Exhibit 10
SETTLEMENT AND STANDSTILL AGREEMENT
This Settlement and Standstill Agreement (the "AGREEMENT") is entered
into as of April __, 2003, by DCB Financial Corp., an Ohio corporation (the
"COMPANY"), (and, as to Section 6.1 only, certain directors and former directors
of the Company who are or prior to April 30, 2003 become signatories hereto) and
each of S. Xxxxxx Xxxxx, a resident of the State of Florida ("XXXXX"), Xxxxxxx
X. Xxxx, a resident of the State of Ohio ("ASMO"), Xxxxxx X. Xxxxx, a resident
of the State of Ohio ("XXXXX"), Xxxxxxx X. Xxxxxxx, a resident of the State of
Ohio ("XXXXXXX"), Xxxxxxx X. Xxxxx, a resident of the State of North Carolina
("X. XXXXX"), and each of Xxxx Xxx, Presidential Coach, Inc., The Xxxxxx X.
Xxxxxxx Trust, The Xxxxxxxxx Xxxxxxx Trust, Xxxxxx Xxxxx, Xxxxx Xxxxx Xxxx, Xxxx
Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxxx, Xxxx Xxxxxx and Xxxxx X. Xxxxx (each an
"ADDITIONAL SHAREHOLDER") (each of Davis, Asmo, Scott, Edwards, X. Xxxxx and the
Additional Shareholders being referred to herein individually as a "SHAREHOLDER"
or collectively as "SHAREHOLDERS"). Except as context otherwise requires, all
capitalized terms shall have the meaning as defined in Section 1.2.
RECITALS:
A. The Company has outstanding approximately 4,178,200 shares of common
stock (the "Common Stock").
B. On May 7, 2002, Xxxxx filed a Schedule 13D with the SEC reporting that
he had acquired 188,800 shares of the Common Stock and intended to
acquire additional shares.
C. On October 11, 2002, Xxxxx filed an amendment to his Schedule 13D plan
reporting that (i) the number of shares of Common Stock then held by
him was 204,300 and (ii) he planned to seek representation on the
Company's board of directors by nominating a slate of three candidates,
including himself, for election as directors at the Company's 2003
annual meeting of shareholders and by engaging in a competing proxy
solicitation to elect his nominated slate.
D. On November 12, 2002, Xxxxx filed a second amendment to his Schedule
13D reporting that he and the other Shareholders planned to cause the
submission of a shareholder proposal for inclusion in the Company's
proxy statement for the Company's 2003 annual shareholders' meeting.
E. On April 1, 2003, the Company filed preliminary proxy material opposing
the Xxxxx slate of candidates for election and the shareholder
proposal.
STATEMENT OF AGREEMENT
NOW THEREFORE, the parties do hereby agree as follows:
SECTION 1 CONSTRUCTION AND DEFINITIONS
1.1 CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of this Agreement. Terms defined in the singular shall include the
plural, and vice versa, and pronouns in any gender shall include the masculine,
feminine, and neuter, as the context requires. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise. The word "including" shall mean including without limitation, and use
of the term "or" is not intended to be exclusive, unless the context clearly
requires otherwise. All references to a "Section" refer to this Agreement, and
all references to an "Exhibit" refer to the documents attached to this
Agreement, unless the context otherwise requires.
1.2 DEFINITIONS. Except for the names of the parties hereto (which
shall be referenced herein as defined above), the following capitalized terms
used in this Agreement shall, unless the context otherwise requires, have the
following meaning:
(a) "AFFILIATE" of a specified person is a person that, directly
or indirectly, through one or more intermediaries, controls,
or is controlled by, or is under common control with, the
person specified.
(b) "ASSOCIATE" shall mean, with respect to a specified person,
(1) any corporation or organization (other than the Company or
a subsidiary of the Company) of which the person is an
officer, director, or partner or is, directly or indirectly,
the beneficial owner of 10 percent or more of any class of
equity security as defined in Rule 3a-11 of the General Rules
and Regulations under the Exchange Act, (2) any trust or other
estate in which the person has a substantial beneficial
interest or as to which the person serves as trustee or in a
similar fiduciary capacity, and (3) any relative or spouse of
the person, or any relative of the spouse, who has the same
home as the person, or is an officer or director of any
corporation controlling or controlled by the person.
(c) "BANK" means The Delaware County Bank and Trust Company, an
Ohio bank.
(d) "BENEFICIAL OWNERSHIP" with respect to a security means having
or sharing the rights or powers of a "beneficial owner"
determined pursuant to Rule 13d-3 of the Exchange Act.
(e) "BUSINESS DAY" means any day other than a Saturday, Sunday, or
other day on which banking institutions in the State of Ohio
are authorized or obligated by law or executive order to
close.
(f) "CLAIMANT" has the meaning specified in Section 6.1.
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(g) "CLAIMS" has the meaning specified in Section 6.1.
(h) "CLOSE OF BUSINESS" on any given date shall mean 5:00 p.m.,
Ohio time, on that date; provided, however, that if the date
is not a Business Day it shall mean 5:00 p.m., Ohio time, on
the next succeeding Business Day.
(i) "CLOSING DATE" has the meaning specified in Section 3.4.
(j) "COMPANY" has the meaning specified in the first paragraph of
this Agreement and includes any successor thereto.
(k) "COMMON STOCK" means any of the 7,500,000 shares of capital
stock which the Company is authorized to issue.
(l) "XXXXX" has the meaning specified in the first paragraph of
this Agreement.
(m) "DUE DATE" has the meaning specified in Section 3.3.
(n) "XXXXXXX" has the meaning specified in the first paragraph of
this Agreement.
(o) "ESCROW AGREEMENT" has the meaning specified in Section
3.2(b).
(p) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended and in effect on the date of this Agreement, and all
references to any rule or regulation of the General Rules and
Regulations under the Exchange Act shall be, except as
otherwise specifically provided herein, to the rule or
regulation as was in effect on the date of this Agreement.
(q) "EXPIRATION DATE" means the Close of Business on March 31,
2013, or on such later date as of which Shareholder no longer
has Beneficial Ownership of any Voting Securities or, if the
transactions contemplated by this Agreement are not
consummated, the Termination Date.
(r) "GOVERNING DOCUMENTS" means the articles of incorporation,
code of regulations, bylaws, and any similar documents adopted
by the Company's shareholders or its board of directors
establishing or governing the legal existence, power, and
authority of the Company, each as amended.
(s) "GROUP" means any two or more persons acting as a partnership,
limited partnership, syndicate, or other group constituting a
person within the meaning of section 13(d)(3) of the Exchange
Act.
(t) "LITIGATION" means the action entitled S. Xxxxxx Xxxxx v. DCB
Financial Corp., et al. in the United States District Court
for the Southern District of Ohio, Case No. C2 02 625.
(u) "MAXIMUM NUMBER OF SHARES" has the meaning specified in
Section 3.1.
(v) "NOTE" has the meaning specified in Section 3.3.
(w) "PLEDGE AGREEMENT" has the meaning specified in Section 3.2.
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(x) "RELEASED PARTIES" has the meaning specified in Section 6.1.
(y) The term "PERSON" means any individual, firm, corporation,
partnership, limited liability company, sole proprietorship,
or other entity.
(z) "SEC" means the United States Securities and Exchange
Commission.
(aa) "SECURITIES ACT" means the Securities Act of 1933, as amended
and in effect on the date of this Agreement, and all
references to any rule or regulation of the General Rules and
Regulations under the Securities Act shall be, except as
otherwise specifically provided herein, to the rule or
regulation as was in effect on the date of this Agreement.
(bb) "SHAREHOLDER" has the meaning specified in the first paragraph
of this Agreement.
(cc) "TERMINATION DATE" has the meaning specified in Section 3.4.
(dd) "VOTING SECURITIES" means the Common Stock, or the equity
securities or other equity interest, having voting power to
control or direct the management of the Company, and
securities convertible into, exchangeable for or exercisable
for such capital stock or other equity security.
SECTION 2 STANDSTILL AGREEMENT OF SHAREHOLDER
2.1 STANDSTILL COVENANTS. Except as provided in Section 2.2, each
Shareholder agrees that for the period from the date of this Agreement to the
Expiration Date neither that Shareholder nor any of such Shareholder's
Affiliates or Associates will, without the prior approval of the board of
directors of the Company, directly or indirectly, solicit, request, advise,
assist, encourage, or facilitate (including by providing financing to) others to
take any of the following actions:
(a) ACQUIRE SHARES. Acquire, announce an intention to acquire,
offer or propose to acquire, solicit an offer to sell or agree
to acquire by purchase, by gift, by joining a Group or
otherwise, ownership (including but not limited to Beneficial
Ownership) of any Voting Securities or Voting Securities of
any successor to the Company; or participate in the formation
or encourage the formation of, or join or in any way
participate with, any Group that owns or seeks to acquire
Beneficial Ownership of Voting Securities of the Company or
any successor;
(b) MAKE TENDER OFFER. Commence, or announce any intention to
commence, or (directly or indirectly or through or in
conjunction with any other person) engage in, a tender or
exchange offer for Voting Securities made by any other person
or entity;
(c) ENGAGE IN SHORT SALES. Make any short sales, enter into any
hedging, derivative or similar transactions regarding Voting
Securities;
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(d) ACQUIRE ASSETS. Acquire, announce an intention to acquire,
offer or propose to acquire, solicit an offer to sell or agree
to acquire by purchase, by gift, by joining a Group or
otherwise, assets, businesses, or properties of the Company or
the Bank;
(e) SOLICIT PROXIES. Solicit proxies or written consents of
shareholders with respect to Voting Securities under any
circumstances, or make, or in any way participate in, any
"solicitation" of any "proxy" to vote any Voting Securities
(other than conducted by the Company), or become a
"participant" in any election contest with respect to the
Company (as such terms are defined or used in Rules 14a-1 and
14a-11 under the Exchange Act), or seek to advise or influence
any person with respect to the voting of any Voting Securities
(other than as otherwise provided or contemplated by this
Agreement);
(f) SUBMIT SHAREHOLDER PROPOSALS. Seek to call, or request the
call of, a special meeting of the shareholders of the Company,
or make or induce any other shareholder to make any
shareholder proposal in respect of the Company, including but
not limited to a proposal to nominate directors to be elected
at any annual or special meeting of the shareholders of the
Company; or solicit shareholders for the approval of a
shareholder proposal with respect to the Company;
(g) SEEK CONTROL. Otherwise act, alone or in concert with others,
to seek to control the management, board of directors,
policies, or affairs of the Company or solicit, propose, seek
to effect or negotiate with any other person (including,
without limitation, the Company) with respect to any form of
business combination or other extraordinary transaction with
the Company or the Bank or any restructuring,
recapitalization, similar transaction, or other transaction
not in the ordinary course of business with respect to the
Company or the Bank;
(h) RE-FILE LITIGATION OR OTHERWISE TAKE LEGAL ACTION. Other than
in connection with enforcement of his rights under this
Agreement or any Note issued pursuant hereto, or in the case
of Xxxxx this Agreement, the Note or the Pledge Agreement,
otherwise act, alone or in concert with others, to encourage,
facilitate, incite, or seek to cause others to instigate legal
proceedings against the Company, the Bank or any of the
officers, directors, or employees of either, including but not
limited to filing any appeal or motion for reconsideration of
the Litigation or its dismissal or commencing any claim for
inspection or other claim similar to the claims raised in the
Litigation in any other court, jurisdiction or venue; or
(i) CHANGE THIS AGREEMENT. Make any request, or otherwise seek (in
any fashion that would require public disclosure by the
Company, such Shareholder or his respective Affiliates) to
rescind or obtain any waiver or amendment of any provision of
this Agreement or take any action restricted hereby.
2.2 In the event that the Company does not timely pay: ? to each
Shareholder, including for this purpose an escrow agent appointed by such
Shareholder, (other than Xxxxx) the purchase price provided for in Section
3.2(a) or (b) by the Due Date following such Shareholder's
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presentment to the Company of the certificates or other instruments contemplated
by Section 3.2(a) or (b); or (ii) Xxxxx the purchase price provided for in
Section 3.2(c) by the Due Date, the standstill obligations of such Shareholder
or Xxxxx under this Section 2.1 shall no longer apply to such Shareholder or
Xxxxx and shall be of no further force or effect with respect to such
Shareholder or Xxxxx. Nothing in the foregoing sentence is intended to, or
shall, relieve the Company of any of its obligations under this Agreement or any
Note.
2.3 WITHDRAWAL OF PRELIMINARY PROXY AND SHAREHOLDER PROPOSAL. Xxxxx,
Asmo and Xxxxx shall withdraw the preliminary proxy materials filed by them with
the SEC on March 28 and April 14, 2003. Xxxxxxx shall withdraw his request for
inclusion in the Company's proxy statement for its 2003 annual meeting of his
shareholder proposal for retention of an investment bank to solicit offers for
the purchase of the Company's stock or assets or the presentation of any such
offer for consideration of shareholders.
SECTION 3 PURCHASE AND SALE OF COMMON STOCK
3.1 PURCHASE AND SALE. On and subject to the terms and conditions of
this Agreement, the Company agrees to purchase from the Shareholders and pay the
purchase price as set forth in Section 3.2, and each Shareholder agrees to sell
to the Company on the terms and conditions of this Agreement all Common Stock
owned or held by that Shareholder at the Closing Date, up to a maximum of
245,000 shares of such Common Stock ("MAXIMUM NUMBER OF SHARES"), for the
purchase price payable upon delivery of such Common Stock at the closing or
subsequent to the closing as provided in Section 3.4, which Common Stock shall
not be less than the number of shares that Shareholder represents are owned or
held pursuant to Section 4.1(d).
3.2 PURCHASE PRICE. In consideration for the sale and delivery of the
Common Stock presented by the Shareholders as provided in this Section 3.2 and
the other obligations set forth in this Agreement, the Company agrees to pay an
aggregate amount equal to $23.75 multiplied by the number of shares of Common
Stock shown as owned by each such Shareholder on Exhibit C and presented, as
follows:
(a) To Xxxxxxx, upon his presentment to the Company on or before
the close of business on June 17, 2003, of certificates or
other instruments representing all of the Common Stock owned
or held by him and a Stock Transfer Power and Payment
Instruction in the form of Exhibit B, an amount equal to
$67,687.50, by authorizing the Escrow Agent acting pursuant to
the Escrow Agreement attached as Exhibit E (the "Escrow
Agreement") to deliver such funds;
(b) To each Shareholder other than Xxxxx or Xxxxxxx as soon as
practicable following such Shareholder's presentment to the
Company of certificates or other instruments representing all
of the Common Stock owned or held by such Shareholder and a
Stock Transfer Power and Payment Instruction in the form of
Exhibit B on or before the Close of Business on June 17, 2003,
an amount equal to $23.75 multiplied by the number of shares
shown as owned by such Shareholder on Exhibit C, by
authorizing the Escrow Agent acting pursuant to
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the Escrow Agreement attached as Exhibit E to deliver to such
shareholder a Non-Negotiable Cognovit Promissory Note made by
the Company in substantially the form of Exhibit A (the
"NOTE"), the terms of which shall be as set forth in Section
3.3 or the proceeds thereof; provided that such Shareholder
must deliver the certificates or other instruments to the
Company prior to payment and in no event later than the Close
of Business on June 17, 2003; and
(c) To Xxxxx upon his presentment to the Company at the Closing
Date of certificates or other instruments representing all of
the Common Stock owned or held by him, (1) an amount equal to
$1,182,312.50, by wire transfer or delivery of other
immediately available funds, and (2) the balance (being an
amount equal to $3,669,812.50 by the delivery to Xxxxx of a
Note made by the Company and related Pledge Agreement executed
by the Company in substantially the form of Exhibit F (the
"PLEDGE AGREEMENT").
3.3 THE NOTE. Each Note shall be non-negotiable, cognovit time note,
bearing interest at the annual rate of 4.0 percent, due and payable in full on
June 17, 2003 (the "DUE DATE") unless prepaid without penalty by the Company
and, as to the Xxxxx Note only, secured by a pledge (substantially in the form
of Exhibit F hereto) of the Common Stock transferred by Xxxxx. In the event that
the Note is not paid in full by the Due Date, in addition to the right to pursue
the remedies provided by the Note and by applicable law, interest shall accrue
on the unpaid balance of the Note at the rate of 10.00 percent per annum simple,
which interest shall be due and payable by the Company monthly no later than the
1st Business Day of each month. In the event that the Note is not paid in full
by October 1, 2003, interest shall accrue on the unpaid balance of the Note at
the rate of 18% per year, which interest shall be due and payable by the Company
monthly no later than the 1st Business Day of each month.
3.4 THE CLOSING. Subject to the terms and conditions of this Agreement,
the closing of the purchase and sale contemplated by this Section 3 shall take
place at the offices of Xxxxxxx & Xxxxxx LLP at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx, commencing at 2:00 p.m. local time on April 18, 2003 or such
other Business Day as the Company and Shareholder may mutually determine (the
"CLOSING DATE"), but in no event later than 5:00 p.m. on April 18, 2003 (the
"TERMINATION DATE").
3.5 DELIVERY AT THE CLOSING. At the closing, Xxxxx shall deliver to the
Company certificates or other instruments representing all of the Common Stock
owned or held by him, endorsed in blank or accompanied by duly executed
assignment documents upon payment (or delivery of evidence of payment by wire
transfer) of funds. At the closing the Company shall deliver to Xxxxx the Escrow
Agreement and the Pledge Agreement executed by the Company and shall deliver the
items covered by such agreements to the recipients specified therein.
3.6 EX DIVIDEND. No Shareholder or assignee or transferee of any
Shareholder shall entitled to receive payment of any dividend declared by the
Company's board of directors at its meeting on April 15, 2003 or at any time
thereafter with respect to any shares of Common Stock, and any dividend received
by any such Shareholder shall be deemed assigned effective as of April 16, 2003
and shall be paid as soon as possible to the Company.
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SECTION 4 REPRESENTATIONS
4.1 REPRESENTATIONS OF SHAREHOLDER. Each Shareholder represents and
warrants to the Company that the statements of such Shareholder contained in
this Section 4.1 are correct and complete as of the date of this Agreement and
will be correct and complete as of the Closing Date as though made as of such
date.
(a) EXISTENCE. Shareholder is an individual residing in the State
stated in the first paragraph of this Agreement and is
competent to conduct business and enter into contracts under
the laws of the State of Ohio.
(b) AUTHORIZATION. Shareholder has full competence, power, and
authority to execute and deliver this Agreement and to perform
Shareholder's obligations hereunder, and such execution,
delivery, and performance are duly authorized by all necessary
action. This Agreement constitutes the valid and legally
binding obligation of Shareholder, enforceable in accordance
with its terms and conditions.
(c) NONCONTRAVENTION. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions
contemplated hereby, will (1) violate any constitution,
statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Shareholder
is subject, or (2) conflict with, result in a breach of,
constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other arrangement to
which Shareholder is a party or by which Shareholder is bound
or to which any of Shareholder's assets is subject.
(d) COMMON STOCK. Shareholder (1) holds or owns (A) the number of
shares of Common Stock set forth next to his name on Exhibit
C, free and clear of any restrictions on transfer (other than
any restrictions under the Securities Act and state securities
laws), taxes, security interests, options, warrants, purchase
rights, contracts, commitments, equities, claims, or demands
and (B) no other shares of Common Stock; (2) is not a party to
any option, warrant, purchase right, or other contract or
commitment that could require Shareholder to sell, transfer,
or otherwise dispose of any Common Stock other than pursuant
to this Agreement; and (3) is not a party to any voting trust,
proxy, or other agreement or understanding with respect to the
voting of any Common Stock.
4.2 REPRESENTATIONS OF THE COMPANY. The Company represents and warrants
to Shareholder that the statements contained in this Section 4.2 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date as though made as of such date:
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(a) EXISTENCE. The Company is duly organized, validly existing,
and in good standing under the laws of the State of Ohio and
is duly authorized to conduct business and enter into
contracts under the laws of the State of Ohio.
(b) AUTHORIZATION. The Company has full power and authority under
the laws of its organization and Governing Documents to
execute and deliver this Agreement, the Notes, the Pledge
Agreement and the Escrow Agreement and to perform its
obligations hereunder and thereunder, and such execution,
delivery, and performance are duly authorized by all necessary
corporate action of the Company. This Agreement constitutes
the valid and legally binding obligation of the Company,
enforceable in accordance with its terms and conditions.
(c) NONCONTRAVENTION. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions
contemplated hereby, will by the Closing Date (1) violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Company
is subject or any provision of its Governing Documents, or (2)
conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the
right to accelerate, terminate, modify, or cancel, or require
any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Company is a
party or by which it is bound or to which any of its assets is
subject.
SECTION 5 PRE-CLOSING COVENANTS; CONDITIONS TO CLOSING
5.1 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligation of the
Company to consummate the transactions to be performed by it pursuant to this
Agreement is subject to satisfaction of the following conditions on or before
the Termination Date:
(a) The representations and warranties set forth in Section 4.1
shall be true and correct in all material respects at and as
of the date of this Agreement and at and as of the Closing
Date;
(b) Each Shareholder shall have performed and complied with all of
his covenants hereunder in all material respects through the
Closing Date; and
(c) No action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction or before
any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (1) prevent
consummation of any of the transactions contemplated by this
Agreement or (2) cause any of the transactions contemplated by
this Agreement to be rescinded following consummation.
5.2 CONDITIONS TO OBLIGATIONS OF SHAREHOLDERS. The obligation of
Shareholders jointly and severally to consummate the transactions to be
performed by each of them pursuant to this Agreement is subject to satisfaction
of the following conditions on or before the Termination Date:
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(a) The representations and warranties set forth in Section 4.2
shall be true and correct in all material respects at and as
of the date of this Agreement and at and as of the Closing
Date;
(b) The Company shall have performed and complied with all of its
covenants hereunder in all material respects through the
Closing Date; and
(c) No action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction or before
any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (1) prevent
consummation of any of the transactions contemplated by this
Agreement or (2) cause any of the transactions contemplated by
this Agreement to be rescinded following consummation.
SECTION 6 DISMISSAL; MUTUAL RELEASE
6.1 MUTUAL RELEASE.
(a) Each of the Company, for and on behalf of itself and each of its
Affiliates, Associates, predecessors, successors, parents, subsidiaries,
divisions, partners, assignees and nominees, and all employees, directors,
officers, agents, attorneys, representatives and shareholders of each of them,
and each of their Affiliates, Associates, heirs, estates, successors, and
assigns, (excepting only those directors and former directors of the Company
listed on the signature page hereof who do not cause to be delivered to the
addressees identified in Section 8.8 a copy of this Agreement executed by such
director or former director prior to April 30, 2003) on one part, and each
Shareholder for and on behalf of itself, himself or herself and each of its, his
or her Affiliates, Associates, heirs, estates, successors, and assigns, on the
other part, each (as a "CLAIMANT") hereby mutually release and forever discharge
the other and each such person of the other's part (the "RELEASED PARTIES") of
and from any and all manner of claims, rights, actions, causes of action, suits,
liens, obligations, accounts, debts, demands, agreements, promises, liabilities,
controversies, costs, expenses, and attorneys' or paralegals' or other fees
whatsoever, whether arising in law or equity, whether based on any federal,
state or foreign law or right of action, matured or unmatured, contingent or
fixed, liquidated or unliquidated, known or unknown, accrued or unaccrued which,
the Released Parties or any of them, the Claimants, or any of them, ever had or
now have by reason, in connection with, arising out of any matter, cause, or
thing whatsoever from the beginning of the world to the date of this Agreement
(collectively, "CLAIMS"). "Claims" shall not include any claims arising out of
or relating to this Agreement or the Note, or any rights or obligations
contained in either of such documents.
(b) This release shall be deemed to extinguish all such Claims, and the
Company for and on behalf of itself and each of the other Claimants on its part
and Shareholder for and on behalf of himself and each of the other Claimants on
his part each mutually covenants not to institute or maintain any suits against
any of the Released Parties with respect to any of such Claims; provided that
this release shall not preclude the Company or Shareholder from instituting any
action against the other for alleged breach of this Agreement to the extent that
the
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Company's or Shareholder's, as applicable, obligations hereunder remained
executory at the time of the alleged breach.
(c) Notwithstanding the forgoing, this release shall not extinguish any
Claims regarding (1) any loan or other extension of credit, any lien or other
security therefor, or any guarantee or other accommodation thereof, any deposit
or obligation payable, or similar banking transaction or service between the
Bank and any Shareholder or his Affiliates, Associates, heirs, estates,
successors, and assigns or (2) any ordinary course of business commercial
transaction among the Claimants or Released Parties that is unrelated to the
Litigation or allegations made in connection therewith.
SECTION 7 REMEDIES; CHOICE OF LAW; JURISDICTION
7.1 CHOICE OF LAW/CONSENT TO JURISDICTION. All disputes, claims, or
controversies arising out of or relating to this Agreement shall be governed by
and construed in accordance with the laws of the State of Ohio without regard to
its rules of conflict of laws. Each of the parties hereby irrevocably and
unconditionally consents to submit to the sole and exclusive jurisdiction of
United States District Court for the Southern District of Ohio, Eastern
Division, or state court sitting in the County of Franklin, State of Ohio, for
any litigation arising out of or relating to this Agreement (and agrees not to
commence any litigation relating thereto except in such courts), waives any
objection to the laying of venue of any such litigation in such courts and
agrees not to plead or claim in any such court that such litigation brought
therein has been brought in any inconvenient forum. Each of the parties hereto
agrees that service of process may be made on such party by prepaid certified
mail with a proof of mailing receipt validated by the United States Postal
Service constituting evidence of valid service. Service so made shall have the
same legal force and effect as if served upon such party personally within the
State of Ohio.
7.2 REMEDIES. Each party hereto hereby acknowledges and agrees that
irreparable harm would occur in the event any of the provisions of this
Agreement are not performed in accordance with their specific terms or are
otherwise breached or threatened to be breached. It is accordingly agreed that
the parties shall be entitled to specific relief hereunder, including, without
limitation, an injunction or injunctions to prevent and enjoin breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof, in addition to any other remedy to which they may be entitled
at law or in equity. Any requirements for the securing or posting of any bond
with such remedy are hereby waived. The prevailing party or parties in such
action or proceeding for such relief shall be entitled to recover from the other
party or parties all costs and expenses, including but not limited to reasonable
attorneys' fees, court costs, witness fees, disbursements, and any other
expenses of litigation or negotiation incurred by such prevailing party or
parties.
SECTION 8 MISCELLANEOUS
8.1 PUBLIC ANNOUNCEMENT. The Company shall issue a press release
substantially in the form of Exhibit D announcing this Agreement.
11
8.2 NONDISPARAGEMENT. Except as may be otherwise be required by law,
neither the Company nor any Shareholder shall directly or indirectly make or
issue or cause to be made or issued any disclosure, announcement, or statement
(including without limitation the filing of any document or report with the SEC
or any other governmental agency or any disclosure to any journalist, member of
the media, or securities analyst) concerning the other party or, with respect to
the Company, any of its past, present or future directors, officers, employees
or other affiliates, which disparages such other party or any of such other
party's respective past, present, or future directors, officers, employees or
other affiliates.
8.3 COSTS AND EXPENSES. All costs and expenses incurred in connection
with the transactions contemplated hereby, including the negotiation, execution,
delivery, and performance hereof, shall be paid by the party incurring such cost
or expense.
8.4 AMENDMENT/WAIVER. No amendment or waiver of any provision of this
Agreement shall be implied by any failure of any party to enforce any remedy
upon the violation of such provision, even if such violation is continued or
repeated subsequently, and in no event shall any amendment or waiver of any
provision of this Agreement be effective against any party hereto unless
expressed in writing signed by that party. No express waiver shall affect any
provision other than the one specified in such waiver, and that only for the
time and in the manner specifically stated.
8.5 HEADINGS. The headings and captions are for convenience only and
shall not be deemed to limit, construe, affect or alter the meaning of the
underlying provisions.
8.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one and the same document.
8.7 SEVERABILITY. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any jurisdiction for any reason, such
invalidity, illegality or unenforceability shall not affect the remainder of
this Agreement, and the remainder of this Agreement shall be construed and
enforced as if such invalid, illegal or unenforceable portion were not contained
herein.
8.8 NOTICE. Any notice other communications required or permitted
hereunder shall, unless otherwise expressly provided, be in writing and be
deemed to have been properly given, served and received (a) if delivered by
messenger, when delivered, (b) if mailed, on the third Business Day after
deposit in the United States Mail, certified or registered, postage prepaid,
return receipt requested, (c) if emailed or faxed, two hours after being
dispatched by email or fax if such second hour falls on a Business Day within
the hours of 9:00 a.m. through 5:00 p.m. of the time in effect at the place of
receipt, or at 9:00 a.m. on that Business Day if the second hour is before 9:00
a.m., or at 9:00 a.m. on the next Business Day thereafter if such second hour is
later than 5:00 p.m. or other than on a Business Day, or (d) if delivered by
commercial overnight express courier, freight prepaid, the next Business Day
after delivery to such courier; in every case addressed to the party to be
notified as follows:
12
In the case of the Company:
DCB Financial Corp.
Attn: President
000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Fax: 000 000-0000
Email: xxxxxxx@xxx-x.xxx
with a copy to
Xxxxxxx & Xxxxxx LLP
Attn: Xxxx X. Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Email: xxxxxxxx@xxxxxxx.xxx
In the case of each Shareholder to the address stated next to
his name in Exhibit C with a copy to
Schottenstein, Zox & Xxxx Co., L.P.A.
Attn: Xxx X. Xxxxxxxx
X.X. Xxx 000000
Xxxxxxxx, Xxxx 00000-0000
Fax: (000) 000-0000
xxxxxxxxx@xxx.xxx
or to such other address(es) or addressee(s) as any party entitled to receive
notice hereunder shall designate to the others in the manner provided herein for
the service of notices. Rejection or refusal to accept delivery or inability to
deliver because of changed address or because no notice of changed address was
given, shall be deemed receipt.
8.9 SUCCESSORS. This Agreement shall inure to the benefit of, and be
binding upon, each party and that party's respective successors and assigns.
8.10 COMPLETE AGREEMENT. This Agreement contains the entire agreement
between the parties and supersedes any prior understanding or agreements between
them respecting any matter covered by this Agreement.
8.11 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Ohio.
8.12 WAIVER OF JURY TRIAL. Each of the parties to this Agreement, after
consulting or having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waive any right any of them may have to a trial by
jury in any litigation based upon or arising out of this Agreement or any
related instrument or agreement, or any of the transactions contemplated
thereby, or any course of conduct, dealing, statements (whether oral or
written), or
13
actions of any of them. No party shall seek to consolidate, by counterclaim or
otherwise, any action in which a jury trial has been waived with any other
action in which a jury trial cannot be or has not been waived. These provisions
shall not be deemed to have been modified in any respect or relinquished by any
party except by a written instrument executed by all parties.
THE NEXT PROVISION OF THIS DOCUMENT IS HEADED
"SIGNATURES" AND INTENTIONALLY BEGINS ON A SEPARATE PAGE
14
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first set forth above.
SIGNATURES OF THE SHAREHOLDERS:
The Xxxxxxxxx Xxxxxxx Trust
By: ____________________________
____________________________________
S. Xxxxxx Xxxxx
Its: ___________________________
____________________________________
Xxxxxxx X. Xxxx ________________________________
Xxxxxx Xxxxx
____________________________________
Xxxxxx X. Xxxxx ________________________________
Xxxxx Xxxxx Xxxx
____________________________________
Xxxxxxx X. Xxxxxxx ________________________________
Xxxx Xxxxx
____________________________________
Xxxxxxx X. Xxxxx ________________________________
Xxxxxx Xxxxx
____________________________________
Xxxx Xxx ________________________________
Xxxx Xxxxx
Presidential Coach, Inc.
________________________________
By: ________________________________ Xxxx Xxxxxx
Its: _______________________________ ________________________________
Xxxxx X. Xxxxx
The Xxxxxx X. Xxxxxxx Trust
By: ________________________________
Its: ________________________________
The Shareholders' Signature Page
Signatures of the Company and Section 6.1 Signatories
COMPANY:
DCB Financial Corp., ________________________________
an Ohio corporation G. Xxxxxxx Xxxxxx, M.D.
By: ________________________________
Xxxxxxx X. Xxxxxx, President and ________________________________
Chief Executive Officer Xxxxxx X. Xxxxxx
________________________________
Xxxxxx Xxxxxx
____________________________________
Xxxxxxx X. Xxxxxx
________________________________
Xxxx X. Xxxxxxx
____________________________________
C. Xxxxxxx Xxxxxx
________________________________
Xxxx Xxxxxxxxx
____________________________________
Xxxxxx X. Xxxxxxxx
________________________________
Xxxxx X. Xxxxxx
____________________________________
Xxxxxxx X. Xxxxxxx
____________________________________
Xxxxx X. Xxxxxx
____________________________________
Xxxxx X. Xxxxx
____________________________________
Xxxxxxx X. Xxxxxxxxx
The Company and Section 6.1 Signatories Signature Page
