EXHIBIT 10(aa)
SEVERANCE AGREEMENT DUE TO CHANGE IN CONTROL
OF RURBAN FINANCIAL CORP.
This AGREEMENT is made and entered into this 14th day of March, 2001,
by and among Rurban Financial Corp. (the "Corporation"), a corporation organized
under the laws of the State of Ohio, with its main office in Defiance, Ohio, and
Kenneth A. Joyce (the "Employee"). Any reference to the "Board of Directors"
herein shall mean the Board of Directors of the Corporation.
WHEREAS, the Employee serves as an executive officer of the Corporation
or a wholly owned subsidiary of the Corporation:
NOW THEREFORE, in consideration of the performance of the
responsibilities of the Employee and upon the other terms and conditions
hereinafter provided, the parties hereto agree as follows:
1. No Employment Contract
The parties hereto acknowledge and agree that this Agreement
is not a management or employment agreement and that none of the terms and
conditions contained herein shall be effective until such time as there is a
Change in Control as hereinafter defined in this Agreement.
2. Term of Agreement
The initial term of this Agreement shall be for a period of 36
months commencing on the date this agreement is executed (hereafter referred to
as the "Anniversary Date"). Commencing on the first Anniversary Date of this
Agreement, and continuing at each Anniversary Date thereafter, the Agreement
shall automatically renew for one (1) additional year beyond the then effective
expiration date (if the Board of Directors determines not to extend the term, it
shall promptly so notify the Employee, with such election by the Board not to
extend the term not to otherwise affect the then term of this Agreement).
Reference herein to the term of this Agreement shall refer both to such initial
term and such extended terms. Unless sooner terminated as set forth herein, this
contract shall terminate when the Employee reaches age sixty-five (65).
3. Termination for Cause
(a) The Employee shall have no right to receive severance
or other benefits under this Agreement for any period after the date of
termination for Cause. For purposes of this Agreement, termination by the
Corporation for "Cause" shall mean only the following events:
(i) personal dishonesty;
102.
(ii) incompetence;
(iii) material breach of any provision of this
Agreement;
(iv) breach of a fiduciary duty involving
personal gain or profit;
(v) intentional failure to perform stated
duties;
(vi) a willful and material breach of the
policies and procedures for the operation of
the Corporation provided to the Employee by
formal action of the Board of Directors;
(vii) willful violation of any law, rule,
regulation (other than a law, rule or
regulation relating to a traffic violation
or similar offense) or final
cease-and-desist order; or
(viii) willful misconduct.
(b) (i) For purposes of Paragraph 3(a)(ii),
"incompetence" shall mean the Employee's
performance of his duties as measured
against the then prevailing standards in the
Ohio banking industry.
(ii) For purposes of Paragraph 3(a)(vii) and
3(a)(viii), no act, or failure to act, on
the Employee's part shall be considered
"willful" unless he has acted, or failed to
act, with an absence of good faith and
without a reasonable belief that his action
or failure to act was in the best interest
of the Corporation.
(iii) For purposes of Paragraph 3(a)(vii), a
cease-and-desist order shall not become
final until consent by the Corporation, as
the case may be, to such order, or the
exhaustion or lapse of all (administrative
and judicial) appeal rights in relation
thereto.
4. Voluntary Termination of Agreement
This Agreement may be terminated by the Employee at any time
upon ninety (90) days' written notice to the Corporation or upon such shorter
period as may be agreed upon between the Employee and the Board of Directors.
5. Change in Control
(a) If, during the term of this Agreement, there is a
Change in Control of the Corporation, the Employee shall be entitled to a
termination or severance payment. The amount of this severance payment shall be
the benefits specified in Paragraph 6 of this Agreement.
103.
(b) For purposes of this Agreement, a "Change in Control
of the Corporation" shall mean:
(i) The acquisition by a person or persons
acting in concert of the power to vote
twenty-five percent (25%) or more of a class
of the Corporation's voting securities;
(ii) the acquisition by a person of the power to
direct the Corporation's management or
policies, if the Board of Directors has made
a determination that such acquisition
constitutes or will constitute an
acquisition of control of the Corporation
for the purposes of the Bank Holding Company
Act or the Change in Bank Control Act and
the regulations thereunder;
(iii) during any period of two (2) consecutive
years during the term of this Agreement,
individuals who at the beginning of such
period constitute the Board of Directors of
the Corporation cease for any reason to
constitute at least a majority thereof,
unless the election of each director who was
not a director at the beginning of such
period has been approved in advance by
directors representing at least two-thirds
(2/3) of the directors then in office who
were directors in office at the beginning of
the period;
(iv) the Corporation shall have merged into or
consolidated with another corporation, or
merged another corporation into the
Corporation, on a basis whereby less than
fifty percent (50%) of the total voting
power of the surviving corporation is
represented by shares held by former
shareholders of the Corporation prior to
such merger or consolidation;
(v) the Corporation shall have sold
substantially all of its assets to another
person. The term "person" refers to an
individual, corporation, partnership, trust,
association, joint venture, pool, syndicate,
sole proprietorship, unincorporated
organization or other entity.
(c) Upon the Employee's termination of employment arising
under this Paragraph 5 within one (1) year after the occurrence of a Change in
Control of the Corporation, the Corporation will cause to be continued life,
health and disability insurance coverage substantially identical to the coverage
maintained by the Corporation (or a subsidiary of the
104.
Corporation, as applicable) for Employee prior to his severance. Such coverage
shall cease upon the earlier of Employee's employment by another employer or
twenty-four (24) months from such termination.
6. Termination Benefits
(a) Upon the occurrence of a Change in Control, the
Corporation shall pay Employee, or in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, as severance
pay or liquidated damages, or both, a sum equal to 2 times the Employee's
Compensation (as defined in Paragraph 6(b) below). The severance benefits
required by Paragraph 6 shall be payable in a lump sum without reduction for
time value of money or other discount at the time of a Change in Control.
(b) As used herein, Compensation shall mean the
Employee's annual base salary for the current or the immediately preceding year,
whichever is higher.
7. Payment of Legal Fees
The Corporation shall pay all legal fees and related expenses
(including the costs of experts, evidence and counsel) incurred by the Employee
as a result of (i) Employee"s termination of employment including all such fee
and expenses, if any, incurred in contesting or disputing any such termination
of employment or (ii) the Employee seeking to obtain or enforce any right or
benefit provided by this Agreement or by any other plan or arrangement
maintained by the Corporation under which the Employee is or may be entitled to
receive benefits.
8. Successor Organization
The obligations of the Corporation as set forth herein shall
continue to be the obligation of any successor organization, any organization
which purchases substantially all of the liabilities of the Corporation, as well
as any organization which assumes substantially all of the liabilities of the
Corporation whether by merger, consolidation, or other form of business
combination. This Agreement is personal to the Employee and the Employee may not
delegate his duties hereunder.
9. Notices
All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
105.
A. If to the Corporation, to:
Board of Directors
Rurban Financial Corp.
401 Clinton Street
Defiance, Ohio 43512
B. If to the Employee, to:
Kenneth A. Joyce
7420 Rawson Ct.
New Port Richey, FL 34655
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
10. No Mitigation Required
There shall be no requirement that Employee mitigate any
damages or reduce the amount of any payment provided for in this Paragraph 6 by
seeking other employment or otherwise, nor shall the amount of any payment
provided for in this Paragraph 6 be reduced by any compensation earned by
Employee as the result of employment by any other employer after the date of
termination or otherwise.
11. Amendments
No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties, except as herein otherwise
provided.
12. Paragraph Headings
The paragraph headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
106.
13. Severability
The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
14. Governing Law
This Agreement shall, except to the extent that federal law
shall be deemed to apply, be governed by and construed and enforced in
accordance with the laws of Ohio.
15. Arbitration
Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in accordance with
the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdiction.
This document supersedes and replaces in its entirety any Change of Control
Agreement between Kenneth A. Joyce and Rurban Financial Corp. signed prior to
this Agreement including a Termination Agreement dated September 29, 1998.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
WITNESSES: RURBAN FINANCIAL CORP.
/s/Cynthia Brieschke By: /s/Jean Hubbard
- ------------------------------ ------------------------------------
/s/Martha Waggle Its: Senior Vice President
- ------------------------------
WITNESSES:
/s/Kenneth A. Joyce /s/Joleen Brubaker
- ------------------------------ -------------------------------
(Employee)
107.
SCHEDULE A
TO
EXHIBIT 10(aa)
Agreements between Rurban Financial Corp. and certain of the executive
officers of Rurban Financial Corp. substantially identical to Agreement,
effective March 14, 2001, between Kenneth A. Joyce and Rurban Financial Corp.
Effective March 14, 2001, Rurban Financial Corp. (the "Registrant")
entered into Agreements with the executive officers of the Registrant identified
below, which Agreements are substantially identical to the Agreement, effective
March 14, 2001, between the Registrant and Kenneth A. Joyce, Chief Executive
Officer of the Registrant, a copy of which is being included as Exhibit 10(aa)
to the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003 (the "2003 Form 10-K").
In accordance with Rule 12b-31 promulgated under the Securities
Exchange Act of 1934 and Item 601(b)(10)(iii) of Regulation S-K, the following
table identifies those executive officers of the Registrant with whom the
Registrant has entered into Agreements similar to that included as Exhibit
10(aa) to the 2003 Form 10-K:
NAME CURRENT OFFICES HELD WITH THE REGISTRANT
- ------------------ ---------------------------------------------------
Robert W. Constien President and Chief Executive of State Bank
Henry R. Thiemann Executive Vice President and Operations Manager of
State Bank
108.