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Exhibit 10.2
EMPLOYMENT AGREEMENT
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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 Xx., Xxx. 000, Xxxxxxxx,
Xxxx 00000. Any reference to "Superintendent" herein shall mean the Ohio
Superintendent of Banks.
RECITALS
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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
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1. Employment
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a. The Bank agrees to employ the Employee and the Employee
agrees to serve as the President and Chief Executive Officer of the
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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
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The Employee is hereby employed as the President and Chief
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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
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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
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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 and 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
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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
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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
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Additional Benefits
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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)(l), 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
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It is understood between the parties hereto that during the term of
this employment agreement Employee will be dealing with
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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
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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
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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
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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 Xx. XXX 000
Xxxxxxxx, Xxxx 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
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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
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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
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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
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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
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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
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Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in
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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:/s/ Xxxxxx X. Xxxxxx
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Its: /s/ Chmn. Salary Benefits Comm.
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And: /s/ Xxxxx X. Xxxxxx
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Its: Director & Mbr, Salary &
Benefit Comm.
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/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx (the "Employee"
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