails to cure such violation or
the
effects of such gross negligence within ten (10) days after written notice
to
the Executive by the Company specifying in reasonable detail the alleged
violation;
b. The
Executive is indicted for a felony, or a misdemeanor involving moral turpitude;
6
c. A
bank
regulatory agency having jurisdiction over the Company or the Bank has issued
a
notice of intent (i.e. a “15 day letter”) to pursue the suspension or removal of
Executive by bank regulatory authorities; or
d. The
Chief
Executive Officer and/or the Board of Directors, in the exercise of his or
its
reasonable judgment and in good faith, determines that the Executive’s job
performance is substantially unsatisfactory and the Executive has failed to
cure
such performance within a reasonable period after written notice to the
Executive by the Bank specifying in reasonable detail the nature of the
unsatisfactory performance.
17. Executive
shall be entitled to terminate this Agreement at any time, for any reason,
with
or without cause, by providing thirty (30) days written notice, by personal
delivery or certified United States mail, to the Company at its principal
business address of the Executive’s intention to terminate this Agreement. Such
notice shall be effective upon personal delivery or three days after mailing
by
certified mail. In the event that the Executive does so because of a
“constructive termination” as defined in this Agreement, the Company covenants
and agrees to provide the Executive with the SEVERANCE
set
forth below in this Agreement. “Constructive termination” shall mean any
circumstance pursuant to which Executive’s compensation is materially
diminished, his job title is changed to a position of lesser importance, or
his
responsibilities are materially reduced.
18. In
the
event of the Executive’s death, this Agreement will terminate immediately,
without notice, on the date of the Executive’s death. The Executive acknowledges
and agrees that, in the event of his death, the Company will pay to the
Executive’s estate all compensation due and owing through the date of the
Executive’s death.
19. This
Agreement will terminate immediately, without notice, in the event the Executive
becomes physically or mentally disabled, as defined by 29 C.F.R.
§ 1630.2(g)(1), and cannot perform the essential functions of his position,
with or without reasonable accommodation for the period designated by the
Executive’s disability insurance after which disability payments will
begin.
20. The
Executive acknowledges and agrees that in the event of termination of this
Agreement, for whatever reason, whether at the insistence of the Executive
or at
the insistence of the Company, the Executive will return to the Company within
seventy-two (72) hours of the time when notice of termination is communicated
by
either party, or sooner if requested by the Company, any and all equipment,
literature, documents, data, information, order forms, memoranda,
correspondence, customer and prospective customer lists, customer’s orders,
records, cards or notes acquired, compiled or coming into the Executive’s
knowledge, possession or control in connection with his activities as an
employee of the Company or the Bank, as well as all machines, parts, equipment
or other materials received from the Company or the Bank or from any of their
respective customers, agents or suppliers, in connection with such
activities.
21. The
provisions of Paragraphs 12-14,
20-25,
30
and
36
shall
survive the termination of this Agreement.
7
CHANGE
IN CONTROL
22. The
parties acknowledge that the Executive has agreed to assume the position of
Executive Vice President and to enter into this Agreement based on his
confidence in the current owners of the Company and the direction of the Company
provided by the current Board of Directors. If the Company should undergo a
“Change of Control,” as defined below, and there is a material change in the
Executive’s responsibilities, duties, terms or location of employment, then the
Executive, at his option, may notify the Company at any time within sixty (60)
days following such Change of Control, by personal delivery or certified U.S.
mail, that he intends to terminate this Agreement based upon the Change of
Control. Notice of termination shall be effective upon delivery or three (3)
days after mailing by certified mail.
23. In
the
event that the Executive elects to terminate this Agreement based upon a Change
in Control, the Company covenants and agrees to pay to the Executive cash
payments in an aggregate amount equal to 125% of Executive’s then current annual
salary or $131,250.00, whichever is greater, less statutory payroll deductions.
Such compensation shall be payable in equal disbursements in accordance with
the
Company’s ordinary payroll policies and procedures.
24. As
used
in this Agreement, a “Change of Control” shall be deemed to have occurred in any
of the following instances:
a. the
Company or the Bank is merged or consolidated with another corporation and
as a
result of such merger or consolidation less than fifty percent (50%) of the
outstanding voting securities (on a fully diluted basis) of the surviving or
resulting corporation are owned in the aggregate by the former shareholders
of
the Company;
b. the
Company or the Bank sells all or substantially all of its assets to another
corporation; or
c. there
is
an acquisition of more than fifty percent (50%) of the outstanding voting
securities of the Company or the Bank pursuant to any transaction or combination
of transactions by any person or group within the meaning of such terms in
the
Securities Exchange Act of 1934, as amended.
SEVERANCE
25. If
the
Company elects to terminate this Agreement at any time prior to the Expiration
Date for any reason other than “good cause” as defined in this Agreement, or if
Executive terminates this Agreement as a result of a “constructive termination,”
the Executive shall be entitled to severance pay. Such severance pay shall
be
equal to $52,500.00 or the equivalent of half the Executive’s then current
annual salary, whichever is greater, less statutory payroll deductions, payable
in twelve (12) equal disbursements in accordance with the Company’s ordinary
payroll policies and procedures, beginning on the date that the notice of
termination becomes effective. In the event that the Executive is entitled
to
any payment under the CHANGE
IN CONTROL or NONCOMPETITION provisions
above, no payment shall be due under this SEVERANCE
provision.
8
SEVERABILITY
26. The
Executive acknowledges
and
agrees that each covenant and/or provision of this Agreement shall be
enforceable independently of every other covenant and/or provision. Furthermore,
the Executive acknowledges and agrees that, in the event any covenant and/or
provision of this Agreement is determined to be unenforceable for any reason,
the remaining covenants and/or provisions will remain effective, binding and
enforceable.
WAIVER
27. The
parties acknowledge and agree
that
the failure of either to enforce any provision of this Agreement shall not
constitute a waiver of that particular provision, or of any other provisions
of
this Agreement.
SUCCESSORS
AND ASSIGNS
28. The
Executive acknowledges and agrees that this Agreement may be assigned by the
Company to any successor-in-interest and shall inure to the benefit of, and
be
fully enforceable by, any successor and/or assignee; and this Agreement will
be
fully binding upon, and may be enforced by the Executive against, any successor
and/or assignee of the Company.
29. The
Executive acknowledges and agrees that his obligations, duties and
responsibilities under this Agreement are personal and shall not be assignable,
and that this Agreement shall be enforceable by the Executive only. In the
event
of the Executive’s death, this Agreement shall be enforceable by the Executive’s
estate, executors and/or legal representatives, only to the extent provided
herein.
CHOICE
OF LAW
30. BOTH
PARTIES ACKNOWLEDGE AND AGREE THAT THE LAW OF THE STATE OF MICHIGAN WILL GOVERN
THE VALIDITY, INTERPRETATION AND EFFECT OF THIS AGREEMENT, AND ANY OTHER DISPUTE
RELATING TO, OR ARISING OUT OF, THE EMPLOYMENT RELATIONSHIP BETWEEN THE COMPANY
AND THE EXECUTIVE.
MODIFICATION
31. Both
parties acknowledge and agree that this Agreement and the other agreements
and
plans referenced herein constitute the complete and entire agreement between
the
parties; that the parties have executed this Agreement based upon the express
terms and provisions set forth herein; that the parties have not relied on
any
representations, oral or written, which are not set forth in this Agreement;
that no previous agreement, either oral or written, shall have any effect on
the
terms or provisions of this Agreement; and that all previous agreements, either
oral or written, are expressly superseded and revoked by this
Agreement.
9
32. Both
parties acknowledge and agree that the covenants and/or provisions of this
Agreement may not be modified by any subsequent agreement unless the modifying
agreement; (i) is in writing; (ii) contains an express provision
referencing this Agreement; (iii) is signed by the Executive; and
(iv) is approved by the Chief Executive Officer and a disinterested
majority of the Board of Directors of the Company.
INDEMNIFICATION
33. During
the term of this Agreement, the Company shall indemnify the Executive against
all judgments, penalties, fines, amounts paid in settlement and reasonable
expenses (including, but not limited to, attorneys’ fees) relating to his
employment by the Company to the fullest extent permissible under the Company’s
Articles of Incorporation and the Bank’s Articles of Association and may
purchase such indemnification insurance as the Board of Directors may from
time
to time determine.
LEGAL
CONSULTATION
34. The
Executive and the Company acknowledge and agree that both parties have been
accorded a reasonable opportunity to review this Agreement with legal counsel
prior to executing the agreement. The Executive acknowledges that he is not
represented by Jenkens & Xxxxxxxxx, P.C. in connection with the preparation
and negotiation of this Agreement, and that Jenkens & Xxxxxxxxx, P.C.
represents the Company.
NOTICES
35. Any
and
all notices of documents or other notices required to be delivered under the
terms of this Agreement shall be addressed to each party as
follows:
EXECUTIVE:
Xxxxxxx
Xxxxx
000
Xxxxxxxxx
Xxxxxxxxx
Xxxxx, XX 00000
COMPANY:
X.X.
Xxx
000000
Xxxx
Xxxxxxxxxx, XX 00000-0000
10
MISCELLANEOUS
36. The
Executive shall make himself available, upon the request of the Company or
the
Bank, to testify or otherwise assist in litigation, arbitration, or other
disputes involving the Bank, or any of the directors, officers, employees,
subsidiaries, or parent corporations of either, at no additional cost during
the
term of this Agreement and at any time following the termination of this
Agreement.
37. The
Executive shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment provided for in this Agreement be reduced by any
compensation earned by the Executive as the result of employment by another
employer after the date of termination, or otherwise.
38. In
the
event either party institutes litigation to enforce or protect its rights under
this Agreement, the prevailing party in such litigation shall be entitled,
in
addition to all other relief, to reasonable attorneys fees, out-of-pocket costs,
disbursements, and fees relating to such litigation.
39. This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original, but all of which shall together constitute
one and the same Agreement.
40. Neither
the Company nor the Bank shall have any obligation to set aside, earmark or
entrust any fund or money with which to pay its obligations under this
Agreement. The Executive or any successor-in-interest to Executive shall be
and
remain simply a general creditor of the Company or the Bank in the same manner
as any other creditor having a general unsecured claim. For purposes of the
Code, the Company intends this Agreement to be an unfunded, unsecured promise
to
pay on the part of the Company. For purposes of Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), the Company intends that this
Agreement not be subject to ERISA. If it is deemed subject to ERISA, it is
intended to be an unfunded arrangement for the benefit of a select member of
management, who is a highly compensated employee of the Company for the purpose
of qualifying this Agreement for the “top hat” plan exception under sections
201(2), 301(a)(3) and 401(a)(1) of ERISA. At no time shall the Executive have
or
be deemed to have any lien nor right, title or interest in or to any specific
investment or to any assets of the Company or the Bank. If the Company or Bank
elects to invest in a life insurance, disability or annuity policy upon the
life
of Executive, the Executive shall assist the Company and Bank by freely
submitting to a physical examination and supplying such additional information
necessary to obtain such insurance or annuities.
11
41. When
a
reference is made in this Agreement to a Paragraph, such reference shall be
to a
Paragraph of this Agreement unless otherwise indicated. The headings contained
in this Agreement are for convenience of reference only and shall not affect
in
any way the meaning or interpretation of this Agreement. Whenever the words
“include”, “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.” The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision
in
this Agreement. Each use herein of the masculine, neuter or feminine gender
shall be deemed to include the other genders.
Each
use
herein of the plural shall include the singular and
vice
versa, in each case as the context requires or as is otherwise appropriate.
The
word “or” is used in the inclusive sense. Any agreement or instrument defined or
referred to herein or in any agreement or instrument that is referred to herein
means such agreement or instrument as from time to time amended, modified or
supplemented, including by waiver or consent.
References to a person are also to its permitted successors or
assigns.
42. Executive
represents that his service as an employee of the Company and Bank will not
violate any agreement: (i) he has made that prohibits his from disclosing any
information he acquired prior to his becoming employed by the Company or the
Bank; or (ii) he has made that prohibits his from accepting employment with
the
Company or the Bank or that will interfere with his compliance with the terms
of
this Agreement. Executive further represents that he has not previously, and
will not in the future, disclose to the Company or the Bank any proprietary
information or trade secrets belonging to any previous employer. Executive
acknowledges that the Company and the Bank have instructed him not to disclose
to it any proprietary information or trade secrets belonging to any previous
employer.
43. As
the
Company and the Bank are considered to be in the business of community banking
and as the Executive will be required to participate in community activities
and
become a part of the community where the Company and the Bank are located,
the
Executive shall relocate his primary residence to Southeastern Michigan within
a
one hour “drive” of its main office within three months of the Opening
Date.
12
EXECUTED
ON THE DATE FIRST WRITTEN ABOVE.
| “EXECUTIVE” | ||
| /s/ Xxxxxxx Xxxxx | /s/ Xxxxxxx Xxxxx | |
| WITNESS | Xxxxxxx Xxxxx | |
| “COMPANY” | ||
| CITY CENTRAL BANCORP, INC. | ||
| /s/ Xxxxxxx Xxxxx | /s/ Xxxxxx Xxxxx | |
|
WITNESS
|
|
Xxxxxx Xxxxx
President
& CEO
|
13
