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Capitol Bancorp 8-K 2009

Documents found in this filing:

  1. 8-K
  2. 8-K
form8k.htm
 



 
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)
____________________________
 
Michigan
(State or other jurisdiction of incorporation)
001-31708
(Commission File No.)
38-2761672
(IRS Employer Identification No.)

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):

o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))


 


ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.


ITEM 9.01   FINANCIAL STATEMENTS AND EXHIBITS
 
(d)           Exhibits

Exhibit No.
Description
10.1
Form of Indemnification Agreement
   

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.
 

Date:  August 6, 2009
CAPITOL BANCORP LTD.
(Registrant)
By: /s/ Cristin K. Reid                                                      
Name: Cristin K. Reid                                                      
Title: Corporate President                                               
   
 

 
 

 

INDEX TO EXHIBITS

Exhibit No.
Description
10.1
Form of Indemnification Agreement
   




 
 

 

EXHIBIT 10.1
CAPITOL BANCORP LTD.
 
DIRECTOR/OFFICER INDEMNIFICATION AGREEMENT
 
Effective Date: August ____, 2009
 
 
 
Background
 
The Indemnitee is a Director and/or Officer of the Company.
 
 
 
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.
 
4.1   Special Counsel.>  If there is a Change in Control of the Company (other than a Change in Control which has been approved by two-thirds or more of the Board who were Directors immediately prior to such Change in Control) then, with respect to all matters thereafter arising concerning the rights of the Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement, or under the Bylaws or Articles of Incorporation now or hereafter in effect relating to Claims for Indemnifiable Events, the Company will seek legal advice only from independent Special Counsel. Such counsel, among other things, will, within 90 days after its retention, render its written opinion to the Company and the Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law.
 
 
 
 
 
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.
 
 
7.   Non-Exclusivity.>  The rights of the Indemnitee hereunder will be in addition to any other rights the Indemnitee may have under the Articles of Incorporation, the Bylaws, the MBCA, any other agreement, a vote of the shareholders, a resolution of Directors or otherwise.  No amendment, alteration or repeal of this Agreement or of any provision hereof will limit or restrict any right of the Indemnitee under this Agreement in respect of any action taken or omitted by such the Indemnitee acting on behalf of the Company and at the request of the Company prior to such amendment, alteration or repeal.  To the extent that a change in the MBCA (whether by statute or judicial decision), the Articles of Incorporation or the Bylaws permits greater indemnification by agreement than would be afforded currently under the Articles of Incorporation, the Bylaws and this Agreement, it is the intent of the parties hereto that the Indemnitee will enjoy by this Agreement the greater benefits so afforded by such change.  No right or remedy conferred by this Agreement is intended to be exclusive of any other right or remedy, and every other right and remedy will be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other right or remedy.
 
 
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

 

 
The Company:
 
Capitol Bancorp Ltd.
 
By: _________________________                                                               
Name: _______________________                                                               
Title: ________________________
 
The Indemnitee:
 
 
 
______________________________
[Insert Name]




 
EXHIBIT 10.1 - 12

 

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