EXHIBIT 10.5
EMPLOYMENT CONTRACT
This Employment Contract ("Contract") made and effective this 1st day of
January, 2005, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Employee") and UNITED BANCORP,
INC., ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("UBI") and
UNITED BANK & TRUST (the "Bank").
WHEREAS, UBI and the Bank desire to continue to employ Employee, and
WHEREAS, Employee desires to continue to be employed by UBI and the Bank,
and
WHEREAS, there is increased 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 whereas, UBI
wishes to minimize the uncertainty and distraction caused by such activity,
which would detract from Employee's ability to perform his duties, by providing
Employee with some transition assistance if the Bank and/or 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,
THEREFORE, UBI and Employee hereby enter into this Employment Contract on
the following terms and conditions:
1. General. The parties hereto deem it mutually desirable that this Contract
entered into be binding upon each of them.
2. Term and Payment Upon Termination in Certain Circumstances. Unless sooner
terminated (i) by mutual agreement evidenced in writing and signed by all
parties, or (ii) by the Board of Directors of UBI for cause, the employment by
UBI of Employee as an officer shall be for a one year term commencing with the
date hereof. If (other than after a Change in Control, as defined below) UBI
shall terminate Employee's employment other than for the reasons set forth in
paragraph 6, below, or by mutual agreement, Employee shall continue to receive
his regular salary (the salary in effect immediately prior to such termination)
for six months. This continuation of salary shall immediately cease if the
Employee secures employment before the end of this six-month period.
3. Term of Contract. This Contract shall be for a 12-month period, unless
terminated earlier pursuant to paragraph 6.
4. Duties. The duties, responsibilities and authority of Employee shall be as
determined by UBI or the Bank, from time to time.
5. Compensation. It is further agreed between the parties that Employee's annual
salary shall be directly related to the Board of Directors' reasonable and good
faith determination of the value of his services to the Bank, but shall not be
less than $105,500.
a. Employee's annual salary for 2005 shall be $105,500, unless adjusted
pursuant to item d., below.
b. It is contemplated that an annual bonus shall be paid. Employee will
be a Group 3 Participant in the Target Incentive Compensation Plan.
c. Employee shall receive the standard employee benefits of employees
of the Bank.
d. 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 both
UBI and the Bank, and by the Employee.
6. a. In the event of any violation by Employee of any terms of this
Agreement, or if there is cause for termination of Employee,
Employee's employment may be terminated immediately, without notice,
at any time, and with compensation only to the date of the
termination of Employee. "Cause" for termination of this Contract
shall include the following events, but this list is simply some
examples of "cause" and it is not all-inclusive:
(1) the death of Employee;
(2) the disability of Employee rendering him unable to perform the
services required under the Contract for a period of 180 days;
(3) known substance abuse by Employee;
(4) felony conviction or plea (including a plea of guilty, nolo
contendere or similar plea) of Employee;
(5) misdemeanor conviction or plea (including a plea of guilty,
nolo contendere or similar plea) of Employee, if the
misdemeanor involves moral turpitude;
(6) Employee's repeated unprofessional, irresponsible or
disruptive language or conduct in the performance of his
duties;
(7) Employee's dishonesty, breach of professional or corporate
ethics, or criticism by a regulatory agency involving a
serious violation of law or regulations;
(8) Employee's substantial breach of any significant term of this
Contract, including, but not limited to, continued
unsatisfactory job performance.
If criminal charges as described above in subsections (4) and (5)
are made against Employee, then UBI or the Bank shall have the
discretion to suspend Employee for any period of time, except that
the suspension shall end if such charges do not result in a
conviction or a plea (of guilty or nolo contendere, etc.) of either
the original charge or of any lesser charge. If a regulatory agency
criticizes Employee for serious regulatory violations, UBI or the
Bank shall have the discretion to suspend Employee for any period of
time, except that if the alleged violations are resolved in his
favor, the suspension shall end. A suspension, pursuant to items
(4), (5) or (7), above, would entail the cessation of the
performance of duties and the cessation of all compensation.
The Chairmen of the Boards of UBI or the Bank each shall retain the
power and authority to suspend Employee based on his determination
that one of the events described above has occurred.
Termination of this Contract shall not relieve Employee of his
responsibilities to complete any records, cooperate with the Bank
and 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 the early
termination of this Contract.
a. In the event of the occurrence of any of the following by Employee,
Employee's employment may be terminated immediately, without notice,
at any time, and with compensation for six months thereafter, unless
the Employee secures employment sooner, which shall terminate all
obligation for compensation of UBI and the Bank. The following are
occurrences which shall lead to termination:
(i) Repeated unsatisfactory performance or repeated uncooperative
conduct;
(ii) Employee's repeated failure to meet the goals and objectives
which shall be established by the Boards of UBI and the Bank
from time to time; or
(iii) Any other continued unsatisfactory job performance or conduct.
7. 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 (including, without limitation, more than 25% of UBI's equity
interest in United Bank & Trust), 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 25% or more of UBI's
outstanding common stock.
8. Provisions Applicable in the Event of a Change in Control. If within 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
dishonesty in performance of Employee's duties) or by Employee for any reason,
Employee shall continue to receive for 12 months thereafter salary payments at a
rate equal to Employee's regular base pay in effect immediately prior to such
termination.
9. Confidential Information
a. In connection with Employee's employment with the Bank and/or UBI,
Employee will have access to information or materials 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
the Bank and/or UBI that relates to the business of either entity
(or prospective business opportunities), or uses the Bank or UBI
Information, or is created with the Bank or UBI resources (including
staff, premises and equipment), belongs to the Bank or UBI. This
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), knowhow, 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
knowhow.
c. Employee shall use Information only for the benefit of the Bank or
UBI and not for Employee's own benefit. Employee shall not disclose
Information to third parties, and shall not take Information or the
Bank or UBI materials upon termination of Employee's employment.
d. Information will be used only by Bank or UBI staff 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 Bank or UBI business
activities.
e. The confidentiality provisions of this Contract survive termination
of the employment relationship with UBI and/or the Bank and shall
survive for so long a period of time as the Information (including
Proprietary Materials) is maintained by UBI or the Bank as
confidential.
10. Nonsolicitation of Employees and Customers.
a. During the term of Employee's employment and for a period of one
year after Employee's last day of employment, Employee agrees not to
hire, and not to solicit for hire, any then-current Bank or UBI
employees, or to contact them for the purpose of inducing them to
leave the Bank.
b. During the term of Employee's employment and for a period of one
year after Employee's last day of employment, Employee agrees not to
contact any then-current UBI or Bank customers for the purpose of
inducing them to leave UBI or the Bank or to discourage them from
doing business with the Bank or UBI. 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 or the Bank at the time of Employee's
departure.
11. Noncompete. In consideration of the benefits of Employee's employment, for a
period of one (1) year after Employee's last day of employment, Employee agrees
to not provide the type of services in the Bank's delineated Community
Reinvestment Act area. This prohibition includes services whether as an
employee, independent contractor, officer, director, consultant, partner, or
other affiliation.
12. Enforcement of Contract; Injunctive Relief; Attorney Fees and Expenses.
Employee acknowledges that violation of Sections 9, 10, and 11 of this Contract
may cause irreparable damage to UBI or the Bank, entitling it to injunctive
relief and possible money damages. If Employee violates this Contract, in
addition to all other remedies available to the Bank at law, in equity, and
under contract, Employee agrees that he is obligated to pay all the Bank's costs
of enforcement of this Contract, including attorney fees and expenses. The
parties agree that venue concerning this Contract shall be Lenawee County,
Michigan.
13. 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 the Bank:
Chairman of the Board Chairman of the Board
United Bancorp, Inc. United Bank & Trust
▇.▇. ▇▇▇ ▇▇▇ ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Employee:
At the address above written.
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.
14. Miscellaneous Provisions.
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 the Bank 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 the Bank. Such
consent shall not unreasonably be withheld. The Bank shall have the
right to assign and delegate any or all of its rights, powers,
duties and obligations under this contract to any corporation
affiliated with the Bank.
15. a All parties specifically and knowingly waive their rights to a jury
trial. Any dispute or controversy concerning the termination of employment or
the reduction of compensation, title or level of responsibility between Employee
and UBI or the Bank shall be resolved by arbitration under the laws of the State
of Michigan.
b. 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, UBI or the Bank 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.
c. 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.
d. 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.
16. UBI agrees that the services Employee performs for any of its
subsidiaries, including the Bank, ultimately redound to the benefit of
UBI. Accordingly, UBI agrees that insofar as the Bank, for any reason
whatsoever, is unable to perform any obligations assumed hereunder, UBI
shall fully and timely perform the same.
IN WITNESS WHEREOF, the parties have executed this Contract, effective as
of the date first above written.
UNITED BANK & TRUST UNITED BANCORP, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board Chairman of the Board
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Employee
ATTACHMENT A
Employee: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Effective Date: January 1, 2005
Salary Per Annum: $105,500
Variations to Benefits: Country Club dues/assessments of $2,500 paid by Bank if
you purchase membership.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ December 30, 2004
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"Employee" Date
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ December 29, 2004
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Date
Chairman, United Bank & Trust
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ December 29, 2004
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Date
Chairman, United Bancorp, Inc.