Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made by and between
THE CITIZENS BANKING COMPANY, an Ohio corporation, ("CBC") and GEORGE E.
STEINEMANN (the "Employee").
RECITALS
A. The Employee has, for some time, been active as a licensed
seller of investment products and financial advisor.
B. CBC operates a trust department and intends to offer financial
advice and sell certain investment products.
C. The parties desire to provide for the employment of the
Employee with CBC in connection with the trust and investment activities of CBC
in accordance with the terms and conditions of this Agreement.
AGREEMENT
In consideration of the premises and the mutual covenants and
conditions set forth herein, the parties agree as follows:
1. EMPLOYMENT AND TERM. CBC will employ Employee as a senior
vice-president to perform the duties described in this Agreement and Employee
accepts employment on the terms and conditions stated herein. The employment of
Employee shall begin on the _____ day of ____________, _______ (the "Employment
Date") and continue for an initial term of three (3) years after that date,
subject only to termination only in accordance with specific provisions of this
Agreement (the "Initial Term"). This Agreement shall be automatically renewed
for subsequent terms of three (3) years each (each a "Renewal Term") at the
conclusion of the Initial Term or each Renewal Term unless (a) either party
shall have given the other party written notice of its or his intention to
terminate the Agreement at least sixty (60) days prior to the expiration of the
Initial Term or Renewal Term, as the case may be, or (b) the Agreement has been
previously terminated in accordance with its terms. (The entire duration of
Employee's employment shall be referred to as the "Term".) Each renewal or
extension of this Agreement shall be based upon the terms and conditions stated
herein.
2. DUTIES. Employee shall solicit customers for the trust
services and the investment products of First Citizens Banc Corp and its
subsidiaries (collectively "FCBC"), shall provide trust services and financial
planning and advice to FCBC's customers, and, at the option of CBC, shall
perform any or all of the following specific duties:
(a) To generally promote the trust services and the
investment products of CBC and/or FCBC;
(b) To provide the trust services and the investment
products needed by customers of FCBC;
(c) To provide such oversight and management of the trust
services and/or the investment sales activities as is requested by
CBC and/or FCBC;
(d) To support and assist, to the extent of his abilities,
the efforts of CBC and/or FCBC to sell investment products and trust
services;
(e) To participate in such management and supervising
activities as are reasonably requested by CBC and/or FCBC; and
(f) To perform other related activities that are reasonably
requested by CBC and/or FCBC.
Employee will undertake his employment and perform his duties using his best
efforts to promote the enlargement, more efficient function and increase in
income of the business of CBC. CBC shall retain the right to supervise and
direct the activities of Employee and Employee shall comply with any specific
directions given by CBC and/or FCBC regarding the manner of performance of his
duties. Employee shall perform his duties as full-time, salaried employee, and
Employee acknowledges that he will not be entitled to overtime pay. During his
employment, the Employee will generally work during CBC's normal business hours
and will devote such time, interest and effort to the performance of this
Agreement as is fairly and reasonably necessary. Nothing contained in this
Agreement shall preclude CBC from assigning other employees to perform duties
similar to those duties of Employee. Unless the parties agree otherwise in
writing, during the employment term the primary offices assigned to the Employee
from which he will provide his services shall be located in Erie and/or Huron
County, Ohio; provided, however, that CBC may from time to time require the
Employee to travel temporarily to other locations on CBC's business.
3. COMPENSATION. In consideration of Employee's performance of
his duties, CBC will pay to him the following:
(a) Base Salary. Employee shall be paid a gross base salary
computed at the rate of One Hundred Twenty-Five Thousand Dollars
($125,000.00) per year (the "Base Salary"). The Base Salary shall be
paid in approximately equal biweekly installments on the same day
that executive officers of CBC are paid. CBC's board of directors
shall review the Base Salary then being paid to the Employee not
less frequently than every twelve months beginning in 2004.
Following such review, CBC may in its discretion increase (but shall
not be
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required to increase) the Base Salary of the Employee. CBC shall not
decrease the Base Salary during the term of this Agreement.
(b) Incentive Compensation. In addition to his Base Salary,
Employee shall be paid incentive compensation in accordance with the
Relationship Management Performance and Sales Incentive Plan as it
may be adopted, supplemented and modified from time to time by CBC
(the "Incentive Compensation"). Until termination of this Agreement,
during each Contract Year (as defined herein) the Employee shall
have the right to draw from CBC a sum that, together with any
commissions previously paid for the Contract Year shall not exceed a
total of Fifty Thousand Dollars ($50,000.00) during the Contract
Year. Any sum so drawn by the Employee shall be applied to and
deducted from the Incentive Compensation otherwise due to the
Employee for that Contract Year. If, during the initial Contract
Year of this Agreement, the sum drawn by the Employee exceeds the
Incentive Compensation due to the Employee for such Contract Year,
then the difference between the sum drawn and the Incentive
Compensation due for such Contract Year shall not be applied to or
deducted from any Incentive Compensation due for the second Contract
Year of this Agreement. If, during the second or any subsequent
Contract Year, the sum drawn by the Employee exceeds the Incentive
Compensation due to the Employee for such Contract Year, then the
difference between the sum drawn and the Incentive Compensation due
for such Contract Year shall be applied to and deducted from the
Incentive Compensation due for the next subsequent Contract Year.
The phrase "Contract Year" as used herein shall mean the one (1)
year period beginning on the date of this Agreement or on the same
day of each year thereafter during the Term.
(c) Deferred Compensation. Upon the expiration of the second
year after the Employment Date (provided that this Agreement has not
been terminated by CBC in accordance with its terms or by the
Employee), CBC shall create an account in the name of the Employee
pursuant to the then-existing Deferred Compensation Plan of CBC and
credit such account with the sum of Twenty-Four Thousand Dollars
($24,000.00).
(d) Deductions. The Base Salary and the Incentive
Compensation to be paid to Employee shall be reduced by any legally
required deductions.
(e) Benefits. During the Term, CBC shall make available to
Employee the fringe benefits that it provides to employees of CBC
based upon the same terms and conditions (including the same vesting
schedule and waiting periods) that apply to other employees.
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(f) Reimbursement of Expenses. CBC shall reimburse the
Employee, in accordance with the normal policies of CBC, for his
reasonable and necessary out-of-pocket expenses incurred to perform
his duties under this Agreement, including (but not limited to):
(i) travel and related expenses incurred to perform his
duties while away from the main office of CBC;
(ii) normal expenses to secure and maintain any licenses
necessary for the Employee to perform his duties under the
Agreement; and
(iii) reasonable continuing education expenses.
The Employee shall submit any reports and/or documentation
reasonably requested by CBC to verify and support a request for
reimbursement of expenses.
(g) Change in Control. Upon the occurrence of any "change in
control" (as defined herein) of CBC or FCBC, the Employee shall have
the right to terminate this Agreement by providing written notice to
CBC within sixty (60) days after such change in control.
Notwithstanding the foregoing, the Employee's obligations and CBC's
rights under Sections 6, 7 and 8 of this Agreement shall survive the
termination of this Agreement, and, in the event the Employee
terminates his employment following a change in control, the
Employee shall be entitled to receive (i) the unpaid portion of
Employee's annual Base Salary and benefit payments earned up to the
date of such termination, and (ii) a lump-sum amount equal to the
Employee's Base Salary for the period from the date of termination
until the end of the then existing Initial Term or Renewal Term, as
the case may be, of this Agreement. For the purposes of this
Agreement, the term "change in control" shall mean the following
events:
(1) When any "person" as defined in Section 3(a)(9) of
the Securities Exchange Act of 1934 (the "Exchange Act") and
as used in Sections 13(d) and 14(d) thereof, including a
"group" as defined in Section 13(d) of the Exchange Act,
directly or indirectly, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act, as amended from
time to time), of securities of CBC or FCBC representing more
than fifty percent (50%) of the combined voting power of CBC
or FCBC's then outstanding securities; or
(2) The completion of a transaction requiring
shareholder approval for the acquisition of substantially all
of the stock or assets of CBC or FCBC by an entity other than
CBC or FCBC or any merger of
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CBC or FCBC into another company in which CBC or FCBC, as the
case may be, is not the surviving entity.
(h) Effect of Termination. Except as provided in
Section 3(g), if Employee's employment is terminated by CBC as
provided in this Agreement or by the Employee, CBC shall only
pay that proportionate part of the Base Salary which is
allocable solely to the period prior to the termination.
4. TERMINATION. Except as provided in Section 1 of this
Agreement, CBC shall only have the right to terminate Employee's employment for
"Cause". "Cause", as used in this Agreement, shall consist of any one or more of
the following:
(a) Employee's death;
(b) Refusal, failure or inability (except as limited by law
or by the policies of CBC in the event of a disability) of the
Employee to perform his duties;
(c) Employee's material breach of or failure to comply with
any provision or term of this Agreement;
(d) Any fraud, defalcation or material conflict of interest
by Employee;
(e) Employee's performance of any material act, or failure
to take any material action, in bad faith to the detriment of CBC;
and
(f) Suspension, loss of or failure to maintain, for a period
exceeding thirty (30) days, any license necessary for Employee to
perform his duties.
5. RETURN OF PROPERTY. Upon termination of Employee's employment
for any reason, Employee will immediately surrender to CBC in good condition,
the books, accounts, records, memoranda, keys, computer disks, computer
passwords, credit cards and other property or information of any nature,
tangible or intangible, which are in Employee's possession or under his control
and which belong to CBC.
6. RESTRICTIVE COVENANTS. Employee acknowledges that he has not
previously been engaged in providing trust services, that CBC will provide
certain training and the opportunity to give experience in providing trust
services, that he will have the opportunity to meet present customers to whom
CBC provides trust services and that he will be compensated for securing new
customers for CBC. Employee also acknowledges that, as an employee of CBC, he
will be exposed to confidential information about products, business and
customers of CBC. As a result, it would be unfair for him to compete or engage
in the activities restricted by
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Paragraph 6 and 7 of this Agreement and the restrictions are necessary to
protect the legitimate business interests of CBC. Therefore, during the Term and
for a period of one (1) year after the termination for any reason of the
Employee's employment with CBC, whether as a result of expiration of the Term,
Cause, or voluntary termination by Employee (whether or not such constitutes a
breach), the Employee agrees that:
(a) Employee shall not, within fifty (50) miles of any
business location of CBC, directly or indirectly, own, manage,
operate, control, be employed by, participate in, or be connected in
any manner with the ownership, management, operation, or control of
any business similar to, or in competition with, the activities of
CBC in offering financial services, investment products, or trust
services; provided that, after the Term, this restrictive covenant
shall not preclude the Employee from selling investment products or
offering financial advice as he did prior to the Term as long as
those customers to whom he sells any products either (i) were
customers of the Employee before the commencement of the Term, or
(ii) were not customers of CBC at any time during the Term.
(b) Employee shall not, directly or indirectly, solicit,
encourage, entice or induce any of the employees of CBC to terminate
his or her employment relationship with CBC.
(c) Except on behalf of CBC, Employee shall not, directly or
indirectly, solicit, attempt to solicit, or call on any customer of
CBC, or induce or attempt to induce any such customer to curtail,
divest or cancel any potential business with CBC; provided that,
after the Term, this restriction shall not preclude the Employee
from selling investment products as he did prior to the Term to
those customers to whom he sold investment products before the
commencement of the Term.
(d) Employee shall not, directly or indirectly, otherwise
interfere with any business or customer relationship of CBC.
7. CONFIDENTIALITY AND CUSTOMER INFORMATION. Employee agrees that
the names of all persons having business dealings with CBC, all knowledge or
information concerning CBC's business operations, business plans, finances,
products, customers, sales and pricing policies, and all knowledge or
information that relates in any way to the marketing or management of CBC's
products or services, except information which is now or hereafter becomes part
of the public domain through no fault of Employee, constitutes "Confidential
Information" of CBC. Employee agrees that he shall not divulge or disclose any
Confidential Information of CBC and shall not use Confidential Information of
CBC for his benefit or to the detriment of CBC.
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8. INDEPENDENT CONSTRUCTION AND REMEDIES. The covenants contained
in paragraphs 6 and 7 of this Agreement are of the essence of the Agreement and
shall be construed as independent of any other provisions of this Agreement. The
existence of any claim or cause of action of Employee against CBC, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by CBC of these covenants and provisions. Employee acknowledges that
a breach of any of the provisions of paragraphs 6 and 7 will cause continuing
and irreparable harm to CBC for which it would not be compensated adequately by
money damages. Employee agrees that, in the event of any actual or threatened
breach, in addition to any other remedies available to it, CBC shall be entitled
to immediate and permanent injunctions to prevent Employee from such activity.
9. NO ASSIGNMENT. Employee's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, and any attempt
to do so shall be void.
10. CONFIDENTIALITY OF AGREEMENT. Employee agrees that all terms,
provisions, and conditions of this Agreement are and shall remain confidential
and shall not be disclosed to any person not a party hereto, excepting any
attorney or advisor consulted by Employee with regard to this Agreement.
11. NOTICE. All notices, requests, demands or instructions to be
given hereunder shall be in writing and delivered in person or sent by certified
mail (or regular mail if the certified mail is returned unclaimed) addressed as
follows:
To the Employee: George E. Steinemann
1123 Cedar Point Road
Sandusky, Ohio 44870
To CBC: The Citizens Banking Company
100 E. Water Street
Sandusky, Ohio 44870
Attn: David A. Voight
The above addresses may be changed by a party serving notice as herein provided.
12. MISCELLANEOUS.
(a) 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.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
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(c) Waiver or Modification. No delay on the part of any
party in the exercise of any right or remedy shall operate as a
waiver thereof. 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.
(d) 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.
(e) Pronouns. If the context of this Agreement so requires,
the singular includes the plural (and vice-versa) and the masculine,
feminine and neuter include each other.
(f) Entire Agreement. This Agreement sets forth the entire
understanding of the parties, and any modification or waiver of any
of the provisions of this Agreement shall be effective only if made
in writing and executed with the same formality as this Agreement.
(g) Binding Effect. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the ________ day of _________________, 2002.
SIGNED AND ACKNOWLEDGED THE CITIZENS BANKING COMPANY:
IN THE PRESENCE OF:
/s/ James E. McGookey By: /s/ David A. Voight
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Witness
/s/ Kathleen A. Bodi
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Witness
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EMPLOYEE:
/s/ James E. McGookey /s/ George E. Steinemann
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Witness George E. Steinemann
/s/ Lisa K. Rhenish
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Witness
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