Exhibit 10.5
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT ("Agreement") is entered into as of the
____ day of _______________, 2003, by and among FIRST CITIZENS BANC CORP, an
Ohio corporation (the "Corporation"), THE CITIZENS BANKING COMPANY, an Ohio bank
(the "Bank"), and XXXXX X. XXXXXX, an employee of the Corporation and/or the
Bank and/or of a subsidiary of either (the "Employee"). The Corporation, the
Bank, and any subsidiary of either, that employs the Employee are collectively
referred to herein as the "Employer."
WHEREAS, the Employer wishes to assure itself of the continuity of the
Employee's services in the event of any actual change in control of the
Corporation; and
WHEREAS, the Employer and the Employee accordingly desire to enter into
this Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, it is hereby agreed by and between the parties as follows:
1. TERM OF AGREEMENT. The "Term" of this Agreement shall commence on
the date hereof and shall continue through December 31, 2004; provided, however,
that on such date and on each December 31 thereafter, the Term of this Agreement
shall automatically be extended for one additional year unless, not later than
the preceding January 1 either party shall have given written notice to the
other that such party does not wish to extend the Term; and provided, however,
that if a Change in Control (as defined in Section 4 below) shall have occurred
during the original or any extended Term of this Agreement, the Term of this
Agreement shall continue for a period of twenty-four (24) calendar months
commencing with the calendar month in which such Change in Control occurs and
shall end upon the expiration of such 24 month period.
2. RETENTION BONUS. If, during the Term, a Change in Control occurs,
the Employer shall pay to the Employee (within thirty (30) days after the date a
Change in Control occurs) a bonus in a lump sum amount equal to one (1) times
the Employee's annual base salary in effect during the twelve (12) month period
immediately preceding the date upon which a Change in Control occurs in
recognition of the Employee's services during the period leading up to and
ending upon the consummation of such Change in Control.
3. EMPLOYMENT AFTER A CHANGE IN CONTROL. If the Employee is in the
employ of the Employer on the date of a Change in Control, the Employer hereby
agrees to continue the Employee in its employ for the period commencing on the
date of the Change in Control and ending on the earlier of the last day of the
Term of this Agreement or the date of the Employee's termination of employment
described in (i) or (ii) of this Section 3 (the "Employment Period"). During the
Employment Period, the Employee shall hold such position with the Employer and
exercise such authority and perform such employment duties as are commensurate
with the Employee's position, authority and duties immediately prior to the
Change in Control. The Employee agrees that during the Employment Period the
Employee shall devote full business time exclusively to the Employee's duties
and perform such duties
faithfully and efficiently; provided, however, that nothing in this Agreement
shall prevent either (i) the Employee from voluntarily resigning from employment
upon at least sixty (60) days' written notice to the Employer under
circumstances which do not constitute a Termination (as defined below in Section
6), or (ii) the Employer terminating the Employee for "Cause" as defined in
Section 6 hereof or for any other reason or no reason.
4. CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" means the happening of any of the following: the merger of the
Corporation into, or the consolidation of the Corporation with, another entity;
the sale or other disposition of all or substantially all of the Corporation's
assets; or the liquidation of the Corporation; provided, however, that a Change
in Control shall not be deemed to have occurred by reason of a transaction, or a
substantially concurrent or otherwise related series of transactions, upon the
completion of which 50 percent or more of the beneficial ownership of the voting
power of the Corporation (or of the surviving corporation or corporation
directly or indirectly controlling the Corporation) is held by (i) employee
benefit plans of the Corporation; or (ii) an "Affiliate" of the Corporation (as
defined in the Securities Exchange Act of 1934, as amended).
5. COMPENSATION DURING THE EMPLOYMENT PERIOD. During the Employment
Period, the Employee shall be compensated as follows:
a. The Employee shall receive compensation which is not less than
compensation paid by the Employer to the Employee immediately prior to the
Employment Period; and
b. The Employee shall be eligible to participate in the Employer
employee benefit plans which are not materially less favorable to the Employee
than the Employer employee benefit plans in which the Employee participated in
immediately prior to the Employment Period.
6. TERMINATION. For purposes of this Agreement, the term "Termination"
shall mean termination of the employment of the Employee during the Employment
Period either (i) by the Employer, for any reason other than death, Disability
(as defined below), or Cause (as described below), or (ii) by resignation of the
Employee upon the occurrence of one or more of the following events:
a. A significant change in the nature or scope of the Employee's
authorities or duties from those described in Section 3 above, a breach of any
of the provisions of Section 5 above, or the breach by the Employer of any other
provision of this Agreement;
b. The relocation of the Employee's office to a location more
than thirty-five (35) miles from the location of the Employee's office
immediately prior to the Employment Period;
c. The failure of the Corporation to obtain a satisfactory
agreement from any successor to assume and agree to perform this Agreement as
contemplated in Section 16 below.
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The date of the Employee's Termination under this Section 6 shall be the
date specified by the Employee or the Employer, as the case may be, in a written
notice to the other party complying with the requirements of Section 12 below.
For purposes of this Agreement, the Employee shall be considered to have a
"Disability" during the period in which the Employee is unable, by reason of a
medically determinable physical or mental impairment, to engage in the material
and substantial duties of the Employee's regular occupation, which condition is
expected to be permanent. For purposes of this Agreement, the term "Cause"
means, in the reasonable judgment of the Board of Directors of the Employer, (i)
the willful and continued failure by the Employee to substantially perform the
Employee's duties with the Employer after written notification by the Employer,
or (ii) the willful engaging by the Employee in conduct which is demonstrably
injurious to the Employer, monetarily or otherwise, or (iii) the engaging by the
Employee in egregious misconduct involving moral turpitude. For purposes of this
Agreement, no act, or failure to act, on the Employee's part shall be deemed
"willful" unless done, or omitted to be done, by the Employee not in good faith
and without reasonable belief that such action was in the best interest of the
Employer.
7. SEVERANCE PAYMENTS. In the event of a Termination described in
Section 6 above, the Employee shall be entitled to receive whichever of the
following, A. or B., that the Employee shall select (which selection shall be by
written notice from the Employee to the Employer, and in the event the Employee
fails to so select, the Employee shall be deemed to have selected B.):
A. For a period of twelve (12) consecutive calendar months after
the Employee's Termination, he will not, without the Employer's written consent,
either directly or indirectly engage in, make any investment in or have any
interest in any business in competition with the Employer's business that is
located or conducting business in any county in which the Employer conducted
business on the date of his Termination. In consideration thereof, the Employee
shall be entitled to receive (i) Employer-paid COBRA premiums (relating to the
Employee's group medical insurance continuation premiums) for a period of
eighteen (18) months after the date of Termination, and (ii) a lump sum payment
in cash no later than thirty (30) business days after the date of Termination
equal to the sum of:
(aa) the Employee's unpaid salary, accrued vacation pay and
unreimbursed business expenses through and including the date
of Termination; and
(bb) an amount equal to two (2) times the Employee's annual base
salary in effect immediately prior to the date of Termination
REDUCED BY the amount of the Retention Bonus paid to the
Employee pursuant to Section 2 hereof.
The parties recognize that the Employer will have no adequate remedy
at law for breach by the Employee of the restrictions imposed by this Section
7.A. and that the Employer could suffer substantial and irreparable damage if he
breaches any of these restrictions. For this reason, the Employee agrees that,
if the Employee breaches any of the restrictions imposed under this Section
7.A., the Employer may seek a temporary and/or permanent injunction to restrain
any breach or threatened breach of these restrictions or a decree of specific
performance, mandamus, or other appropriate remedy to enforce compliance with
the restrictions imposed under this Section 7.A.
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B. The amount of One Dollar ($1.00).
8. EXCESS PARACHUTE PAYMENT LIMITATION. Notwithstanding any other
provision of this Agreement, if the sum of the payments to the Employee
described in this Agreement and in any other agreement, program, or plan between
the Employee and the Employer (or an affiliate of the Employer) attributable to
the same Change in Control constitute "excess parachute payments" (as defined in
Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended ("Code")),
the Employer shall reduce the amounts otherwise payable to the Employee under
this Agreement so that the Employee's total "parachute payment" (as defined in
Code Section 280G(b)(2)(A)) under this Agreement and any other agreements,
programs, or plans shall be One Thousand Dollars ($1,000) less than the amount
that would be an "excess parachute payment."
9. WITHHOLDING. All payments to the Employee under this Agreement will
be subject to all applicable withholding of state and federal taxes.
10. CONFIDENTIALITY AND NON-SOLICITATION. The Employee agrees that:
a. Except as may be required by the lawful order of a court or
agency of competent jurisdiction, or except to the extent that the Employee has
express authorization from the Employer, the Employee agrees to keep secret and
confidential all non-public information concerning the Employer (or any entity
controlled by the Employer) which was acquired by or disclosed to the Employee
during the course of the Employee's employment with the Employer (or any entity
controlled by the Employer), and not to disclose the same, either directly or
indirectly, to any other person, firm or business entity or to use it in any
way.
b. Except to the extent that the Employee has express
authorization from the Employer, while the Employee is employed by the Employer
and for a period of twelve (12) months after the date of the Employee's
Termination or other termination of employment with the Employer, the Employee
covenants and agrees that Employee will not (whether for the Employee or for any
other person, business, partnership, association, firm, company or corporation)
initiate contact with, solicit, divert or take away any of the Employer's (i)
customers (entities or individuals from which the Employer, or any entity
controlled by the Employer, received or receives payment for services), or (ii)
employees (or employees of any entity controlled by the Employer).
11. MITIGATION AND SET-OFF. The Employee shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise. The Employer shall not be entitled to set off
against the amounts payable to the Employee under this Agreement any amounts
earned by the Employee in other employment after termination of employment with
the Employer, or any amounts which might have been earned by the Employee in
other employment had he sought such other employment.
12. NOTICES. Any notice of Termination of the Employee's employment by
the Employer or the Employee for any reason under Section 6 above shall be upon
no less than fifteen (15) days' and no greater than forty-four (45) days'
advance written notice to the other party. Any notices, requests, demand and
other communications provided for by this Agreement
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shall be sufficient if in writing and if sent by registered or certified mail to
the Employee at the last address the Employee has filed in writing with the
Employer or, in the case of the Employer, to the attention of the Secretary of
the Employer, at its principal executive offices.
13. NON-ALIENATION. The Employee shall not have any right to pledge,
hypothecate, anticipate or in any way create a lien upon any amounts provided
under this Agreement; and no amounts payable hereunder shall be assignable in
anticipation of payment either by voluntary or involuntary acts, or by operation
of law. Nothing in this Section 13 shall limit the Employee's rights or powers
to dispose of the Employee's property by Last Will and Testament or limit any
rights or powers which the Employee's executor or administrator would otherwise
have. This Agreement shall inure to the benefit of and be enforceable by the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, designees, devisees, and legatees. If the Employee should die
while any amount is still payable to the Employee hereunder had the Employee
continued to live, all such amounts shall be paid in accordance with the terms
of this Agreement to the Employee's designees, devisees, or legatee, or if there
are none, to the Employee's estate.
14. GOVERNING LAW. The provisions of this Agreement shall be construed
in accordance with the laws of the State of Ohio, without application of
conflict of laws provisions thereunder.
15. AMENDMENT. This Agreement may be amended or canceled by mutual
agreement of the parties in writing without the consent of any other person and,
except as specifically provided in Section 16 hereof, so long as the Employee
lives, no person, other than the parties hereto, shall have any rights under or
interest in this Agreement or the subject matter hereof.
16. SUCCESSORS TO THE EMPLOYER. This Agreement shall be binding upon and
inure to the benefit of the Employer and any successor of the Employer. The
Employer shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Employer to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Employer would be
required to perform it if no succession had taken place.
17. EMPLOYMENT STATUS. Nothing herein contained shall be deemed to
create an employment agreement between the Employer and the Employee, providing
for the employment of the Employee by the Employer for any fixed period of time.
The Employee's employment with the Employer is terminable at will by the
Employer or the Employee, and each shall have the right to terminate the
Employee's employment with the Employer at any time, with or without Cause,
subject to (i) the notice provisions of this Agreement, and (ii) the Employer's
obligation to provide severance payments if and as required by Section 7. Upon a
termination of the Employee's employment prior to the date of a Change in
Control, there shall be no rights of the Employee under this Agreement.
18. SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect.
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19. SURVIVAL. Notwithstanding any other provision of this Agreement to
the contrary, Sections 10 and 16 shall survive the termination of this Agreement
and the termination of the Employee's employment with the Employer.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which shall be deemed the original without reference to
the others.
(The balance of this page was intentionally left blank)
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IN WITNESS WHEREOF, the Employee and the Employer have executed this
Agreement as of the day and year first above written, but on the dates indicated
below each.
EMPLOYEE:
Signature: /s/ Xxxxx X. Xxxxxx
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Printed Name: XXXXX X. XXXXXX
Address: 0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Date: 10/30/03
CORPORATION:
FIRST CITIZENS BANC CORP
By: /s/ X. Xxxxxx
----------------------------
Title: Executive Vice President
Date: 12/6/03
BANK:
THE CITIZENS BANKING COMPANY
By: /s/ X. Xxxxxx
----------------------------
Title: President
Date: 12/6/03
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