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Capitol Bancorp 8-K 2009 UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
Current
Report Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): August 6, 2009
CAPITOL
BANCORP LTD.
(Exact
Name of Registrant as Specified in its Charter)
____________________________
Capitol Bancorp Center
200
Washington Square North, Lansing, Michigan 48933
(Address
of Principal Executive Offices) (Zip Code)
(517)
487-6555
(Registrant’s
Telephone Number, Including Area Code)
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
ITEM
1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On August 6, 2009, Capitol Bancorp
Ltd., a Michigan corporation (the “Company”>)
entered into indemnification agreements with each member of the Company’s Board
of Directors (the “Board”)
and each Named Executive Officer (“NEO”>).
The indemnification agreements indemnify each of the members of the Board and
NEOs against expenses or liabilities incurred in connection with the
investigation, defense, settlement or appeal of any proceeding associated with
the indemnitee being an agent of the Company or by reason of anything done or
not done by the indemnitee in such capacity. The form of indemnification
agreement is attached as Exhibit 10.1 to this Current Report on Form 8-K and
incorporated herein by reference.
ITEM
9.01 FINANCIAL STATEMENTS AND EXHIBITS
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
INDEX
TO EXHIBITS
EXHIBIT
10.1
CAPITOL BANCORP
LTD.
DIRECTOR/OFFICER
INDEMNIFICATION AGREEMENT
Effective
Date: August ____, 2009
This
Indemnification Agreement (this “Agreement”>)
is made as of the Effective Date set forth above, between Capitol Bancorp Ltd.,
a Michigan corporation (the “Company”>),
whose address is Capitol Bancorp Center, 200 Washington Square North, Fourth
Floor, Lansing, MI 48933, and [Insert Name] (the “Indemnitee”>),
whose address is [Insert Address].
Background
The
Indemnitee is a Director and/or Officer of the Company.
The
Company recognizes that in order to attract and retain highly competent persons
to serve as members (the “Directors”)
of the Board of Directors of the Company (the “Board”>)
and/or in other executive capacities with the Company, the Company must provide
adequate and competitive protection against inordinate risks of claims and
actions against them arising out of their service to and lawful activities on
behalf of the Company.
The
Articles of Incorporation (the “Articles of
Incorporation”) and Bylaws of the Company (the “Bylaws”),
and the Michigan Business Corporation Act (the “MBCA”>),
expressly provide that the indemnification provisions set forth therein are not
exclusive and thereby contemplate that contracts may be entered into between the
Company and members of the Board, officers and certain other persons with
respect to indemnification.
Although
the Articles of Incorporation and Bylaws currently require indemnification of
the Indemnitee to the fullest extent permitted by law, any amendment to or
revocation of such Articles of Incorporation or Bylaws could result in this
protection becoming unavailable to the Indemnitee in the future.
It is
reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, Officers or Directors
of the Company to the fullest extent permitted by applicable law so that they
will serve or continue to serve the Company free from undue concern that they
will not be so indemnified.
The
Company wishes to provide the Indemnitee with specific contractual assurance
that the protections currently provided by the Articles of Incorporation or
Bylaws will remain available to the Indemnitee, regardless of any future changes
in the Articles of Incorporation or Bylaws, or in the management and control of
the Company. The Company therefore wishes to provide in this Agreement for the
indemnification of
EXHIBIT
10.1 - 1
and the
advancing of expenses to the Indemnitee to the fullest extent (whether partial
or complete) permitted by law and as set forth in this Agreement.
This
Agreement is a supplement to and in furtherance of the Articles of Incorporation
and Bylaws and any resolutions adopted pursuant to the Articles of Incorporation
or Bylaws and will not be deemed a substitute therefore, nor to diminish or
abrogate any other rights the Indemnitee may have by law or otherwise to
indemnification.
Now,
therefore, in consideration of the foregoing and the terms and conditions set
forth herein, the parties hereby agree as follows:
Terms and
Conditions
1. Definitions
and Interpretation.
(a) Any
person, as that term is used in Section 13(d) and Section 14(d)(2) of the
Exchange Act, becomes, is discovered to be, or files a report on
Schedule 13D or 14D-1 (or any successor schedule, form or report)
disclosing that such person is, a beneficial owner (as defined in Rule 13d-3
under the Exchange Act or any successor rule or regulation), directly or
indirectly, of securities of the Company representing 20% or more of the total
voting power of the Company’s then outstanding Voting Securities (unless such
person becomes such a beneficial owner in connection with the initial public
offering of the Company);
(b) Individuals
who, as of the date of hereof, constitute the Board cease for any reason to
constitute at least a majority of the Board, unless any such change is approved
by a unanimous vote of the members of the Board in office immediately prior to
such cessation;
(c) The
Company, or any material subsidiary of the Company, is merged, consolidated or
reorganized into or with an Acquiring Person or securities of the Company are
exchanged for securities of an Acquiring Person, and immediately after such
merger, consolidation, reorganization or exchange less than a majority of the
combined voting power of then outstanding securities of the Acquiring Person
immediately after such transaction are held, directly or indirectly, in the
aggregate by the holders of Voting Securities immediately prior to such
transaction;
(d) The
Company, or any material subsidiary of the Company, in any transaction or series
of related transactions, sells or otherwise transfers all or substantially all
of its assets to an Acquiring Person, and less than a majority of the combined
voting power of then outstanding securities of the Acquiring Person
EXHIBIT
10.1 - 2
immediately
after such sale or transfer is held, directly or indirectly, in the aggregate,
by the holders of Voting Securities immediately prior to such sale or
transfer;
(e) The
Company and its subsidiaries, in any transaction or series of related
transactions, sell or otherwise transfer business operations that generated
66.67% or more of the consolidated revenues (determined on the basis of the
Company’s four most recently completed fiscal quarters) of the Company and its
subsidiaries, on a consolidated basis, immediately prior to the closing of such
transaction or the last of such series of related transactions;
(f) The
Company files a report or proxy statement with the Securities and Exchange
Commission pursuant to the Exchange Act disclosing that a Change in Control has
occurred or may have occurred or will occur or may occur in the future pursuant
to any then existing contract or transaction; or
(g) Any other
transaction or series of related transactions occur that have substantially the
effect of the transactions specified in any of Sections 1.1(a)-(f)
hereof.
Notwithstanding
the provisions of Section 1.1 hereof, unless otherwise determined in a
specific case by majority vote of the Board, a Change in Control will not be
deemed to have occurred for purposes of this Agreement solely because
(1) the Company, (2) an entity in which the Company directly or
indirectly beneficially owns 50% or more of such entity’s voting securities, or
(3) any Company-sponsored employee stock ownership plan, or any other
employee benefit plan of the Company, either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule 13D,
Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule,
form or report or item therein) under the Exchange Act, disclosing beneficial
ownership by it of shares of stock of the Company, or because the Company
reports that a Change in Control of the Company has or may have occurred or will
or may occur in the future by reason of such beneficial ownership.
EXHIBIT
10.1 - 3
2. Indemnification.
EXHIBIT
10.1 - 4
made in a
written opinion. In connection with any determination by the
Reviewing Party or otherwise as to whether the Indemnitee is entitled to be
indemnified hereunder, the burden of proof will be on the Company to establish
that the Indemnitee is not so entitled.
2.3 Non-Indemnifiable
Claims.> The indemnification obligations of the Company under
Section 2.1 hereof will be subject to the condition that the Reviewing
Party will not have determined that the Indemnitee would not be permitted to be
indemnified under applicable law. However, if the Indemnitee has
commenced legal proceedings in a court in the State of Michigan (a “Michigan
Court”>) to secure a determination that the Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that the Indemnitee would not be permitted to be indemnified under applicable
law will not be binding and the Indemnitee will not be required to reimburse the
Company for any Expense Advance (as defined in Section 3.2 hereof) or other
advance by the Company until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed).
(a) Initiated
by the Indemnitee against the Company or any Director or Officer of the Company,
unless the Company has joined in or consented to the initiation of such Claim;
or
(b) Made on
account of the Indemnitee’s conduct which is an act or omission not in good
faith or which involves intentional misconduct or a knowing violation of the
law.
EXHIBIT
10.1 - 5
judicial
determination, any determination by the Reviewing Party otherwise will be
conclusive and binding on the Company and the Indemnitee.
3. Reimbursement
of Expenses.
(a) Indemnification
or advance payment of Expenses by the Company under this Agreement or any other
agreement, or under the Articles of Incorporation or Bylaws now in effect or
hereafter in effect relating to Claims for Indemnifiable Events; or
(b) Recovery
under any Directors’ and Officers’ liability insurance policies maintained by
the Company; regardless of whether the Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance recovery,
as applicable.
EXHIBIT
10.1 - 6
4. Role
of Special Counsel After A Change in Control.
EXHIBIT
10.1 - 7
6. Notification
and Defense of Claim.
(a) The
Company will be entitled to participate therein at its own expense;
(b) Except as
otherwise provided in Section 6.3 hereof, to the extent that it may wish,
the Company jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel satisfactory to the
Indemnitee; and
(c) After
notice from the Company to the Indemnitee of its election to assume the defense
of the Claim, the Company will not be liable to the Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof.
(a) The
employment of counsel by the Indemnitee has been authorized by the
Company;
EXHIBIT
10.1 - 8
(b) The
Indemnitee has reasonably concluded that there may be a conflict of interest
between the Company and the Indemnitee in the conduct of the defense of such
action;
(c) The
Company has not already employed counsel to assume the defense of such action;
or
(d) The
Company’s counsel has not made a timely appearance on behalf of the
Indemnitee;
in each
of which cases the fees and expenses of counsel will be at the expense of the
Company.
EXHIBIT
10.1 - 9
Director
and Officer liability insurance in effect, the Company will give prompt notice
of such Claim to the insurers in accordance with the procedures set forth in the
respective policies. The Company will thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Claim in accordance with the terms of
such policies.
EXHIBIT
10.1 - 10
courts of
the State of Michigan located in Ingham County and the United States District
Court for the Western District of Michigan for the purpose of any suit, action,
proceeding or judgment relating to or arising out of this Agreement and the
transactions contemplated hereby. Service of process in connection with
any such suit, action or proceeding may be served on each party hereto anywhere
in the world by the same methods as are specified for the giving of notices
under this Agreement. Each of the parties hereto irrevocably consents to
the jurisdiction of any such court in any such suit, action or proceeding and to
the laying of venue in such court. Each party hereto irrevocably waives
any objection to the laying of venue of any such suit, action or proceeding
brought in such courts and irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST
A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS
THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
Signatures
on the Following Page
EXHIBIT
10.1 - 11
EXHIBIT
10.1 - 12
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