EXHIBIT 10.1
RESIGNATION, RELEASE, AND POST-EMPLOYMENT COVENANTS AGREEMENT
This is an Agreement between DCB Financial Corp. and its wholly-owned
subsidiary The Delaware County Bank and Trust Company (collectively, the "Bank")
and Xxxxx X. Xxxxxx.
WHEREAS, the parties entered into on October 10, 1995, and have been in
an employment relationship under, an Employment Agreement (the "Employment
Agreement"), a copy of which is attached hereto as Exhibit A, which Employment
Agreement has been annually renewed by the parties and the current term of which
ends December 31, 2002;
WHEREAS, the parties desire to set forth a negotiated agreement
regarding the severance payment provisions of the Employment Agreement and to
otherwise provide for an amicable conclusion of their employment relationship;
NOW, THEREFORE, for the mutual consideration provided herein, the
adequacy of which is hereby acknowledged, the parties agree as follows:
1. RESIGNATION. Effective October 2, 2002, (the "Resignation Date") Xx.
Xxxxxx resigns his employment and positions as President and Chief Executive
Officer and Director of the Bank, as officer and director of and otherwise as
representative of the Bank to ProFinance Holdings Corporation, and any other
positions with the Bank or its affiliated entities, and the Bank accepts said
resignations.
2. SEVERANCE PAYMENTS PROVIDED TO XX. XXXXXX. The Bank will consider
Xx. Xxxxxx to be terminated for a reason other than Just Cause (as defined in
paragraph 9(a) of the Employment Agreement). Accordingly, after the Effective
Date (as defined in paragraph 6(c) of this Agreement), the Bank will pay Xx.
Xxxxxx his monthly salary of $15,833.33 for a period of 11 months and, in the
12th month, will pay him a salary payment of $4,666.70 (in total representing 12
months' salary plus one month unused vacation less a $27,000 mid-year prepayment
of a year-end bonus), any such payments payable on the Bank's regular payroll
dates and subject to all applicable withholding and payroll taxes provided,
however, that each monthly payment will be reduced by the amount of wages or
other compensation for services rendered earned by Xx. Xxxxxx during the
preceding month from sources other than the Bank. Xx. Xxxxxx agrees to notify
the Bank in a timely fashion of any such compensation and, further, to use
reasonable efforts to obtain such employment or other work. Any reconciliation
of Xx. Xxxxxx'x business expense account will be timely charged against or added
to the severance payments. Payments under this paragraph 2 will be terminated if
Xx. Xxxxxx breaches his obligations under this Agreement, though termination of
these payments will not preclude the Bank from seeking additional damages
arising from any such breach by Xx. Xxxxxx. The Bank will provide these
severance
payments notwithstanding the fact that, in the absence of this Agreement, it is
disputed whether Xx. Xxxxxx would be entitled to them.
3. RELEASE AND WAIVER OF CLAIMS.
(a) Xx. Xxxxxx, on behalf of himself and his heirs, administrators,
executors, representatives, successors, and assigns, forever releases the Bank
and Related Persons (which term with respect to any party includes, as
applicable, the party's affiliates, and each of their and the party's
successors, assigns, directors, officers, employees, representatives, agents,
and insurers, and the heirs, administrators, executors, successors, and assigns
of each of the foregoing) from, and covenants not to bring suit or otherwise
institute legal proceedings against any of them arising in whole or in part
from, all claims arising from events occurring prior to the execution of this
Agreement that Xx. Xxxxxx now has or may have or that Xx. Xxxxxx may hereafter
have of any nature whatsoever, be they common law or statutory, legal or
equitable, in contract or tort, including but not limited to claims arising out
of Xx. Xxxxxx'x employment with the Bank and/or the termination of that
employment, including but not limited to claims under the Employment Agreement
and/or the Bank's internal policies and procedures, the Age Discrimination in
Employment Act, the Employee Retirement Income Security Act of 1974, the
Americans with Disabilities Act of 1990, and the fair employment practices acts
of the various states, all as amended. Xx. Xxxxxx hereby waives all rights to
assert a claim for relief available under any such laws, including but not
limited to attorney fees, damages, reinstatement, back pay, or injunctive
relief. Should Xx. Xxxxxx institute any claim released by this paragraph 3, or
should any other person institute such a claim on his behalf, Xx. Xxxxxx will
reimburse the Bank and Related Persons, as applicable, for any legal fees and
expense incurred in defending such a claim.
(b) The Bank forever releases Xx. Xxxxxx and his Related Persons from
all claims that the Bank now has or may have or that the Bank may hereafter have
of any nature whatsoever, be they common law or statutory, legal or equitable,
in contract or tort, including but not limited to claims arising out of the
Bank's employment of the Executive and/or the termination of his employment. The
Bank hereby waives all rights to assert a claim for relief available under any
such laws, including but not limited to attorneys' fees damages, reinstatement,
back pay, or injunctive relief, including any right the Bank may have to seek
reimbursement from Xx. Xxxxxx for the initiation fee for his membership at the
Worthington Hills Country Club. The Executive hereby warrants and represents
that he has not breached his duties to the Bank and recognizes that the Bank has
relied on this warranty and representation in entering into this Agreement.
(c) Xx. Xxxxxx hereby warrants, represents, and covenants that he has
not assigned to any third party or filed with any agency or court any claim
released by this paragraph 3. Xx. Xxxxxx agrees and acknowledges that the Bank
is relying upon this warranty, representation, and covenant in entering into
this Agreement.
4. COVENANTS PROTECTING THE BANK'S BUSINESS RESOURCES.
(a) Reaffirmation of Covenants in the Employment Agreement. Xx. Xxxxxx
hereby reaffirms his continuing, post-employment obligations under paragraph 10
("Confidential Information") of the Employment Agreement.
(b) Covenant To Return the Bank Property. Xx. Xxxxxx will, no later
than the Execution Date (as defined in paragraph 6(b) of this Agreement),
surrender and deliver to the Bank all property of the Bank and Related Persons,
including computer equipment, any and all customer or price lists, manuals,
blueprints, operating plans, books, records, papers and similar items (including
all copies thereof in his possession and including those in electronic form)
that contain information regarding the business of the Bank and/or Related
Persons. By returning this signed Agreement to the Bank, Xx. Xxxxxx warrants and
represents that he has fulfilled his obligations under this paragraph 4(b) and
that he has relinquished all access to the Bank's computer systems and networks.
(c) Covenant Not To Solicit Other Employees. For a period of 2 years
after the Execution Date, Xx. Xxxxxx will not induce or solicit, or attempt to
induce or solicit, any other officer or employee to leave his or her employment
with the Bank or a Related Person without the Bank's express written consent.
(d) Remedies for Breach. Xx. Xxxxxx stipulates that, because of the
high level position he held with the Bank and the nature of the information to
which he had access, the covenants contained herein are essential for the
protection of the trade secrets, confidential business and technological
information, customer relationships, and competitive position of the Bank; that
a breach of any covenant contained herein could cause the Bank irreparable
damage for which damages at law would not be an adequate remedy; and that, in
addition to damages and other remedies to which the Bank would otherwise be
entitled, it will be entitled to whatever injunctive relief is appropriate for
any such breach.
(e) Tolling Period. The term(s) of any covenant(s) in this paragraph 4
will not run during any time in which Xx. Xxxxxx is in violation of said
covenant(s).
(f) Compliance with Covenants during Negotiation of Agreement. Xx.
Xxxxxx warrants and represents that his conduct after the Resignation Date but
prior to the Execution Date would not have been and/or would not be in violation
of any of the covenants in this paragraph 4 had this Agreement been in effect
during such period. Xx. Xxxxxx recognizes and agrees that the Bank is relying on
this warranty and representation in entering into this Agreement and would not
have entered into this Agreement in the absence of this warranty and
representation.
5. OTHER COVENANTS AND REPRESENTATIONS.
(a) Xx. Xxxxxx agrees to keep the terms of this Agreement completely
confidential and not to disclose any information concerning the Agreement to
anyone other than his attorneys, tax accountants, or financial advisors as is
reasonably necessary, provided that, if Xx. Xxxxxx makes a disclosure to any
such person and such person makes a disclosure that, if made by Xx. Xxxxxx,
would breach this paragraph 5(a), such disclosure will be considered to be a
breach of this paragraph 5(a) by Xx. Xxxxxx.
(b) Xx. Xxxxxx agrees to refrain from any publication, oral or written,
of a defamatory, disparaging, or otherwise derogatory nature pertaining to the
Bank and/or Related Persons.
(c) Xx. Xxxxxx agrees to reasonably cooperate with the Bank in the
defense of any claims, demands, allegations, or other assertion of legal rights
made against the Bank by a third party and relating to events occurring prior to
the execution of this Agreement of which Xx. Xxxxxx has or may have knowledge.
Xx. Xxxxxx agrees that he will not communicate in any fashion with any party,
including any representative thereof or legal counsel therefor, engaged in or
considering legal proceedings against the Bank or Related Persons other than as
required by a facially valid subpoena, court order, administrative order, or
other legal process requiring such communication and, further, that within 3
calendar days of his receipt of any such legal process will provide the Bank
notice thereof by completing delivery of a copy of such legal process to its
attorney, Xxxxxxx X. Nolan, Squire, Xxxxxxx & Xxxxxxx L.L.P., 00 Xxxxx Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxx 00000, (000) 000-0000, fax (000) 000-0000.
Xx. Xxxxxx further agrees to reasonably cooperate with any efforts of the Bank
to quash any such legal process.
Xx. Xxxxxx further covenants that he will not, without the express
written consent of the Bank, engage in, render any services to, own, manage,
operate, control, consult with, contract with, participate in, become employed
by or associated with, or become connected in any manner with the ownership,
management, operation, or control of any business that is (i) as of the
Resignation Date engaged in legal proceedings against the Bank or its Related
Persons or (ii) after the Resignation Date institutes or manifests an intent to
institute such proceedings prior to Xx. Xxxxxx commencing within 2 years of the
Resignation Date an association with said business, with respect to any such
business until such time as the legal proceedings (including appeals) involving
such business and the Bank have been conclusively resolved. Xx. Xxxxxx
acknowledges that he is qualified for employment comparable to his employment
with the Bank that would not violate this restriction. Accordingly, Xx. Xxxxxx
represents and warrants that his experience and capabilities are such that this
covenant will not prevent him from earning an adequate livelihood for himself
and his dependents if this covenant should be specifically enforced against him.
(d) Xx. Xxxxxx represents that as of the Execution Date he has no
knowledge that he has sustained or developed any work-related injuries or
illnesses during his employment with the Bank.
(e) Xx. Xxxxxx agrees that he will not seek further employment with the
Bank or its Related Persons.
6. CONSIDERATION OF AGREEMENT BY XX. XXXXXX.
(a) Xx. Xxxxxx has been advised to consult with an attorney before
executing this Agreement.
(b) Xx. Xxxxxx has been given at least 21 calendar days after receipt
of this Agreement (the "Consideration Period"), if he so desires, to consider
this Agreement before signing it. If Xx. Xxxxxx signs this Agreement, the date
on which he signs the Agreement shall be the "Execution Date." If not signed by
him and returned to the Bank so that it is received no later than the end of the
Consideration Period, this Agreement will not be valid. In addition, if Xx.
Xxxxxx breaches any of the proposed terms of this Agreement during the
Consideration Period, the offer of this Agreement will be withdrawn and his
execution of this Agreement will not be valid. In the event Xx. Xxxxxx executes
and returns this Agreement prior to the end of the Consideration Period, he
acknowledges that his decision to do so was voluntary and that he had the
opportunity to consider this Agreement for the entire Consideration Period.
(c) The parties agree that this Agreement will not become effective
until 7 calendar days after the Execution Date and that Xx. Xxxxxx may, within 7
calendar days after the Execution Date, revoke the Agreement in its entirety by
written notice to Xxxxxxx X. Xxxxx at the address or facsimile number listed in
paragraph 5(c) above. If written notice of revocation is not received by the 8th
day after the execution of this Agreement by Xx. Xxxxxx, this Agreement will
become effective and enforceable on that day (the "Effective Date").
7. MISCELLANEOUS.
(a) This Agreement will be binding upon the parties hereto and upon
their heirs, administrators, representatives, executors, successors, and
assigns.
(b) This Agreement contains the entire agreement of both parties about
the subjects in it, and it replaces all prior contemporaneous oral or written
agreements, understandings, statements, representations and promises by either
party. The parties agree that this paragraph 7(b) is not intended to and does
not relieve Xx. Xxxxxx of any continuing, post-termination obligations that he
may have under the Employment Agreement. Xx. Xxxxxx acknowledges and agrees that
any payments made to him or his estate under this Agreement are in full
settlement and discharge of any and all rights or claims which Xx. Xxxxxx or his
estate may have against the Bank or any Related Person (except for any vested
rights Xx. Xxxxxx may have under the Bank 401k plan) arising out of Xx. Xxxxxx'x
employment with the Bank or the termination thereof and that he is entitled to
no additional payments from the Bank or its Related Persons not specifically
referenced in this Agreement. Xx. Xxxxxx acknowledges and agrees that he is
entitled to no
benefits under The Delaware County Bank & Trust Company Supplemental Executive
Retirement Plan pursuant to paragraph 7.1(b) of said plan.
(c) Each provision of this Agreement is severable. Should any court,
arbitrator, or other tribunal of competent jurisdiction declare any provision(s)
of this Agreement invalid or unenforceable by reason of any rule of law or
public policy, all other provisions hereof will remain in full force and effect.
(d) The parties hereby authorize any court, arbitrator or other
tribunal of competent jurisdiction to modify any provision(s) of this Agreement
held to be invalid or unenforceable to the extent necessary to permit such
provision(s) to be legally enforced to the maximum extent permissible and to
then enforce the provision(s) as modified.
(e) To the extent permitted by federal law, this Agreement will be
governed by and construed in accordance with the laws of the State of Ohio. The
parties hereby agree that any court action to enforce or interpret paragraph 4
of this Agreement will be brought in the state and/or federal courts in or for
Delaware, Ohio. With respect to any such court action, the parties hereby
consent and submit to the personal jurisdiction and venue of such court(s).
XX. XXXXXX REPRESENTS AND AGREES THAT HE HAS FULLY READ AND UNDERSTANDS
THE MEANING OF THIS AGREEMENT AND IS VOLUNTARILY ENTERING INTO THIS AGREEMENT
WITH THE INTENTION OF GIVING UP ALL CLAIMS AGAINST THE BANK AND RELATED PERSONS.
XX. XXXXXX ACKNOWLEDGES THAT HE IS NOT IN ENTERING INTO THIS AGREEMENT RELYING
ON ANY REPRESENTATIONS BY THE BANK OR RELATED PERSONS CONCERNING THE MEANING OF
ANY ASPECT OF THIS AGREEMENT.
DCB FINANCIAL CORP.
Date: Nov. 1 , 2002 By: /s/ G. Xxxxxxx Xxxxxx
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Name: G. Xxxxxxx Xxxxxx
---------------------------------
Title: Chairman
--------------------------------
Date: 10/30/02 , 2002 /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
EXHIBIT A
EMPLOYMENT AGREEMENT
This Agreement is made and entered into this 10th day of October, 1995,
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 00 Xxxxxxxxx Xxxxxx, Xxx. 000, Xxxxxxxx,
Xxxx 00000. Any reference to "Superintendent" herein shall mean the Ohio
Superintendent of Banks.
RECITALS
A. The Employee is being hired as President and Chief Executive Officer
of the Bank.
B. The Board of Directors of the Bank wants to assure the Bank of the
services of the Employee by executing 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
1. EMPLOYMENT
a. The Bank agrees to employ the Employee and the Employee agrees to
serve as the President and Chief Executive Officer of the Bank. The Bank agrees
that during the term of the Employee's employment as President and Chief
Executive Officer, the Board of Directors will nominate the Employee to stand
for election as director of the Bank, and the Employee shall serve as a Director
of the Bank subject to his election by the shareholders. However, upon
termination of employment of the Employee for any reason, the Employee shall
immediately resign as a Director of the Bank and shall sign all documents
necessary to accomplish such resignation as a Director. In the event Employer
refuses to sign documents necessary to accomplish his resignation then this
document shall act as the resignation pursuant to this paragraph. The Employee
shall receive the same fees and other remuneration as other directors for his
service as the Director of the Bank. As President and Chief Executive Officer,
the Employee shall render administrative and management services to the Bank
such as are customarily performed by persons situated in similar executive
positions. The Employee shall perform
such other appropriate duties as the full Board of Directors of the Bank may
from time to time reasonably direct.
b. The Employee shall be furnished with a private office, stenographic
and other necessary secretarial assistance, and with such other facilities,
amenities, and services as are appropriate for the Employee's position as
President and Chief Executive Officer of the Bank and adequate for the
performance of his duties thereunder. For the performance of his duties
thereunder, as determined by the Board of Directors from time to time.
2. TERM OF EMPLOYMENT
The Employee is hereby employed as the President and Chief Executive
Officer of the Bank for an initial term commencing on August 14, 1995, and
ending on the 31st day of December, 1995. 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. Annually, in November
of each year, the Board of Directors of the Bank will conduct a performance
evaluation of the Employee for the purpose of determining whether to extend the
term of this agreement. The results of such review by the Board shall be noted
in the minutes of the Board meeting. The Bank shall provide the Employee with a
written notice of its decision whether to extend this Agreement for a successive
one-year term or not, said written notice to be delivered to the Employee at
least thirty (30) days prior to the end of the initial term or any renewal term
(one-year extension).
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 as President and Chief Executive Officer by the Board
of Directors.
4. BASE SALARY
a. The Bank agrees to pay the Employee (exclusive of any fees and other
remuneration paid to the Employee as Director of the Bank) for the term of this
Agreement a salary of One Hundred Fifteen arid 00/100 Dollars ($115,000.00) 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 in question.
b. Commencing with the calendar year during which the Agreement is
executed, the Board of Directors shall evaluate the Bank's progress and past,
present, and future attainments accomplished under the direction of the
Employee. At the end of each calendar year, the Board of Directors through its
Salary and Benefits Committee shall consider adjusting the Base Salary to be
paid to the Employee for the next ensuing year. With respect to those years in
which the Employee receives an increase in Base Salary by virtue of action by
the Board of Directors under
this Paragraph 4(b), such adjustment in Base Salary shall be incorporated and
considered part of the Employee's Base Salary for all purposes of this
Agreement.
5. INCENTIVE BONUS TO THE EMPLOYEE
The Salary and Benefits committee will evaluate performance with the
Employee and discuss a bonus. The bonus shall be awarded solely at the
discretion of the board of directors upon the recommendation of the salary and
benefits committee.
6. PARTICIPATION IN RETIREMENT AND EMPLOYEE BENEFIT PLANS AND
ADDITIONAL BENEFITS
a. 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.
b. In addition to the compensation provided to the Employee pursuant to
Paragraphs 4 and 5 hereof, the Bank agrees to reimburse the Employee for
reasonable entertainment, travel, lodging and other miscellaneous expenses,
whether local or out-of-city, incurred on its behalf and directly related to the
performance of his duties as President and Chief Executive Officer of the Bank.
The Bank further agrees to furnish the Employee with a corporate credit card for
business use in connection with entertainment, travel, lodging and other
miscellaneous expenses. The reimbursement shall include the payment of
reasonable expenses for attending meetings of trade associations. The Employee
shall periodically submit an itemized statement and satisfactory documentation
of the expenses incurred. The Bank further agrees to furnish the Employee a new
automobile during the term of this Agreement to be used for both business and
personal use, as long as the Employee is actually working for the Bank. A new
automobile shall be purchased at least every two years or sooner if it is
determined by the Bank and the Employee that the present automobile furnished to
the Employee has significant mileage so as to require the purchase of a new
automobile. The Bank shall be responsible for all expenses of this automobile
including adequate insurance, repairs and maintenance thereof; provided,
however, that the Employee shall be responsible to reimburse the Bank for
personal automobile travel at a rate consistent with the Internal Revenue
Service allowance. The Bank shall also include the Employee, the Employee's
spouse, and any other authorized persons as an insured under its liability
insurance policies with coverage at least equal to the coverage under its
current liability insurance policies. The employee shall return the automobile
to the Bank immediately when the Employee is no longer employed by the Bank. The
Bank further agrees to reimburse the Employee for the monthly dues and fees for
a family membership at a country club in the Central Ohio area. However, prior
to joining such club, the Employee shall obtain the approval of the compensation
committee of the Board of Directors. The Board of Directors shall have the
further right to require the employee to change memberships to another club if
the Board of Directors feels that it is in the best interest of the Bank. These
expenses shall be detailed and provided to the Bank in connection with the
Employee's periodic submission of reasonable entertainment expenses.
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 four (4) 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. The Employee shall be entitled to accumulate two (2) weeks unused
vacation time from one calendar year for use in the next calendar year.
c. In addition to the aforesaid paid vacation, the Employee shall be
entitled, without loss of pay, to be absent voluntarily from the performance of
his employment with the Bank for Such additional periods of time and for such
valid and legitimate reasons as the Board of Directors, in its discretion, and
in compliance with applicable law, may determine. Further, the Board of
Directors shall be entitled to grant to the Employee a personal leave or leaves
of absence with or without pay at such time or times and upon such terms and
conditions as the Board of Directors, in its sole discretion, and in compliance
with applicable law, may determine.
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:
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 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 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 dealing with confidential information
regarding loans, litigation, depositor lists, information provided to the
Employer by prospective loan customers, and 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 inforation 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
circumstance 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 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, XX 00000
Attention: Secretary, Board of Directors
B. If to the Employee, to:
Xxxxx X. Xxxxxx
00 Xxxxxxxxx Xxxxxx, Xxx. 000
Xxxxxxxx, XX 00000
and to such other additional person or persons as either party shall have
designated to the other party in writing by like notices.
13. OTHER CONTRACTS
Consistent with Paragraph 3 herein, the Employee shall not, during the
term of this Agreement, have any other employment as an employee, independent
contractor, consultant, or otherwise, except for services on corporate, civic or
charitable boards or committees. All services performed by the Employee on
corporate, civic, or charitable boards shall first be approved by the Board of
Directors.
14. AMENDMENTS
No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties, except as herein otherwise provided.
15. 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.
16. 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.
17. 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 law of Ohio.
18. 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. Judgment 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 hereinabove 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")
