LUMP SUM PAYMENT, RELEASE, AND WAIVER AGREEMENT
This Lump Sum Payment, Release, and Waiver Agreement (this "Agreement") is
made and entered into as of February 4, 2000, among Empire Banc Corporation
("Empire"), Huntington Incorporated ("Huntington"), and
, an officer of Empire ("Executive").
A. Concurrently with the execution and delivery of this Agreement, Empire
and Huntington, among other things, are entering into (1) an Agreement and Plan
of Merger, which provides for the merger of Empire into Huntington (the
"Merger"), and (2) a Supplemental Agreement, which sets forth certain
representations, warranties, and covenants made by Huntington and Empire in
connection with the Merger (collectively, the "Merger Documents").
B. Executive is a party to, or a beneficiary of, certain agreements and
plans of Empire or its subsidiaries (the "Executive Agreements and Plans") which
provide for benefits or the acceleration of benefits upon a "change of control"
of Empire, including but not limited to a Management Continuity Agreement, the
Empire National Bank Supplemental Executive Retirement Plan ("SERP"), the
Executive Supplemental Income Agreements (also known as the Executive
Supplemental Income Plan, the Supplemental Income Plan, and the Supplemental
Income Agreement, the "SIP"), supplemental nonqualified portion of the Empire
National Bank Employee Stock Ownership Plan ("ESOP") and supplemental
nonqualified portion of the Empire National Bank Savings, Investment and
Retirement Plan ("401(k) Plan"), as well as an Executive Management Trust
("Rabbi Trust") established for the funding and payment of benefits under one or
more of these plans.
NOW THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, the parties agree as follows:
1. In satisfaction of any payment or benefit payable or to become payable
under any of the Executive Agreements and Plans, the Executive agrees to accept
a lump sum payment of $ plus the amounts payable to the Executive
pursuant to Section 10 of the SERP(1) assuming that the Effective Date is the
date of termination of Executive for purposes of calculating the amount payable
pursuant to Section 10 of the SERP (collectively, the "Lump Sum Payment"),
payable as soon as administratively practicable after the Effective Time (as
defined in the Merger Documents), but no later than 10 days following the
2. Upon receipt of the Lump Sum Payment, Executive releases and waives all
rights to any benefits or payments payable or to become payable under the
Executive Agreements and Plans.
(1) The amount payable pursuant to Section 10 of the SERP was represented to
Huntington to be $ as of January 31, 2000.
3. (a) Notwithstanding anything in this Agreement to the contrary, any
payment, benefit, or amount payable or to be provided to the Executive by Empire
or Huntington, whether pursuant to this Agreement or otherwise, which is a
"Parachute Payment" as defined in Section 280G(b)(2) of the Internal Revenue
Service Code of 1986, as amended (the "Code"), shall be modified or reduced in
the manner provided in paragraph 3(b) below to the extent necessary so that the
benefits payable or to be provided to Executive under this Agreement that are
treated as Parachute Payments as well as any payments or benefits provided
outside of this Agreement that are so treated shall not cause Empire or
Huntington to have paid an "Excess Parachute Payment" as defined in Section
280G(b)(1) of the Code. In computing such amount, the parties shall take into
account all provisions of Code Section 280(G), including making appropriate
adjustments to such calculations for amounts established to be "Reasonable
Compensation" as defined in Section 280G(b)(4) of the Code. The determination of
whether an amount is a "Parachute Payment" or "Excess Parachute Payment" will be
made by Huntington's independent auditors, after consultation with Empire's
(b) In the event that the amount of any "Parachute Payments" that would be
payable to or for the benefit of Executive under this Agreement must be modified
or reduced to comply with this Section 3, Executive shall direct which
"Parachute Payments" are to be modified or reduced.
(c) This Section shall be interpreted so as to avoid the imposition of
excise taxes on the Executive under Section 4999 of the Code or the disallowance
of a deduction to Huntington or Empire pursuant to Section 280G(a) of the Code
with respect to amounts payable under this Agreement or otherwise.
(d) In addition to the limits otherwise provided in this Section 3, to the
extent permitted by law, Executive may in Executive's sole discretion elect to
reduce any payments Executive may be eligible to receive under this Agreement to
prevent the imposition of excise taxes on Executive under Section 4999 of the
4. Executive acknowledges that federal, state, city, and excise, if any,
and/or other taxes may be withheld, as required by law.
5. Empire agrees to take all action necessary to terminate the Management
Continuity Agreement, SERP, the SIP, and the Rabbi Trust effective as of the
Effective Time and all parties agree that the payments under this Agreement will
be paid in full satisfaction of all amounts payable or to become payable under
any of the Executive Agreements and Plans.
6. At the request of Huntington, Empire shall expense the Lump Sum Payment
prior to the Effective Time and will cooperate with Huntington with regard to
treating the Lump Sum Payment as pre-Merger expenses for book and accounting
purposes to the extent such expense recognition does not reduce Empire's or
Empire's affiliates' capital ratios below the well capitalized standard as
defined by the Office of the Comptroller of the Currency.
7. After the Effective Time, Huntington shall employ, and Executives shall
accept the employment by Huntington during an initial transition period to
commence as of the
Effective Time and end on December 31, 2000 (the "Initial Transition Period"),
and Huntington shall pay to Executive the salary currently enjoyed by Executive
during the Initial Transition Period. Except to the extent Huntington chooses to
continue beyond the Effective Time Empire Benefit Plans (as defined in the
Merger Documents) for employees of Empire Companies, Huntington shall also
provide to Executive during the Initial Transition Period employee benefits
under Huntington Benefit Plans (as defined in the Merger Documents) which are
substantially similar to those provided by Huntington and its affiliates to
their similarly situated officers and employees. Other than the Lump Sum
Payment, Executive shall not be entitled to any benefits under any Executive
Agreements and Plans after the Effective Time.
8. After the Initial Transition Period, Executive shall become an employee
at will of Huntington on such terms and conditions as are mutually agreeable
between Executive and Huntington.
9. Under no circumstances shall Executive be entitled to any benefits now
or in the future under the Huntington's Transition Pay Plan or any similar plan
adopted by Huntington in the future.
10. This Agreement will terminate if the employment of Executive with
Empire terminates prior to the Merger and will terminate upon termination of the
Merger Documents for any reason prior to consummation of the Merger. Upon such
termination, no party will have any obligation hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
HUNTINGTON BANCSHARES INCORPORATED
Richard A. Cheap
General Counsel and Secretary
EMPIRE BANC CORPORATION
James E. Dutmers, Jr.
Chairman and Chief Executive Officer