EXHIBIT 10.22 FORM OF AMENDED MANAGEMENT SEVERANCE AGREEMENT DATED JUNE 1, 2003
BY AND BETWEEN SECOND BANCORP INCORPORATED AND THE FOLLOWING
EXECUTIVE OFFICERS: THOMAS W. ALLEN, DIANE C. BASTIC, JOHN L.
FALATOK, MYRON FILARSKI AND DARRYL MAST.
MANAGEMENT SEVERANCE AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of June, 2003
by and between SECOND BANCORP INCORPORATED, an Ohio corporation (hereinafter
referred to, along with its wholly owned subsidiary The Second National Bank of
Warren, as the "Corporation"), and _____________________________ ("Executive").
WITNESSETH:
WHEREAS, the Executive is a valued employee of the Corporation with
significant policy-making and operational responsibilities in the conduct of its
business; and
WHEREAS, the Corporation does not anticipate a sale, merger or takeover
but deems it to be in its best interest to protect the Executive against
dismissal or loss of status and secure the Executive's continued service both in
its normal course, day-to-day operations and upon the occurrence of
extraordinary corporate events such as, without limitation, a Change in Control
of the Corporation;
WHEREAS, the Board has authorized the Corporation to enter into this
Management Severance Agreement (the "Agreement");
NOW, THEREFORE, to better assure the foregoing and in consideration of
the mutual covenants contained herein, the parties to this Agreement do hereby
agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms shall
be defined as follows.
1.1 "Board" means the Board of Directors of Second Bancorp
Incorporated and any successor thereto or its appointed
representative party.
1.2 "Change in Control" means, and shall have been deemed to have
occurred if and when:
(a) any person, entity or group (within the meaning of Section
13(d)(3) OR 14(d)(2) of the Securities Exchange Act of 1934,
as amended) other than the Corporation or any number or
combination thereof acting in concert shall have acquired
ownership of or the right to vote or direct the voting of 30%
or more of either the then outstanding Stock or the combined
voting power of the then outstanding voting securities of the
Corporation entitled to vote in the election of the directors;
or
(b) the Corporation shall have been merged into another company or
shall have otherwise consolidated with another company in such
a way that the individuals and entities who were the
respective beneficial owners of the Stock and voting
securities of the Corporation immediately before such merger
or consolidation do not, after such merger or consolidation,
beneficially own, directly or indirectly, more than 60% of the
then outstanding common shares and the combined voting power
of the then outstanding voting securities entitled to vote in
the election of directors of the corporation resulting from
such merger or consolidation; or
(c) individuals who, as of the Effective Date, constitute the
Board ("Incumbent Directors") cease for any reason to
constitute at least a majority of the Board; provided that any
individual who becomes director after the Effective Date whose
election, or nomination
107
for election, by the Corporation's shareholders, was approved
by a vote or written consent of at least two-thirds of the
directors then comprising the Incumbent Directors, shall be
considered as though such individuals were an Incumbent
Director, but excluding, for this purpose, any such individual
whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election
of the directors of the Corporation; or
(d) the Corporation shall have sold or disposed of all or
substantially all of its assets to another company or other
entity or person; or
(e) the shareholders of the Corporation shall have approved the
liquidation or dissolution of the Corporation; or
(f) such other event(s) or circumstance(s) as are determined by
the Board to constitute a Change in Control shall have
occurred.
Notwithstanding the foregoing provisions of this definition, a Change
in Control shall be deemed not to have occurred if:
(a) with respect to any Executive, the Executive is a
participant on such Executive's own behalf in a
transaction in which the persons with whom such
Executive has the written agreement to Acquire the
Corporation and, pursuant to the written agreement,
the Executive has an equity interest in the resulting
entity or a right to acquire such an equity interest,
or
(b) any person acquires beneficial ownership of more than
30% of the then outstanding Stock solely as a result
of the acquisition of the Stock by the Corporation
which reduces the number of shares of Stock
outstanding.
For the purposes of this definition, "Acquire the Corporation" means
the acquisition of beneficial ownership by purchase, merger, or
otherwise, of either more than 50% of the Stock (such percentage to be
computed in accordance with Rule 13d-3(d)(1)(i) of the SEC under the
Exchange Act) or substantially all of the assets of the Corporation or
its successors; "person" means such term as used in Rule 13d-5 of the
SEC under the Exchange Act; "beneficial owner" means such term as
defined in Rule 13d-3 of the SEC under the Exchange Act.
The date of any Change of Control shall be the same as the official
date of the merger, consolidation or sale or, with respect to subpart
1.2(a), the date on which an acquiror shall have first exercised
control or influence over the Corporation.
1.3 Date of Termination" means the effective date on which
Executive's employment by the Corporation terminates as
specified in a prior written notice by the Corporation or
Executive, as the case may be, to the other
1.4 "Disability" means termination of Executive's employment by
the Corporation due to Executive's absence from Executive's
duties with the Corporation on a full-time basis for at least
one hundred eighty (180) consecutive days as a result of
Executive's incapacity due to physical or mental illness.
1.5 "Discharge for Cause" means action by the Board to terminate
the Executive's employment with the Corporation as a result of
(a) Executive's incompetence or substantial dereliction of duty
(other than any such failure resulting from the Executive's
incapacity due to physical or mental illness); or
(b) Executive's conviction of a felony or willful engagement by
the Executive in illegal conduct or gross misconduct; or
108
(c) Action or inaction by the Executive as an executive officer of
the Corporation which, in the Board's good faith
determination, was
(i) reckless or intentional and
(ii) significantly detrimental to the best interest of the
Corporation; or
(d) Executive's habitual drunkenness, addiction to narcotics or
any intentionally self-inflicted injury.
1.6 "Gross Compensation" means the 5-year average annual base
salary plus annual bonus earned by the Executive from the
Corporation during the last five (5) completed fiscal years of
the Corporation immediately preceding the Executive's Date of
Termination (annualized in the event Executive was not
employed by the Corporation for the whole of any such fiscal
year) as reported in the Executive's W-2 earnings.
1.7 "Retirement" means Executive's retirement (not including any
mandatory early retirement) in accordance with the
Corporation's retirement policy generally applicable to its
salaried employees, as in effect immediately prior to the
Change in Control, or in accordance with any retirement
arrangement established with respect to Executive with
Executive's written consent.
1.8 "Severance Period" means the period of time beginning with an
Executive's severance from the Corporation and ending three
(3) years following such Change in Control.
1.9 "Stock" means the Common Stock of the Corporation, par value
$0 per share.
1.10 Use herein of the terms "he", "him", "his", "himself" and the
like shall be deemed to mean "she", "her", "herself" and the
like if and where appropriate.
2 OBLIGATION OF THE EXECUTIVE. In the event of a tender or exchange offer,
proxy contest, or the execution of any agreement which, if consummated,
would constitute a Change in Control, Executive agrees not to voluntarily
leave the employ of the Corporation, other than as a result of Disability,
Retirement or an event which would constitute Good Reason if a Change in
Control had occurred, until the Change in Control occurs or, if earlier,
such tender or exchange offer, proxy contest, or agreement is terminated or
abandoned.
3 TERMINATION IN CONJUNCTION WITH A CHANGE IN CONTROL. If, in conjunction
with a Change in Control, the Executive is terminated from his employment
with the Corporation under circumstances which do not constitute a
Discharge for Cause, then the Executive shall be entitled to compensation
and other benefits from the Corporation of the type and in the amounts
described in Sections 5 and 6 of this Agreement.
4 RESIGNATION WITHIN THREE YEARS AFTER A CHANGE IN CONTROL. If, within three
years after a Change in Control, the Executive resigns his position with
the Corporation because (a) there is a substantial reduction by the
Corporation in Executive's rate of annual base salary or annual target
bonus opportunity or any employee benefit plan, compensation plan, welfare
benefit plan or material fringe benefit plan as was in effect immediately
prior to such Change in Control, or (b) his job duties, including reporting
responsibilities, are inconsistent in any material and adverse respect with
Executive's position(s), duties, responsibilities or status with the
Corporation immediately prior to such Change in Control (including any
material and adverse diminution of such duties or responsibilities), or (c)
his work place has been moved to a location more than 40 miles distant from
his work place at the time of the Change in Control, then the Executive
shall be entitled to compensation and other benefits from the Corporation
of the type and in the amounts described in Sections 6 and 7 of this
Agreement.
109
5 RESIGNATION, DISCHARGE FOR CAUSE OR TERMINATION AS A RESULT OF DEATH OR
DISABILITY. In the event that, during the term of this Agreement, the
Executive (i) voluntarily resigns his position with the Corporation for
reasons and under circumstances other than those described in Section 4
hereof, or (ii) is Discharged for Cause, or (iii) shall, during the course
of his employment with the Corporation, become deceased or experience
Disability and substantially unable to perform the duties of his
employment, then the Executive shall have no right or entitlement to
compensation or benefits under this Agreement. Except as may be affected by
the provisions of Section 9 hereof, nothing herein contained shall be
construed to exclude or disqualify the Executive from participation in, or
entitlements under, any other program or benefit otherwise provided to the
Executive by the Corporation.
6 COMPENSATION. Upon the occurrence of an event described in Sections 3 or 4
of this Agreement (a "Covered Termination"), the Executive shall be
entitled to receive from the Corporation, and the Corporation shall be
obligated to pay/provide to the Executive, in consideration of past
services performed, an amount equal to 2 times the annual Gross
Compensation paid to the Executive (the "Severance Compensation").
Severance Compensation shall be paid to the Executive in a lump-sum payment
as soon as practically possible following a Covered Termination.
7 BENEFITS. Until the end of the "Benefits Period" (as hereinafter defined),
(a) the Executive and his family shall continue to be covered by such of
the Corporation's insurance plans (including, without limitation,
hospitalization, medical, accident, disability and life insurance plans) as
covered them on the last day of his employment, and (b) the Executive shall
retain all pension and retirement benefits as had been earned or vested
immediately prior to the Change in Control. For the purposes of this
Section 7, "Benefits Period" means that period of time beginning on the day
after the Executive's last day of employment with the Corporation and
ending on the earlier of (a) the end of his Severance Period or (b) the
date on which the Executive becomes eligible for benefits in connection
with his acceptance of a position with another company. Nothing contained
in this section shall be deemed to affect the Executive's right to purchase
extended medical or other coverages under the Consolidated Omnibus Budget
Reconciliation Act ("COBRA") or any other similar rule, regulation or
statute binding upon the Corporation. The Corporation and Executive agree
that the commencement date of any period during which the Executive is
entitled to purchase extended medical or other coverage under COBRA shall
be the date immediately following the end of his Severance Period.
8 CONSULTATION. During the Severance Period the Executive shall endeavor, but
only to the extent legally permissible and practically possible, to make
himself available to the Corporation to render such advice and assistance
regarding the transition of matters under his control prior to his
departure as may reasonably be requested of him.
9 LIMITATION ON PAYMENTS AND BENEFITS. Notwithstanding anything to the
contrary contained in this Agreement, if any payment made or to be made or
other benefit provided or to be provided to the Executive, whether under
this Agreement or otherwise, would constitute an Excess Parachute Payment
(as that term is defined in Section 280G of the Internal Revenue Code of
1986, as amended), then the aggregate amount or value of (a) the payments
due the Executive under Section 6 hereof or, at the Executive's election,
(b) other benefits provided to the Executive under Section 7 hereunder, the
value of which may be included in determining the existence of an Excess
Parachute Payment, shall be reduced to the minimum extent necessary so that
no portion of the payment made to, or other benefits provided to, the
Executive, as so reduced, constitutes an Excess Parachute Payment.
10 ENFORCEMENT COSTS. Reasonable costs and expenses including, without
limitation, attorney's fees incurred by the Executive pursuant to any
question, interpretation, dispute, litigation or negotiation relating to
this Agreement shall be paid or reimbursed by the Corporation.
11 NO SET-OFF. The Corporation shall not be entitled to set-off against the
amounts payable to or on behalf of the Executive under this Agreement any
amounts earned by the Executive in other employment after his severance
from the Corporation, or any amount which might have been earned by the
Executive in other employment had he sought such other employment.
110
12 TERM OF THIS AGREEMENT. This Agreement shall be effective on the date
hereof and shall continue in effect until the four year anniversary of this
Agreement. Upon the expiration of this agreement, this contract shall renew
each subsequent year until the Corporation gives at least 6 months advance
written notice of cancellation. In the event that a Covered Termination
occurs less than three (3) years before the termination date of this
Agreement, this Agreement shall automatically be extended to the end of the
Severance Period.
13 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the Corporation and its successors and assigns, and shall be
binding upon and inure to the benefit of the Executive and his legal
representatives, heirs and assigns.
14 GOVERNING LAW; SEVERABILITY. This Agreement and the relationships of the
parties in connection with the subject matter of this Agreement shall be
governed by and interpreted in accordance with the laws of the State of
Ohio. If any provision of this Agreement or the application thereof shall
for any reason and to any extent be invalid or unenforceable, the remainder
of this Agreement shall not be affected thereby, but rather shall be
enforced to the full extent permitted by law.
IN WITNESS WHEREOF, this Agreement has been executed at Warren, Ohio as
of the date first written above.
SECOND BANCORP INCORPORATED
By:______________________________ ________________________________
Executive
111