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EXHIBIT 10.4
EMPLOYMENT AGREEMENT WITH XX. XXXXXX
EMPLOYMENT AGREEMENT
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This agreement is made and entered into this 1st day of June, 1999, by and
between The Delaware County Bank and Trust Company (hereinafter the "Bank"), an
Ohio-chartered, FDIC-insured nonmember bank with its main office at 00 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxx and Xxxxx X. Xxxxxx (hereinafter the
"Employee"), an individual residing at 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
Any references to "Superintendent" herein shall mean the Ohio Superintendent of
Banks.
RECITALS
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A. The Employee is being hired as Sr. Vice President of the bank.
B. The Board of Directors of the Bank wants to assure the Bank of the
continued services of the Employee with a written employment agreement.
C. The parties agree that this Employment Agreement shall supersede all prior
understandings between the parties, whether oral or written.
D. In consideration of the mutual promises of the Bank and the Employee
contained in this Employment Agreement, the Bank and the Employee enter
into this Employment Agreement with the terms and conditions set forth
herein.
AGREEMENT
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1. EMPLOYMENT
The Bank agrees to employ and the Employee agrees to serve as Sr. Vice President
of Lending and Branch Administration.
2. TERM OF EMPLOYMENT
The Employee is hereby employed as Sr. Vice President of the Bank for an initial
term commencing on June 1, 1999, and ending on the 31st day of May, 2000. At the
end of this initial term, this Agreement may be extended for successive one-year
periods upon the written consent of the Employee and the Bank as set forth
herein.
3. STANDARDS OF PERFORMANCE
Excluding periods of vacation and sick leave to which the Employee is entitled,
the Employee agrees to devote his best efforts and full time to the business and
affairs of the Bank and to discharge the duties appropriately assigned to the
Employee.
4. BASE SALARY
The Bank agrees to pay the Employee for the term of this Agreement a salary of
Ninety-Seven Thousand twenty eight and 00/100 ($97,028.00) per annum
(hereinafter referred to as the "Base Salary"). The Base Salary provided for
herein shall be payable no less frequently than monthly and not later than the
10th day following the expiration of the month.
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5. INCENTIVE BONUS TO THE EMPLOYEE
Employee shall be entitled to participate in any bonus policy provided by
Employer at Employer's sole discretion.
6. PARTICIPATION IN RETIREMENT AND EMPLOYEE BENEFIT PLANS AND ADDITIONAL
BENEFITS
The Employee shall be entitled to participate in any plan of the Bank relating
to pension, thrift, deferred compensation, profit sharing, group life insurance,
medical insurance, education reimbursement or other retirement or employee
benefits that the Bank may then have in force for the benefit of its executive
employees.
7. VACATIONS
The Employee shall be entitled, without loss of pay, to the number of vacation
days in each calendar year determined by the Board of Directors from time to
time provided that:
a. The Employee shall be entitled to an annual vacation of not less than
three (3) weeks per year.
b. The timing of vacations shall be scheduled in a reasonable manner by
the Employee. The Employee shall not be entitled to receive any
additional compensation from the Bank for his unearned vacation time
consistent with bank policy.
8. DISABILITY
If the Employee's employment terminates by reason of the Employee's disability,
the Employee shall be paid in accordance with the standard disability policy of
the Bank in existence for the Employee at that time and the Employee shall not
be entitled to any additional salary benefits from the Bank and, specifically,
shall not be entitled to any additional compensation under Paragraphs 4 and 5 of
this Agreement.
9. TERMINATION OF EMPLOYMENT
In addition to the Bank's right to terminate the Employee at the end of the
initial term, or any one-year extension, the Bank may terminate the employment
of the Employee at any other time during the employment term. ("Employment Term"
is defined as the initial term or any additional one-year extension.)
a. In the event the Bank or its successor terminates the employment of
the Employee during the Employment Term because of the Employee's
personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure or
refusal to perform the duties and responsibilities assigned in this
Agreement, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or final cease-and-desist
order, conviction of a felony or for fraud or embezzlement, or
material breach of any provision of this Agreement (hereinafter
collectively referred to termination for "Just Cause"), the Employee
shall have no right to receive any compensation or other benefits for
any period after such termination.
b. In the event that the Bank or its successor terminates the employment
of the Employee during the Employment Term for any reason other than
(i) for Just Cause, (ii) the Employee's retirement at or after the
normal retirement age under a qualified pension plan maintained by the
Bank (hereinafter referred to as "Retirement"), or (iii) the Bank
decides not to extend the employment Agreement pursuant to Sections 1
and 2 of this Agreement at the end of the initial one-year term or any
one-year extension thereafter; then the Employee shall be entitled to
receive severance pay as follows:
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Bank shall pay the Employee the base monthly salary for each month the
Employee is unemployed for a maximum of twelve (12) months. In the
event the Employee obtains employment within the twelve-month period,
then the Employee's monthly benefit shall cease. It is the intent of
this Agreement that the severance pay set forth herein is to defray the
Employee's costs while searching for other employment and that said
payment shall be in lieu of any unemployment benefits to which the
Employee would be entitled.
If during the term of this Agreement, the Bank merges or consolidates
with another entity (other than a holding company formed by the Bank)
and the successor, without the Employee's written consent during a
period of one (1) year following the merger or consolidation does any
of the following: i) reduces the Employee's base salary which was in
effect on the date of the merger or consolidation; ii) substantially
reduces benefits to be provided to the Employee under this Agreement;
or iii) requires the Employee to relocate his office to a location in
excess of a thirty- (30) mile radius of Delaware, Ohio, then the
Employee shall have the right to voluntarily terminate his employment
as a result of any of these events. In the event the Employee
voluntarily terminates his employment as a result of the above events,
then the Employee shall be entitled to receive severance pay in an
amount equal to the average annual salary paid to the Employee by the
Bank during the five (5) previous years immediately preceding the
Employee's voluntary termination of employment for the above reasons.
c. Death of Employee. The employment term automatically terminates upon
the death of the employee. In the event of such death, the Employee's
estate shall be entitled to receive the compensation due the Employee
through the last day of the calendar month in which the Employee's
death occurred.
d. Special Regulatory Events. Notwithstanding Section 9(a) of this
Agreement, the obligation of the Bank and of the Employee shall be as
follows in the event of any of the following circumstances:
i) If the Employee is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice
served under Section 8 of the Federal Deposit Insurance Act, 12
U.S.C. Section 1818, the Bank's obligations under this agreement
shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Bank may, in its sole discretion, pay
the Employee all or part of the compensation withheld while the
obligations of this Agreement were suspended and reinstate in
whole or in part any of the obligations which were suspended.
ii) If the Employee is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's
affairs by an order issued under Section 8 of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1818(e) or Section 1127.06 of
the Ohio Revised Code, 11 O.R.C. Section 1127.06, all obligations
of the Bank under this Agreement shall terminate, as of the
effective date of the order, but vested rights of the contracting
parties shall not be affected.
iii) If the Bank is in default, as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act 12 U.S.C., Section 1813(x)(1), or
declared insolvent by the Superintendent of Banks (Section
1103.04 of the Ohio Revised Code) all obligations under this
Agreement shall terminate as of the date of default or
insolvency, but this provision shall not affect any vested rights
of the parties.
iv) All obligations under this Agreement may be terminated by the
FDIC at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the Federal Deposit Insurance Act,
12 U.S.C. Section
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1823(c). Any rights of the parties that have already vested,
however, shall not be affected by such action.
10. CONFIDENTIAL INFORMATION
It is understood between the parties hereto that during the term of this
employment agreement Employee will be dealing with confidential information
regarding loans, litigation, depositor lists, information relating to the
Employer's future plans for development. Employee will have access to and be
dealing with such confidential matters in connection with his employment and
agrees that he will not disclose to anyone, either directly or indirectly
(except those persons involved in such matters, or the Board of Directors, or
other entities already having knowledge of such information), any of such
confidential matters or use this information other than in the course of his
employment with the Bank. All documents that the Employee prepares or
confidential information that has been given to the Employee in the course of
his employment are the exclusive property of the Bank and shall remain in the
Bank's possession on the termination of Employee's employment. Under no such
circumstances shall any information of this nature be removed from the Bank upon
the termination of employment. Furthermore, neither during the course of
employment nor after termination of his employment shall the Employee disclose
any knowledge of the Bank's past, present, or planned business activities to any
third person, firms, or entities for a period of two (2) years following the
termination of his employment. In the event of such a breach or a threatened
breach by the Employee of this covenant, the Bank shall be entitled to proceed
with an immediate injunction restraining the Employee from disclosing said
information in whole or in part. Nothing herein shall be construed to prohibit
the Bank from pursuing any other remedies available to the Bank for the breach
of such covenant. For the purposes of this paragraph, files generated by the
Employee as a result of his employment by the Bank shall be considered the
property of the Bank and not the property of the Employee. Litigation files,
customer files, customer lists, information relating to regulators,
correspondence with regulators, and all other working files produced by the
Employee shall be the sole property of the Bank.
11. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the Bank, its successors and assigns. This
Agreement is personal as to the Employee and may not be assigned by the Employee
except that the personal representative of the Employee, his heirs, or guardian,
as the case may be, shall have the right to enforce the provisions of this
Agreement relating to any compensation due to the Employee.
12. NOTICES
All notices, requests demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by and or
mailed, certified or registered mail, return receipt requested, with postage
prepaid, to the following addresses or to such other address as either party may
designate by like notice.
A. If to the Bank, to:
The Delaware County Bank and Trust Company
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Secretary, Board of Directors
B. If to the Employee, to:
Xxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
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and to such other additional person or persons as either party shall have
designated to the other party in writing by like notices.
13. AMENDMENTS
No amendments or additions to this Agreement shall be binding unless in writing
and signed by both parties, except as herein otherwise provided.
14. 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.
15. 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.
16. GOVERNING LAW
This Agreement shall, except to the extent that Federal law (including any law,
rule, or regulation of the FDIC) shall be deemed to apply, be governed by and
construed and enforced in accordance with the laws of the State of Ohio.
17. ARBITRATION
Any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration in accordance with the rules of the
American Arbitration Association then in effect provided that the party which
does not prevail in its claim pays for the entire cost of the arbitration and
that any and all claims existing under federal or state law can be presented in
the arbitration. Judgement may be entered on the arbitrator's award in any court
having jurisdiction.
IN WITNESS WHEREOF, the parties have entered this Agreement on the day and year
first herein above written.
THE DELAWARE COUNTY BANK
AND TRUST COMPANY
By:
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Its:
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And:
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Its:
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Xxxxx X. Xxxxxx (the "Employee")
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