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EXHIBIT 10a
MANAGEMENT CONTINUITY AGREEMENT
This Agreement effective as of December 1, 1999, between Empire Banc
Corporation, a Michigan Corporation (the "Company") and
(the "Officer"), an individual residing in the State of Michigan,
W I T N E S S E T H
WHEREAS, the Officer is employed by the Company as an officer of the
Company; and
WHEREAS, the Company and the Officer are parties to a Management
Continuity Agreement dated December 1, 1989, as amended and restated January 31,
1991, and further amended and restated July 1, 1995. Both the Company and the
Officer desire to amend and restate the Management Continuity Agreement to (i)
specify the timing of payments to be made to the Officer; (ii) coordinate the
nonqualified retirement plan benefits to be paid pursuant to this Agreement with
the nonqualified retirement plan benefits payable pursuant to the terms and
conditions of the Empire Banc Corporation Supplemental Executive Retirement Plan
(the "SERP"); (iii) specify the compensation and benefit plans maintained by the
Company which are subject to the provisions of this Agreement; and (iv) specify
the assumptions to be used to calculate payments to made to the Officer in the
event of the Officer's termination of employment following a change in control
of the Company.
WHEREAS, the Company continues to be willing, in order to provide the
Officer a measure of security with respect to the Officer's employment in the
event of a change in control of the Company and to induce the Officer to remain
in employment with the Company, to agree that employment of the Officer shall be
terminable only for cause for a limited period after a change in control of the
Company;
NOW THEREFORE, the Company and the Officer agree as follows:
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1. TERM OF EMPLOYMENT. The Company shall employ the Officer and the
Officer shall remain in employment with the Company for a period of five years
from the effective date of this Agreement (herein called the Initial Term),
unless the Agreement is terminated pursuant to Sections 6, 7, 8 or 9. Annually,
effective on the anniversary of the effective date of this Agreement, the
Initial Term of this Agreement shall be extended for one additional year,
provided that the Board of Directors of the Company approves such extension.
Upon the approval of the Board of Directors of such annual extension, no written
amendment or other action shall be necessary to effectuate the one-year
extension of the Initial Term. The Initial Term may be otherwise extended by
written amendment to this Agreement, which amendment specifically refers to this
Agreement, signed by the Company and the Officer. The Initial Term shall be
automatically renewed, without written amendment to this Agreement, for a period
of five years from the date of the execution by the Company of an agreement to:
(i) sell at least twenty percent (20%) of the Company's outstanding stock to an
Acquiring Person as defined in Section 9; (ii) merge or reorganize the Company
in such a way that the Company is not the surviving entity; or (iii) sell all or
substantially all of the Company's assets.
2. DUTIES. As an officer of the Company, the Officer shall perform such
duties and functions as are assigned to the Officer by the by-laws of the
Company, by the Board of Directors of the Company, by committees of the Board of
Directors, or by other officers of the Company of higher corporate rank. The
Officer agrees that, if elected or appointed, the Officer shall serve in such
other positions or offices as the Board of Directors, in its exclusive
discretion, or stockholders of the Company may direct, whether at the Company or
any of its subsidiaries or affiliates.
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3. COMPENSATION. The Officer shall receive an annual salary of
$ , which may be increased annually by an amount to be determined by
the Board of Directors of the Company. The Officer shall participate in the
employee benefit plans, whether qualified or non-qualified, customarily and
generally available to all executive employees of the Company and its
subsidiaries. The Officer shall also be eligible to participate in such
incentive, stock bonus and other compensation plans that the Company shall
provide to him.
4. FULL-TIME EMPLOYMENT WITH THE COMPANY. The Officer shall devote the
Officer's full-time and business efforts to the Officer's duties and
responsibilities under this Agreement, provided that (a) the Officer may also
devote reasonable amounts of time in charitable, civic and other similar
activities, (b) the Officer may serve as a director of a business corporation
not competing with the Company with the consent of the Board of Directors or
Chief Executive Officer of the Company, and (c) the Officer may not make
investments in business activities that materially interfere with the
performance of the Officer's duties and responsibilities under this Agreement.
The Officer shall maintain the confidentiality of the Company's confidential
information and shall only disclose information as of which disclosure has been
properly authorized.
5. TERMINATION OF AGREEMENT. Unless terminated in accordance with
Sections 6, 7, 8 or 9, or extended pursuant to Section 1, this Agreement shall
terminate at the expiration of the Initial Term, and all obligations under this
Agreement shall terminate at that time. The Officer may, with the consent of the
Company, continue in the employ of the Company after the expiration of the
Initial Term on such terms and conditions as are agreed upon by the Officer and
the Company.
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6. TERMINATION BY THE OFFICER. The Officer may voluntarily terminate
this Agreement by giving 30 days notice to the Company, in which case the
Officer and the Company shall have no further obligations after the date of such
termination.
In the event the Officer's employment by the Company terminates due to
the Officer's death, the Company shall have no further obligation to the
Officer, the Officer's heirs or legatees under this Agreement except that for
one year after the date of the Officer's death, the Company shall pay to the
Officer's surviving spouse, if any, the salary payments described in Section 3,
and the Officer's heirs and legatees shall have no further obligation to the
Company under this Agreement.
In the event the Officer's employment by the Company is terminated due
to the Officer's Permanent Disability, the Company shall have no further
obligation to the Officer under this Agreement from the date of such termination
except to continue salary payments and employee benefit plan coverage described
in Section 3 (as further described in Schedule A to this Agreement) for a period
of two years from the date of the Officer's permanent disability. For purposes
of this Agreement, the term "permanent disability" means a physical or mental
condition of the Officer which (a) has continued uninterrupted for six months,
(b) is expected to continue indefinitely and (c) is determined by the Company to
render the Officer incapable of adequately performing the Officer's duties under
Section 2 of this Agreement.
7. TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
this Agreement without cause prior to a Change in Control as defined in Section
9 by providing 30 days notice to the Officer. In such event, the Company shall
have no further obligation to the Officer under this Agreement except the
obligation to continue salary payments pursuant to
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Section 3 for the Initial Term and the Officer shall have no further obligation
to the Company under this Agreement.
8. TERMINATION BY THE COMPANY WITH CAUSE. The Company, by resolution of
its Board of Directors, may terminate this Agreement by providing the Officer
with notice, which may be provided as late as the effective date of such
termination, if the Officer is indicted for commission of a felony or commits
fraud, gross malfeasance or improper conduct resulting in substantial injury to
the interests of the Company, or if the Officer willfully and materially
breaches this Agreement. In such event, the Company will have no further
obligation to the Officer under this Agreement from the date of such
termination, and salary shall be paid to the Officer only for services actually
rendered through the date of termination.
9. TERMINATION FOLLOWING CHANGE IN CONTROL. In the event there is a
"Change in Control" of the Company as defined below, and either:
(a) the Officer's employment hereunder is terminated by the Company for
reasons other than cause under Section 8 or upon expiration of the
Initial Term; or
(b) the Officer resigns from the Officer's employment with the Company
upon 30 days written notice to the Company given within 30 days
following a material change in the nature or scope of the Officer's
authorities or duties as described in Section 2 above, a reduction in
the salary, bonus or benefits payable to the Officer from those payable
under this Agreement or under any employee benefit plan or compensation
plan described in Section 3 (other than a reduction due solely to the
operation of any incentive compensation formula in effect before a
Change in Control or due to termination or amendment of a benefit plan
which termination or amendment is generally applicable to
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officers of the Company), or a change of the Officer's principal place
of employment without the Officer's consent to a location that is more
than 35 miles from the principal place of the Officer's employment
immediately prior to such change,
then the Officer shall be entitled to the payments described in the remainder of
this Section 9 in recognition of the Officer's longevity of employment with the
Company and the Officer's contributions to the Company.
For the greater of (i) three years following the Officer's termination
of employment or (ii) the remainder of the Initial Term (including any renewed
or extended Initial Term), the Officer shall (A) continue to receive salary
payments equal to the greater of 133% of the salary in effect at the time of the
Officer's termination of employment or 133% of the salary in effect immediately
preceding any Change in Control plus an annual increase in such salary of at
least the percentage equal to the Consumer Price Index plus four percentage
points per year, and (B) continue to participate in such employee benefit plans
and compensation plans described in Section 3 as the Officer participated in at
the time of such termination of employment, other than any incentive
compensation plans, as though the Officer continued in the employment of the
Company. The employee benefit plans and compensation plans which are currently
sponsored by the Company and are subject to continuation pursuant to this
Section 9 are set forth in Schedule B to this Agreement. Schedule C to this
Agreement sets forth certain assumptions that shall be made in determining
benefits and compensation payable to the Officer pursuant to this Section 9.
Any benefit to be provided by an employee benefit plan or compensation
plan under subclause (B) above may be provided by the Company through cash or
equivalent value (if any)
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or through a non-qualified arrangement if, in the judgment of the Company,
permitting the Officer to participate in such plan after Officer's termination
of employment would adversely affect the tax status of such plan, and provided
further that any medical insurance coverage to be provided by the Company shall
be secondary to any medical benefits provided to the Officer under any other
plan of employee medical coverage for which the Officer becomes eligible by
reason of any subsequent employment.
Retirement benefits that become payable to the Officer pursuant to this
Section 9 shall be determined and paid pursuant to the Empire Banc Corporation
Supplemental Executive Retirement Plan (the "SERP"). Schedule B specifies the
retirement plan benefits that shall be payable pursuant to the SERP.
A Change in Control of the Company shall be deemed to have occurred if
any one of the following events takes place:
(i) at least 20% of the Company's outstanding stock is acquired by
an Acquiring Person;
(ii) Continuing Directors cease to comprise a majority of the
Company's Board of Directors;
(iii) all or substantially all of the Company's assets are sold;
(iv) the Board of Directors of the Company approves an agreement to
merge or consolidate the Company in a transaction pursuant to
which neither the Company nor any of its wholly owned
subsidiaries will be the surviving corporation; or
(v) the Company is involved in negotiating a merger or
reorganization such that the Company will not be the surviving
entity and the Board of Directors adopts a
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resolution to the effect that a Change in Control has
occurred.
The term "Acquiring Person" means any individual, corporation,
partnership or other entity, and any entity related to or acting for the benefit
of or in concert with such entity, which is the beneficial owner of 20% or more
of the shares of the common stock of the Company then outstanding; provided,
however, that "Acquiring Person" does not include the Company, any subsidiary or
any employee benefit plan of the Company or of any subsidiary of the Company.
The term "Continuing Director" means (i) any member of the Board of
Directors of the Company who is not an Acquiring Person or a representative of
an Acquiring Person and who was a member of the Board of Directors of the
Company prior to the date of this Agreement, and (ii) any person who
subsequently becomes a member of the Board of Directors of the Company and who
is not an Acquiring Person or a representative of an Acquiring Person, if (A)
such person's nomination for election or election to the Board of Directors of
the Company is recommended or approved by resolution of a majority of the
Continuing Directors, or (B) such person is included as a nominee in a proxy
statement of the Company distributed when a majority of the Board of Directors
of the Company consists of Continuing Directors.
If a Change in Control, as defined solely by subparagraphs (iv) and (v)
above, occurs, and within 9 months following such Change in Control, a Change in
Control, as defined by subparagraphs (i) through (iii), has not occurred, or the
agreement contemplated in subparagraph (iv) has not been consummated, a Change
in Control shall no longer be deemed to have occurred, and the provisions of
this Agreement that become operative upon a Change in Control shall not become
operative until the subsequent occurrence of a Change in Control, as defined in
subparagraphs (i) through (v).
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10. INCENTIVE COMPENSATION. In the event a Change in Control occurs
while the Officer is employed by the Company during the Initial Term, all awards
to the Officer under incentive plans in which the Officer is a participant shall
become immediately vested, non-forfeitable and non-cancelable to the extent any
such award would have been payable at the time of the Change in Control if the
plan had provided for an award for any current period ending at the time of the
Change in Control based on performance, salary, compensation and other pertinent
factors for the current period ending with the date of the Change in Control and
otherwise in accordance with all provisions of the plan.
11. TIMING OF PAYMENTS PURSUANT TO SECTION 9. Any payments to be made
to the Officer pursuant to Section 9 of this Agreement, but not including
payments that shall be made pursuant to the SERP, shall be made at such times as
the payments would have been otherwise been earned by the Officer, unless the
Officer has provided to the Company a written election to receive a lump sum
payment of such amounts. Such election shall be valid only if it is made by the
earlier of (a) the last day of the calendar year prior to the date of the Change
in Control, and (b) 60 days prior to the date of the Change in Control. Solely
for this purpose, a Change in Control will only be considered to have occurred
if one of the events described in described in subsections (i) through (iii) of
the definition of "Change in Control" in Section 9 of this Agreement has
occurred. The determination of the amount of such lump sum shall be the present
value of the amount payable to the Officer, determined by using the rate
reported on the date of the Change in Control by the Wall Street Journal for
United States Treasury Notes with a three year maturity.
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Officer, including but not limited to attorney fees, incurred in enforcing
payments by the Company pursuant to this Agreement.
13. REDUCTION OF SALARY PAYMENTS. If payments or benefits under this
Agreement, after taking into account all other payments or benefits to which the
Officer is entitled from the Company, are expected to result in an excise tax on
the Officer or the loss of certain tax deductions by the Company by reason of
Sections 280G and 4999 of the Internal Revenue Code of 1986 or any successor
provisions to those Sections, salary payments under Section 9 shall be reduced
by the least amount required to avoid such excise tax and loss of deductions
unless the failure to reduce such salary payments would be financially
beneficial to the Officer. The failure to reduce such salary payments will be
financially beneficial to the Officer if it results in an after-tax value to the
Officer of all payments and benefits referenced in the preceding sentence,
despite the application of the excise tax and income tax, which value is greater
than the after-tax value the Officer would realize if salary payments were
reduced to avoid the application of the excise tax. If the Officer and the
Company shall disagree as to whether a payment under this Agreement could result
in the loss of a deduction, the matter shall be resolved by an opinion of Howard
and Howard Attorneys, or if Howard & Howard Attorneys is unable to provide such
an opinion, counsel selected by the Company, and agreed to by the Officer.
Counsel's opinion need not be unqualified. Counsel's opinion shall be based on
determinations of the base amount and excess parachute payments, as such terms
are defined by Section 280G of the Code or its successor, by Buck Consultants,
Inc., or if Buck Consultants, Inc. is unable to make such determinations, a
consulting firm chosen by the Company and agreed to by the Officer. The Company
shall pay the fees and expenses of such counsel and consulting firm, and shall
make
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available such information as may be reasonably requested by such counsel and
consulting firm to prepare the opinion. If the maximum amount payable to the
Officer pursuant to this Section 13 cannot be determined prior to the due date
for such payment, the Company shall pay on the due date the minimum amount which
it in good faith determines to be payable, and shall pay the remaining amount as
soon as practicable after such remaining amount is determined.
14. FUNDING. Nothing contained in this Agreement, and no action taken
pursuant to the provisions of this Agreement shall create or be construed to
create a trust of any kind or a fiduciary relationship between Company and the
Officer or any other person. To the extent that the Officer or any other person
acquires a right to receive payments under the terms of this Agreement, such
rights shall be no greater than the rights of an unsecured general creditor of
the Company. All payments made under the terms of this Agreement shall be made
from the general assets of Company, and no other segregation of assets shall be
made for the payment of any benefits under the terms of this Agreement to the
Officer or the Officer's beneficiary. Notwithstanding the above provisions, the
Company may, at its sole discretion, establish a grantor trust to provide
additional security to the Officer that amounts under this Agreement will be
properly paid, provided that the status of the Officer with respect to assets of
the grantor trust remains that of general unsecured creditor.
15. AGREEMENT NON-ASSIGNABLE. The Officer may not assign, pledge or
otherwise transfer any of the benefits of this Agreement either before or after
termination of employment, and any purported assignment, pledge or transfer of
any payment to be made by the Company hereunder shall be void and of no effect.
No payment to be made to the Officer hereunder shall be subject to the claims of
creditors of the Officer.
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16. AGREEMENT BINDING. This Agreement shall be binding on the Company
and the Officer and their respective successors and assigns.
17. NOTICES. Any notice required or desired to be given under this
Agreement shall be deemed given if in writing and sent by first class mail to
the Officer or the Company at the Officer's or its address as set forth below or
to such other address of which either the Officer or the Company shall notify
the other in writing:
ADDRESS OF COMPANY:
1227 E. Front Street
P.O. Box 1944
Traverse City, Michigan 49865-1944
ADDRESS OF OFFICER:
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18. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties. It may be modified or amended only by an agreement in writing
signed by the parties.
19. WAIVER OF BREACH. The waiver of either party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by either the Company or the Officer.
20. SEVERABILITY OF PROVISIONS. If for any reason any provision of this
Agreement is held to be invalid or unenforceable, all other valid provisions
herein shall remain in full force and effect and all provisions of this
Agreement shall be deemed to be severable in nature.
21. GOVERNING LAW. This Agreement is made in, and shall be governed by,
the laws of the State of Michigan.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first set forth above.
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Officer
[SEAL] EMPIRE BANC CORPORATION
Attest:
By:
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Secretary Its:
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