EXHIBIT 10j
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of the 4th day of December,
1997, between DIVERSIFIED BUSINESS CREDIT, INC. ("DBCI") and NATIONAL CITY
BANCORPORATION ("NCB") (hereafter collectively referred to as "Employer") and
XXXXXX X. XXXXX (hereafter referred to as "Employee").
1. Employment. Commencing January 1, 1998, Employer shall employ
Employee as Chief Executive officer and President of DBCI for a period of two
(2) years (initial term).
2. Option. Upon the expiration of the original two (2) year term
hereof, Employee shall have the option to extend the term of this Agreement for
an additional two (2) year period (option term). This option shall be
automatically exercised unless Employee gives Employer notice of his intent not
to exercise the option prior to the expiration of the initial term hereof.
3. Duties. During the initial term, and option term, if exercised,
Employee shall serve DBCI to the best of his ability as Chief Executive Officer
and President of DBCI. Employee shall devote his full time, energy and skill to
such employment during normal business hours, except during periods of vacation
or disability. Employee shall not perform any services for other persons except
with the prior, written consent of Employer and Employee shall not at any time
or in any way compete with the Employer or be employed by or associated with any
individual, firm, company or business which in any way competes with the
Employer. Employee shall report directly to the Chairman of the Board of
Directors of NCB, or the Chairman's designee, or the Board's designee. In no
event shall Employee be required to relocate outside the Minneapolis-St. Xxxx
metropolitan area, nor be required to perform duties outside of such area for
extended periods of time.
4. Authority. Employee shall have final authority over all hiring and
terminating of DBCI personnel with the concurrence of the Chairman of the Board
of Directors of NCB, or the Chairman's designee, or the Board's designee,
subject to compliance with applicable law.
5. Board of Directors. Employee shall be elected to the Board of
Directors of DBCI while he is an employee of DBCI for each year during the
initial term of this Agreement, and the option term, if exercised.
6. Base Salary. Employee shall receive an annual base salary of Two
Hundred Eighty Thousand Dollars ($280,000.00) per year, paid in equal
semi-monthly installments. In no event shall Employee's annual base salary be
decreased in any year from the annual base salary existing in any prior year,
but the base salary shall be reviewed annually for increases.
7. Bonus.
(a) Annual Amount. Employee shall be paid a bonus equal to
five percent (5%) of the combined pretax profits of DBCI for each
fiscal year of DBCI, or portion thereof, during which Employee is
employed under this Agreement. "Pretax profits" shall be calculated and
determined as provided in paragraph (b) of this Section 7. In no event
shall the bonus, if any, due Employee under this Section 7 exceed an
amount equal to two hundred percent (200%) of the annual base salary
paid to Employee in the fiscal year of DBCI with respect to which the
bonus is calculated.
(b) Calculation of Profits (Losses). Pre-tax profits of DBCI
shall be determined in accordance with generally accepted accounting
principles, except, with respect to the treatment of losses on loans
and loss carry forwards which, for purposes of this Agreement alone,
shall not be equal to bad debt reserves established by DBCI, but, in
lieu, shall be determined as provided in this paragraph (b) of this
Section 7. "Losses on loans" shall be the aggregate amount of any
unpaid loan balances, principal and interest, reflected on the books of
DBCI which are determined for the year under consideration to be
uncollectible in whole or in part in the opinion of the Board of
Directors of DBCI. In exercising their judgment and discretion, the
Board of Directors will consider all pertinent evidence relating to an
indebtedness, including the value of the collateral, if any, securing
the debt, the financial condition of the debtor and whether legal
action will, in all probability, not result in the satisfaction of any
judgment obtained. If such calculation results in combined pretax
losses, such combined pretax losses shall be carried forward to
subsequent years in either the initial term or the option term.
(c) The following hypothetical illustrates the intended
operation and effect of paragraphs (a) and (b) of this Section 7.
(i) Assume that, for the fiscal year under
consideration, DBCI has income before taxes and provision for
loan losses of $1,100,000.
(ii) There is no reduction to income before taxes and
provision for loan losses as a result of loan loss reserves
established for DBCI.
(iii) Assume, however, that the Board of Directors of
DBCI determines that, for the year under consideration, unpaid
loan balances, including principal and accrued interest
reflected on the books of DBCI, in the amount of $100,000 are
uncollectible.
(iv) Income before taxes and provision for loan
losses would be reduced by the amount of $100,000, resulting
in pretax profits of $1,000,000.
(v) Under this hypothetical, Employee would be paid
five percent (5%) of pretax profits or $50,000 (5% x
$1,000,000).
(d) Short Year, Payment. If Employee's employment terminates
prior to the end of any fiscal year, the calculation of pre-tax
earnings shall be made as of the close of the fiscal quarter-annual
period immediately succeeding Employee's termination of employment. The
bonus provided for in this Section 7, if any be due, shall be paid no
later than the fifteenth (15th) day of the fourth (4th) calendar month
following the close of the fiscal year for which the bonus is
determined.
8. Fringe Benefits. Employee shall receive the use of an Employer-owned
automobile, and shall be provided a parking space in the immediate vicinity of
DBCI's main office at no cost to Employee. Employee shall receive five (5) weeks
of paid vacation per year; provided, however, no more than one week of paid
vacation may be carried over from one calendar year to the next calendar year
with the remainder of any unused vacation expiring as of the calendar year end.
Employee shall also participate in the pension and other qualified retirement
plans of Employer, in the same manner as employees of National City Bank (the
"Bank"), to wit, the Retirement Plan (defined benefit pension plan) and
Incentive Savings Plan (401-K), in all fringe benefits, perquisite and benefit
programs as made available to officers or employees of the Bank (excluding
Bank's
Senior or Middle Management Incentive Compensation Plans as adopted and
effective February, 1993) and in the group term life insurance, major medical,
disability, hospitalization, dental and accident insurance plans as made
available to Bank employees.
9. Expense Account. Employee shall be reimbursed for all ordinary
expenses incurred by him in performance of his duties against presentation of
appropriate vouchers.
10. Disability. If, during the initial term or the option term, both
Employer and Employee agree Employee is prevented from carrying on his duties in
accordance with the terms of this Agreement as a result of mental or physical
illness or injury ("disability"), Employer shall continue Employee's full
compensation until the last day of the sixth calendar month following the month
during which the onset of such disability occurs. Thereafter, Employee's
compensation shall be discontinued. If the parties do not mutually concur that a
disability exists or has occurred, the determination shall be made by a
reputable practicing physician, not regularly employed or consulted by any party
hereto, appointed by the Xxxx of the School of Medicine of the University of
Minnesota, upon application by any party and the determination of the appointed
physician on the issue of disability shall be in writing and shall be binding
upon all of the parties. In the event the medical opinion deems Employee
disabled within the meaning of this paragraph, then the date of Employee's
disability shall be the date the written medical opinion is issued. In the event
the medical opinion determines that Employee is not disabled, then this
Employment Agreement shall remain in full force and effect. All costs related to
the issuing of the medical opinion hereunder shall be divided equally between
Employer and Employee. If Employee is found to be disabled and has unused
vacation time for the fiscal year, Employee may use any part or all thereof
before his absence will be deemed to be disability time hereunder. To the extent
that Employer carries
disability insurance on Employee and pays premiums therefor, the disability
benefits received thereunder shall be paid over to the Employee, and the
compensation to be paid to Employee under this section shall be reduced by such
disability benefits. All disability benefits shall terminate at Employee's
death.
11. Events of Termination. This agreement shall terminate, prior to its
scheduled expiration as follows:
(a) by mutual agreement of the parties;
(b) upon death of Employee;
(c) upon expiration of the six-month disability period
provided for in Section 10, provided, however, that said expiration
shall not effect Employee's rights to receive disability insurance
benefits following the expiration; or
(d) the Employer may terminate this Agreement by written
notice to Employee, immediately, if: (1) Employee is convicted of a
felony; (2) Employee is determined by a court of law to have committed
a fraudulent act; or (3) Employee is determined by a court of law to
have acted dishonestly with respect to any business of Employer.
12. Nondisclosure of Proprietary Information. Except in the ordinary
course of his duties for and on behalf of Employer, unless authorized in writing
by Employer, Employee shall not disclose to any person or entity (other than
Employer or Bank) any of Employer's or Bank's trade secrets, designs, processes,
technology, marketing plans, customer lists or other information as to the
services, activities, operations or plans of Employer or Bank which is not
generally made available to the public at large, either during employment or
afterwards. All records, documents or other tangible property relating in any
way to the business of Employer which are conceived or generated by Employee or
come into his possession during his employment shall be and remain the exclusive
property of Employer, and Employee agrees promptly to return all such documents
and tangible property to Employer on termination of his employment.
13. Attorney's Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs, and necessary
disbursements in addition to any other relief to which he or it may be entitled.
14. Notices. Any notices to be given hereunder by either party to the
other may be effective either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing on the
signature page of this Agreement, but each party may change its or his address
by written notice in accordance with this paragraph. Notices delivered
personally shall be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of three (3) days after mailing.
15. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Employee by the Employer and contains all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever; provided, however, nothing contained herein shall be
construed to alter, amend or modify any of the terms or provisions of that
certain agreement by and between Employee and NCB, dated June 10, 1986 and
entitled "Salary Continuation Agreement." Each party to this Employment
Agreement acknowledges that no representations, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Agreement shall be valid
or binding. Any modification of this Agreement will be effective only if it is
in writing signed by the party to be charged.
16. Partial Invalidity. If any provision in this Employment Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.
17. Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota.
18. Binding Effect. This Agreement is and shall be binding on the
heirs, personal representatives, legal representatives, successors and assigns
of the parties hereto.
19. Assignment. Employee may not assign this Agreement. Employer may
assign this Agreement only upon written consent of Employee.
20. Superseding Agreement. This Agreement supersedes and replaces the
Employment Agreement between DBCI, NCB and Employee dated January 1, 1996;
provided, however, said Employment Agreement dated January 1, 1996 shall
continue in effect for the remainder of the calendar year ended December 31,
1997.
EXECUTED at Minneapolis, Minnesota, the day and year first above
written.
EMPLOYEE: EMPLOYER:
DIVERSIFIED BUSINESS CREDIT, INC.
3970 Multifoods Tower
/s/ Xxxxxx X. Xxxxx 00 Xxxxx Xxxxx Xxxxxx
-------------------------- Xxxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000 By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Its: Chairman
NATIONAL CITY BANCORPORATION
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Its: Chairman and CEO
GUARANTY
National City Bank of Minneapolis hereby unconditionally guarantees the
performance by Employer of all terms, duties, obligations and conditions
(including but not necessarily limited to the payment of all Base Salary,
Bonuses and Fringe Benefits accorded to Employee) imposed upon Employer by the
foregoing Employment Agreement.
NATIONAL CITY BANK OF MINNEAPOLIS
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Its: Chief Executive Officer
