EXHIBIT 10.5
EMPLOYMENT CONTRACT
THIS EMPLOYMENT CONTRACT ("Contract") made and effective this 1st day of
January, 2006, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Employee") and UNITED BANCORP,
INC., ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("UBI").
RECITALS
A. UBI desires to continue to employ Employee.
B. Employee desires to continue to be employed by UBI.
C. There is continued activity by multi-bank holding companies in the
acquisition of independent community banks, which often jeopardizes the
continued employment of senior officers of the acquired bank, and UBI
wishes to minimize the uncertainty and distraction caused by such activity,
which would detract from Employee's ability to perform his/her duties, by
providing Employee with some transition assistance if UBI is acquired or if
there is a change in control or if Employee's employment is terminated in
anticipation of such an acquisition, merger, change in control, or similar
transaction.
NOW, THEREFORE, UBI and Employee hereby enter into this Employment Contract
on the following terms and conditions:
1. Employment. UBI hereby employs Employee, and Employee accepts this
employment and agrees to devote his/her full-time attention and energies to
the performance of his/her employment duties.
2. Term of Contract. This Contract shall be for a term of one (1) year
beginning January 1, 2006, unless terminated earlier pursuant to the
provisions of paragraph 3 and/or 6.
3. Payment Upon Termination in Certain Circumstances. If, other than for a
Change in Control, as defined in paragraph 7, below, UBI shall terminate
Employee's employment other than for "Cause," as defined in paragraph 6,
below, or by mutual agreement, Employee shall continue to receive his/her
regular salary (the salary in effect immediately prior to such termination)
and benefits (except for group carve out life insurance) for a period of
six (6) months. This continuation of salary and benefits shall immediately
cease if Employee secures employment before the end of the six (6) month
period.
4. Duties. The duties, responsibilities and authority of Employee shall be as
determined by UBI from time to time.
5. Compensation. Employee's annual salary for calendar year 2006 shall be
$105,500, unless adjusted pursuant to the following provisions:
a. It is contemplated that an annual bonus shall be paid. Employee will
be a Group 4 Participant in the Target Incentive Compensation Plan.
b. Employee shall receive the standard employee benefits of employees of
UBI.
c. Changes may be made to the salary and fringe benefits herein set forth
and such changes shall be set forth in Attachment A. Changes to the
salary and fringe benefits are effective only after Attachment A has
been signed by the Chairman of the Board of UBI and by the Employee.
6. Termination for Cause. UBI may terminate this Contract for "Cause," such
termination to be immediate, without notice, at any time, and with
compensation and benefits only to the date of the termination of Employee.
The term "Cause" shall include the following enumerated and substantially
equivalent matters:
a. the death of Employee;
b. the disability of Employee rendering him/her unable to perform the
services required under the Contract for a period of 180 days;
c. known substance abuse by Employee;
d. felony conviction or plea (including a plea of guilty, nolo contendere
or similar plea) of Employee;
e. misdemeanor conviction or plea (including a plea of guilty, nolo
contendere or similar plea) of Employee, if the misdemeanor involves
moral turpitude;
f. Employee's repeated unprofessional, irresponsible or disruptive
language or conduct in the performance of his duties;
g. Employee's dishonesty, breach of professional or corporate ethics, or
criticism by a regulatory agency involving a serious violation of law
or regulations;
h. Employee's substantial breach of any significant term of this
Contract, including, but not limited to, continued unsatisfactory job
performance, or repeated uncooperative conduct.
7. Suspension. UBI may suspend the employment of Employee resulting in the
cessation of the performance of duties and the cessation of all
compensation and benefits, in accordance with the following provisions:
a. If criminal charges as described in subparagraph 6.d. and e. are made
against Employee, then UBI, acting in its discretion, may suspend
Employee for any period of time, provided that the suspension shall
end if such charges do not result in a conviction of a plea (of guilty
or nolo contendere, etc.) of either the original charge(s) or any
lessor charge(s).
b. If a regulatory agency criticizes Employee for regulatory violations
as set forth in paragraph 6.g. above, UBI shall have the discretion to
suspend Employee for any period of time, provided that if the alleged
violations are resolved in the Employee's favor, the suspension shall
end.
The discretion invested in UBI as set forth in this paragraph 7, shall be
exercised by the Chairman of its Board of Directors.
8. Failure to Meet Goals and Objectives. In the event of Employee's repeated
failure to meet goals and objectives which are established by the Board of
Directors of UBI from time to time, Employee's employment may be terminated
immediately, without notice, at any time, provided that Employee shall
continue to receive his/her regular salary and benefits for a period of six
(6) months in accordance with the provisions of paragraph 3, above.
9. Employee Responsibilities Following Termination. Termination of this
Contract shall not relieve Employee of his/her responsibilities to complete
any records, cooperate with UBI on any litigation, audits, regulatory
reviews, claims or investigations, and otherwise to fulfill all
responsibilities under this Contract which should have been rendered prior
to its termination.
10. Change in Control. For purposes of this Contract, a Change in Control of
UBI shall be deemed to have occurred if:
a. there shall be consummated (i) any consolidation or merger of UBI in
which UBI is not the continuing or surviving corporation or pursuant
to which shares of UBI's common stock would be converted into cash,
securities or other property, other than a merger of UBI in which the
holders of UBI's common stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving
corporation immediately after the merger or (ii) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of UBI; or
b. the stockholders of UBI approved any plan or proposal for the
liquidation or dissolution of UBI; or
c. except for any Employee Stock Ownership Plan of UBI or its affiliates,
any person (as such term is used in Section 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), shall become
the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) of twenty-five percent (25%) or more of UBI's
outstanding common stock.
11. Provisions Applicable in the Event of a Change in Control. If within twelve
(12) months following the effective date of a Change in Control, Employee's
employment is terminated by UBI (or a successor) for any reason (other than
for a cause described in subparagraphs 6.a, b, c, d and e) or by Employee
for any reason, Employee shall continue to receive for twelve (12) months
thereafter salary payments (at a rate equal to Employee's regular base pay
in effect immediately prior to such termination) and benefits.
12. Confidential Information. The confidentiality provisions are a material
part of the consideration relied upon by UBI in entering into this
Contract:
a. In connection with Employee's employment with UBI, Employee will have
access to information or materials of UBI and/or its subsidiaries that
are considered trade secret, confidential and/or proprietary
("Information"). Information includes, but is not limited to,
compilations of data, strategic plans, sales and marketing plans,
customer and supplier information, financial information, and proposed
agreements, and applies to such Information whether communicated
orally, in writing, electronically, or by any other means.
b. Information created by Employee during Employee's employment with UBI
that relates to the business of UBI and its subsidiaries (or
prospective business opportunities), or uses by UBI and/or its
subsidiaries of Information created with resources of UBI and/or its
subsidiaries (including staff, premises and equipment), belongs to
UBI. The term "Information" includes copyrightable works of original
authorship (including but not limited to reports, analyses, and
compilations, business plans, new product plans), ideas, inventions
(whether patentable or not), know-how, processes, trademarks and other
intellectual property. All works of original authorship created during
Employee's employment are "works for hire" as that term is used in
connection with the U.S. Copyright Act. Employee hereby assigns to UBI
all rights, title and interest in work product, including copyrights,
patents, trade secrets, trademarks and know-how.
c. Employee shall use Information only for the benefit of UBI and/or its
subsidiaries and not for Employee's own benefit. Employee shall not
take Information or the materials of UBI and/or its subsidiaries upon
termination of Employee's employment.
d. Information shall be disclosed and used only by staff members of UBI
and/or its subsidiaries who have a need to access it in order to do
their jobs, shall be maintained in secure physical locations, and
shall not be disclosed to any other company or person except in
connection with the business activities of UBI and/or its
subsidiaries.
e. The confidentiality provisions of this Contract survive termination of
the employment relationship with UBI and shall survive for so long a
period of time as the Information is maintained by UBI and/or its
subsidiaries as confidential.
13. Nonsolicitation of Employees and Customers. The following nonsolicitation
provisions form a material part of the consideration relied upon by UBI in
entering into this Contract:
a. During the term of Employee's employment and for a period of one (1)
year after Employee's last day of employment, Employee agrees not to
hire, and not to solicit for hire, any then-current employees of UBI
and/or its subsidiaries, or to contact them for the purpose of
inducing them to leave UBI and/or its subsidiaries.
b. During the term of Employee's employment and for a period of one (1)
year after Employee's last day of employment, Employee agrees not to
contact any then-current customers of UBI and/or its subsidiaries for
the purpose of inducing them to leave UBI and/or its subsidiaries or
to discourage them from doing business with UBI and/or its
subsidiaries. Employee agrees that, for such time period, Employee
will not provide the type of services he provided under this Contract
to any person or business customer who was a customer of UBI and/or
its subsidiaries at the time of Employee's departure.
14. Noncompete. UBI and Employee acknowledge and agree that by virtue of
his/her past experience in the banking industry and his/her knowledge of
the business of UBI and its subsidiaries, Employee is uniquely qualified to
successfully compete with UBI and/or its subsidiaries. In recognition of
these circumstances, and in consideration of UBI's continued employment of
Employee in accordance with the terms of this Contract, Employee covenants
and agrees that he/she will not, during the term of this Contract and one
(1) year thereafter, engage in the counties of Lenawee and/or Washtenaw in
any business which is competitive with a business then regularly conducted
by UBI and/or its subsidiaries in either or both of said counties;
provided, however, that the forgoing covenants shall not prohibit the
Employee from owning, directly or indirectly, one percent (1%) or less of
any publicly traded financial services corporation.
15. Enforcement of Contract; Injunctive Relief Attorney Fees and Expenses.
Employee acknowledges that violation of Sections 12, 13, and 14 of this
Contract may cause irreparable damage to UBI and/or its subsidiaries,
entitling them to injunctive relief and possible money damages. If Employee
violates this Contract, in addition to all other remedies available to UBI
and/or its subsidiaries at law, in equity, and under contract, Employee
agrees that he/she is obligated to pay all of the costs enforcement of this
Contract incurred by UBI and/or its subsidiaries, including attorney fees
and expenses. The parties agree that venue concerning this Contract shall
be Lenawee County, Michigan.
16. Notice. For purposes of this Contract, notices and all other communications
provided for in this Contract shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered
mail, return receipt requested, postage prepaid, as follows:
If to UBI: If to Employee:
Chairman of the Board ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
United Bancorp, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
17. Miscellaneous Provisions. The following miscellaneous provisions form a
part of this Contract:
a. Applicable Law. This Contract and the rights of the parties hereunder
shall be interpreted, construed and performed in accordance with the
laws of the State of Michigan.
b. Entire Agreement. This Contract as it may be modified in writing from
time to time, constitutes the entire agreement between the parties,
and supersedes any and all other agreements, oral or in writing, with
respect to the subject matter contained herein.
c. Amendments. This Contract may be altered, amended or modified at any
time, but only by written agreement executed by the parties hereto. No
waiver of any provision of this Contract shall be valid unless made in
writing and signed by the party against whom such waiver is sought.
d. Section Headings. Any section or paragraph title or caption contained
in this Contract is for convenience only, and shall not be deemed a
part of this Contract.
e. Invalid Provisions. The invalidity or unenforceability of any
particular provision of this Contract shall not affect any other
provision hereof. This Contract shall be construed and enforced as if
the illegal provision were modified to conform with the applicable
law, or if such modification is impossible, then as if the Contract
did not contain the illegal provision.
f. Successors and Assigns. This Contract shall be binding upon, and shall
inure to the benefit of the successors and assigns, including
purchasers of UBI, and for purposes of realizing any benefits payable
hereunder to Employee prior to his death, the heirs and personal
representative of Employee. In no event shall Employee assign or
delegate any of his rights, powers, duties and obligations under this
Contract without prior written consent of UBI. Such consent shall not
unreasonably be withheld. UBI shall have the right to assign and
delegate any or all of its rights, powers, duties and obligations
under this contract to any of its subsidiaries.
18. Waiver of Jury Trial. UBI and Employee specifically and knowingly waive
their rights to a jury trial.
19. Arbitration. The parties agree that any dispute or controversy arising out
of or in connection with this Contract shall be resolved by arbitration in
accordance with the following provisions:
a. The arbitration proceeding shall be conducted under the Employment
Dispute Resolution Rules of the American Arbitration Association in
effect at the time a demand for arbitration of the dispute is made.
The decision and award of the arbitrator made under the AAA rules
shall be exclusive, final and binding on all parties, their heirs,
representatives, successors and assigns. Judgment upon the award
rendered by the arbitrator may be rendered in any circuit court having
jurisdiction of the matter. In the event Employee or UBI shall require
equitable
relief prior to the selection of an arbitrator to resolve the dispute,
either party may seek temporary equitable relief from any court having
jurisdiction of the dispute, subject to any final relief awarded by
the arbitrator.
b. Limited civil discovery shall be permitted for the production of
documents and the taking of depositions, provided, however, that no
party is permitted to take the deposition of more than three witnesses
except by agreement of the other party or upon order of the arbitrator
pursuant to the motion of a party. Subject to the foregoing
limitations, discovery shall be conducted in accordance with the
Federal Rules of Civil Procedure with any enforcement issues resolved
by the arbitrator.
c. The arbitration and all proceedings, discovery and any award of the
arbitrator, is confidential. Neither the parties nor the arbitrator
shall disclose any information gained during the course of the
arbitration to any person or entity who is not a party to the
arbitration unless permitted by law. Attendance at the arbitration
shall be limited to the parties and those called as witnesses.
IN WITNESS WHEREOF, the parties have executed this Contract, effective as
of the date first above written.
UNITED BANCORP, INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman of the Board Employee
ATTACHMENT A
Employee: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Effective Date: January 1, 2006
Salary Per Annum: $105,500.
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ January 11, 2006
------------------------------------- Date
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
"Employee"
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ January 11, 2006
------------------------------------- Date
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman, United Bancorp, Inc.