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Exhibit 10(d)
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into this 3rd day
of April, 1996, by and between MOBILE CONSULTANTS, INC. ("MCI"), an Ohio
corporation and subsidiary of FirstFederal Financial Services Corp (the
"Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., (the "Executive"), effective for all
purposes and in all respects at the Closing as such term is defined in the
Agreement of Merger and Plan of Reorganization dated February 26, 1996, by and
between the Company, Holding Acquisition Corp., MCI, and Executive (the "Merger
Agreement").
WHEREAS, prior to Closing, Executive was President and a member of the
Board of Directors of MCI in addition to being the sole shareholder of MCI;
WHEREAS, pursuant to the Merger Agreement, Company is acquiring all of
the issued and outstanding capital stock of MCI;
WHEREAS, Executive has unique talents and experience which are of value
to MCI;
WHEREAS, MCI desires to employ Executive in the capacity of President of
MCI on and after the Closing on the terms and conditions set forth herein;
WHEREAS, Executive desires to be employed by MCI in the aforesaid
capacity; and
WHEREAS, Executive and MCI desire to set forth in writing the terms and
conditions of their agreements and understandings.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties intending to be legally bound, agree as follows:
1. TERM. The term of this Agreement shall be a period of three (3) years
commencing on the Closing Date (the "Commencement Date"), subject to earlier
termination as provided herein. Beginning on the third anniversary of the
Commencement Date, and on each anniversary thereafter, the term of this
Agreement shall be extended for a period of one year, PROVIDED THAT neither the
Executive nor MCI has given notice to the other in writing at least 90 days
prior to such anniversary that the term of this Agreement shall not be extended
further. Reference herein to the term of this Agreement shall refer to both such
initial term and such extended terms.
2. EMPLOYMENT. The Executive is employed as the President of MCI. As
President, Executive shall render administrative and management services as are
customarily performed by persons situated in similar executive capacities,
including but not limited to such duties and
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responsibilities Executive performed prior to the Closing Date, establish
operating policies of MCI (subject to the reasonable review by MCI's Board of
Directors), and shall have such other powers and duties of an officer of MCI as
the Board of Directors may prescribe from time to time. The Executive shall
continue to devote his best efforts and substantially all his business time and
attention to the business and affairs of MCI. During the Executive's employment
with MCI, the Executive shall not engage in any activity which conflicts or
interferes with the performance of the duties hereunder or usurps the business
interest, existing or potential, of MCI. It is the intent of the Company that
management issues and operational issues arising in the ordinary course of MCI's
business be addressed, and solutions implemented, by MCI's officers; and that
policy issues and strategic planning be addressed by MCI's Board of Directors.
So long as executive is employed as President, he shall be permitted to
designate for nomination and election a majority of the Board of Directors of
MCI, which majority will be endorsed and approved by MCI and FirstFederal
Financial Services Corp.
3. COMPENSATION.
(a) SALARY. MCI agrees to pay the Executive during the term of this
Agreement an annual base salary of One Hundred Thousand Dollars ($100,000.00).
The base salary shall be paid in accordance with MCI's standard pay practices
and shall be subject to all local, state, and federal withholding requirements.
The base salary may be raised from time to time within the sound discretion of
the Board of Directors.
(b) DISCRETIONARY BONUSES. The Executive shall be entitled to
participate in an equitable manner with all other executive officers of MCI in
discretionary bonuses as authorized and declared by the Board of Directors to
its executives subject to such terms and conditions set forth in the Management
Incentive Compensation Plan.
(c) EXPENSES. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in
performing services under this Agreement in accordance with the policies and
procedures applicable to the executive officers of the Company and MCI, PROVIDED
THAT the Executive properly accounts for such expenses in accordance with such
policies and procedures.
(d) NONCOMPETITION PAYMENT. In partial consideration for the issuance of
Shares, issuance of the FirstFederal Note, and payment of Cash pursuant to the
Merger Agreement, the Executive agrees to the noncompetition provisions set
forth in Section 7 hereof.
4. BENEFITS.
(a) PARTICIPATION IN RETIREMENT AND EXECUTIVE BENEFIT PLANS. The
Executive shall be entitled to participate in all plans relating to stock
options, pension, thrift, profit-sharing, group life insurance, medical and
dental coverage, education, and other retirement or employee benefits or
combinations thereof ("Plans") that are now or hereafter maintained for the
benefit of MCI's
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executive employees or its employees generally, provided that the Executive
meets all eligibility requirements of such Plans.
(b) FRINGE BENEFITS. The Executive shall be eligible to participate in,
and receive benefits under, any other fringe benefit plans which are or may
become applicable to MCI's executive officers.
5. VACATIONS; LEAVE. The Executive shall be entitled to annual paid
vacation in accordance with the policies established by MCI's Board of Directors
for executive employees and to voluntary leave of absence, with or without pay,
from time to time at such times and upon such conditions as the Board of
Directors of MCI may determine in its discretion.
6. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. The Board of Directors may terminate the
Executive's employment at any time, but, except in the case of Termination for
Cause, termination of employment shall not prejudice the Executive's right to
compensation or other benefits under this Agreement. In the event of Involuntary
Termination, MCI shall pay to the Executive during the remaining term of this
Agreement, his salary at the rate in effect immediately prior to the Date of
Termination, payable in such manner and at such times as such salary would have
been payable to the Executive under Section 1 if the Executive had continued to
be employed by MCI.
(b) TERMINATION FOR CAUSE. In the event of Termination for Cause, MCI
shall pay the Executive his salary through the Date of Termination, and MCI
shall have no further obligation to the Executive under this Agreement.
(c) DEATH; DISABILITY. In the event of the death of the Executive while
employed under this Agreement and prior to any termination of employment, the
Executive's estate, or such person as the Executive may have previously
designated in writing, shall be entitled to receive from MCI the salary of the
Executive through the last day of the calendar month in which the Executive
died. If the Executive becomes disabled as defined in MCI's then current
disability plan or if the Executive is otherwise unable to serve as President,
the Executive shall be entitled to receive group and other disability income
benefits of the type then provided by MCI for executive officers.
7. NONCOMPETITION.
(a) Executive covenants and agrees that;
(i) Executive shall not, in the United States of America,
directly or indirectly, for a period commencing on the closing Date and
terminating on the date three years if Executive is Terminated for Cause
or voluntarily terminates his employment or two years if Executive is
involuntarily terminated following the Date of Termination (the
"Restricted Period"), for whatever reason, directly or indirectly,
whether as shareholder, partner, joint
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venturer, or agent of any person, firm or corporation or other entity or
otherwise, engage in any or all of the following activities:
(a) Enter into or engage in any business which directly or
indirectly competes with the business of MCI;
(b) Interfere or attempt to interfere with the business,
goodwill, trade, customers or employees of MCI or with any one dealing
with MCI in the operation of MCI's business;
(c) Solicit dealers or lending institutions' business,
patronage, or perform any services for, any business which directly or
indirectly competes with the business carried on by MCI as it is
conducted on the Closing Date;
(d) Promote or assist, financially or otherwise, any person,
firm, association or corporation engaged in any business which directly
or indirectly competes with the business carried on by MCI.
(ii) During the Restricted Period, the Executive shall not,
directly or indirectly, knowingly solicit or encourage to leave the
employment of Company or MCI, any employee of MCI or hire any employee
who has left the employment of MCI after the date of this Agreement
within one year of the termination of such employee's employment with
MCI or such shorter period as shall be agreed by MCI in writing.
(b) If the Executive violates this restrictive covenant and MCI brings
legal action for injunctive or other relief, MCI shall not as a result of the
time involved in obtaining the relief be deprived of the benefit of the full
period of the restrictive covenant. Accordingly, the restrictive covenant shall
be deemed to have the duration specified herein, computed from the date the
relief is granted, but reduced by the time between the period when the
restriction began to run and the date of the first violation of the covenant by
Executive.
If any court shall determine that the duration or geographical limit of
any restriction contained in this paragraph is unenforceable, it is the
intention of the parties that the restrictive covenant set forth herein shall
not thereby be permitted to be terminated but shall be deemed amended to the
extent required to render it valid and enforceable. Such amendment shall apply
only with respect to the operation of this paragraph and the jurisdiction of the
court that has made the adjudication.
(c) If any court determines that any provision of this Section, or any
part thereof, is invalid or unenforceable, the remainder of the provisions of
this Section shall not thereby be affected and shall be given full effect,
without regard to the invalid portions.
(d) If any court determines that any of the provisions of this Section,
or any part thereof, is unenforceable because of the duration of such provision
or the area covered thereby,
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such court shall have the power to reduce the duration or area of such
provisions and, in its reduced form, such provision shall then be enforceable
and shall be enforced.
8. DISCLOSURE OF INFORMATION. The Executive acknowledges that in and as
a result of his employment hereunder, he will be making use of, acquiring and/or
adding to confidential information of a special and unique nature and value
relating to such matters as MCI's and its affiliated companies' trade secrets,
Systems, procedures, manuals, confidential reports, and lists of customers. As a
material inducement to MCI to enter into this Agreement and for MCI to pay
Executive compensation stated in Section 3, as well as any additional benefits
provided for herein, Executive covenants and agrees that he shall not at any
time during or following the term of his employment, directly or indirectly
divulge or disclose for any purpose whatsoever any confidential information that
has been obtained by or disclosed to him as the result of employment by MCI
heretofore or hereafter, except that there shall be no breach of this Section so
long as Executive is acting in good faith and there is no material harm to MCI;
provided, however, that this duty of confidentiality shall not apply to
information which is on the date hereof generally known to the public or which
is subsequently made public by an individual authorized to do so.
9. SURRENDER OF BOOKS AND RECORDS. Executive acknowledges that all
files, books, records, literature, products, and other materials owned by MCI or
its affiliates or used by it in connection with the conduct of its business
shall at all times remain the property of MCI and that upon termination of the
employment hereunder, irrespective of the time, manner, or cause of said
termination, Executive will surrender to MCI all such files, books, records,
literature, products, and other materials, other than such personal effects not
related to the operation of the business.
10. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto, and
neither party may assign or delegate any of its rights or obligations hereunder
without first obtaining the written consent of the other party.
(b) This Agreement and all rights of the Executive hereunder shall inure
to the benefit of and be enforceable by the Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
11. REMEDIES. It is recognized by Executive that a special and
confidential relationship exists between MCI and Executive because of his
knowledge, expertise and judgment and the dependence of MCI upon his knowledge,
expertise and judgment. Executive agrees that the remedy at law for any breach
of threatened breach of the covenants set forth in paragraphs 7, 8 and 9 hereof
will be inadequate and that any breach or attempted breach of such covenants
would cause such immediate and permanent damage as would be irreparable and the
exact amount of which would be impossible to ascertain. Executive further agrees
that in the event of any such breach or threatened breach of such covenants by
Executive, in addition to any and all other legal and equitable remedies
available, MCI may have any of such actions enjoined by
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any court authorized by law to take such action. Executive acknowledges and
agrees that the limitations contained in paragraphs 7, 8 and 9 hereof are
reasonable and properly required for the adequate protection of MCI.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to MCI at its home office, to
the attention of the Board of Directors with a copy to the secretary of MCI, or,
if to the Executive, to such home or other address as the Executive has most
recently provided, in writing to MCI.
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. HEADINGS. The 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 and unenforceability of any provisions shall not
affect the validity or enforceability of the other provisions hereof.
16. GOVERNING LAW. This Agreement shall be governed by and is to be
construed and enforced in accordance with the laws of the State of Ohio.
17. ARBITRATION. Any dispute or controversy arising hereunder or in
connection with this Agreement shall be finally and conclusively determined by
the decision of a board of arbitration consisting of three members (hereinafter
sometimes called the "Board of Arbitration") collected as hereinafter provided.
Both MCI and Executive shall select one member and the third member shall be
selected by mutual agreement of the other members, or if the other members fail
to reach an agreement on a third member within 20 days after their selection,
the third member shall thereafter be selected by the American Arbitration
Association upon application made to it for such purpose by MCI. The Board of
Arbitration shall meet in Wooster, Ohio, or in such other place as the majority
of the members of the Board of Arbitration determines more appropriate and shall
reach and render a decision in writing (concurred in by a majority by the
members of the Board of Arbitration) with respect to the resolution of the
dispute or controversy. In connection with rendering its decision, the Board of
Arbitration shall adopt and follow such rules and procedures, except with regard
to discovery matters, as a majority of the members of the Board of Arbitration
deem necessary or appropriate. Arbitration discovery shall be that discovery
allowed by Ohio Rules of Civil Procedure (Rule 5) as amended and modified by the
parties herein permitting discovery by deposition, interrogatories, requests for
admission, and production of documents, which Rules are incorporated by
reference herein, but shall be modified in their application as follows: (i)
depositions shall be limited to: the adversary (or in case of a corporation or
other entity to two agents thereof who may be required to be identified as
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competent for the discovery purpose); other third party witnesses whose
discovery may lead to relevant evidence for the preparation of the arbitration;
other third party witnesses whose testimony reasonably needs to be perpetuated,
including witnesses who by affidavit, state that they cannot be available for
the hearing. Depositions of third party witnesses shall be limited to three;
(ii) request for production of documents shall be limited to one set of relevant
and reasonable requests and to such supplemental requests as may be reasonably
required from information produced; (iii) each side shall be permitted one set
of interrogatories and request for admissions, each consisting of no more than
thirty (30) items including sub-parts; (iv) the limitations contained herein on
the number of depositions, requests for production of documents,
interrogatories and requests for admissions may be modified by a majority of the
members of the Board of Arbitration upon motion of a party; (v) all discovery
disputes shall be resolved by the Arbitrator whose decision shall be final,
except as below provided, in any post-award proceeding under O.R.C. Chapter
2711, the court may consider as an additional ground for vacating or modifying
the award an Arbitration Discovery decision involving a gross abuse of
discretion, the arbitrator and/or the court shall also be empowered to impose
costs, expenses (excluding attorney's fees) and sanctions as provided in the
Rules of Civil Procedure against any party for failure to comply with the
Arbitration Discovery, and to base such imposition on the same criteria used by
the courts in similar circumstances. To the extent practical, decisions of the
Board of Arbitration shall be rendered no more than 30 calendar days following
commencement of proceedings with respect thereto. The Board of Arbitration shall
cause its written decision made by the Board of Arbitration (either prior to or
after the expiration of such 30 calendar day period) shall be final, binding and
conclusive on MCI and Executive and entitled to be enforced to the fullest
extent permitted by law and entered in any court of competent jurisdiction. The
party against whom any decision is rendered by the Board of Arbitration shall
pay (i) its own expenses in relation to any arbitration, including but not
limited to such party's attorneys' fees, (ii) the expenses and fees of the Board
of Arbitration, and (iii) all expenses, including but not limited to attorneys'
fees, of the prevailing party to any such arbitration. Notwithstanding anything
in this Agreement to the contrary, nothing in this Agreement shall restrict or
prohibit any party to any arbitration under this Section from obtaining
injunctive relief in connection with any claim hereunder.
18. DEFINITIONS.
(a) The term "Date of Termination" means the earlier of (1) the date
upon which MCI gives notice to the Executive of the termination of his
employment with MCI or (2) the date upon which the Executive ceases to serve as
an employee of MCI.
(b) The term "Involuntary Termination" means the termination of the
employment of Executive without his express written consent, and shall include a
material diminution of or interference with the Executive's duties,
responsibilities and benefits as President of MCI, including (without
limitation) any of the following actions unless consented to in writing by the
Executive; (1) a change in the principal workplace of the Executive to a
location outside of a 60 mile radius from MCI's headquarters office as of the
date hereof; (2) a material demotion of the Executive; (3) a material reduction
in the number or seniority of other MCI personnel reporting
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to the Executive or a material reduction in the frequency with which, or in the
nature of the matters with respect to which, such personnel are to report to the
Executive, other than as part of an MCI-wide reduction in staff; (4) a material
adverse change in the Executive's salary, perquisites, benefits, contingent
benefits or vacation, other than as part of an overall program applied uniformly
and with equitable effect to all members of the senior management of MCI or the
Company; and (5) a material permanent increase in the required hours of work or
the workload of the Executive. The term "Involuntary Termination" does not
include Termination for Cause or termination of employment due to retirement,
death, disability or suspension.
(c) The terms "Termination for Cause" and "Terminated for Cause" mean
termination of the employment of the Executive because of the Executive's
personal dishonesty, willful misconduct, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses), incompetence, or
material breach of any provision of this Agreement. No act, or failure to act,
on the Executive's part shall be considered "willful" unless the Executive has
acted (or failed to act) with an absence of good faith and without reasonable
belief that the Executive's action or failure to act was in the best interest of
MCI.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
MOBILE CONSULTANTS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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