EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of the first day of March
2006, among Rurban Financial Corp. ("RFC"), an Ohio bank holding company having
a place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxx, and Xxxxxxx X. Xxxxx
("Executive"), individually, an Executive.
WITNESSETH:
WHEREAS, RFC desires to employ Executive to serve in the capacity of Chief
Executive Officer of RFC under the terms and conditions set forth herein;
WHEREAS, Executive desires to accept employment with RFC on the terms and
conditions set forth herein.
WHEREAS,: The Executive previously entered into an agreement describing
amounts payable upon a change of control ("Prior Agreement"), which agreement is
superseded and replaced by this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of services performed in the past and to
be performed in the future as well as of the mutual promises and covenants
herein contained it is agreed as follows:
1. EMPLOYMENT. RFC hereby employs Executive and Executive hereby accepts
employment with RFC, under the terms and conditions set forth in this Agreement.
2. DUTIES OF EMPLOYEE. Executive shall perform and discharge well and
faithfully such duties as an executive officer of RFC as may be assigned to
Executive from time to time by the Board of Directors of RFC so long as the
assignment is consistent with the Executive's office and duties. Executive shall
be employed as Chief Executive Officer of RFC, and shall hold such other titles
as may be given to him from time to time by the Board of Directors of RFC.
Executive shall devote his full time, attention and energies to the business of
RFC during the Employment Period (as defined in Section 3 of this Agreement);
provided, however, that this Section 2 shall not be construed as preventing
Executive from (a) engaging in activities incident or necessary to personal
investments, so long as such investment does not exceed 5% of the outstanding
shares of any publicly held company, (b) acting as a member of the board of
directors of any other corporation or as a member of the board of trustees of
any other organization, with the prior approval of the Board of Directors of
RFC, or (c) being involved in any other activity with the prior approval of the
Board of Directors of RFC. The Executive shall not engage in any business or
commercial activities, duties or pursuits which compete with the business or
commercial activities of RFC or its subsidiaries or affiliates, nor may the
Executive serve as a director or officer or in any other capacity in a company
which competes with RFC or its subsidiaries or affiliates.
3. TERM OF AGREEMENT.
(a) This Agreement shall be for a three (3) year period (the
"Employment Period"), beginning on the date first written
above and, if not previously terminated pursuant to the terms
of this Agreement, the Employment Period shall end three (3)
years later; provided however, that this Agreement will be
automatically renewed on the third anniversary date of the
date first written above (the "Renewal Date") commencing on
the Renewal Date and ending on December 31, 2010, unless
either party gives written notice of nonrenewal to the other
party at least one-hundred eighty (180) days prior to the
Renewal Date (in which case this Agreement will terminate on
the Renewal Date).
(b) Notwithstanding the provisions of Section 3(a) of this
Agreement, this agreement shall terminate automatically for
Cause (as defined herein) upon written notice from the Board
of Directors of RFC to Executive. As used in this Agreement,
"Cause" shall mean any of the following:
(i) The willful failure by the Executive to substantially
perform his duties hereunder (other than a failure
resulting from Executive's incapacity because of death
or disability), after notice from RFC, and a failure to
cure such violation within twenty (20) days of said
notice;
(ii) The willful engaging by the Executive in misconduct
injurious to RFC;
(iii) Dishonesty, insubordination or gross negligence of the
Executive in the performance of his duties;
(iv) Executive's breach of fiduciary duty involving personal
profit;
(v) Executive's violation of any law, rule or regulation
governing issuers of publicly traded securities or banks
or bank officers or any regulatory enforcement actions
issued by a regulatory authority against the Executive;
(vi) Conduct on the part of Executive which brings public
discredit to RFC and, if the effect may be cured, a
failure to cure within twenty (20) days of the date said
notice is delivered to the Executive;
(vii) Executive's conviction of or plea of guilty or nolo
contendre to a felony (including conviction of or plea
of guilty or nolo contendre to a misdemeanor that was
originally charged as a felony but was reduced to a
misdemeanor as a result of a plea bargain), crime of
falsehood or a crime involving moral turpitude, or the
actual incarceration of Executive for a period of twenty
(20) consecutive days or more;
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(viii) An act by the Executive affecting any of RFC's
employees, customers, business associates, contractors
or visitors that an independent third party decides,
after reasonable investigation, constitutes unlawful
discrimination or harassment or violates RFC's policy
concerning discrimination or harassment;
(ix) Executive's theft or abuse of Corporation's property or
the property of RFC's customers, employees,
contractors, vendors or business associates;
(x) The direction or recommendation of a state or federal
bank regulatory authority to remove Executive from his
positions with Corporation;
(xi) Executive's willful failure to follow the good faith
lawful instructions of the Board of Directors of
Corporation with regard to its operations, after
written notice and, if the event may be cured, a
failure to cure such violation within twenty (20) days
of the date said notice is delivered to the Executive;
(xii) Material breach of any contract or agreement that
Executive entered with Corporation, including a breach
of any of the obligations described in Sections 9 and
10 of this Agreement and, if the breach may be cured, a
failure to cure such breach within twenty (20) days of
the date said notice is delivered to the Executive;
(xiii) Unauthorized disclosure of the trade secrets or
confidential information (as defined below) of
Corporation or any of its affiliates, trade partners,
or vendors.
However, Cause will not arise solely because the Executive is
absent from active employment during periods of vacation,
consistent with RFC's applicable vacation policy or other
period of absence initiated by the Executive and approved by
RFC.
Also, if, after the Executive terminates employment, RFC
learns that the Executive has actively concealed conduct or an
event that, if discovered before employment terminated, would
have constituted "Cause," the provisions of Section 3(d) of
this Agreement will be applied retroactively to the date the
Executive terminated employment and RFC may recover any and
all amounts paid to the Executive (or to his or her
beneficiaries) under this Agreement on account of his
termination.
The term "Confidential Information" shall mean any and all
information (other than information in the public domain)
related to RFC's or any affiliate's or subsidiary's business,
including all processes, inventions, trade secrets, computer
programs, technical data, drawings or designs,
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information concerning pricing and pricing policies, marketing
techniques, plans and forecasts, new product information,
information concerning methods and manner of operations and
information relating to the identity and location of all past,
present and prospective customers and suppliers. Executive's
conviction of or plea of guilty or nolo contendere to a
felony, a crime of falsehood or a crime involving moral
turpitude, or the actual incarceration of Executive for a
period of fifteen (15) consecutive days or more.
If this Agreement is terminated for Cause, all of Executive's
rights under this Agreement shall cease as of the effective
date of such termination.
(c) Notwithstanding the provisions of Section 3(a) of this
Agreement, this Agreement shall terminate automatically upon
Executive's voluntary termination of employment (other than in
accordance with Section 5 of this Agreement) for other than
Good Reason. The term "Good Reason" shall mean:
(i) The assignment of duties and responsibilities
inconsistent with Executive's status as Chief Executive
Officer of RFC, unless the Executive has simultaneously
been promoted to a more senior position and has been
assigned substantive duties normally associated with
that new position;
(ii) A reassignment which requires Executive to move his
office more than fifty (50) miles from the location of
Corporation's principal executive office on the
effective date of this Agreement;
(iii) Any reduction in the Executive's Annual Base Salary as
in effect on the date hereof or as the same may be
increased from time to time, except such reductions that
are the result of a national financial depression, or
national or bank emergency when such reduction has been
implemented for RFC's senior management, as a group;
(iv) Any action that would materially reduce the employee
benefits enjoyed by the Executive on the effective date
of this Agreement unless such reduction complies with
Section 4(d) of this Agreement;
(v) Any attempt by RFC to amend or terminate this Agreement
without regard to the procedures described in Section 22
of this Agreement;
(vi) Failure at any time during the term of this Agreement
(as defined in Section 3(a) of this Agreement to obtain
an assumption of RFC's obligations under this Agreement
by any successor to any of them, regardless of whether
such entity becomes a successor to
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RFC as a result of a merger, consolidation, sale of
assets or any other form of reorganization; and
(vii) Any unsuccessful attempt to terminate the Executive for
Cause.
At the option of the Executive, exercisable by the Executive
within thirty (30) days after the occurrence of the event
constituting "Good Reason," the Executive may resign from
employment under this Agreement by delivering a notice in
writing (the "Notice of Termination") to RFC and the
provisions of this Section 3(c) of this Agreement shall
thereupon apply.
(d) Notwithstanding the provisions of Section 3(a) of this
Agreement, this Agreement shall terminate automatically upon
Executive's Disability and Executive's rights under this
Agreement shall cease as of the date of such termination;
provided, however, that Executive shall nevertheless be
entitled to receive any benefits that may be available under
any disability plan of RFC under the terms and conditions of
such plans or such benefits due Executive as a result of the
benefit vesting. For purposes of this Agreement, the Executive
shall have a Disability if, as a result of physical or mental
injury or impairment, Executive is unable to perform all of
the essential job functions of his position on a full time
basis, taking into account any reasonable accommodation
required by law, and without posing a direct threat to himself
or others, for a period of more than one hundred eighty (180)
days during any twelve (12) months, whether consecutive or
not. The Executive shall have no duty to mitigate any payment
provided for in this Section 3(d) by seeking other employment.
(e) Executive agrees that in the event his employment under this
Agreement is terminated, regardless of the reason for
termination, Executive shall resign as a director of RFC, or
any affiliate or subsidiary thereof, if he is then serving as
a director of any such entities unless the Board of Directors
specifically requests the Executive to continue such Board
membership.
4. EMPLOYMENT PERIOD COMPENSATION.
(a) Annual Base Salary. For services performed by Executive under
this Agreement, RFC shall pay Executive an Annual Base Salary
during the Employment Period at the rate of Two Hundred and
Sixty-four Thousand Dollars ($264,000) per year (subject to
applicable withholdings and deductions) payable at the same
times as salaries are payable to other executive employees of
RFC. RFC may, from time to time, increase Executive's Annual
Base Salary, and any and all such increases shall be deemed to
constitute amendments to this Section 4(a) to reflect the
increased amounts, effective as of the date established for
such increases by the Board of Directors of RFC or any
committee of such Board in the resolutions authorizing such
increases.
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(b) Bonus. For services performed by Executive under this
Agreement, RFC may, from time to time, pay a bonus or bonuses
to Executive as RFC, in its sole discretion, deems
appropriate. The payment of any such bonuses shall not reduce
or otherwise affect any other obligation of RFC to Executive
provided for in this Agreement.
(c) Paid Time Off and/or Vacations. During the term of this
Agreement, Executive shall be entitled to paid time off in
accordance with the policies as established from time to time
by the Board of Directors of RFC for RFC's senior management.
(d) Employee Benefit Plans. During the term of this Agreement,
Executive shall be entitled to participate in or receive the
benefits of any employee benefit plan currently in effect at
RFC, subject to the terms of said plan, until such time that
the Board of Directors of RFC authorizes a change in such
benefits. RFC shall not make any changes in such plans or
benefits that would adversely affect Executive's rights or
benefits thereunder, unless such change occurs pursuant to a
program applicable to all executive officers of RFC and does
not result in a proportionately greater adverse change in the
rights of or benefits to Executive as compared with any other
executive officer of RFC. Nothing paid to Executive under any
plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the salary payable
to Executive pursuant to Section 4(a) of this Agreement.
(e) Business Expenses. During the term of this Agreement,
Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by him, which are
properly accounted for, in accordance with the policies and
procedures established by the Board of Directors of RFC for
its executive officers. RFC shall reimburse Executive for any
and all dues, specific investments, and reasonable related
business expenses associated with the Executive's membership
in a mutually agreeable country club. RFC shall supply
executive with an appropriate automobile, or at the discretion
of the Executive an automobile allowance, adhering to RFC
policy, and pay all operating expenses for the use and
maintenance of the automobile.
5. TERMINATION OF EMPLOYMENT FOLLOWING CHANGE OF CONTROL.
(a) If a Change in Control (as defined in Section 5(b) of this
Agreement), shall occur and at any time during the period
beginning on the date the Board of Directors of RFC first
learns of the possible Change of Control and ending one (1)
year following that Change of Control, Executive is terminated
other than for Cause or an event constituting Good Reason
occurs, then, at the option of Executive, within ninety (90)
days of the termination or event constituting Good Reason,
Executive may resign
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from employment with RFC (or, if involuntarily terminated,
give notice of intention to collect benefits under this
agreement) by delivering a notice in writing (the "Notice of
Termination") to RFC or its successor and the provisions of
Section 6 of this Agreement shall apply.
(b) For purposes of this Agreement, the term "Change of Control"
shall mean the earliest of any of the following:
(i) Of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A
or any successor rule or regulation promulgated under
the Securities Exchange Act of 1934, as amended (the
"Act");
(ii) A merger or consolidation of RFC with or purchase of all
or substantially all of RFC's assets by another "person"
or group of "persons" (as such term is defined or used
in Sections 3.13(d), and 14(d) of the Act) and, as a
result of such merger, consolidation or sale of assets,
less than a majority of the outstanding voting stock of
the surviving, resulting or purchasing person is owned,
immediately after the transaction, by the holders of the
voting stock of RFC before the transaction, regardless
of when or how their voting stock was acquired;
(iii) Any "person" (as such term is defined in Section 3(a)(9)
of the Securities Exchange Act of 1934 (the "Exchange
Act") and as used in Sections 13(d)(3) and 14(d)(2) of
the Exchange Act) becomes through any means a
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of
RFC representing 50% or more of the combined voting
power of RFC's then outstanding securities eligible to
vote for the election of RFC's Board of Directors;
(iv) Any "person" as defined above, other than RFC, the
Executive or RFC's ESOP, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 and Rule 13d-5, or any
successor rule or regulation, promulgated under the
Act), directly or indirectly, of securities of RFC which
represent twenty-five percent (25%) or more of the
combined voting power of the securities of RFC, then
outstanding but disregarding any securities with respect
to which that acquirer has filed SEC Schedule 13G
indicating that the securities were not acquired and are
not held for the purpose of or with the effect of
changing or influencing, directly or indirectly, RFC's
management or policies, unless and until that entity or
person files SEC Schedule 13D, at which point this
exception will not apply to such securities, including
those previously subject to a SEC Schedule 13G filing;
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(v) Individuals who, on the Effective Date, constituted the
board of directors of RFC (the "Incumbent Directors")
cease for any reason to constitute at least a majority
of the members of RFC's board of directors; provided
that any person becoming a director subsequent to the
Effective Date whose election or nomination for election
was approved by a vote of at least two-thirds of the
then Incumbent Directors (either by a specific vote or
by approval of the proxy statement of RFC in which such
person is named as a nominee for director, without
written objection to such nomination) shall be an
Incumbent Director; and further provided, however, that
no individual elected or nominated as a director of RFC
initially as a result of an actual or threatened
election contest with respect to directors or any other
actual or threatened solicitation of proxies or consents
by or on behalf of any person other than RFC's board of
directors shall ever be deemed to be an Incumbent
Director; and
(vi) Any other change of control of RFC similar in effect to
any of the foregoing.
If more than one event that constitutes a Change of Control
occurs during a Protection Period, the Executive shall be
entitled to the amount that equals the largest after-tax
amount generated by any of the Changes of Control.
Notwithstanding any other provision of this Agreement, the
Executive will not be entitled to any amount under this
Agreement if he/she acted in concert with any person or group
(as defined above) to effect a Change of Control, other than
at the specific direction of the board of directors and in
his/her capacity as an employee of RFC.
(c) During the period of time beginning on the date the Board of
Directors of RFC first learns of a possible Change of Control
and the actual Change of Control, Executive's employment may
not be terminated by RFC other than for Cause.
6. RIGHTS IN EVENT OF TERMINATION OF EMPLOYMENT FOLLOWING CHANGE OF
CONTROL.
(a) Subject to Section 409A of the Internal Revenue Code, in the
event that Executive delivers a Notice of Termination (as
defined in and under the circumstances set forth in Section
5(a) of this Agreement) to RFC, Executive shall be entitled to
receive the compensation and benefits set forth below.
(i) Within thirty (30) days of the Executive's termination
of employment, pay to the Executive a lump sum cash
amount equal
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to 2.99 times the Executive's Agreed Compensation (as
defined in this Agreement), subject to applicable
withholdings and taxes; and
(ii) Provide to the Executive (and the Executive's family, if
applicable and if the Executive had elected family
coverage as of the day before the date employment
terminated) for a period of three (3) years continued
health care, life insurance and disability insurance
coverage provided, on behalf of Executive, at the same
level (both separately with respect to each line of
coverage and in the aggregate) and subject to the same
terms that were in effect with respect to the Executive
at any time during the two (2) years prior to his
termination. These benefits will be provided under the
insured arrangements maintained for active employees
without cost to the Executive. However, if RFC or its
successor after a Change of Control ("Change Entity") is
unable to provide these benefits to the Executive
through an insured arrangement maintained for active
employees and with the same tax consequences available
to active employees ("Equivalent Coverage"), RFC or the
Change Entity, whichever is appropriate, will distribute
to the Executive additional cash equal to the
Executive's cost of procuring Equivalent Coverage
("Premium Burden"), plus an additional cash amount
sufficient to ensure that after all applicable federal,
state and local income, employment, wage and excise
taxes (including those imposed under Section 4999 of the
Internal Revenue Code with respect to this amount), the
Executive has remaining cash equal to the Premium
Burden. Collectively, the gross-up described in the
preceding sentence and the Premium Burden are referred
to as the Welfare Benefit Replacement Cost. The
Executive agrees to make available to RFC or the Change
Entity any information reasonably necessary to calculate
the cost of this gross-up.
The Executive also will be entitled to receive any other
payments or benefits to which he is then entitled under the
terms of any other contract, arrangement, agreement, plan or
program in which he is or has been a participant.
(b) Executive shall not be required to mitigate the amount of any
payment provided for in this Section 6 by seeking other
employment or otherwise. Unless otherwise agreed to in
writing, the amount of payment or the benefits provided for in
this Section 6 shall not be reduced by any compensation earned
by Executive as the result of employment by another employer
or by reason of Executive's receipt of or right to receive any
retirement or other benefits after the date of termination of
employment or otherwise.
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(c) The term "Agreed Compensation" shall equal the sum of (i) the
average of Executive's Annual Base Salary with respect to the
five (5) calendar years immediately preceding the Executive's
termination and (ii) the average of the Executive's annual
bonuses with respect to the five (5) calendar years
immediately preceding the Executive's termination.
7. RIGHTS IN EVENT OF TERMINATION OF EMPLOYMENT ABSENT CAUSE OR CHANGE OF
CONTROL. Subject to Section 409A of the Internal Revenue Code, in the event that
Executive's employment is involuntarily terminated by RFC without Cause or
Executive terminates for Good Reason as set forth in Section 3(c) of this
Agreement, and in a situation not addressed by the Change of Control provisions
set forth in Sections 5 and 6 of this Agreement, Executive shall be entitled to
receive the compensation and benefits set forth below.
(a) Pay to the Executive an amount equal to two (2) times the
Executive's Agreed Compensation (as defined in Section 6(c) of
this Agreement) in equal monthly installments over 24 months,
subject to applicable withholdings and taxes; and
(b) Provide to the Executive (and the Executive's family, if
applicable and if the Executive had elected family coverage as
of the day before the date employment terminated) for a period
of twelve (12) months (or until he obtains similar benefits
through other employment, if earlier) continued health care,
life insurance and disability insurance coverage provided, on
behalf of Executive, at the same level (both separately with
respect to each line of coverage and in the aggregate) and
subject to the same terms that were in effect with respect to
the Executive at any time during the two (2) years prior to
his termination. These benefits will be provided under the
insured arrangements maintained for active employees without
cost to the Executive. However, if RFC or its successor after
a Change of Control ("Change Entity") is unable to provide
these benefits to the Executive through an insured arrangement
maintained for active employees and with the same tax
consequences available to active employees ("Equivalent
Coverage"), RFC or the Change Entity, whichever is
appropriate, will distribute to the Executive additional cash
equal to the Executive's cost of procuring Equivalent Coverage
("Premium Burden"), plus an additional cash amount sufficient
to ensure that after all applicable federal, state and local
income, employment, wage and excise taxes (including those
imposed under Section 4999 of the Internal Revenue Code with
respect to this amount), the Executive has remaining cash
equal to the Premium Burden. Collectively, the gross-up
described in the preceding sentence and the Premium Burden are
referred to as the Welfare Benefit Replacement Cost. The
Executive agrees to make available to RFC or the Change Entity
any information reasonably necessary to calculate the cost of
this gross-up.
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The Executive also will be entitled to receive any other
payments or benefits to which he is then entitled under the
terms of any other contract, arrangement, agreement, plan or
program in which he is or has been a participant.
8 GOLDEN PARACHUTE PROVISIONS. Notwithstanding any provision in this
Agreement to the contrary (other than Sections 7, 15 and 25 of this Agreement
which will apply under the circumstances described in those sections and below),
if, as of the date of the Change of Control, the Change Entity (after consulting
with an independent accounting or compensation consulting company) ascertains
that the compensation and benefits provided to the Executive pursuant to or
under this Agreement (other than the Welfare Benefit Replacement Cost as defined
in Section 7 of this Agreement or the amounts described in Sections 15 and 25 of
this Agreement, either alone or when combined with other compensation and
benefits received by the Executive, would constitute "parachute payments" within
the meaning of Section 280G of the Internal Revenue Code, or the regulations
adopted thereunder, then the compensation and benefits payable pursuant to or
under this Agreement (other than the Welfare Benefit Replacement Cost and the
amounts described in Sections 15 and 25 of this Agreement) shall be reduced to
the extent necessary so that no portion thereof shall be subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code ("Excise Taxes"). The
Executive or any other party entitled to receive the compensation or benefits
hereunder may request a determination as to whether the compensation or benefit
would constitute a parachute payment and, if requested, such determination shall
be made by an independent accounting or compensation consulting company (other
than the entity described in the first sentence of this section) selected by the
Change Entity and approved by the party requesting such determination, the fees
of which will be borne solely by the Change Entity. In the event that any
reduction is required under this Section 8, the Executive may select which
compensation and benefits shall be reduced and the Executive's decision will be
binding.
If the Internal Revenue Service subsequently and finally decides that the amount
of compensation and benefits (including after the reduction applied under this
Section 8) will generate Excise Taxes on compensation and benefits (other than
the Welfare Benefit Replacement Cost and those amounts described in Sections 15
and 25 of this Agreement), the Executive will immediately remit an additional
amount to the Change Entity equal to the difference between the amount paid
(other than the Welfare Benefit Replacement Cost and those amounts described in
Sections 15 and 25 of this Agreement) and the amount paid (other than the
Welfare Benefit Replacement Cost and those amounts described in Sections 15 and
25 of this Agreement). Also, the Executive agrees to promptly notify the Change
Entity of an assessment or inquiry from the Internal Revenue Service relating to
payments under this Agreement that would, if made final, result in imposition of
an Excise Tax and also agrees to cooperate with the Change Entity in resisting
any Excise Tax assessment. However, the Change Entity will have complete control
over resolution of any claim by the Internal Revenue Service that might generate
an Excise Tax (although it will have no dispositive power over any other tax
matter that may be subject to the same audit) and RFC will bear all costs
associated with that effort.
9. COVENANT NOT TO COMPETE. Executive hereby acknowledges and recognizes
the highly competitive nature of the business of RFC. Accordingly, Executive
agrees that if a Change of Control occurs and provided that Executive receives
the payments described in Sections 6 and 7 of this Agreement, whichever is
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appropriate, of this Agreement, then in consideration of this benefit during and
for two (2) year(s) following termination of Executive's employment with
Corporation, or, if applicable, with the Change Entity ("Non-Competition
Period") Executive shall not:
(a) Provide financial or executive assistance to any person, firm,
corporation or enterprise engaged in (i) the banking or
financial services industry (including bank holding company),
or (ii) any other activity in which Corporation engaged on the
Date of the Change of Control, within fifty (50) miles of
RFC's Main Office (the "Non-Competition Area"); or
(b) Directly or indirectly contact, solicit or induce any person,
corporation or other entity who or which is a customer or
referral source of Corporation during the term of Executive's
employment or on the date of termination of Executive's
employment, to become a customer or referral source for any
person or entity other than Corporation or, if applicable, the
Change Entity; or
(c) Directly or indirectly solicit, induce or encourage any
employee of Corporation or its subsidiaries or, if applicable,
the Change Entity or its subsidiaries, who is employed during
the term of Executive's employment or on the date of
termination of Executive's employment, to leave the employ of
Corporation or its subsidiaries or, if applicable, the Change
Entity or its subsidiaries or to seek, obtain or accept
employment with any person or entity other than Corporation or
its subsidiaries or, if applicable, the Change Entity or its
subsidiaries.
(d) It is expressly understood and agreed that, although Executive
and RFC consider the restrictions contained in Section 9(a) of
this Agreement reasonable for the purpose of preserving for
Corporation and, if applicable, the Change Entity, its good
will and other proprietary rights, if a final judicial
determination is made by a court having jurisdiction that the
Non-Competition Area, the Non-Competition Period or any other
restriction contained in this Section 9 is an unreasonable or
otherwise unenforceable restriction against Executive, the
provisions of this Section 9 shall not be rendered void, but
shall be deemed amended to apply as to such maximum time and
territory and to such other extent as such court may
judicially determine or indicate to be reasonable.
(e) The existence of any immaterial claim or cause of action of
the Executive against Corporation or, if applicable, the
Change Entity, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement
by Corporation of this covenant. The Executive agrees that any
breach of the restrictions set forth in this Section 9 will
result in irreparable injury to Corporation or, if applicable,
the Change Entity, for which it will have no adequate remedy
at law and RFC or, if applicable, the Change Entity, shall be
entitled to injunctive relief in order to enforce the
provisions hereof and/or seek specific performance and
damages.
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(f) Prior to the application of Section 10 of this Agreement, RFC
and/or the Change Entity will make reasonable efforts to
allocate to value the undertaking described in this section
and to allocate to that calculation the maximum amount due
under Section 8 of this Agreement.
10. UNAUTHORIZED DISCLOSURE. During the term of his employment hereunder,
or at any later time, the Executive shall not, without the written consent of
the Board or Directors of RFC or a person authorized thereby, knowingly disclose
to any person, other than an employee of RFC or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Executive of his duties as an executive of RFC, any material confidential
information obtained by him while in the employ of RFC with respect to any
services, products, improvements, formulas, designs or styles, processes,
customers, customer lists, methods of business or any business practices of RFC
or its subsidiaries or affiliates, the disclosure of which could be or will be
damaging to RFC or its subsidiaries or affiliates; provided, however, that
confidential information shall not include any information known generally to
the public (other than as a result of unauthorized disclosure by the Executive
or any person with the assistance, consent or direction of the Executive) or any
information of a type not otherwise considered confidential by persons engaged
in the same business or a business similar to that conducted by RFC or any
information that must be disclosed as required by law.
11. MADE FOR HIRE. Any work performed by the Executive under this
Agreement should be considered a "Work Made for Hire" as that phrase is defined
by the U.S. patent laws and shall be owned by and for the express benefit of RFC
and its subsidiaries and affiliates. In the event it should be established that
such work does not qualify as a Work Made for Hire, the Executive agrees to and
does hereby assign to RFC and its affiliates and subsidiaries, all of his
rights, title, and/or interest in such work product, including, but not limited
to, all copyrights, patents, trademarks, and proprietary rights.
12. RETURN OF COMPANY PROPERTY AND DOCUMENTS. The Executive agrees that,
at the time of termination of his employment, regardless of the reason for
termination, he will deliver to RFC and its subsidiaries and affiliates, any and
all company property, including but not limited to, keys, security codes or
passes, mobile telephones, pagers, computers, devices, confidential information
(as defined in this Agreement), records, data, notes, reports, proposals, lists,
correspondence, specification, drawings, blueprints, sketches, software
programs, equipment, other documents or property, or reproductions of any of the
aforementioned items developed or obtained by the Executive during the course of
his employment.
13. LIABILITY INSURANCE. RFC shall use its best efforts to obtain
insurance coverage for the Executive under an insurance policy covering officers
and directors of RFC against lawsuits, arbitrations or other legal or regulatory
proceedings; however, nothing herein shall be construed to require RFC to obtain
such insurance, if the Board of Directors of RFC determines that such coverage
cannot be obtained at a commercially reasonable price.
14. NOTICES. Except as otherwise provided in this Agreement, any notice
required or permitted to be given under this Agreement shall be deemed properly
given if in writing and if mailed by registered or certified mail, postage
prepaid with return receipt requested, to
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Executive's residence, in the case of notices to Executive, and to the principal
executive offices of RFC, in the case of notices to RFC.
15. ATTORNEY'S FEES AND COSTS.
(a) If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, each party shall bear
its/his attorney's fees, costs, and necessary disbursements.
(b) RFC or the Change Entity shall pay all reasonable legal,
accounting and actuarial fees and expenses incurred by the
Executive in enforcing any right or benefit arising under
Sections 6 and 7 of this Agreement. If it is subsequently
determined that payment of these fees are excess parachute
payments, the Change Entity will fully gross-up the Executive
for the income, wage, employment and excise taxes associated
with that payment so that, after all applicable federal, state
and local, income, wage, employment and excise taxes (plus any
assessed interest and penalties), the Executive will have
incurred no liability (either for these fees or the taxes just
listed) with respect to the matters encompassed in this
section.
16. INDEMNIFICATION. RFC will indemnify the Executive, as required by its
bylaws, to the extent permitted by (State) and federal law, with respect to any
threatened, pending or completed legal or regulatory action, suit or proceeding
brought against him by reason of the fact that he is or was a director, officer,
employee or agent of RFC, or is or was serving at the request of the RFC as a
director, officer, employee or agent of another person or entity.
17. ENTIRE AGREEMENT. This Agreement supersedes any and all agreements,
either oral or in writing, between the parties with respect to the employment of
the Executive by the RFC.
18. SUCCESSORS; BINDING AGREEMENT.
(a) RFC will require any successor (whether direct or indirect, by
purchase, merger, consolidation, or otherwise) to all or
substantially all of the businesses and/or assets of RFC to
expressly assume and agree to perform this Agreement in the
same manner and to the same extent that RFC would be required
to perform it if no such succession had taken place. Failure
by RFC to obtain such assumption and agreement prior to the
effectiveness of any such succession shall constitute a breach
of this Agreement and the provisions of Section 3 of this
Agreement shall apply.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives,
executors, administrators, heirs, distributees, devisees and
legatees. If Executive should die after a Notice of
Termination is delivered by Executive, or following
termination of Executive's employment without Cause, and any
amounts would be payable to Executive under this Agreement if
Executive had continued to live, all such amounts shall be
paid in accordance with the terms of this
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Agreement to Executive's devisee, legatee, or other designee,
or, if there is no such designee, to Executive's estate.
19. NO MITIGATION OR OFFSET. The Executive will not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
employment or otherwise; nor will any amounts or benefits payable or provided
hereunder be reduced in the event he does not secure employment, except as
otherwise provided herein.
20. VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
21. SEVERABILITY. If any provision of this Agreement is declared
unenforceable for any reason, the remaining provisions of this Agreement shall
be unaffected thereby and shall remain in full force and effect.
22. WAIVER; AMENDMENT. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Executive and an executive officer designated by the
boards of directors of Corporation or the Change Entity. No waiver by either
party, at any time, of any breach by the other party of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. This Agreement may be amended or
canceled only by mutual agreement of the parties in writing.
23. PAYMENT OF MONEY DUE DECEASED/DISABLED EXECUTIVE. Subject to the last
sentence of this section, if Executive dies or develops a permanent disability
while employed, Corporation will have no obligations under this Agreement to
Executive after such event and this Agreement shall terminate. For purposes of
this Agreement, permanent disability shall mean a physical or mental impairment
that renders Executive incapable of performing the essential functions of his
job, on a full-time basis, even taking into account any reasonable accommodation
required by law, as determined by a physician who is selected by the agreement
of Executive and Corporation, for a period greater than 180 days. However, any
amounts or benefits that become due under Section 8 of this Agreement on account
of an event occurring before the Executive dies or becomes disabled will
continue to be due and will be unaffected by the Executive's death or
disability.
24. LIMITATION OF DAMAGES FOR BREACH OF AGREEMENT. In the event of a
breach of this Agreement by RFC, the Change Entity or the Executive, each hereby
waives to the fullest extent permitted by law the right to assert any claim
against the others for punitive or exemplary damages. Except as provided in
Section 15 of this Agreement, in no event shall any party be entitled to the
recovery of attorney's fees or costs.
25. ARBITRATION. Corporation and Executive recognize that in the event a
dispute should arise between them concerning the interpretation or
implementation of this Agreement, lengthy and expensive litigation will not
afford a practical resolution of the issues within a reasonable period of time.
Consequently, each party agrees that all disputes,
15
disagreements and questions of interpretation concerning this Agreement, except
for any claims brought by Corporation for equitable relief or an injunction to
enforce the restrictive covenants contained in Section 9 of this Agreement, are
to be submitted for resolution, in Defiance County, Ohio to the American
Arbitration Association (the "Association") in accordance with the Association's
National Rules for the Resolution of Employment Disputes or other applicable
rules then in effect ("Rules"). Corporation or Executive may initiate an
arbitration proceeding at any time by giving notice to the other in accordance
with the Rules. Corporation and Executive may, as a matter of right, mutually
agree on the appointment of a particular arbitrator from the Association's pool.
The arbitrator shall not be bound by the rules of evidence and procedure of the
courts of the State of Ohio, but shall be bound by the substantive law
applicable to this Agreement. The decision of the arbitrator, absent fraud,
duress, incompetence or gross and obvious error of fact, shall be final and
binding upon the parties and shall be enforceable in courts of proper
jurisdiction. Following written notice of a request for arbitration, Corporation
and Executive shall be entitled to an injunction restraining all further
proceedings in any pending or subsequently filed litigation concerning this
Agreement, except as otherwise provided herein.
RFC or the Change Entity will bear all reasonable costs associated with any
dispute arising under this Agreement, including reasonable accounting and legal
fees incurred by the Executive in connection with the arbitration proceedings
just described. If it is subsequently determined that payment of these costs are
excess parachute payments, RFC or the Change Entity will fully gross-up the
Executive for the income, wage, employment and excise taxes associated with that
payment so that, after all applicable federal, state and local, income, wage,
employment and excise taxes (plus any assessed interest and penalties), the
Executive will have incurred no liability (either for these fees or the taxes
just listed) with respect to the matters encompassed in this section.
If otherwise due, payments not being contested under the procedures described in
this section will not be deferred during the pendency of procedures described in
this section.
26. LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to its conflicts
of law principles.
27. VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
28. HEADINGS. The section headings of this Agreement are for convenience
only and shall not control or affect the meaning or construction or limit the
scope or intent of any of the provisions of this Agreement.
29. MISCELLANEOUS.
(a) Except as expressly provided in this Agreement, the
Executive's right to receive the payments described in this
Agreement will not decrease the amount of, or otherwise
adversely affect, any other benefits payable to the Executive
under any other plan, agreement or arrangement.
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(b) Except as expressly provided elsewhere in this Agreement, the
amount of any payment made under this Agreement will be
reduced by amounts the Employer is required to withhold in
payment (or in anticipation of payment) of any income, wage or
employment taxes imposed on the payment.
(c) The right of an Executive or any other person to receive any
amount under this Agreement may not be assigned, transferred,
pledged or encumbered except by will or by applicable laws of
descent and distribution. Any attempt to assign, transfer,
pledge or encumber any amount that is or may be receivable
under this Agreement will be null and void and of no legal
effect. However, this section will not preclude payment under
Section 17 of this Agreement of any benefit to which a
deceased Executive is entitled.
(d) Subject to the preceding subsection 29(c), this Agreement
inures to the benefit of and may be enforced by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
(e) If the Executive's employment relationship shifts between RFC
and any related entity before a Change of Control or after a
Change of Control, between the Change Entity and any entity
related to the Change Entity and there has been no intervening
termination, this Agreement will remain in full force and
effect and for all purposes of this Agreement, the Executive's
new employer will be substituted for the Executive's prior
employer.
(f) If the Executive's employer is no longer related to RFC,
whether or not as part of a transaction that constitutes a
Change of Control, this Agreement will remain in full force
and effect. However, the Executive will not be entitled to any
amount under this Agreement on account of a Change of Control
that solely affects RFC after that transfer and is not part of
the same transaction through which the employer stopped being
related to RFC.
30. ENTIRE AGREEMENT. This Agreement supersedes any and all prior
agreements, either oral or in writing, between the parties (including such
agreement with any subsidiary of RFC) with respect to payments upon termination
after a Change of Control, and this Agreement contains all the covenants and
agreements between the parties with respect to same.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: "RFC"
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx XxxXxxxxx
-------------------------------- ---------------------------------
Chairman
Date: March 6, 2006
WITNESS: "EXECUTIVE"
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
-------------------------------- -------------------------------------
Date: March 5, 2006
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