Exhibit 10.1
EMPLOYMENT AGREEMENT
This
Employment Agreement (this “Agreement”) is entered into
this 10th day of August 2009, by and between O.A.K. FINANCIAL
CORPORATION , a Michigan corporation (together with its
subsidiaries, the “Corporation”), whose address is
2445 84th Street, S.W., Byron Center, Michigan 49315, and
Patrick K. Gill (“Executive”), whose address is
___________________________________________________.
WHEREAS,
Executive is an officer and employee of the Corporation and/or one
or more of the Corporation’s subsidiaries, including Byron
Bank (the “Bank”);
WHEREAS,
the parties desire to enter into this Agreement to set forth the
terms and conditions of the employment relationship between the
Corporation (together with its subsidiaries) and
Executive;
WHEREAS,
on the date hereof the parties to this Agreement are also entering
into a Management Continuity Agreement (the “Management
Continuity Agreement”);
WHEREAS,
the Board of Directors of the Corporation has approved this
Agreement and authorized Bank to enter into this Agreement with
Executive;
WHEREAS,
Executive has many years of experience in the financial services
industry and is familiar with the Corporation’s business,
employees and customers, and any competition by the Executive would
have an adverse effect on the Corporation; and
WHEREAS,
the services of the Executive, his or her experience and knowledge
of the affairs of the Corporation and his or her reputation and
contacts in the industry are extremely valuable to the Corporation.
The Corporation wishes to attract and retain such well-qualified
executives, and it is in the best interests of the Corporation and
of the Executive to secure the continued services of the Executive.
The Corporation considers the establishment and maintenance of a
sound and vital management to be part of its overall corporate
strategy and to be essential to protecting and enhancing the best
interests of this Corporation and its shareholders. Accordingly,
the Board has approved this Agreement with the Executive and
authorized its execution and delivery on behalf of the
Corporation.
NOW,
THEREFORE, IT IS AGREED AS FOLLOWS:
1.
Employment . Executive is serving as President and
Chief Executive Officerand agrees to render such services to the
Corporation, the Bank and their subsidiaries as are customarily
performed by a President and Chief Executive Officeror such other
services as the Board of Directors may from time to time reasonably
direct.
2.
Compensation . Executive’s base salary,
incentive and equity incentive compensation will be set and paid as
determined by the Board of Directors from time to time.
Executive’s compensation shall be subject to any necessary
withholding taxes required by law.
3.
Standards . Executive shall perform his or her duties
under this Agreement in accordance with standards established from
time to time by the Board of Directors of the Corporation and in
compliance with the Corporation’s and the Bank’s
policies and procedures.
4.
Term of
Agreement . The initial term of this Agreement (the
“Initial Term”) shall be from the date entered above
(the “Effective Date”) until December 31, 2011, subject
to earlier terminations provided in this Agreement. Beginning on
December 31, 2009, and on each December 31 thereafter, the term of
this Agreement shall be extended for a period of one year in
addition to the then-remaining term, unless the Corporation has
given notice to the Executive in writing at least 90 days prior to
such December 31 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; provided, however,
that such notice may not be given and will not be effective if the
Corporation is at the time in negotiations to effect a Change of
Control. References in this Agreement to the “Term” of
this Agreement shall refer to the Initial Term and any extensions
thereof. If a Change of Control occurs during the Term of this
Agreement, this Agreement will continue in effect for at least
thirty-six (36) months beyond the end of the month in which any
Change of Control occurs.
5.
Definitions .
The following defined terms shall have the meanings set forth
below, for purposes of this Agreement:
(a) Cause .
“Cause” means (i) the willful commission by the
Executive of a criminal or other act that causes or will probably
cause substantial economic damage to the Corporation or a
Subsidiary or substantial injury to the business reputation of the
Corporation or a Subsidiary; (ii) the commission by the Executive
of an act of fraud or material dishonesty in the performance of
such Executive’s duties on behalf of the Corporation or a
Subsidiary; (iii) the continuing willful failure of the Executive
to perform the duties of such Executive to the Corporation or a
Subsidiary (other than any such failure resulting from the
Executive’s Disability or occurring after issuance by
Executive of a Notice of Termination for Good Reason) after written
notice thereof (specifying the particulars thereof in reasonable
detail) and a reasonable opportunity to be heard and cure such
failure are given to the Executive by the Executive Compensation
Committee of the Board, (iv) gross negligence or other behavior
materially detrimental to the Corporation, (v) a material breach of
this Agreement by executive, or (vi) the order of a federal or
state bank regulatory agency or a court of competent jurisdiction
requiring the termination of Executive’s employment. For
purposes of this Section, no act, or failure to act, on the
Executive’s part shall be deemed “willful” unless
done, or omitted to be done, by the Executive not in good faith and
without reasonable belief that the action or omission was in the
best interest of the Corporation or a Subsidiary.
(b)
Change of Control . “Change of Control” shall
have the meaning ascribed to it in the Management Continuity
Agreement.
(c)
Disability .
“Disability” means that, as a result of
Executive’s incapacity due to physical or mental illness, the
Executive shall have been found to be eligible for the receipt of
benefits under the Corporation’s long term disability
plan.
(d)
Good Reason . For purposes of this Agreement, “Good
Reason” means the occurrence of any one or more of the
following without the Executive’s express written
consent:
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(i)
The assignment to Executive of
duties which are materially different from or inconsistent with the
duties, responsibilities, and status of Executive’s position
as of the date of this Agreement;
(ii)
A reduction by the Corporation
in Executive’s base salary or salary grade or bonus potential
as of the date of this Agreement if such reduction differs
materially from reductions generally applicable to other senior
executive officers;
(iii)
The Corporation requiring
Executive to be based at a location in excess of thirty (30) miles
from the location where Executive is currently based, or in the
event of any relocation of the Executive with the Executive’s
express written consent, the failure of the Corporation or a
Subsidiary to pay (or reimburse the Executive for) all reasonable
moving expenses by the Executive relating to a change of principal
residence in connection with such relocation and to indemnify the
Executive against any loss realized in the sale of the
Executive’s principal residence in connection with any such
change of residence, all to the effect that the Executive shall
incur no loss on an after tax basis;
(iv)
The failure of the Corporation
to obtain a satisfactory agreement from any successor to the
Corporation to assume and agree to perform this Agreement, as
contemplated in Section 16 of this Agreement;
(v)
Any termination by the
Corporation of Executive’s employment that is other than for
Cause;
(vi)
Any termination of
Executive’s employment, reduction in Executive’s
compensation or benefits, or adverse change in Executive’s
location or duties, if such termination, reduction or adverse
change (aa) occurs within six (6) months before a Change of
Control, (bb) is in contemplation of such Change in Control, and
(cc) is taken to avoid the effect of this Agreement had such action
occurred after such Change in Control;
(vii)
The failure of the Corporation
to provide the Executive with substantially the same fringe
benefits (including, without limitation, retirement plan, health
care, insurance, stock options and paid vacations) that were
provided to him immediately prior to the Change in Control, or with
a package of fringe benefits that, though one or more of such
benefits may vary from those in effect immediately prior to such
Change in Control, is substantially comparable in all material
respects to such fringe benefits taken as a whole.
The
existence of Good Reason shall not be affected by Executive’s
Disability. Executive’s continued employment shall not
constitute a waiver of Executive’s rights with respect to any
circumstance constituting Good Reason under this
Agreement.
(e)
Notice of Termination . “Notice of Termination”
means a written notice indicating the specific termination
provision in this Agreement relied upon and setting forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the employment under the provision so
indicated. The Executive shall not be entitled to give a Notice of
Termination that the Executive is terminating employment for Good
Reason more than six (6) months following the occurrence of the
event alleged to constitute Good Reason, except with respect to an
event which occurred before the Change of Control, in which case
the Notice of Termination must be given within six (6) months
following the Change of Control.
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(f)
Subsidiary .
“Subsidiary” means a corporation with at least eighty
percent (80%) of its outstanding capital stock owned by the
Corporation.
(g)
Termination of Employment . For purposes of this Agreement,
“Termination of Employment” shall be deemed to have
occurred when the Executive incurs a “separation from
service” (as such term is defined in Section 409A of the
Internal Revenue Code of 1986, as amended and the regulations
promulgated thereunder) with the Corporation because of death,
retirement or termination of employment for any other reason,
including any reason specified in Section 7; provided, however,
that no termination shall be deemed to occur for purposes of this
Agreement while the Executive continues to perform services for the
Corporation in a capacity as an employee or as an independent
contractor at a level that is more than 20% of the average level of
bona fide services performed (whether as an employee or otherwise)
by the Executive during the immediately preceding 36-month period
(or, if employed less than 36 months, such lesser
period).
6.
Termination of
Employment for Cause or without Good Reason; Retirement
.
(a) In
the event of a Termination of Employment by the Corporation for
Cause or by the Executive without Good Reason, the Executive shall
be entitled to receive only compensation and benefits pro rata
through the effective date of the Termination of Employment, less
applicable withholding, and shall not be entitled to any severance
benefits.
(b) Termination
of Employment (with or without Cause or Good Reason) upon normal
retirement after Executive’s attaining age 65 shall not
result in the payment of severance benefits.
7.
Severance
Benefits .
(a)
In the event of a Termination of Employment for any reason within
six (6) months before or thirty-six (36) months after a Change of
Control, then the eligibility for severance benefits shall be
determined pursuant to the Management Continuity Agreement.
Eligibility for severance benefits in the case of a Termination of
Employment that does not occur within six (6) months before or
thirty-six (36) months after a Change of Control shall be
determined pursuant to this Section 7.
(b)
Subject to Section 8, in the event of a Termination of Employment
by the Corporation without Cause or by the Executive with Good
Reason, then the Corporation shall owe Executive all compensation
and benefits pro rata through the effective date of the Termination
of Employment, less applicable withholding, plus the following
severance benefits:
(i)
A cash amount equal to Executive’s annual base salary at the
highest annual rate in effect during the twelve (12) month period
before the Notice of Termination is given (or on the date the
employment is terminated if no Notice of Termination is required),
which shall be paid in equal bi-weekly installments over twelve
(12) months in accordance with the Corporation’s normal
payroll practices and beginning on the Corporation’s first
regular pay date following the Executive’s termination of
employment ;
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(ii)
For a twelve (12) month period after the date the employment is
terminated, the Corporation will arrange to provide to Executive at
the Corporation’s expense:
(A)
Health care coverage equal to that in effect for Executive prior to
the termination (or, if more favorable to Executive, that furnished
generally to salaried employees of the Corporation), including, but
not limited to, hospital, surgical, medical, dental, prescription
and dependent coverages. Such coverage will be in lieu of, and
conditio