EXHIBIT 10.11
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN 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 Xxxxxxx X. Xxxxx , individually ("Executive") an Executive.
WITNESSETH: The Executive has previously entered into an agreement
describing amounts payable under an Executive Salary Continuation Agreement
("Prior Agreement"), which agreement is superseded and replaced by this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 any of their successors, including any entity with which RFC effects a
Change in Control ("Change Entity"); and
WHEREAS, the Executive is employed by the Corporation as its Chief
Executive 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 Company's employment; and
WHEREAS, it is the desire of the Corporation that the Executive's services
be retained as herein provided; and
WHEREAS, the Executive is willing to continue in the employ of the Company
provided the Company agrees to pay to him or his beneficiaries certain benefits
in accordance with the terms and conditions hereinafter set forth:
ACCORDINGLY, it is the desire of the Corporation and the Executive to
enter into this Agreement under which the Corporation will agree to make certain
payments to the Executive as described in (and subject to the terms of) this
Agreement; and
FURTHERMORE, it is the intent of the parties hereto that this agreement be
considered an unfunded arrangement maintained primarily to provide supplemental
benefits for the Executive, as a member of a select group of management or
highly compensated employees of the Corporation for the purposes of the Employee
Retirement Income Security Act of 1974, (E.R.I.S.A.):
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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 the following terms and conditions:
1. 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 resulting from
Executive's incapacity because of death or disability), after
notice from the Company, 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;
(c) Dishonesty, insubordination or gross negligence of the
Executive in the performance of his duties;
(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 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
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 policy concerning
discrimination or harassment;
(i) Executive's theft or abuse of Corporation's property or the
property of the Corporation's customers, employees,
contractors, vendors or business associates;
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(j) The direction or recommendation of a state or federal bank
regulatory authority to remove Executive from his positions
with Corporation; or
(k) Executive's willful failure to follow the good faith lawful
instructions of the board of directors of the Company 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, including a breach of any of the
obligations described in Paragraphs 15 and 20 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;
(m) 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 the Company's applicable
vacation policy or other period of absence initiated by the Executive and
approved by the Company.
Also, if, after the Executive terminates employment, the Corporation learns that
the Executive has actively concealed conduct or an event that, if discovered
before employment terminated, would have constituted "Cause," the provisions of
Paragraph 10 will be applied retroactively to the date the Executive terminated
employment and the Corporation 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 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.
2. 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
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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;
(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;
(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 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;
(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.
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Notwithstanding any other provision of this Agreement, the Plan will be
administered without regard to this definition if the Executive 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 Company.
3. 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 Paragraph 2 occurs.
4. 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.
5. EMPLOYMENT. The Company agrees to employ the Executive in such capacity
as the Company may from time to time determine. The Executive will continue in
the employ of the Company in such capacity and with such duties and
responsibilities as may be assigned to him, and with such compensation as may be
determined from time to time by the board of directors of the Company. Active
employment shall include temporary disability not to exceed 180 days and other
"leaves of absence" specifically granted by the board of directors.
6. FRINGE BENEFITS. The salary continuation benefits provided by this
agreement are granted by the Company as a fringe benefit to the Executive and
are not part of any salary reduction plan or an arrangement deferring a bonus or
a salary increase. The Executive has no option to take any current payment or
bonus in lieu of these salary continuation benefits except as set forth
hereinafter.
7. RETIREMENT DATE. If Executive remains in the continuous employ of the
Corporation, Executive shall retire from active employment with the Corporation
on the first December 31st after his sixty-second (62) birthday, unless by
action of the board of directors Executive's period of active employment shall
be shortened or extended.
8. RETIREMENT BENEFIT AND POST RETIREMENT DEATH BENEFIT. Subject to
Section 409A of the Code, when the Executive reaches his/her Retirement Date,
the Corporation, commencing with the first day of the month following the date
of such retirement, shall pay Executive an annual benefit equal to 25% of
Executive's Annual Direct Salary in equal monthly installments (of 1/12 of the
annual benefit) for a period of one hundred eighty (180) months, provided that
if less than one hundred eighty (180) such monthly payments have been made prior
to the death of the Executive, the Corporation shall continue such monthly
payments to whomever the Executive shall designate in writing and filed with the
Corporation, until the full number of one hundred eighty (180) monthly payments
have been made. In the absence of any effective designation of beneficiary, any
such amounts becoming due and payable upon the death of the Executive shall be
payable to the duly qualified executor or administrator of Executive's estate.
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9. BENEFIT ACCOUNTING. The Corporation shall account for this benefit
using the regulatory accounting principles of the Corporation's primary federal
regulator consistent with Generally Applicable Accounting Principles. The
Corporation shall establish an unfunded accrued liability retirement account for
the Executive.
10. OTHER TERMINATION OF EMPLOYMENT. In the event that the employment of
the Executive shall terminate prior to Retirement Date from active employment,
as provided in Paragraph 5, by Executive's voluntary action, then this Agreement
shall terminate upon the date of such termination of employment and, subject to
Section 409A of the Code, the Corporation shall pay to the Executive as Early
Retirement compensation an amount of money as of attained age under Vesting
Schedule (Paragraph 11) and subject to the payment schedule described in
Paragraph 8. If the Executive has not attained the minimum age shown is
Paragraph 11 or the Executive is discharged by the Corporation for Cause, the
Executive will have no compensation payable under this Agreement.
In the event the Executive's death should occur after such Early Retirement
defined above, but prior to the completion of the monthly payments provided for
in this Paragraph 10, the remaining installments shall be paid to such
individual or individuals as the Executive may have designated in writing, and
filed with the Corporation. In the absence of any effective designation of
beneficiary, any such amounts shall be payable to the duly qualified executor or
administrator of Executive's estate.
11. VESTING AND PAYMENT SCHEDULE. The benefits contemplated under this
Agreement are payable in accordance with the following vesting schedule. Five
years of employment and the attainment of the following ages while actively
employed with the Corporation:
15 % of Executive's Annual Direct Salary at age fifty-five (55)
20 % of Executive's Annual Direct Salary at age sixty (60)
25 % of Executive's Annual Direct Salary at age sixty-two (62)
12. DEATH BENEFIT PRIOR TO RETIREMENT. In the event the Executive dies
while actively employed by the Corporation at any time after the date of this
Agreement but prior to his attaining the age of sixty-two years (or such later
date as may be agreed upon), the Corporation will pay an annual benefit equal
the amount due the Executive as if the death of the Executive was an Early
Retirement as defined in Paragraph 10. The amount paid will be according to the
vesting schedule of Paragraph 11 and such vesting must have occurred for payment
of this death benefit as defined in this Paragraph. This payment will be based
upon Executive's Annual Direct Salary in equal monthly installments (each equal
to 1/12 of the annual benefit) for a period of one hundred eighty (180) months
to such individual or individuals as the Executive may have designated in
writing and filed with the Corporation. The said monthly payments shall begin
the first day of the first month following the month of the death of the
Executive. In the absence of any effective designation of beneficiary, any such
amounts becoming due and payable upon the death of the executive shall be
payable to the duly qualified executor or administrator of Executive's estate.
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13. CHANGE OF CONTROL. In the event there is a Change of Control as
defined herein, the Executive shall become 100% vested and the benefit described
in Paragraph 8 (calculated on the basis of the higher of the Executive's Annual
Direct Salary on the date of the Change of Control or at his date of
termination) beginning on the Executive's Retirement Date and paid as provided
in (and subject to) Paragraph 10.
14. PARTICIPATION IN OTHER PLANS. The benefits provided hereunder shall be
in addition to Executive's annual salary as determined by the board of directors
of the Company, and shall not affect the right of Executive to participate in
any current or future Corporation retirement plan, group insurance, bonus, or in
any supplemental compensation arrangement which constitutes a part of the
Corporation's regular compensation structure.
15. NON-COMPETE. In consideration of the retirement benefits available
under this Agreement:
(a) Executive hereby acknowledges and recognizes the highly
competitive nature of the business of the Corporation.
Accordingly, in consideration of the Benefit described in this
Agreement, during and for two (2) year(s) following
termination of Executive's employment with Corporation,
("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 at the beginning of the
Non-Competition Period, 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 become a
customer or referral source for any person or entity
other than Corporation; or
(iii) Directly or indirectly solicit, induce or encourage any
employee of Corporation 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
to seek, obtain or accept employment with any person or
entity other than Corporation or its subsidiaries.
(b) It is expressly understood and agreed that, although Executive
and RFC consider the restrictions contained in Paragraph 15(a)
reasonable for the purpose of preserving for Corporation, its
good will and other proprietary
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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
Paragraph 15 is an unreasonable or otherwise unenforceable
restriction against Executive, the provisions of Paragraph 15
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, 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
Paragraph 15 will result in irreparable injury to Corporation
for which it will have no adequate remedy at law and the
Corporation 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 Paragraph 16 (if applicable), the Corporation will
make reasonable efforts to allocate to value the undertaking described in this
paragraph and to allocate to that calculation the maximum amount due under this
Agreement.
16. GOLDEN PARACHUTE PROVISIONS. Notwithstanding any provision in this
Agreement to the contrary (other than Paragraphs 27 and 31 which will apply
under the circumstances described in those paragraphs 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 amounts described in Paragraphs 27 and 31, 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:
(a) The relevant provisions of any change of control agreement to
which the Corporation and the Executive are parties on the
Date of the Change of Control will apply; or
(b) If the Executive and the Corporation are not parties to a
change of control agreement on the Date of the Change of
Control such parachute payments shall be retroactively (if
necessary) reduced to the extent necessary to avoid excise
taxes otherwise arising under Section 4999 of the Code. Upon
written notice to Executive, together with calculations of
Corporation's independent auditors, Executive shall remit to
Corporation the amount of the reduction plus such interest as
may be necessary to avoid the imposition of such excise tax.
Notwithstanding the foregoing or any other provision of this
Agreement to the contrary, if any portion of the amount herein
payable to the Executive is determined to be non-deductible
pursuant to the regulations promulgated
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under Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), the Corporation shall be required only
to pay to Executive the amount determined to be deductible
under Section 280G.
If the Internal Revenue Service subsequently and finally decides that the amount
of compensation and benefits (including after the reduction applied under this
Paragraph 16) will generate Excise Taxes on compensation and benefits (other
than those amounts described in Paragraphs 27 and 31), the Executive will
immediately remit an additional amount to the Change Entity equal to the
difference between the amount paid (other than those amounts described in
Paragraphs 27 and 31) and the amount paid (other than those amounts described in
Paragraphs 27 and 31). Also, the Executive agrees to promptly notify the
Corporation 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 in resisting any Excise
Tax assessment. However, the Corporation 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.
17. RESTRICTIONS OF FUNDING. The Corporation shall have no obligation to
set aside, earmark, or entrust any specific fund or money with which to pay its
obligation under this Agreement. The Corporation reserves the absolute right at
its sole discretion to either fund the obligations undertaken by this Agreement
or to refrain from funding the same and determine the extent, nature, and method
of such funding.
18. GENERAL ASSETS OF THE CORPORATION. The rights of the Executive under
this Agreement and of any beneficiary of the Executive shall be solely those of
an unsecured creditor of the Corporation. If the Corporation shall acquire an
insurance policy or any other asset in connection with the liabilities assumed
by it hereunder, it is expressly understood and agreed that neither Executive
nor any beneficiary of Executive shall have any right with respect to, or claim
against, such policy or other asset. Such policy or asset shall not be deemed to
be held under any trust for the benefit of Executive or his beneficiaries or to
be held in any way as collateral security for the fulfilling of the obligations
of the Corporation under this Agreement. It shall be, and remain, a general,
unpledged, unrestricted asset of the Corporation and Executive or any of his
beneficiaries shall not have a greater claim to the insurance policy or other
assets, or any interest in either of them, than any other general creditor of
the Corporation.
19. UNAUTHORIZED DISCLOSURE. During the term of his employment, or at any
later time, the Executive shall not, without the written consent of the boards
of directors of RFC or a person authorized thereby, knowingly use or disclose to
any person, other than an employee of the Corporation, 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 Company any
material Confidential Information obtained by him while in the employ of
Corporation 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 affiliates, the disclosure
of which could be or will be damaging to Corporation, or affiliates; provided,
however, that
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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 Corporation or
its subsidiaries or affiliates or any information that must be disclosed as
required by law.
20. NO EMPLOYMENT CONTRACT. This Agreement is not an employment contract.
Nothing contained herein shall guarantee or assure Executive of continued
employment by Corporation.
21. 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: Xxxxxxx X. Xxxxx
0000 Xxxxxxxxxxxx Xx
Xxxxxxxx Xxxx, 00000
If to the Corporation or Company: Xxxxxxxx Xxxxx
Human Resource Director
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
or to such other address as Executive or Company may have furnished to the other
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
22. SUCCESSORS; BINDING AGREEMENT. This Agreement shall inure to the
benefit of and be binding upon the Corporation, and Executive, their respective
personal representatives, heirs, assigns or successors, provided, however, that
the Executive may not commute, anticipate, encumber, dispose or assign any
payment herein except as may be otherwise specified in this Agreement.
23. 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.
24. 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 specifically
designated by the board of directors of RFC. 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
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time. This Agreement may be amended or canceled only by mutual agreement of the
parties in writing.
25. PAYMENT OF MONEY DUE DECEASED/DISABLED EXECUTIVE. Subject to the last
sentence of this paragraph, 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 Company, for a period greater than 180 days. However, any
amounts or benefits that become due under 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.
26. LIMITATION OF DAMAGES FOR BREACH OF AGREEMENT. In the event of a
breach of this Agreement, by either the Corporation 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 Paragraph 31, no party will be entitled to the recovery of attorney's fees or
costs.
27. 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 Paragraph 15, are to be submitted for resolution, in
Defiance, 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 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, the Corporation 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
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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
paragraph.
If otherwise due, payments not being contested under the procedures described in
this paragraph will not be deferred during the pendency of procedures described
in this paragraph.
28. 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.
29. 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.
30. HEADINGS. The paragraph 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.
31. LEGAL FEES. The Corporation 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, 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 paragraph.
32. 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.
(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.
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(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 paragraph will not preclude payment
under this Agreement of any benefit to which a deceased
Executive is entitled.
(e) Subject to the preceding subparagraph (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.
33. 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 similar payments and 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/ Xxxxxx XxxXxxxxx, Chairman
------------------------------- ------------------------------
Date 3-13-06 Date 3/13/2006
WITNESS: EXECUTIVE:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxx
Date 3-13-06 Date 3/10/2006
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