Unassociated Document


     

    Exhibit
10.1

     

    ACKNOWLEDGEMENT
AND RELEASE AGREEMENT

     

    This
Acknowledgement and Release Agreement (“Agreement”) is made and entered into by
and between Robert P. Bilotti (“Employee”) and Grand River Bank (“Employer”);
and joined in by Grand River Commerce, Inc. (“Company”) for purposes of Section
5 of this Agreement only, (the signatories to this Agreement will be referred to
collectively as the “Parties”) as follows:

     

    WHEREAS, Employee is employed
as a salaried Chairman of the Board of the Employer, in which capacity he serves
as both an officer and employee of the Employer, and Employee also serves as a
director of the Employer;

     

    WHEREAS, Employee and Employer
hereby acknowledge a change in the responsibilities and nature of the services
of the Employee from a salaried employee of the Employer to a non-salaried
Chairman of the Board of the Employer, in which capacity Employee will still
have the ability to act on behalf of and bind the Employer as an officer and
director of the Employer;

     

    WHEREAS, Employee will
terminate salaried employment with the Employer effective January 31, 2011
(“Effective Date”);

     

    WHEREAS, this Agreement hereby
terminates the Executive Employment Agreement by and between the Employer and
the Employee, dated April 30, 2009 (“Employment Agreement”);

     

    WHEREAS, the Parties have
agreed, without any Party admitting liability of any kind, to enter into this
Agreement setting forth the terms of the change in services ; and

     

    WHEREAS, both Parties have
read and understand the terms and provisions of this Agreement, and desire and
intend to be bound by the terms and provisions of this Agreement.

     

    NOW, THEREFORE, in
consideration of the covenants and mutual promises and agreements herein
contained, and other valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties agree as follows:

     

    1. Release
and Waiver Agreement.  Employee acknowledges and understands
that this Agreement is a release and waiver contract and that this Agreement is
legally binding.  Employee and Employer understand that by signing
this Agreement, each party has read and understood each provision and is
agreeing to all of the provisions set forth in the Agreement.

     

    2. Claims
Covered by Agreement.  Employee and Employer acknowledge and
understand that this Agreement applies only to claims that accrue or have
accrued prior to the Effective Date of this Agreement, which Effective Date
shall be upon the expiration of seven (7) days after Employee signs the
Agreement without revocation.

     

    3. Termination
of Employment Relationship.  Employee agrees that by executing
this Agreement, he will terminate his salaried employment with the Employer as
of the Effective Date.  Employee agrees that by executing this
Agreement, he hereby terminates the Employment Agreement, including all rights
and benefits provided to Employee thereunder.  This Agreement will
govern all rights and benefits of the Employee from the Employer as of the date
hereof.  Both parties understand and acknowledge that the Employee
will retain his position as a non-salaried Chairman of the Board of the Employer
and as a director of the Employer.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4. Continuation
of Benefits.  Employee shall receive the following
benefits:

     

    A. Employee
will continue to receive health insurance either or, in the alternative, a cash
payment on a monthly basis to pay Employee the grossed-up (for tax purposes)
amount needed to obtain health insurance through July 31, 2011.

     

    B. Employee
will continue to have the use of or receive reimbursement, as applicable, for
expenses associated with his continuing position as a non-salaried Chairman of
the Board of the Employer as such position is set forth in the bylaws of the
Employer.  Reimbursement of expenses shall include, but not be limited
to, cell phone, lap top computer, travel, and other ancillary expenses, which
reimbursement shall extend through the date of Employee’s service as Chairman of
the Board of the Employer.  Employee shall also retain the right to
use his existing email address.

     

    5. Retention
of Options.  Employee
shall retain the Options granted to Employee pursuant to the Incentive Stock
Award Agreement by and between the Company and the Employee, dated June 23,
2009.  The terms of the Options shall be governed by the Amendment
Number One to the Terms and Conditions to the Incentive Stock Award Agreement
(“Amendment”), attached hereto as Exhibit A, and to the extent such terms
conflict with the Company’s 2009 Stock Incentive Plan or the Incentive Stock
Award Agreement the Amendment shall govern.

     

    6. Consultation
with Attorney, Review Period, and Revocation Period.

     

    A. Employee
is advised, and acknowledges that he has been advised, to consult with an
attorney prior to executing this Agreement concerning the meaning, import, and
legal significance of this Agreement.  Employee acknowledges that he
has read this Agreement, as signified by his signature hereto, and is
voluntarily executing the same after advice of counsel for the purposes and
consideration herein expressed.

     

    B. Employee
acknowledges that he has been provided with a period of at least twenty-one (21)
days within which to consider, review, and reflect upon the terms of this
Agreement.  Any discussions about or changes to the Agreement, whether
material or immaterial, do not restart the running of the 21-day
period.

     

    C. Employee
has seven (7) days in which he may revoke this Agreement after he signs
it.  This Agreement shall not be effective until the expiration of
seven (7) days after Employee signs it without revocation.  Any
amounts payable under this Agreement shall be paid no sooner than the expiration
of seven (7) days after Employee signs it.  Any revocation of this
Agreement must be delivered to David Blossey prior to the expiration of seven
(7) days after Employee signs the Agreement.

     

    
      
        
        

      

      
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    7. Employee
Covenants.  In exchange for the promises and/or covenants of
Employer contained herein and subject to the provisions contained within this
Agreement, Employee covenants and agrees as follows:

     

    A. Release
and Waiver by Employee.  For and in consideration of the
benefits, covenants and/or promises contained herein, the receipt and
sufficiency of which are hereby acknowledged, Employee, on behalf of himself and
his family, assigns, representatives, agents, heirs and/or attorneys, if any,
hereby covenants not to sue and fully, finally, and forever releases, acquits
and discharges Employer, along with its former and present parents,
subsidiaries, and/or affiliates, along with its predecessors, successors and/or
assigns, if any, as well as their respective former and present officers,
administrators, directors, shareholders, general or limited partners,
representatives, agents, employees and/or attorneys, if any, jointly and
severally (collectively, the “Released Parties”), from any and all claims,
demands, actions, liabilities, obligations and/or causes of action of whatever
kind or character, whether known or unknown, which Employee or anyone on his
behalf or for his benefit has or might claim to have against the Released
Parties for any and all injuries, harm, damages (actual and punitive),
penalties, costs, losses, expenses, attorneys’ fees and/or liability or other
detriment, if any, whatsoever and whenever incurred or suffered by Employee
arising out of, relating to, or in connection with any transaction or occurrence
which transpired prior to the execution of this Agreement, including, without
limitation:

     

    
      
        	
              	
                (i) 

              	
                any
      claim under federal, state, or local law which provides civil remedies for
      the enforcement of rights arising out of the employment relationship,
      including, without limitation, discrimination and retaliation claims, such
      as claims or causes of action under Title VII of the Civil Rights Act of
      1964, as amended, 42 U.S.C. § 2000 et seq.; The Civil
      Rights Act of 1866, as amended, 42 U.S.C. § 1981; the Civil Rights
      Act of 1991, as amended, 42 U.S.C. § 1981a; Age Discrimination in
      Employment Act, as amended, 29 U.S.C. § 621 et seq.; Americans With
      Disabilities Act, as amended, 42 U.S.C. § 12101 et seq.; Fair Labor
      Standards Act, as amended, 29 U.S.C. § 201, et seq.; Employee
      Retirement Income Security Act, as amended, 29 U.S.C. § 1000 et seq.; Family and
      Medical Leave Act, as amended, 29 U.S.C. § 2601, et seq.; or any other
      statute prohibiting discrimination or retaliation in employment under any
      federal, state, or local law;
and

              


      

    

     

    
      
        	
              	
                (ii) 

              	
                claims
      for unpaid or withheld wages, relocation allowances or benefits, other
      benefits, commissions, stock options, bonuses or profit-sharing, wrongful
      discharge, breach of contract, breach of fiduciary duty, promissory
      estoppel, fraud, breach of any implied covenants, assault, battery,
      negligence, defamation, invasion of privacy, slander, intentional
      infliction of emotional distress, or any other contract, tort, or
      statutory claim.

              


      

    

     

    B. Covenant
Not to Sue and Indemnification.  Employee hereby specifically
covenants and agrees that Employee will not initiate, or cause to be initiated,
any action or cause of action against Employer or any of the other Released
Parties in the future asserting any claim covered by the
release.  Employee further agrees to indemnify Employer and all other
Released Parties for (i) any additional sum of money that any of them may
hereafter be compelled to pay Employee, and (ii) any of Employer’s or other
Released Parties’ legal fees, costs, and expenses associated therewith, on
account of Employee bringing or allowing to be brought on Employee’s behalf any
legal action based directly or indirectly upon the claims covered by the
release.  In addition, Employee agrees not to voluntarily aid, assist
or cooperate with any claimant or plaintiff or their attorneys or agents in any
claim or lawsuit commenced against the Released Parties.

     

    
      
        
        

      

      
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    C. Employee
and Employer acknowledge and agree that although Section 7 prohibits Employee
from filing a lawsuit concerning claims covered by the release, it does not
prohibit Employee from lodging a complaint with or participating in a proceeding
before any governmental agency.

     

    D. Employee
acknowledges and agrees that the payment of monies hereunder constitutes fair and
adequate consideration for the execution of this Agreement.

     

    E. Notwithstanding
anything contained in this Agreement to the contrary, Employee retains full
rights to indemnification by the Employer for his service as an officer and
director of the Company and the Employer, as such indemnification is provided
under the corporate governance documents of each of the Company and the Employer
and Michigan law.  Furthermore, the Employee does not waive any rights
to pursue claims against the Employer as a depositor of the
Employer.

     

    8. Non-disparagement
and Neutral Reference.  Employee and Employer agree that each
of them shall refrain from engaging in any conduct, verbal or otherwise, that
would disparage or harm the reputation of the other or any of the other Released
Parties.  Such conduct shall include, but not be limited to, any
negative statements made verbally or in writing by either of them about the
other or, in the case of Employee, about any of the Released
Parties.  In the event Employer receives requests for references from
third parties, Employer shall only provide Employee’s last title and salary and
dates of employment, unless requested otherwise by a bank regulatory
authority.  Nothing contained herein shall limit Employee’s or
Employer’s communications with its regulators, counsel or
accountants.

     

    9. Non-Disclosure
Covenant.

     

    A. Employee
acknowledges that, by the nature of his duties, he has had and will continue to
have access to and has and will become informed of confidential, proprietary,
and highly sensitive information relating to Employer and which is a competitive
asset of Employer, including, without limitation, information pertaining to: (i)
the identities of Employer’s existing and prospective customers or clients,
including names, addresses, business needs and plans, and pricing levels; (ii)
the buying and selling prospects, habits and customs of Employer’s existing and
prospective customers or clients; (iii) financial information about Employer,
including prices, costs, and profit margins; (iv) the identities of and special
skills possessed by Employer’s employees; (v) the identities of and pricing and
cost information about Employer’s suppliers and vendors; (vi) training programs
developed by Employer; (vii) technical, research, development, and marketing
information relating to Employer’s current and prospective products and
services; (viii) Employer’s financial results and business conditions; and (ix)
Employer’s business plans and strategies.  The confidential,
proprietary, and highly sensitive information described in this Section is
hereinafter referred to as “Proprietary Information.”

     

    
      
        
        

      

      
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    B. Employee
agrees that he shall not: (i) use, at any time, any Proprietary Information for
his own benefit or for the benefit of any other person, entity, or corporation;
or (ii) disclose, directly or indirectly, any Proprietary Information to any
person who is not a current employee of Employer, at any time subsequent to the
termination of his employment with Employer; or (iii) use or disclose, directly
or indirectly, any Proprietary Information in connection with any business
opportunity pursued or engaged in by Employee after the termination of his
employment with Employer.  Employee further acknowledges and agrees
not to make copies of any Proprietary Information.  Employee further
agrees that in the event it appears that Employee will be compelled by law or
judicial process to disclose any such confidential information, Employee will
notify Employer in writing immediately upon Employee’s receipt of a subpoena or
other legal process.

     

    C. Employee
further acknowledges that the injury the Released Parties will suffer in the
event of Employee’s breach of any covenant or agreement set forth in Section 9
cannot be compensated by monetary damages alone, and Employee therefore agrees
that the Released Parties, in addition to and without limiting any other
remedies or otherwise, shall have the right to obtain an injunction against
Employee.

     

    10. Cooperation.  In exchange for
the compensation, covenants, and other good and valuable consideration provided
by Employer herein, Employee agrees to sign documentation, as deemed necessary
by Employer, for the effectuation of this Agreement and of matters related to
Employer’s business.

     

    11. Choice
of Law and Venue.  The Parties agree that the Agreement shall
be performed in Kent County, Michigan, and that the laws of the State of
Michigan shall govern the enforceability, interpretation and legal effect of
this Agreement.  The Parties also agree that venue of any action to
enforce the provisions of this Agreement, or any document executed in connection
herewith, shall be in Kent County, Michigan.

     

    12. Interpretation
of the Agreement.  This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the Parties.  The Parties hereto agree that the rule of
construction to the effect that any ambiguities are to be construed against the
drafting party shall not be employed in any interpretation of this
Agreement.  Each provision of this Agreement shall be interpreted so
as to render it effective and valid.  The title and headings herein
are for reference purposes only and shall not in any manner limit the
construction of this Agreement, which shall be considered as a
whole.  The recitals are incorporated into and are made a part of this
Agreement.

     

    13. Amendments.  Any
modification of this Agreement or additional obligation assumed by any Party in
connection with this Agreement shall be binding only if evidenced in writing
signed by each Party or an authorized representative of each
Party.  Additionally, this Agreement cannot be changed or terminated
orally, but may be changed only through written addendum executed by all
Parties.

     

    
      
        
        

      

      
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    14. Severability.  Should
any provision of this Agreement other than Section 7 be found unenforceable, the
remainder of this Agreement, in its modified form, shall nonetheless be fully
enforceable.

     

    15. Binding
Effect.  This
Agreement and the terms, covenants, conditions, provisions, obligations,
undertakings, rights and benefits hereof shall be binding upon, and shall inure
to the benefit of, the Parties and their respective heirs, executors,
administrators, representatives, officers, directors, shareholders,
predecessors, successors, parents, subsidiaries, affiliated entities, spouses,
agents, attorneys, servants, employees, principals, partners, whether limited or
general, and assigns, if any.  Each of the Parties represents and
warrants that he or it has the authority to act on his or its behalf and to bind
his or it to this Agreement.

     

    16. Disputes
Relating to Agreement.  If
any action at law or in equity, including an action for declaratory relief, is
brought to enforce or interpret the provisions of this Agreement, the party
prevailing in any such litigation shall recover from the adverse party its
actual damages and reasonable costs and expenses, including, without limitation,
reasonable attorneys’ fees incurred in connection with such dispute and
litigation.  In the event of the violation or threatened violation of
any of the covenants and/or promises in this Agreement, the non-breaching party
shall be entitled to injunctive relief, both preliminary and final, enjoining
and restraining such violation or threatened violation, which injunctive relief
shall be in addition to all other remedies available to the non-breaching party,
at law or in equity.

     

    17. Free
Will.  Employee and
Employer acknowledge that each has had an opportunity to consult with his or its
respective attorneys concerning the meaning, import, and legal significance of
this Agreement, and each has read this Agreement, as signified by their
signatures hereto, and are voluntarily executing same after advice of counsel
for the purposes and consideration herein expressed.

     

    18. Entire
Agreement.  Except
as stated herein, this Agreement constitutes the entire understanding and
agreement of the Parties, and supersedes prior understandings and agreements, if
any, among or between the Parties with respect to the subject matter
hereof.  There are no representations, agreements, arrangements or
understandings, oral or written, concerning the subject matter hereof between
and among the Parties which are not fully expressed or incorporated by reference
herein.

     

    [SIGNATURE
BLOCK ON FOLLOWING PAGE]

     

    
      
        
        

      

      
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    IN
WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of
the date set forth in this Agreement.

     

    
      
        	Employee	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	Date:	
                

                   January
      31, 2011

                

              	 	 	
                /s/
      Robert P. Bilotti  

              	 
	 	
                 

              	 	 	
                 

              	 
	 	
                 

              	 	 	
                 

              	 
	Employer	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	Date:	    
       	 	By:	    
      	 
	 	 	 	Title:	     
       	 
	 	 	 	 	 	 
	Company	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	Date:	January
      31, 2011	 	By:	/s/
      Jerry A. Sytsma	 
	 	 	 	Title:	Vice
      President and Secretary	 


      

    

     

    
      
        
        

      

      
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