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Exhibit 10.9
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into this 22nd day of January, 1996, but as of
the Effective Date hereinafter defined, by and between Bank of Tucson ("BOT")
and Michael F. Hannley ("Employee");
WHEREAS, the BOT has retained the services of the Employee and the
Employee has accepted such employment; 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 BOT and the Employee;
NOW, THEREFORE, IT IS AGREED as follows:
1. Employment. The Employee is employed to render services to BOT as
directed by the chairman of the board and/or the board of directors of BOT may
from time to time reasonably direct. Employee's current assignment carries the
title of president. The title and duties commensurate herein may be changed
from time to time by BOT in the exercise of its absolute discretion.
2. Compensation. BOT shall pay the Employee during the term of this
Agreement a salary of One Hundred Twenty-five Thousand Dollars ($125,000.00)
per annum, provided, however, that any fees, salary, bonuses, or other
remuneration paid to the Employee by any subsidiary of BOT shall be deemed to
be paid by BOT pursuant to this paragraph. The salary shall be payable in
accordance with periodic payment procedures adopted by BOT and subject to the
usual withholding taxes applicable to employees. The Employee's salary shall be
reviewed by BOT annually and may be increased, but not decreased, from time to
time in such amounts as BOT in its absolute discretion may determine.
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 BOT. Such bonuses may vary from employee to employee based upon
the performance of said employee or other factors as determined by BOT in its
absolute discretion.
4. Fringe Benefits. The Employee shall be entitled to participate in
various fringe benefits as identified herein.
(a) The Employee shall be entitled to participate in medical coverage
for the Employee to the extent that it is offered by BOT to its employees
generally. Under no circumstances shall this paragraph be construed to
require a program of medical coverage for the Employee. BOT shall not
provide medical coverage for the Employee. BOT shall not provide medical
coverage for family members and/or dependents
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of the Employee other than those programs offered at the expense of
the Employee.
(b) The Employee shall be eligible for use of a company automobile,
membership in various social, business, and trade organizations, a
reasonable expense account, and the payment of reasonable expenses for
attending annual and periodic meetings of trade associations subject
to the supervision and approval of the chairman of the board of BOT.
(c) The Employee shall be eligible to participate in any Employee Stock
Ownership Plan adopted by BOT and offered to its employees generally.
The extent of participation shall be governed by the rules of the plan
and subject to the availability of a plan.
(d) The Employee shall be eligible to participate in any existing 401(k)
program offered by the corporation to its employees generally.
(e) 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 period of six (6) consecutive months or more, then, in
that event, from the time that such period shall have elapsed until
such disability or incapacity shall have ceased;
(i) He shall be entitled to receive disability, benefits of the type
provided for executive employees of BOT; and
(ii) He shall not be entitled to receive salary payments or other
benefits pursuant to this Employment Agreement.
(f) At such reasonable times as determined by the chairman of BOT, 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:
(i) The Employee shall be entitled to annual vacation time of at least
three (3) weeks per year.
(ii) The Employee shall be entitled to receive any additional
compensation from BOT 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.
(iii) In addition to the aforesaid vacation time, the Employee shall
be entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment with BOT for such additional periods of time
and for such valid and legitimate reasons as the chairman
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of the board of BOT may, determine in his absolute discretion.
(g) The Employee shall be granted additional consideration pursuant
to an Executive Supplemental Income Agreement which is attached hereto and
executed separately.
5. TERM. The initial term of employment under this Agreement shall be
for a period of three (3) years, commencing on the Effective Date hereof.
Commencing with the first anniversary date of the Effective Date, this
Agreement shall be extended automatically for a period of one (1) year, unless
either BOT or the Employee gives contrary written notice in accordance with
Paragraph 8 herein. Each year thereafter, on the anniversary date of the
Effective Date, the Agreement shall be extended automatically unless terminated
in accordance with the terms of this paragraph. This paragraph shall be
governed by the terms and conditions set forth in the "Termination of
Employment" provisions set forth in Paragraph 8 of this Agreement.
6. EFFECTIVE DATE. For the purpose of this Agreement, the "Effective
Date" is the date upon which the Employee shall enter upon the performance of
his duties, which is agreed to be January 22, 1996.
7. STANDARDS. The Employee shall perform his duties under this
Agreement in accordance with the high standards of fiduciary responsibility
applicable to financial institutions in carrying out their respective
responsibilities to their depositors, customers and shareholders. These
standards shall conform to the high standards of conduct imposed by any and
every regulatory body having jurisdiction over BOT. Performance standards for
the Employee may be established from time to time by the chairman of the board
of BOT and are hereby incorporated within the terms of this Agreement. It is
recognized that BOT shall have wide latitude in defining performance standards
so as to ensure the safe and sound operation of its business endeavors.
8. TERMINATION OF EMPLOYMENT.
(a) The Employee's employment under this Agreement may be terminated
at any time by the board of directors of BOT, with or without cause (as defined
below). Any termination by BOT without cause shall not prejudice the Employee's
right to receive compensation in accordance with Section 2 of this Agreement for
a period of one (1) year subsequent to the termination of this Agreement
("Severance Pay"). The Employee shall not, however, receive Severance Pay in the
event of his retirement, death, or disability. The Employee shall have no right
to receive Severance Pay or any other remuneration whatsoever under this
Agreement for any period after voluntary termination or termination for cause.
For purposes of this Agreement, for "cause" shall mean termination for any of
the following reasons:
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(i) Personal dishonesty materially affecting BOT or any affiliate;
(ii) Willful misconduct;
(ii) Willful breach of a fiduciary duty involving personal profit;
(iv) Intentional failure to perform stated duties;
(v) Willful violation of any law, rule, or regulation relating to the
operation of BOT or any of its affiliates;
(vi) The order of any court or supervising agency with jurisdiction over
the affairs of BOT or any subsidiary; or
(vii) The Employee's violation of any provision of this Agreement.
(b) This Agreement may be terminated by the Employee at any time upon
ninety (90) days' written notice to BOT or upon such shorter period as may be
agreed upon between the Employee and the board of directors of BOT. In the event
of such termination, BOT 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. Voluntary or involuntary termination of this
Agreement by either party voids any benefit accrued pursuant to the Executive
Supplemental Income Agreement, unless otherwise expressly provided in the
Executive Supplemental Income Agreement.
(c) In the event of the death of the Employee during the term of this
Agreement, the Employee's estate shall be entitled to receive salary
continuation for a period of thirty (30) days thereafter.
(d) If the Employee is temporarily prohibited from participating in the
conduct of BOT's affairs at the request of or by the order of any court or
supervising agency with jurisdiction, BOT'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, BOT's
obligations hereunder shall terminate as of the effective date of such permanent
order.
(e) If the Employee is permanently prohibited from participating in the
conduct of BOT's affairs by the final order of any court or supervising agency
with jurisdiction
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over BOT, all obligations of BOT under this Agreement shall terminate, as
of the effective date of the order.
(f) All obligations under this Agreement may be terminated, except to
the extent determined that continuation of the Agreement is necessary for
the continued operation of BOT:
(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 BOT or any affiliate; 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 BOT or any affiliate or when BOT is
determined by the FRB to be in an unsafe or unsound condition. Any
rights of the parties that have already vested, however, shall not be
affected by such action.
9. No Assignments. This agreement is personal to each of the parties
hereto, and neither party may assign or delegate any of the rights or
obligations hereunder without first obtaining the written consent of the other
party.
10. Other Contracts. All other prior agreements regarding conditions of
employment, whether written or oral, are hereby superseded by this Agreement.
11. 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.
12. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
13. 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.
14. 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.
15. Governing Law. This Agreement shall be governed by the laws of the
United States of America and the State of Arizona. Venue shall be in Pima County
only.
16. Employment Options. The Employee shall be granted incentive
employment options. Each option shall expire on December
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31, 2005. Each portion, upon exercise, shall require the option holder to pay to
BOT a price equivalent to the original price of each share of common stock
issued by BOT at the time of its formation, that being Fourteen Dollars ($14.00)
per option.
Incentive options shall be granted to the Employee in accordance with the
following schedule:
December 31, 1996 2,000 options
December 31, 1997 2,000 options
December 31, 1998 2,000 options
December 31, 1999 2,000 options
December 31, 2000 12,000 options
The total number of incentive options issued in accordance with this
provision shall equal 20,000 provided that the Employee retains employment with
the Employer and provided further that all options are issued in accordance with
the options grant previously adopted. All options shall be vested in the
Employee at the date that said options are granted. Optionholder may assign
these rights to a trust for the benefit of himself and other beneficiaries only.
In the event that BOT is sold to a controlling third party, then, all
options proposed herein shall be immediately vested. Controlling third party is
defined in the standard E.S.I. Agreement.
17. Sale of BOT. Although not intended by either party, the sale of BOT
during the term of employment is recognized as a possibility.
In the event that BOT is sold to Capitol Bancorp Ltd., then, each of the
options owing to the Employee shall be converted into options of Capitol
Bancorp Ltd. applying the same ratio and to the same extent that stock of BOT
is converted into stock of Capitol Bancorp. All options shall be immediately
vested irrespective of the date of a sale to Capitol Bancorp Ltd. as described
herein.
In the event that a sale is made to a third party, then, Employee shall
receive an immediate bonus in a sum equal to two times his annual salary as
stated in this Agreement. In addition, all options shall vest irrespective of
the date of sale.
Employee has entered into this Agreement in reliance upon the probability
that Joseph D. Reid, Chairman and CEO of BOT, will continue in that capacity
after sale. In the event that Joseph D. Reid does not continue to serve in that
capacity immediately after sale to any party, then, the Employee shall have the
right to immediately terminate his employment without jeopardizing his right to
receive severance pay which shall be due and owing upon the occurrence of his
resignation under these circumstances.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
Employer:
BANK OF TUCSON
By /s/ Joseph D. Reid
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Joseph D. Reid
Chairman of the Board of Directors
and Chief Executive Officer
Employee:
/s/ Michael F. Hannley
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Michael F. Hannley
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