Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") made by and between
FIRST CITIZENS BANC CORP, an Ohio corporation ("FCBC") and XXXXX X. XXXXXXXX
(the "Employee"), WITNESSETH THAT:
WHEREAS, FCBC has been organized as a financial holding company and
has various subsidiaries that provide financial and non-financial products and
services (FCBC and all entities that are subsidiaries of FCBC, including those
subsidiaries created in the future, are collectively referred to as the
"Companies" and may be separately referred to as the Company.); and
WHEREAS, FCBC will retain the Employee to provide legal and
managerial services on behalf of the Companies; and
WHEREAS, the Employee desires to accept employment with FCBC upon
the terms and conditions described herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions contained herein, the parties agree as follows:
1. EMPLOYMENT AND TERM. FCBC hereby agrees to retain the Employee,
and the Employee hereby accepts employment, based upon the terms and conditions
set forth in this Agreement. This Agreement shall commence on a date to be
designated by the Employee (the "Commencement Date"), which date shall not be
later than January 1, 2003, and shall continue for a period of five (5) years
after the Commencement Date, or until otherwise terminated in accordance with
its provisions (the "Term").
2. DUTIES. During the Term, the Employee shall be employed as a
senior vice president and the general counsel of FCBC. The Employee may, at the
sole option of FCBC, be named to similar offices at any or all of the other
Companies. The Employee's duties shall include direct day-to-day oversight of
the legal affairs of the Companies and such other duties consistent therewith,
as may, from time to time, be assigned by FCBC or its appropriate corporate
officers. The Employee will provide the general corporate, contractual and other
general legal services needed by the Companies; provided, however, that the
parties anticipate that (a) collection matters and other litigation, (b) matters
that exceed the qualifications or experience of the Employee, and (c) matters
that exceed the time reasonably available to the Employee will be referred to
other legal counsel. The Employee will also participate in the management of the
Companies in the specific respects requested, from time to time, by FCBC or its
appropriate corporate officers. The Employee will devote his full professional
working time to the business of the Companies; provided that he shall have a
reasonable opportunity to conclude such legal matters as he has previously
accepted but has been unable to finish by the Commencement Date. The Employee
shall use his best efforts to perform any work needed to finish such matters
outside of FCBC's normal working hours.
3. COMPENSATION. During the Term, in consideration of the Employee's
performance of his duties and obligations, FCBC shall provide the Employee with
the compensation described herein. The Employee's compensation shall be subject
to and reduced by any applicable withholding, social security or other taxes and
any other legally required deductions.
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(a) SALARY. During the Term, FCBC shall pay to the Employee a
gross salary calculated at the rate of One Hundred Thirty-Five
Thousand Dollars ($135,000.00) per annum. The salary of the
Employee shall be reviewed annually, giving due consideration
to his performance, the financial performance of FCBC, the
increases awarded to similar officers of the Companies and all
other relevant factors. The Employee shall be considered for
increases in light of such factors. The salary of the Employee
shall not be decreased.
(b) FRINGE BENEFITS. During the Term, FCBC shall make available to
the Employee those fringe benefits, including medical and
retirement benefits, which are offered to, and upon the same
terms and conditions that are applicable to, the executive
officers of the Companies. The Employee shall be entitled to
four (4) weeks vacation each calendar year beginning in 2003.
(c) EXPENSES. FCBC shall reimburse the Employee for all of his
reasonable and appropriate out-of-pocket expenses incurred in
the course of his employment, which shall include (but not be
limited to):
(i) travel and related expenses incurred to perform his
duties while away from the main office of FCBC;
(ii) normal expenses and dues necessary to maintain his
license to practice law and his membership in any
professional organizations to which he presently
belongs;
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(iii) reasonable continuing education expenses; and
(iv) any professional insurance appropriate respecting
Employee's activities.
The Employee shall submit any reports and/or documentation
reasonably requested by FCBC to verify and support a request for reimbursement
of expenses.
4. TERMINATION. FCBC shall have the right to terminate the
Employee's employment for Cause (as defined herein). "Cause" shall consist of
any one or more of the following:
(a) The Employee's death;
(b) Refusal, failure or inability (except as limited by law or the
policies of the Companies in the event of a disability) of the
Employee to perform his duties.
(c) Any dishonesty or defalcation by Employee whether it occurred
in securing his employment or in performing his duties;
(d) Any employment or activity of the Employee which FCBC
reasonably deems to be in material conflict with the
Employee's duties or to present a material risk of injury or
harm to FCBC.
(e) Employee's material breach of, or failure to comply with, any
provision or term of this Agreement; or
(f) Employee's performance of any material act, or bad faith
failure to take any reasonable action, which detrimentally
affects the Employee's ability to perform his duties.
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If the Employee's employment is terminated in accordance with this
paragraph 4, then upon the effective date of termination, FCBC shall only be
obligated to pay the Employee that proportionate part of the Employee's base
salary which is allocable solely to the period prior to termination, less any
sums previously paid for such period.
5. RETURN OF PROPERTY. Upon the termination of this Agreement for
any reason, the Employee will immediately surrender to FCBC, in good condition,
the books, accounts, records, memoranda, keys, computer disks, computer
passwords, any credit cards, and any other property or information of any
nature, tangible or intangible, which are in Employee's possession or under his
control and which belong to FCBC. In the event that any of such items are not
returned, FCBC shall have the right to recover such property or to recover or
deduct from any compensation payable to the Employee the value, or, at FCBC's
sole option, the replacement costs of such items, plus all proper and reasonable
costs, attorneys' fees and expenses incurred in searching for, taking, removing,
and recovering such property or its value or replacement cost.
6. CONFIDENTIALITY. The Employee agrees that all knowledge or
information concerning the Companies' business operations, business plans,
finances, financial products, customers, marketing and interest-setting policies
and the names and financial information concerning all persons or entities that
do business with the Companies, except information which is now or hereafter
becomes part of the public domain through no fault of the Employee, constitute
"Confidential Information" of the Companies. The Employee agrees that he shall
not divulge or disclose any Confidential Information of the Companies and shall
not use Confidential Information of the Companies for his benefit or to the
detriment of the Companies.
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7. SURVIVAL, INDEPENDENT CONSTRUCTION AND REMEDIES. The covenants
and obligations of the Employee contained in paragraph 6 of this Agreement shall
survive any termination of this Agreement. They are of the essence of this
Agreement and shall be construed as independent of any other provisions of this
Agreement. The existence of a claim or cause of action of the Employee against
the Companies, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by FCBC of these covenants and
provisions.
The Employee acknowledges that a breach of any of the provisions of
paragraph 6 will cause continuing and irreparable harm to FCBC for which it
would not be compensated adequately by money damages. The Employee agrees that,
in the event of an actual or threatened breach, in addition to any other
remedies available to it, FCBC should be entitled to immediate and permanent
injunctions to prevent the Employee from such activity.
8. ASSIGNMENT. The Employee's rights and obligations under this
Agreement are personal and are not transferable by assignment or otherwise, and
any attempt to do so shall be void. FCBC's rights and obligations under this
Agreement are assignable if such assignment is related to the merger of FCBC
with another financial services entity, or related to the sale or transfer of
substantially all of the assets of FCBC.
9. NOTICE. All notices, requests, demands or instructions may, or,
when required by this Agreement, shall, be in writing and delivered in person or
sent by certified mail (or regular mail if the certified mail is returned
unclaimed) postage prepaid and addressed as follows:
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TO THE EMPLOYER: First Citizens Banc Corp
c/o The Citizens Banking Company
X.X. Xxx 0000
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx
TO THE EMPLOYEE: Xxxxx X. XxXxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx, Xxxx 00000
A notice shall be effective upon the actual receipt of it, except in the case of
notice by regular mail, which shall be deemed effective three (3) days after it
is delivered to the U.S. Postal Service. Either party may, by notice to the
other, change its or his address for the purpose of any future notice to that
party.
10. SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in a manner that is effective and valid under
applicable law, but, if any provision of this Agreement is held to be invalid,
illegal, or unenforceable under any applicable law or rule in any jurisdiction,
such provision will be ineffective only to the extent of the invalidity,
illegality, or unenforceability in that jurisdiction. The remainder of this
Agreement, and the application of the provision to other persons and
circumstances or in other jurisdictions, shall not be affected hereby, and the
intent of the parties as set forth herein shall be enforced to the fullest
extent permitted by law. The parties shall attempt to replace any invalid
provision with a legally valid provision which follows the original intent of
the parties as closely as possible.
11. TITLES AND CAPTIONS. All titles and captions are for convenience
only, and do not form a substantive part of this Agreement, and shall not
restrict or enlarge any substantive provisions of this Agreement.
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12. PRONOUNS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or persons may require.
13. WAIVER OR MODIFICATION. No provisions of this Agreement may be
waived, changed, modified or discharged orally but only by an agreement in
writing signed and executed by the party against whom enforcement of any waiver,
change, modification or discharge is sought. No delay on the part of any party
in the exercise of any rights or remedy shall operate as a waiver thereof. The
failure of either party to insist in any one or more instances, upon the
performance of any of the terms or conditions of this Agreement shall not be
construed as a waiver or relinquishment of any right granted hereunder or of the
future performance of any such term, covenant or condition, but the obligations
of either party with respect thereto shall continue in full force and effect.
14. ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties and supersedes any prior understandings and
agreements between them respecting the within subject matter. There are no
representations, agreements or understandings, oral or written, between or among
the parties hereto relating to the subject matter of this Agreement which are
not fully expressed herein.
15. BINDING EFFECT. This Agreement shall inure to the benefit of,
and shall be binding upon, the parties, their heirs, executors, successors and
assigns.
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IN WITNESS WHEREOF, the parties have executed this Employment
Agreement this ______ day of ________________, 2002.
SIGNED AND ACKNOWLEDGED FCBC:
IN THE PRESENCE OF: FIRST CITIZENS BANC CORP
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Witness Its: President
/s/ Xxxxxxxx X. Xxxx
--------------------
Witness
EMPLOYEE:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxx X. XxXxxxxx
------------------- ---------------------
Witness Xxxxx X. XxXxxxxx
/s/ Xxxxxxxx X. Xxxx
--------------------
Witness
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