Unassociated Document


    EXHIBIT
      10.9

     

    CONSULTING
      AGREEMENT

     

    This
      Agreement (this “Agreement”) is entered into by and between Grand
      River Commerce, Inc.
      (the
“Company”) having its principal place of business in Grandville, Michigan, and
Elizabeth
      C. Bracken,
      an
      adult individual residing in the State of Michigan (the
“Consultant”).

     

    The
      parties hereto agree as follows:

     

    1. Engagement.
      The
      Company hereby engages the Consultant and the Consultant hereby agrees to
      render, at the request of the Company, independent advisory and consulting
      services for the Company in connection with the Company’s organization of a
      proposed bank (the “Bank”) upon the terms and conditions hereinafter set forth.


     

    2. Term.
      The
      term
      of this Agreement shall begin as of the date of this Agreement and shall
      terminate on the earlier of (i) September 30, 2008; (ii) the date on which
      the
      Bank receives (and satisfies all conditions to opening for business under)
      its
      authorization to commence its banking business (the “Certificate of Authority”)
      from the Michigan Office of Financial and Insurance Services and approval of
      Insurance of Accounts from the Federal Deposit Insurance Corporation; (iii)
      the
      date on which the Company advises the Consultant that it has abandoned its
      effort to obtain the Certificate of Authority; (iv) the date on which the
      Consultant receives written notice from the Company that it is terminating
      this
      Agreement “for cause” as hereafter defined; or (v) the death or disability of
      the Consultant (as used herein, the disability of the Consultant shall be deemed
      to have occurred when she has been unable to perform his or her services under
      this Agreement for a period of forty-five (45) consecutive days or the
      Consultant has made any claim under any disability insurance policy. As used
      herein, “for cause” shall be defined as follows: (i) the Consultant’s failure to
      use diligent and good faith efforts to perform the services requested by the
      Company under this Agreement (which failure is not cured within five (5) days
      following written notice to the Consultant); (ii) the Consultant’s willful
      misconduct or gross negligence in the performance of his or her services
      hereunder; (iii) the Consultant’s conviction of a crime or involvement in any
      conduct which could, in the judgment of the Company, adversely impact on the
      reputation of the Company or the Bank or the prospects of the Bank receiving
      its
      Certificate of Authority; (iv) receipt by the Company of any notification from
      the Michigan Office of Financial and Insurance Services or the Federal Deposit
      Insurance Corporation indicating that the Consultant would not be an acceptable
      candidate to be Senior Vice President of Operations of the Bank.

     

    3. Compensation.
      During
      the term of this Agreement, as compensation for all services rendered by the
      Consultant under this Agreement, the Company shall pay the Consultant the
      following amounts:

     

    (a) Consulting
      Fee.
      The
      Company shall pay the Consultant the sum of seven thousand three hundred and
      thirty-three dollars ($7,333) per month (prorated for any partial month), which
      shall be paid in arrears in two installments of three thousand six hundred
      sixty-seven dollars ($3,667) each on the 15th
      and
      30th
      day of
      each calendar month.

     

    (b) Medical
      Benefits.
      The
      Company shall reimburse the Consultant, not less frequently than monthly, upon
      presentment of appropriate documentation the amount paid by the Executive to
      continue, without interruption, family medical benefits coverages under COBRA.
      

     


    ©
      Copyright 2007 - All Rights Reserved

        Hunton
      & Williams LLP

    
      
         

      

      
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    (c) Deductions.
      All such
      compensation shall be payable without deduction for federal income, social
      security, or state income taxes or any other amounts.

     

    (d) Termination
      Payment.
      If,
      for
      any reason, other than a termination by the Company “for cause,” the Company
      terminates this Agreement during its term and without the Employment Agreement
      referenced in Paragraph 10 of this Agreement becoming effective, Consultant
      will
      be entitled to receive a lump sum payment, payable on the date of termination,
      equal to two months of consulting fees. The Termination Payment due pursuant
      to
      this Section 3(f) shall be the Consultant’s exclusive remedy upon termination by
      the Company for any reason other than “for cause.”

     

    4. Duties.
      The
      Consultant shall render services conscientiously and shall devote his or her
      full time, attention, efforts and abilities to the establishment of the Bank,
      including without limitation obtaining regulatory approvals, site development
      activities, personnel matters and capital raising activities, at such times
      during the term hereof and in such manner as reasonably requested by the
      Company, and performed at such places and at such times as are reasonably
      convenient to the Company and the Consultant. The Consultant shall observe
      all
      policies and directives promulgated from time to time by the Company’s Board of
      Directors.

     

    5. Expenses.
      The
      Consultant shall be reimbursed by the Company for all reasonable business
      expenses which were incurred by the Consultant during the performance of his
      or
      her services hereunder; provided, any such reimbursement in excess of $1,000
      in
      any month shall require the prior written approval of the Company’s Board of
      Directors or a committee thereof; provided, however, that any expenses set
      forth
      in the organizational budget shall be deemed to be approved unless the Company’s
      Board of Directors makes an express determination to the contrary prior to
      the
      time at which the expense is incurred. The Company’s obligation to reimburse the
      Consultant pursuant to this paragraph shall be subject to the presentation
      to
      the Company’s Board of Directors or a committee thereof by the Consultant of an
      itemized account of such expenditures, together with supporting vouchers, in
      accordance with any policies of the Company in effect from time to
      time.

     

    6. Independent
      Contractor.
      It is
      expressly agreed that Consultant is acting as an independent contractor in
      performing services hereunder. The Company shall carry no worker’s compensation
      insurance or any health or accident insurance to cover Consultant. The Company
      shall not pay any contributions to Social Security, unemployment insurance,
      federal or state withholding taxes, nor provide any other contributions or
      benefits which might be expected in an employer-employee
      relationship.

     

    7. Covenant
      Not to Compete.
      The
      Consultant hereby acknowledges and recognizes the highly competitive nature
      of
      the Company’s business and accordingly agrees that, during the term of this
      Agreement, the Consultant will not, except as provided in Paragraph 4 hereof,
      directly or indirectly:

     

    (a) engage
      in
      any business activity related to the business of banking or financial services,
      or the formation of any entity for the purpose of engaging in such a business
      (other than on behalf of the Company to the extent that the Consultant is then
      in the employ of or consulting for the Company), whether such engagement is
      as
      an officer, director, proprietor, employee, partner, member, investor (other
      than as a passive investor in less than one percent (1%) of the outstanding
      capital stock of a publicly traded corporation), consultant, advisor, agent
      or
      other participant in another business,

     

    (b) assist
      others in engaging in any of the business activities prohibited to the
      Consultant under clause (a) above, or

     


    
      
         

      

      
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    (c) induce
      employees of the Company to engage in any activities hereby prohibited to the
      Consultant or to terminate their employment.

     

    The
      term
      of this restriction shall be extended for a period of time equal to any period
      of time during which the Consultant violates or fails to observe the provisions
      of this paragraph.

     

    8. No
      Disclosure of Confidential Information.
      The
      Consultant acknowledges that the Company’s trade secrets and private processes,
      as they may exist from time to time, and confidential information concerning
      the
      formation and development of the Bank, the Bank’s planned products, technical
      information regarding the Bank, and data concerning potential customers of
      and
      investors in the Bank are valuable, special, and unique assets of the Company,
      access to and knowledge of which are essential to the performance of the
      Consultant’s duties under this Agreement. In light of the highly competitive
      nature of the industry in which the business of the Company is conducted, the
      Consultant further agrees that all knowledge and information described in the
      preceding sentence not in the public domain and heretofore or in the future
      obtained by the Consultant as a result of his or her engagement by the Company
      shall be considered confidential information. In recognition of this fact,
      the
      Consultant agrees that the Consultant will not, during or after the term of
      this
      Agreement, disclose any of such secrets, processes, or information to any person
      or other entity for any reason or purpose whatsoever, except: (a) as required
      by
      subpoena or court order, in which case Consultant shall give Company at least
      10
      days’ notice; or (b) as necessary in the performance of the Consultant’s duties
      as a consultant to the Company and then only upon a written confidentiality
      agreement in such form and content as requested by the Company from time to
      time. Consultant shall not make use of any of such secrets, processes or
      information for Consultant’s own purposes or for the benefit of any person or
      other entity (except the Company and its subsidiaries, if any) under any
      circumstances during or after the term of this Agreement.
      Consultant acknowledges that all such confidential information is property
      of
      the Company and/or the Bank and agrees that upon Consultant’s termination all
      such confidential information shall be returned to the Company within
      twenty-four (24) hours of such termination.

     

    9. Remedies.
      The
      Consultant acknowledges and agrees that the Company’s remedy at law for a breach
      or threatened breach of any of the provisions of Paragraphs 7 and 8 of this
      Agreement would be inadequate. In recognition thereof, if the Consultant
      breaches or threatens to breach any provision of Paragraphs 7 and 8 of this
      Agreement, the Company shall be entitled to equitable relief in the form of
      specific performance, a temporary restraining order, a temporary or permanent
      injunction or any other equitable remedy which may then be available in addition
      to any of its remedies at law. Nothing herein shall prohibit the Company from
      pursuing any other right or remedy available to it for such breach or threatened
      breach.

     

    10. Employment
      Agreement.
      It is
      anticipated that the Consultant and the Bank will enter into an Employment
      Agreement having a term of not less than three years, in a form satisfactory
      to
      each of the Consultant and the Bank in their reasonable discretion, subject
      to
      the approval of such form by the Bank’s primary regulators and modifications to
      such form as may be required by the regulators, which Employment Agreement
      shall
      be effective as of the date on which the Michigan Office of Financial and
      Insurance Services issues the Certificate of Authority to the Bank and the
      Federal Deposit Insurance Corporation issues approval for Insurance of
      Accounts.

     

    11. Assignment.
      This
      Agreement is a personal one, being entered into in reliance upon and in
      consideration of the personal skill and qualifications of Consultant. Consultant
      shall therefore not voluntarily or by operation of law assign or otherwise
      transfer the obligations incurred on its part pursuant to the terms of this
      Agreement without the prior written consent of Company. Any attempted assignment
      or transfer by Consultant of its obligations without such consent shall be
      wholly void.


    
      
         

      

      
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    12. Modification
      of Agreement.
      This
      Agreement may be modified by the parties hereto only by a written supplemental
      agreement executed by both parties.

     

    13. Notice.
      Any
      notice required or permitted to be given hereunder shall be sufficient if in
      writing, and if sent by any nationally recognized courier service providing
      for
      receipt of delivery, registered or certified mail, postage prepaid, or by fax
      followed by such mail, addressed as follows:

     

    If
      to
      Company:

    


    Grand
      River Commerce, Inc.

    2900
      28th
      Street
      SW

    Grandville,
      Michigan 49418

    Attention:
      Robert Bilotti, President

    


    If
      to
      Consultant:

     

    
      	 	 	
              Elizabeth
                Bracken

            


    

    ________________________________

    
      	 	 	
              ________________________________

            


    

    


    or
      to
      such other address as the parties hereto may specify, in writing, from time
      to
      time.

     

    14. Waiver
      of Breach.
      The
      waiver by either party of any breach of any provision of this Agreement shall
      not operate or be construed as a waiver of any subsequent breach.

     

    15. Entire
      Agreement.
      This
      Agreement contains the entire agreement of the parties relating to the subject
      matter of this Agreement and supersedes any prior written or oral arrangements
      with respect to the Consultant’s engagement by the Company.

     

    16. Successors,
      Binding Agreement.
      Subject
      to the restrictions on assignment contained herein, this Agreement shall inure
      to the benefit of and be enforceable by the Consultant’s personal or legal
      representatives, executors, administrators, heirs, distributees, devisees,
      and
      legatees.

     

    17. Validity.
      The
      invalidity or unenforceability of any provision of this Agreement shall not
      affect the validity or enforceability of any other provision of this Agreement,
      which shall remain in full force and effect.

     

    18. Applicable
      Law.
      This
      Agreement shall be governed by and construed in accordance with the domestic
      laws of the State of Michigan.

     

    19. Headings.
      The
      headings of the paragraphs of this Agreement are for convenience only and shall
      not control or affect the meaning or construction or limit the scope or intent
      of any of the provisions of this Agreement.

     

    20. Voluntary
      Agreement.
      The
      parties hereto acknowledge that each has had an opportunity to consult with
      an
      attorney or other counselor concerning the meaning, import, and legal
      significance of this Agreement, and each has read this Agreement, as signified
      by their respective signature hereto, and each is voluntarily executing the
      same
      after, if sought, advice of counsel for the purposes and consideration herein
      expressed.


    
      
         

      

      
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    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      date
      first set forth above.

    


    


    


    
      	 	
              /s/
                Elizabeth
                Bracken                                                 
                

            
	 	 
	 	
              Name:
                Elizabeth Bracken

            
	 	 
	 	
              “Consultant”

            
	 	 
	 	 
	 	
              GRAND
                RIVER COMMERCE, INC.

            
	 	 
	 	 
	 	 
	 	
              By:      
                /s/
                Robert
                Bilotti                                            
                

            
	 	 
	 	
              Name:
                Robert Bilotti, President

            
	 	 
	 	 
	 	
              “Company”

            


    

    


    
      
         

      

      
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