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Exhibit 10r
SEVERANCE AGREEMENT DUE TO CHANGE IN CONTROL
OF COBANCORP INC.
This AGREEMENT is made and entered into this 16th day of June, 1997, by
and among CoBancorp Inc. (the "Corporation"), a corporation organized under the
laws of the State of Ohio, with its main office in Elyria, Ohio, PremierBank &
Trust (the "Bank"), an Ohio-chartered, FDIC-insured member bank with its main
offices in Elyria, Ohio, Jefferson Savings Bank, an Ohio-chartered savings
association, and James R. Bryden (the "Executive"). Any reference to the "Board
of Directors" herein shall mean the Board of Directors of the Corporation. Any
reference to "FDIC" herein shall mean the Federal Deposit Insurance Corporation.
Any reference to "FRB" shall mean the Board of Governors of the Federal Reserve
System and any reference to "Superintendent" herein shall mean the
Superintendent of the Ohio Division of Financial Institutions.
WHEREAS, the Executive has heretofore served in the position of Regional
President of the Bank and continues to serve as Regional president of the Bank;
and
WHEREAS, the Executive has served in the position of President of
Jefferson Savings Bank since February 28, 1997 and continues to serve as
President of Jefferson Savings Bank;
NOW THEREFORE, in consideration of the performance of the
responsibilities of the Executive 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
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in this Agreement. Prior to a Change in Control, the Executive agrees and
acknowledges that he is an employee-at-will of the Bank and Jefferson Savings
Bank.
2. TERM OF AGREEMENT
The initial term of this Agreement shall be for a period of three (3)
years commencing January 1, 1997 (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 only upon a determination and resolution of the Board of
Directors that the performance of the Executive has met the requirements and
standards of the Board and that such term shall be extended (if the Board of
Directors determines not to extend the term, it shall promptly so notify the
Executive, 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 Executive reaches age sixty-five (65).
3. TERMINATION FOR CAUSE
(a) The Executive 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, the Bank
or Jefferson Savings Bank for "Cause" shall mean only the following events:
(i) personal dishonesty;
(ii) incompetence;
(iii) material breach of any provision of this Agreement;
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(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 Bank or Jefferson Savings Bank provided to
the Executive 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
Executive'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 Executive'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 Bank or Jefferson
Savings Bank.
(iii) For purposes of Paragraph 3(a)(vii), a cease-and-desist order
shall not become final until consent by the Corporation, the Bank
or Jefferson Savings Bank, as the case may be, to such order, or
the exhaustion or lapse of all (administrative and judicial)
appeal rights in relation thereto.
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4. VOLUNTARY TERMINATION OF AGREEMENT
This Agreement may be terminated by the Executive at any time upon
ninety (90) days' written notice to the Bank, Jefferson Savings Bank or the
Corporation or upon such shorter period as may be agreed upon between the
Executive and the Board of Directors.
5. GOVERNMENTAL TERMINATION OF AGREEMENT
(a) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's, Jefferson Savings
Bank's or the Corporation's affairs by an order issued under Section 8(e) of
the Federal Deposit Insurance Act, 12 U.S.C. Section 1818(e), or the Ohio
Revised Code, all obligations of the Bank, Jefferson Savings Bank and the
Corporation under this Agreement shall terminate as of the effective date of
the order.
(b) If the Bank or Jefferson Savings Bank is declared insolvent by the
Superintendent, all obligations under this Agreement shall terminate.
(c) All obligations under this Agreement may be terminated by the FDIC
at the time the FDIC enters into an agreement to provide assistance to or on
behalf of the Bank or Jefferson Savings Bank under the authority contained in
Section 13(c) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1823(c).
(d) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's or Jefferson Savings Bank's affairs
by a notice served under Section 8(e)(3) or (g)(1) of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1818(e)(3) or (g)(1), the Corporation's,
Jefferson Savings Bank's and the Bank's obligations under subparagraphs 6(a),
(b) and (c) of this Agreement shall be suspended as the date of service,
unless stayed by appropriate proceedings.
(e) If the charges in the notice referenced in subparagraph 5(d) are
dismissed, the Board of Directors may in its discretion:
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(i) pay the Executive all or part of the severance benefits while its
contract obligations were suspended, and
(ii) reinstate (in whole or in part) any of its obligations which were
suspended as required in subparagraph (d) above.
6. CHANGE IN CONTROL
(a) If, during the term of this Agreement, there is a Change in Control
of the Corporation, the Executive shall be entitled to termination or severance
payment in the event the Executive's employment with the Bank, Jefferson Savings
Bank or the Corporation is involuntarily terminated, in connection with or
within one (1) year after the Change in Control, other than for Cause or
pursuant to Paragraphs 4 or 5. This payment shall also be made in the case of
the Executive's voluntary termination of employment for Good Reason (as defined
in Paragraph 7) in connection with, or within one (1) year after, a Change in
Control of the Corporation. Such voluntary termination of employment for Good
Reason in connection with, or within one (1) year after, a Change in Control of
the Corporation shall not constitute a termination for Cause or a voluntary
termination subject to Paragraph 4 of this Agreement. The amount of this
severance payment shall be the benefits specified in Paragraph 8 of this
Agreement.
(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, or the acquisition by a
person of the power to direct the Corporation's management or
policies, if the Board of Directors or the FRB has made a
determination that
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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;
(ii) 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; or
(iii) 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; or
(iv) the Corporation shall have sold substantially 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 Executive's termination of employment arising under this
Paragraph 6 within one (1) year after the occurrence of a Change in Control of
the Corporation,
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the Corporation will cause to be continued life, health and disability insurance
coverage substantially identical to the coverage maintained by the Bank,
Jefferson Savings Bank or the Corporation for Executive prior to his severance.
Such coverage shall cease upon the earlier of Executive's employment by another
employer or twelve (12) months from such termination.
7. GOOD REASON
For purposes of this Agreement, "Good Reason" shall mean the occurrence
after a Change in Control of any of the events or conditions described in
subparagraphs (a) through (e) hereof without the Executive's express written
consent; provided the Executive's right to terminate his employment pursuant to
this Paragraph 7 shall not be affected by his incapacity due to physical or
mental illness:
(a) A change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which, in the
Executive's reasonable judgment, does not represent a promotion from his status,
title, position or responsibilities as in effect immediately prior thereto; the
assignment to the Executive of any duties or responsibilities which, in the
Executive's reasonable judgment, are inconsistent with such status, title,
position or responsibilities; or any removal of the Executive from or failure to
reappoint him to any of such positions, except in connection with the
termination of his employment for (i) disability, (ii) Cause, (iii) pursuant to
Paragraphs 4 or 5, (iv) as a result of his death or (v) by the Executive other
than for Good Reason;
(b) A reduction by the Bank, Jefferson Savings Bank or the Corporation
in the Executive's base salary as in effect on the date of a Change in Control
of the Corporation;
(c) The relocation of his/her principal place of employment to a
location outside a thirty (30)-mile radius of Delaware, Ohio or requiring the
Executive to be based at any
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place other than Delaware, Ohio, except for reasonably required travel which is
not materially greater than such travel requirements prior to the Change in
Control;
(d) The failure by the Bank, Jefferson Savings Bank or the Corporation
to continue to provide the Executive with benefits substantially similar to
those provided to him under any of the employee benefit plans in which the
Executive becomes a participant, or the taking of any action by the Bank,
Jefferson Savings Bank or the Corporation which would directly or indirectly
materially reduce any of such benefits or deprive the Executive of any material
fringe benefit enjoyed by him at the time of the Change in Control.
8. TERMINATION BENEFITS
Upon the occurrence of a Change in Control, followed by the voluntary or
involuntary termination of Executive's employment with the Bank or Jefferson
Savings Bank other than for Cause or pursuant to Paragraphs 4 or 5, the Bank
shall pay Executive, 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 two (2) times the average annual salary paid to
Executive by the Bank and the Corporation during the previous year immediately
preceding Executive's termination.
9. PAYMENT OF LEGAL FEES
Reasonable legal fees and expenses paid or incurred by the Executive
pursuant to any dispute or question of interpretation relating to the Agreement
shall be paid or reimbursed by the Corporation in accordance with the following.
If the Executive, the Bank, Jefferson Savings Bank or the Corporation initiates
a proceeding and the Executive prevails, all reasonable legal fees and expenses
shall be paid by the Corporation. If the Executive initiates a proceeding and
does not prevail on his/her claim, then the Corporation shall reimburse the
Executive for all legal fees and expenses but not to exceed the sum of $25,000.
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10. SUCCESSOR ORGANIZATION
The obligations of the Corporation, Jefferson Savings Bank and the Bank
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, Jefferson Savings Bank or the Bank, as well as
any organization which assumes substantially all of the liabilities of the
Corporation or the Bank whether by merger, consolidation, or other form of
business combination. This Agreement is personal to the Executive and the
Executive may not delegate his duties hereunder.
11. 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.
A. If to the Corporation, to:
Chairman
CoBancorp Inc.
1530 West River Road North
Elyria, Ohio 44035
B. If to the Executive, to:
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and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
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12. AMENDMENTS
No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties, except as herein otherwise provided.
13. 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.
14. 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.
15. GOVERNING LAW
This Agreement shall, except to the extent that federal law (including
any law, rule, or regulations of the FDIC) shall be deemed to apply, be governed
by and construed and enforced in accordance with the laws of Ohio.
16. 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.
17. COVENANT NOT TO COMPETE
Executive hereby agrees that he shall not, and shall cause any entity
that he controls or is affiliated with not to, for a period of two (2) years
after the date of Executive's
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voluntary or involuntary termination of employment for any reason, with or
without Cause, or with or without Good Reason, do any of the following:
(a) Serve as director of employee of, or consult or contract with any
federally insured depository institution (or holding company thereof) that
conducts business (whether through "brick and mortar" presence or otherwise) in
either Franklin or Delaware County, Ohio (the "Territory") or in any manner
directly or indirectly compete with the Bank within the Territory, both parties
recognizing that such geographical limitation is reasonable, does not include
all areas in which the Bank presently conducts business and will not prevent
Executive from meaningful employment opportunities elsewhere (for example,
Cuyahoga County); or
(b) Compete with the Bank in the Territory or solicit, divert or take
away any of the customers, business or patronage of the Bank or its respective
subsidiaries or affiliates; or
(c) Hire, solicit or cause to be solicited for employment by Executive
or by any third party any person who is as of the date of such solicitation, or
was within the twelve (12) month period prior to the date of such solicitation,
an employee of the Bank or of any subsidiary or affiliate of the Bank.
18. REASONABLENESS OF COVENANTS
The parties hereto agree that each of the covenants set forth in this
Agreement are separate, distinct and severable not only from the other of such
covenants but also from any other provisions in this Agreement. The existence of
any claim or cause of action of one party against the other party, whether based
on this Agreement or otherwise, shall not constitute a defense to the
enforcement of such covenants. The parties hereto agree that the covenants set
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forth in this Agreement are appropriate and reasonable as to time, geographical
area and scope of activity restrained, when considered in light of the nature
and extent of the circumstances and the business of the Bank and the nature and
extent of the parties' obligations hereunder and that the covenants do not
impose a greater restraint than is necessary to protect the good will and
business interests of the Bank.
19. PROPRIETARY INFORMATION
Executive agrees not to ever disclose or use at any time any proprietary
information of the Bank or its affiliates, whether he has that information
committed to memory or it is embodied in writing or other physical form; except
with the prior written consent of the Bank. For purposes of this Agreement, the
phrase "proprietary information of the Bank or its affiliates" means all
confidential information relating to the Bank, including information relating to
specific technical matters, such as components, devices, formulas, processes,
compilations of information, customer lists, records and other information
pertaining to the business of the Bank or its affiliates that is protected by
law and that Executive has obtained by reason of his employment by the Bank or
his performance of duties for it. Executive agrees not to make known to any
person, firm or corporation the names or addresses of any of the customers of
the Bank or any other information pertaining to them or call on, solicit or take
away, whether on behalf of Executive or any subsequent employer of Executive,
any of the Bank's customers on whom Executive called or with whom Executive
became acquainted during the course of his employment with the Bank. This
confidentiality provision is limited to the two (2) year period described in
Section 17 above.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
WITNESSES: COBANCORP INC.
/s/ Lois E. Gunning By: John S. Kreighbaum
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John S. Kreighbaum
/s/ Linda Bryant Pavlick Chairman, President and
- -------------------------- Chief Executive Officer
WITNESSES: PREMIERBANK & TRUST
/s/ Lois E. Gunning By: John S. Kreighbaum
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John S. Kreighbaum
/s/ Linda Bryant Pavlick Chairman and
- -------------------------- Chief Executive Officer
WITNESSES: JEFFERSON SAVINGS BANK
/s/ Marya C. Young By: /s/ Jerry M. Wolf
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Jerry M. Wolf
/s/ Cathy Eveson Chairman
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WITNESSES:
/s/ Lois E. Gunning By: /s/ James R. Bryden
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James R. Bryden
/s/ Linda Bryant Pavlick Executive
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