EXHIBIT 10.13
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of this first day of March,
2006 ("Effective Date"), among Rurban Financial Corp. ("RFC"), an Ohio business
corporation having a place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxx,
and Xxxxx X. Xxxx, individually ("Executive"), an Executive.
WITNESSETH: 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superseded and replaced by this Agreement.
WHEREAS, RFC is a registered bank holding company; and
WHEREAS, any reference to "Corporation" in this Agreement shall mean RFC;
and
WHEREAS, the Executive is employed by the Corporation as Executive Vice
President and Chief Financial Officer; and
WHEREAS, it is the consensus of the board of directors of RFC that the
Executive's services to the Corporation in the past have been of exceptional
merit and have constituted an invaluable contribution to the general welfare of
the Corporation and in bringing it to its present status of operating efficiency
and its present position in its field of activity; and
WHEREAS, the experience of the Executive, his knowledge of the affairs of
the Corporation, his reputation and contacts in the industry are so valuable
that assurance of his continued services is essential for the future growth and
profits of the Corporation and it is in the best interest of the Corporation to
arrange terms of continued employment for the Executive so as to reasonably
ensure his remaining in the Corporation's employment; and
WHEREAS, this Agreement will become operative only upon a Change of
Control (as defined herein); and
WHEREAS, the purpose of this Agreement is to define certain severance
benefits that will be paid in the circumstances described in the Agreement by
the Corporation or the entity resulting from a Change of Control or succeeding
to RFC's interests as a result of a Change of Control (the Corporation or such
successors are referred to in this Agreement as the "Change Entity"), but is not
intended to affect, nor does it affect, the terms of the Executive's status as
an employee at will; and
WHEREAS, the Corporation believes that the Executive will play a critical
role in any Change of Control; and
WHEREAS, the Corporation does not believe that the Executive should be
forced to sacrifice his financial security in order to fulfill his
responsibilities to the Corporation's Shareholders;
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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 the parties agree to following terms and conditions:
1. TERM. The Term of this Agreement shall be from the Effective Date
through the end of the 36th consecutive calendar month beginning on or
immediately after the Effective Date. However, and unless the Corporation
notifies the Executive in writing to the contrary at least 90 days before the
end of the 12th consecutive calendar month beginning after the Effective Date
(and, thereafter, anniversaries of the Effective Date) the Term of this
Agreement will automatically be extended for an additional 12 calendar month
period. However, no such notice of nonrenewal may be delivered during any
Protection Period and this Agreement will not expire (except as specifically
provided below) and will remain in effect throughout any Protection Period
regardless of whether that Protection Period ends after the date the Agreement
otherwise would expire. Notwithstanding the foregoing, this Agreement will
terminate on the earliest of the following to occur:
(a) The Executive's employment terminates before the beginning of
the Protection Period;
(b) Before the beginning of a Protection Period, the Executive is
reassigned to a more junior position than that held on the
date of this Agreement; however, if the more junior position
is in an employee classification, the majority of whose
members have change of control agreements, this Agreement will
remain in effect, although benefit levels will automatically
be adjusted to the level established under those agreements;
(c) The Executive agrees, in writing, to terminate this Agreement,
whether or not it is replaced with a similar agreement; or
(d) All payments due under this Agreement have been fully paid.
2. DEFINITION OF CAUSE. The term "Cause" shall be defined, for purposes of
this Agreement, as the occurrence of one or more of the following:
(a) The willful failure by the Executive to substantially perform
his duties hereunder (other than a failure attributable to an
event that constitutes Good Reason or resulting from
Executive's incapacity because of death or disability), after
notice from the Corporation, and a failure to cure such
violation within twenty (20) days of said notice;
(b) The willful engaging by the Executive in misconduct injurious
to the Corporation or the Change Entity;
(c) Dishonesty, insubordination or gross negligence of the
Executive in the performance of his duties;
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(d) Executive's breach of fiduciary duty involving personal
profit;
(e) 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;
(f) Conduct on the part of Executive which brings public discredit
to the Corporation or the Change Entity 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;
(g) 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;
(h) An act by the Executive affecting any of the Corporation's or
the Change Entity's employees, customers, business associates,
contractors or visitors that an independent third party
decides, after reasonable investigation, constitutes unlawful
discrimination or harassment or violates the Corporation's or
the Change Entity's policy concerning discrimination or
harassment;
(i) Executive's theft or abuse of the Corporation's or the Change
Entity's property or the property of the Corporation's or the
Change Entity's customers, employees, contractors, vendors or
business associates;
(j) The direction or recommendation of a state or federal bank
regulatory authority to remove Executive from his positions
with Corporation or the Change Entity;
(k) Executive's willful failure to follow the good faith lawful
instructions of the board of directors of Corporation or of
the Change Entity 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;
(l) Material breach of any contract or agreement that Executive
entered with Corporation or the Change Entity, including
breach of any of the obligations described in Sections 9 and
11 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;
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(m) Unauthorized disclosure of the trade secrets or confidential
information (as defined in below) of Corporation, the Change
Entity or any of their affiliates, trade partners or vendors;
(n) Any intentional cooperation with any party attempting to
effect a Change of Control unless (i) the Corporation's board
of directors has approved or ratified that action before the
Change of Control or (ii) that cooperation is required by law.
However, Cause will not arise solely because the Executive is absent from active
employment during periods of vacation, consistent with the Corporation's or the
Change Entity's applicable vacation policy or other period of absence initiated
by the Executive and approved by the Corporation or the Change Entity.
Also, if, after the Executive terminates employment, the Corporation or the
Change Entity learn that the Executive has actively concealed conduct or an
event that, if discovered before employment terminated, would have constituted
"Cause," the provisions of Section 8(a) will be applied retroactively to the
date the Executive terminated employment and the Corporation or the Change
Entity may recover any and all amounts paid to the Executive (or to his or her
beneficiaries) under this Agreement.
The term "Confidential Information" shall mean any and all information (other
than information in the public domain) related to the Corporation's or the
Change Entity's or any Related Entity's business, including all processes,
inventions, trade secrets, computer programs, technical data, drawings or
designs, 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.
3. DEFINITION OF GOOD REASON. For purposes of this Agreement, the term
"Good Reason" shall mean any of the following which occur during the Protection
Period, to which the Executive has not consented in writing:
(a) The assignment of duties and responsibilities inconsistent
with Executive's status as Chief Financial Officer of the
Corporation, unless the Executive has simultaneously been
promoted to a more senior position and has been assigned
substantive duties normally associated with that new position;
(b) A reassignment which requires Executive to move his office
more than fifty (50) miles from the location of Corporation's
principal executive office as existing on the first day of the
Protection Period;
(c) Any reduction in the Executive's Annual Direct 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
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national or bank emergency when such reduction has been
implemented for the Corporation's or the Change Entity's
senior management, as a group;
(d) Any action that would materially reduce the employee benefits
enjoyed by the Executive on the first day of the Protection
Period unless such reduction is part of a reduction applicable
to all employees;
(e) Any attempt by the Corporation or the Change Entity to amend
or terminate this Agreement without regard to the procedures
described in Section 16;
(f) Failure at any time during the Protection Period to obtain an
assumption of RFC's or the Change Entity's obligations under
this Agreement by any successor to any of them, regardless of
whether such entity becomes a successor to RFC or the Change
Entity as a result of a merger, consolidation, sale of assets
or any other form of reorganization; and
(g) Any unsuccessful attempt to terminate the Executive for Cause.
4. DEFINITION OF CHANGE OF CONTROL. For purposes of this Agreement, the
term "Change of Control" shall mean the earliest of any of the following:
(a) 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");
(b) 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 the Corporation before
the transaction, regardless of when or how their voting stock
was acquired;
(c) 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;
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(d) Any "person" as defined above, other than the Corporation, the
Executive or RFC's ESOP, is or becomes the "beneficial owner"
(as defined in Rule 13 d-3 and Rule 13 d-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;
(e) 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
(f) Any other change of control of the Corporation 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 the Corporation.
5. DEFINITION OF DATE OF THE CHANGE OF CONTROL. For purposes of this
Agreement, the "Date of the Change of Control" shall mean the date the first of
any of the events described in Section 4 occurs.
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6. DEFINITION OF ANNUAL DIRECT SALARY. For purposes of this Agreement,
Annual Direct Salary shall be defined as the highest base salary paid to the
Executive for any calendar month during the 36-consecutive-calendar-month period
ending on or immediately before the date on which it is being calculated,
multiplied by 12. Annual Direct Salary will be determined without including any
employee or fringe benefits, bonuses, incentives or other compensation (other
than base salary) paid or earned during the calculation period.
7. PROTECTION PERIOD. For purposes of this Agreement, Protection Period
shall be defined as (a) the period beginning on the first date the Corporation's
board of directors learns of an event that, if completed, would result in a
Change of Control and ending on the last day of the twelfth complete calendar
month beginning after the Change of Control or, if longer, (b)(i) 60 days after
the date the Executive learns of an event within the definition of Good Reason
and that arose or occurred during the Protection Period (as defined in Section
7(a)) and which the Corporation or the Change Entity concealed or (ii) 60 days
after the conclusion of an unsuccessful attempt to terminate the Executive for
Cause.
8. PAYMENTS UPON TERMINATION. Subject to applicable restrictions arising
under Section 4094 of the Internal Revenue Code of 1986, as amended ("Code"):
(a) If Executive's employment is terminated for Cause or Executive
voluntarily terminates his employment without Good Reason, as
defined herein, all rights of the Executive under this
Agreement shall cease as of the effective date of such
termination, except that Executive (i) shall be entitled to
receive accrued salary through the date of such termination
and (ii) shall be entitled to receive the payments and
benefits to which he is then entitled under the employee
benefit plans of the Corporation or the Change Entity as of
the date of such termination.
(b) If the Executive is involuntarily terminated (other than for
Cause) in connection with a Change of Control (or an event
associated with a Change of Control) during a Protection
Period or the Executive voluntarily terminates employment for
Good Reason during a Protection Period, then the Corporation
or the Change Entity shall:
(i) Within thirty (30) days of the Executive's termination
of employment, pay to the Executive a lump sum cash
amount equal to two(2) times the Executive's Annual
Direct Salary, 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 two (2) 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 on the
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first day of the Protection Period. These benefits will
be provided under the insured arrangements maintained
for active employees without cost to the Executive.
However, if the Corporation or the 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"), the
Corporation 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 the Corporation 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.
9. NON-COMPETE.
(a) Executive hereby acknowledges and recognizes the highly
competitive nature of the business of the Corporation.
Accordingly, Executive agrees that if a Change of Control
occurs and provided that Executive receives the payments
described in Section 8(a) or (b), whichever is 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:
(i) Provide financial or executive assistance to any person,
firm, corporation or enterprise engaged in (1) the
banking or financial services industry (including bank
holding company), or (2) any other activity in which
Corporation engaged on the Date of the Change of
Control, within fifty (50) miles of the Corporation's
Main Office (the "Non-Competition Area"); or
(ii) 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
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become a customer or referral source for any person or
entity other than Corporation or, if applicable, the
Change Entity; or
(iii) 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.
(b) It is expressly understood and agreed that, although Executive
and RFC consider the restrictions contained in Section 9(a)
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 Section 9 is an unreasonable or otherwise unenforceable
restriction against Executive, the provisions of 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.
(c) 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 the Corporation 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.
Prior to the application of Section 10, the Corporation 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.
10. GOLDEN PARACHUTE PROVISIONS. Notwithstanding any provision in this
Agreement to the contrary (other than Sections 8(b)(ii), 19 and 23 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
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defined in Section 8(b)(ii) or the amounts described in Section 19 and/or 23,
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 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
19 and 23) 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 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 10, 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 10) will generate Excise Taxes on compensation and benefits (other
than the Welfare Benefit Replacement Cost and those amounts described in
Sections 19 and 23), 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 19
and 23) and the amount paid (other than the Welfare Benefit Replacement Cost and
those amounts described in Sections 19 and 23). 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 the Corporation will bear all costs associated with that effort.
11. UNAUTHORIZED DISCLOSURE. During the term of Executive's employment, or
at any later time, the Executive shall not, without the written consent of the
board of directors of the Corporation (or, if applicable, the Change Entity) or
a person authorized by them knowingly use or disclose to any person, other than
an authorized employee of the Corporation (or, if applicable, the Change
Entity), 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 Corporation (or, if applicable, the Change Entity), any material
Confidential Information obtained by him while in the employ of Corporation (or,
if applicable, the Change Entity) with respect to any of the services, products,
improvements, formulas, designs or styles, processes, customers, customer lists,
methods of business or any business practices of Corporation (or, if applicable,
the Change Entity) or affiliates, the disclosure of which could be or will be
damaging to Corporation (or, if applicable, the Change Entity) or affiliates;
provided, however, that Confidential Information shall not include any
information known generally to the
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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 Corporation or
its subsidiaries or affiliates or any information that must be disclosed as
required by law.
12. NO EMPLOYMENT CONTRACT. This Agreement is not an employment contract.
Nothing contained herein shall guarantee or assure Executive of continued
employment by Corporation or the Change Entity.
13. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxx
_____________________________
If to the Corporation: Rurban Financial Corp,
Human Resource Director
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
If to the Change Entity At the address provided
or to such other address as Executive, Corporation or the Change Entity may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
14. SUCCESSORS; BINDING AGREEMENT. This Agreement shall inure to the
benefit of and be binding upon the Corporation, the Change Entity and Executive,
their respective personal representatives, heirs, assigns or successors;
provided, however, that the Executive may not commute, anticipate, encumber,
dispose of or assign any payment herein except as specifically set forth in
Sections 14 and 24(e) of this Agreement.
15. 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.
16. 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
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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.
17. 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 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.
18. LIMITATION OF DAMAGES FOR BREACH OF AGREEMENT. In the event of a
breach of this Agreement, by the Corporation, 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. In no
event shall any party be entitled to the recovery of attorney's fees or costs.
19. 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, 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, 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.
The Corporation 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
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determined that payment of these costs are excess parachute payments, the
Corporation 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.
20. 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.
21. 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.
22. 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.
23. LEGAL FEES. The Corporation 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 provided by 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.
24. 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) The Executive is not required to mitigate the amount of any
payment described in this Agreement by seeking other
employment or otherwise, nor will the amount of any payment or
benefit provided for in this Agreement be reduced by any
compensation or benefits the Executive earns, or is entitled
to receive, in any capacity after termination or by reason of
the Executive's receipt of or right to receive any retirement
or other benefits attributable to employment.
(c) 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.
(d) 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 any benefit to which a deceased Executive is
entitled.
(e) Subject to the preceding subsection (d), 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.
(f) If the Executive's employment relationship shifts between the
Corporation 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.
(g) 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.
25. 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
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this Agreement contains all the covenants and agreements between the parties
with respect to same.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be duly executed in their respective names
and, in the case of the Corporation, by its authorized representatives the day
and year above mentioned.
ATTEST: RURBAN FINANCIAL CORP.
/s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxx
-------------------------- ----------------------------------
Xxxxxxx X. Xxxxx
Date 3-9-06 Date 3/9/06
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WITNESS: EXECUTIVE:
/s/ Xxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxx
------------------------------- ----------------------------------
Xxxxx X. Xxxx
Date 3-9-06 Date 3-9-06
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