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EXHIBIT 10.3
EMPLOYMENT WITH MR. WHITNEY
EMPLOYMENT AGREEMENT
This agreement is made and entered into this ___ day of July, 1996, by and
between The Delaware County Bank and Trust Company (hereinafter the "Bank"), an
Ohio-chartered FDIC-insured nonmember bank with its main office at 41 North
Sandusky Street, Delaware, Ohio and Thomas R. Whitney (hereinafter the
"Employee"), an individual residing at 701 Burnt Pond Road, Ostrander, Ohio
43061. Any reference to "Superintendent" herein shall mean the Ohio
Superintendent of Banks.
RECITALS
A. The Employee is being hired as Vice President and Senior Trust Officer of the
bank.
B. The Board of Directors of the Bank wants to assure the Bank of the services
of the Employee by executing a written employment agreement.
C. The parties agree that this Employment Agreement shall supersede all prior
understandings between the parties, whether oral or written.
D. In consideration of the mutual promises of the Bank and the Employee
contained in this Employment Agreement, the Bank and the Employee enter into
this Employment Agreement with the terms and conditions set forth herein.
AGREEMENT
1. Employment
The Bank agrees to employ the Employee and the Employee agrees to serve as Vice
President and Senior Trust Officer.
2. Term of Employment
The Employee is hereby employed as Vice President and Senior Trust Officer of
the Bank for an initial term commencing on August 1, 1996, and ending on the
31st day of December, 1996. At the end of this initial term, this Agreement may
be extended for successive one-year periods upon the written consent of the
Employee and the Bank as set forth herein.
3. Standards of Performance
Excluding periods of vacation and sick leave to which the Employee is entitled,
the Employee agrees to devote his best efforts and full time to the business and
affairs of the Bank and to discharge the duties appropriately assigned to the
Employee.
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4. Base Salary
The Bank agrees to pay the Employee for the term of this Agreement a salary of
Eighty-Five Thousand and 00/100 ($85,000.00) per annum (hereinafter referred to
as the "Base Salary"). The Base Salary provided for herein shall be payable no
less frequently than monthly and not later than the 10th day following the
expiration of the month.
5. Incentive Bonus to the Employee
Employee shall be entitled to participate in any bonus policy provided by
Employer at Employer's sole discretion.
6. Participation in Retirement and Employee Benefit Plans and Additional
Benefits
a. The Employee shall be entitled to participate in any plan of the Bank
relating to pension, thrift, deferred compensation, profit-sharing,
group life insurance, medical insurance, education reimbursement, or
other retirement or employee benefits that the Bank may then have in
force for the benefit of its executive employees.
7. Vacations
The employee shall be entitled, without loss of pay, to the number of vacation
days in each calendar year determined by the Board of Directors from time to
time provided that:
a. The Employee shall be entitled to an annual vacation of not less than
three (3) weeks per year.
b. The timing of the vacations shall be scheduled in a reasonable manner
by the Employee. The Employee shall not be entitled to receive any
additional compensation from the Bank for his unearned vacation time
consistent with bank policy.
8. Disability
If the Employee's employment terminates by reason of the Employee's disability,
the Employee shall be paid in accordance with the standard Disability policy of
the Bank in existence for that Employee at that time and the Employee shall not
be entitled to any additional salary benefits from the Bank and, specifically,
shall not be entitled to any additional compensation under Paragraphs 4 and 5 of
this Agreement.
9. Termination of Employment
In addition to the Bank's right to terminate the Employee at the end of the
initial term, or any one-year extension, the Bank may terminate the employment
of the Employee at any other time during the employment term. ("Employment Term"
is defined as the initial term or any additional one-year extension.)
a. In the event the Bank or its successor terminates the employment of the
Employee during the Employment Term because of the Employee's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure or refusal to perform
the duties and responsibilities assigned in this Agreement, willful
violation of any law, rule or regulation (other than traffic violations
or similar offenses) or final cease-and-desist order, conviction of a
felony or fraud or embezzlement, or material breach of any provision of
this Agreement (hereinafter collectively referred to termination for
"Just Cause"), the Employee shall have no right to receive any
compensation or other benefits for any period after such termination.
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b. In the event that the Bank or its successor terminates the employment
of the Employee during the Employment Term for any reason other than
(i) for Just Cause, (ii) the Employee's retirement at or after the
normal retirement age under a qualified pension plan maintained by the
Bank (hereinafter referred to as "Retirement"), or (iii) the Bank
decides not to extend the employment Agreement pursuant to Sections 1
and 2 of this Agreement at the end of the initial one-year term or any
one-year extension thereafter; then the Employee shall be entitled to
receive severance pay as follows:
Bank shall pay the Employee the base monthly salary for each month the
Employee is unemployed for a maximum of twelve (12) months. In the
event the Employee obtains employment within the twelve-month period,
then the Employee's monthly benefit shall cease. It is the intent of
this Agreement that the severance pay set forth herein is to defray the
Employee's costs while searching for other employment and that said
payment shall be in lieu of any unemployment benefits to which the
Employee would be entitled.
If during the term of this Agreement, the Bank merges or consolidates
with another entity (other than a holding company formed by the Bank)
and the successor, without the Employee's written consent during a
period of one year following the merger or consolidation does any of
the following: i) Reduces the Employee's base salary which was in
effect on the date of the merger or consolidation; ii) substantially
reduces benefits to be provided to the Employee under this Agreement;
or iii) requires the Employee to relocate his office to a location in
excess of a thirty (30) mile radius of Delaware, Ohio, then the
Employee shall have the right to voluntarily terminate his employment
as a result of any of these events. In the event the Employee
voluntarily terminates his employment as a result of the above events,
then the Employee shall be entitled to receive severance pay in an
amount equal to the average annual salary paid to the Employee by the
Bank during the five (5) previous years immediately preceding the
Employee's voluntary termination of employment for the above reasons.
c. Death of Employee. The employment term automatically terminates upon
the death of the employee. In the event of such death, the Employee's
estate shall be entitled to receive the compensation due the Employee
through the last day of the calendar month in which the Employee's
death occurred.
d. Special Regulatory Events. Notwithstanding Section 9(a) of this
Agreement, the obligation of the Bank and of the Employee shall be as
follows in the event of any of the following circumstances:
i) If the Employee is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a
notice served under Section 8 of the Federal Deposit Insurance
Act, 12 U.S.C. Section 1818, the Bank's obligations under this
agreement shall be suspended as of the date of service of such
notice, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Ban may, in its sole
discretion, pay the Employee all or part of the compensation
withheld while the obligations of this Agreement were
suspended and reinstate in whole or in part any of the
obligations which were suspended.
ii) If the Employee is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's
affairs by an order issued under Section 8 of the Federal
Deposit Insurance Act, 12 U.S.C. Section 1818(e) or Section
1127.06 of the Ohio Revised Code, 11 O.R.C. Section 1127.06,
all obligations of the Bank under this Agreement shall
terminate, as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
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iii) If the Bank is in default, as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act 12 U.S.C., Section
181(x)(1), or declared insolvent by the Superintendent of
Banks (Section 1103.04 of the Ohio Revised Code) all
obligations under this Agreement shall terminate as of the
date of default or insolvency, but this provision shall not
affect any vested rights of the parties.
iv) All obligations under this Agreement may be terminated by the
FDIC at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority
contained in Section 13(C) of the Federal Deposit Insurance
Act, 12 U.S.C. Section 1823(c). Any rights of the parties that
have already vested, however, shall not be affected by such
action.
10. Confidential Information
It is understood between the parties hereto that during the term of this
employment agreement Employee will be dealing with confidential information
regarding loans, litigation, depositor lists, information relating to the
Employer's future plans for development. Employee will have access to and be
dealing with such confidential matters in connection with his employment and
agrees that he will not disclose to anyone, either directly or indirectly
(except those persons involved in such matters, or the Board of Directors, or
other entities already having knowledge of such information), any of such
confidential matters or use this information other than in the course of his
employment with the Bank. All documents that the Employee prepares or
confidential information that has been given to the Employee in the course of
his employment are the exclusive property of the bank and shall remain in the
Bank's possession on the termination of Employee's employment. Under no such
circumstances shall any information of this nature be removed from the Bank upon
the termination of employment. Furthermore, neither during the course of
employment nor after termination of his employment shall the Employee disclose
any knowledge of the Bank's pas, present, or planned business activities to any
third person, firms, or entities for a period of two (2) years following the
termination of his employment. In the event of a breach or a threatened breach
by the employee of this covenant, the Bank shall be entitled to proceed with an
immediate injunction restraining the Employee from disclosing said information
in whole or in part. Nothing herein shall be construed to prohibit the Bank from
pursuing any other remedies available to the Bank for the breach of such
covenant. For the purposes of this paragraph, files generated by the Employee as
a result of his employment by the Bank shall be considered the property of the
Bank and not the property of the Employee. Litigation files, customer files,
customer lists, information relating to regulators, correspondence with
regulators, and all other working files produced by the Employee shall be the
sole property of the Bank.
11. Successors and Assigns
This Agreement shall be binding upon the Bank, its successors and assigns. This
Agreement is personal as to the Employee and may not be assigned by the Employee
except that the personal representative of the Employee, his heirs, or guardian,
as the case may be, shall have the right to enforce the provisions of this
Agreement relating to any compensation due to the Employee.
12. Notices
All notices, requests demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by and or
mailed, certified or registered mail, return receipt requested, with postage
prepaid, the following addresses or to such other address as either party may
designate by like notice.
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A. If to the Bank, to:
The Delaware County Bank and Trust Company
41 North Sandusky Street
Delaware, Ohio 43015
Attention: Secretary, Board of Directors
B. If to the Employee, to:
Thomas R. Whitney
701 Burnt Pond Road
Ostrander, Ohio 43061
and to such other additional person or persons as either party shall have
designated to the other party in writing by like notices.
13. Other Contracts
Employee shall devote his full time to his job duties. However, Employee shall
be permitted to continue to service clients in the areas of estate planning,
wills, trusts, and probate matters. This prive practice shall not interfere with
Employee's job duties, and Employer reserves the right to restrict this practice
if it feels there is a conflict (ethical or otherwise) or that it is interfering
with Employee's performance. It is understood that Employee will close his
private law practice in all other areas.
14. Amendments
No amendments or additions to this Agreement shall be binding unless in writing
and signed by both parties, except as herein otherwise provided.
15. Paragraph Headings
The paragraph 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.
16. Severability
The provision of this Agreement shall be deemed severable and the invaldity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
17. Governing Law
This Agreement shall, except to the extent that Federal law (including any law,
rule, or regulation of the FDIC) shall be deemed to apply, be governed by and
construed and enforced in accordance with the law of Ohio.
18. Arbitration
Any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration in accordance with the rules of the
American Arbitration Association then in effect provided that the party which
does not prevail in its claim pays for the entire cost of the arbitration and
that any and all claims existing under federal or state law can be presented in
the arbitration. Judgement may be entered on the arbitrator's award in any court
having jurisdiction.
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IN WITNESS WHEREOF, the parties have entered this Agreement on the day and year
first hereinabove written.
THE DELAWARE COUNTY BANK
AND TRUST COMPANY
By:
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Its:
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And:
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Its:
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Thomas R. Whitney (the "Employee")
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