Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") made by and between MR.
MONEY FINANCE CO., an Ohio corporation (the "Employer") and XXXXX X. XXXXXX XX
(the "Employee"), WITNESSETH THAT:
WHEREAS, the Employer has been organized as a finance company to
provide non-conforming lending to eligible customers; and
WHEREAS, the Employer will retain the Employee to manage its
day-to-day business operations and to provide the services described herein; and
WHEREAS, the Employee desires to accept employment with the Employer
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. The Employer 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 the
22nd day of April, 2002 and continue until the 31st day of December, 2004 or
until otherwise terminated in accordance with its provisions (the "Term").
2. DUTIES. During the Term, the Employee shall be employed as
president of the Employer. The Employee's duties shall include direct
responsibility for organizing, administering and conducting the Employer's
business operations. The Employee shall be responsible for establishing,
staffing and managing each of the Employer's locations. The
Employee shall be active in the day-to-day operations of the Employer, shall
supervise the loans made on its behalf and shall use his best reasonable efforts
to promote its business. The Employee shall devote his full time to the business
of the Employer; provided, however, that the Employee may continue his present
teaching activities and his present activities related to an industry
association. The Employee shall assiduously pursue the enlargement, more
efficient function and increase in profits of the Employer's business. The
Employee shall be subject to the supervisory authority of the Employer's board
of directors and shall be governed by the loan policies approved by its board of
directors. The Employer's board of directors will conduct such reviews of the
loan portfolio of the Employer as the board of directors determines are
appropriate.
3. COMPENSATION. During the Term, in consideration of the Employee's
performance of his duties and obligations, the Employer 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.
(a) BASE SALARY. During the Term, the Employer shall pay to
the Employee a gross base salary calculated at the rate of Eighty
Thousand Dollars ($80,000.00) per annum. The base salary shall be
paid in equal biweekly installments on the same day that the
executive officers of other subsidiaries of First Citizens Banc
Corp. are paid.
(b) INCENTIVE COMPENSATION. During the Term, the Employer
shall pay to the Employee twenty percent (20%) of its pretax profit
for the calendar years 2002, 2003 and 2004. During the calendar year
2003 and during each year of the Term thereafter, the
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Employer shall make a preliminary estimate of its pretax profits for
the first six (6) months of each such calendar year using the
information and records available to it. By August 15 of each such
year, the Employer shall make an advance payment of one-half (1/2)
of the estimated incentive compensation due to the Employee based
upon such pretax profits for the six (6) month period which advance
payment shall be deducted from the incentive compensation due to the
Employee for that calendar year. Any incentive compensation due to
the Employee for the period ending December 31, 2002 and the balance
of any incentive compensation due for each calendar year of the Term
thereafter shall be paid to the Employee by the next succeeding
April 30. Termination of this Agreement shall not affect the
Employee's right to incentive compensation due for a completed prior
year but shall terminate his right to any incentive compensation for
any period after the previous completed year. For purposes of this
paragraph, the Employer's "pretax profit" shall be the amount of the
"taxable income" shown on its U.S. Corporation Income Tax Return.
(c) FRINGE BENEFITS. During the Term, the Employer shall make
available to the Employee fringe benefits, including medical and
retirement benefits, upon the same terms and conditions that are
applicable to the executive officers of other subsidiaries of First
Citizens Banc Corp. with the same duration of employment as the
Employee. The Employee shall be entitled to four (4) weeks vacation
each calendar year beginning in 2002.
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4. TERMINATION. The Employer 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) Inability or failure of the Employee to perform his duties;
(b) Any dishonesty or defalcation by Employee whether it occurred in
securing his employment or in performing his duties;
(c) Any employment, activity or circumstance which the Employer
reasonably deems to be in conflict with the Employee's duties or to
present a risk of injury or harm to the Employer;
(d) Employee's breach of or failure to comply with any provision or
term of this Agreement; or
(e) Employee's performance of any act, or bad faith failure to take
any action which detrimentally affects the Employer's interest or the
Employee's ability to perform his duties.
If the Employee's employment is terminated in accordance with this
paragraph 4, then upon the effective date of termination, the Employer 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. In the event that the Employee's
employment is terminated in accordance with this paragraph, the Employer shall
also have no obligation to pay any incentive compensation due after the date of
such termination for the year during which termination occurred.
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5. RETURN OF PROPERTY. Upon the termination of this Agreement for
any reason, the Employee will immediately surrender to the Employer, 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 the Employer. In the event that any of such
items are not returned, the Employer shall have the right to recover such
property or to recover or deduct from any compensation payable to the Employee
the value, or, at the Employer'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. RESTRICTIVE COVENANT. The Employee acknowledges that his
employment with the Employer will provide him with information concerning the
market for the Employer's financial products, will acquaint him with the
customers and potential customers for such products and will furnish him with
substantial confidential business information concerning the Employer. As a
result, the Employee acknowledges that it would be unfair for him to accept
employment with a competitor of the Employer or to otherwise compete with the
business of the Employer. Therefore, in consideration of the Employer's
execution of this Agreement, the Employee agrees that, during the Term of this
Agreement and for a period of two (2) years after its termination for any
reason:
(a) The Employee shall not, within the corporate limits of Sandusky,
Ohio or at any location within fifty (50) miles of any business location
of the Employer, directly or indirectly, own, manage, operate, control, be
employed by, participate in, or be
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connected in any manner with the ownership, management, operation, or
control of any business similar to, or in competition with, any aspect of
the business of the Employer provided that this provision shall not
preclude the Employee, after the termination of this Agreement, from
acting as a mortgage broker at any location from which he has operated
prior to the execution of this Agreement.
(b) The Employee shall not, directly or indirectly, solicit,
encourage, entice, or induce any employee of the Employer to terminate his
or her employment relationship with the Employer.
(c) The Employee shall not solicit, attempt to solicit, or call on
any customer of the Employer, or induce or attempt to induce any customer
to cease doing business with the Employer.
(d) The Employee shall not interfere with or otherwise attempt to
damage or prejudice any business relationship of the Employer.
7. CONFIDENTIALITY. The Employee agrees that all knowledge or
information concerning the Employer's 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 Employer, except information which is now or hereafter
becomes part of the public domain through no fault of the Employee, constitute
"Confidential Information" of the Employer. The Employee agrees that he shall
not divulge or disclose any Confidential Information of the Employer and shall
not use Confidential Information of the Employer for his benefit or to the
detriment of the Employer.
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8. SURVIVAL, INDEPENDENT CONSTRUCTION AND REMEDIES. The covenants
and obligations of the Employee contained in paragraphs 6 and 7 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 Employer, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Employer of
these covenants and provisions.
The Employee acknowledges that a breach of any of the provisions of
paragraphs 6 or 7 will cause continuing and irreparable harm to the Employer 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, the Employer should be entitled to immediate and
permanent injunctions to prevent the Employee from such activity.
9. 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. The Employer's rights and obligations under
this Agreement are assignable if such assignment is related to the sale or
transfer of substantially all of the assets of the Employer.
10. 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: Mr. Money Finance Co.
c/o The Citizens Banking Company
X.X. Xxx 0000
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx
TO THE EMPLOYEE: Xxxxx X. Xxxxxx XX
0000 Xxx Xxxxx
Xxxxxxxxx, 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.
11. 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 thereby, 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.
12. 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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13. 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.
14. 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.
15. 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.
16. BINDING EFFECT. This Agreement shall inure to the benefit of,
and shall be binding upon, the parties, their heirs, executor, successors and
assigns.
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IN WITNESS WHEREOF, the parties have executed this Employment
Agreement this _____ day of ______________, 2002.
SIGNED AND ACKNOWLEDGED EMPLOYER:
IN THE PRESENCE OF:
/s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx
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Witness
/s/ Xxx X. Xxxxx
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Witness
EMPLOYEE:
/s/ Xxxxx Xxxxxx /s/ Xxxxx X. Xxxxxx XX
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Witness Xxxxx X. Xxxxxx XX
/s/ Xxxx X. Xxxxxxx
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Witness
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