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REGISTRATION NO. ___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EMPIRE BANC CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
MICHIGAN 38-2727982
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(State of Incorporation) (IRS Employer Identification No.)
1227 E. Front Street
Traverse City, Michigan 49686
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(Address of Principal Executive Offices)
EMPIRE BANC CORPORATION
DIRECTORS' DEFERRED COMPENSATION PLAN
-------------------------------------
(Full Title of the Plan)
William T. Fitzgerald, Jr.
Vice President and Secretary/Treasurer
Empire Banc Corporation
1227 E. Front Street
Traverse City, Michigan 49686
(616) 922-2111
---------------------------------------------------------
(Name, Address and Telephone Number of Agent for Service)
Copy to:
Melanie Mayo West, Esq.
Howard & Howard Attorneys, P.C.
1400 North Woodward Ave., Suite 101
Bloomfield Hills, Michigan 48304
(248) 433-7308
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
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Common 52,500
Stock, shares (2) $ 45.00 (3) $2,362,500 (3) $ 715.91 (3)
$5.00 par
value (1)
- --------------------------------------------------------------------------
(1) Also includes an equal number of Rights to purchase shares of
Registrant's Series A Junior Participating Preferred Stock, which
Rights are not (a) separable from the shares of Common Stock; or
(b) presently exercisable.
(2) Plus an indeterminate number of additional shares as may be issuable
in the event of an increase in the number of issued shares of Empire
Banc Corporation resulting from a subdivision of such shares, the
payment of stock dividends or certain other capital adjustments as
provided in the above-referenced Plan.
(3) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the amount of the registration fee, based on the
$ 45.00 average of the closing bid and ask prices for the Registrant's
Common Stock on September 25, 1997.
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Part II. Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the Registrant (File No. 0-15839) are incorporated
in this Registration Statement by reference:
(1) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996;
(2) the Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997 and June 30, 1997;
(3) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since December 31, 1996; and
(4) the description of the Registrant's Common Stock, $5.00 par value,
contained in the Registrant's Registration Statement filed under
the Exchange Act, and the description of the Registrant's Series A
Junior Participating Preferred Stock Purchase Rights, contained in
the Registrant's Registration Statement on Form 8-A dated December
20, 1990 filed under the Exchange Act, including any amendments or
reports filed for the purpose of updating such descriptions.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from
the date of filing of such documents.
Item 4. Description of Securities
The Registrant is authorized to issue 5,000,000 shares of common stock,
$5.00 par value and 2,000,000 shares of preferred stock, $1.00 par value.
None of the authorized shares of preferred stock are currently outstanding,
although shares of preferred stock may be issued from time to time in one
or more series by the Board of Directors. The Board of Directors shall
have the authority to fix and determine the rights and preferences of the
shares of any series of preferred stock so established, including, without
limitation, the rate of dividend, whether the dividend shall be cumulative,
whether shares may be redeemed and, if so, the redemption price and the
terms and conditions of redemption, the amount payable upon shares in the
event of voluntary or involuntary liquidation, sinking fund provisions, if
any, for the redemption or purchase of shares, the terms and conditions,
if any, on which shares may be converted, and voting rights, if any.
Subject to any preferential or other rights of any series of the
Registrant's preferred stock, if and when outstanding, holders of the
Registrant's common stock are entitled to receive dividends, out of any
funds of the Registrant legally available therefor, at the rate and at the
time or times as may be provided by the Board of Directors. Subject to
<PAGE> 4
any preferential or other rights of any series of the Registrant's
preferred stock, if and when outstanding, holders of the Registrant's
common stock are entitled to receive distributions legally payable to
shareholders on the liquidation of the Registrant. Holders of the
Registrant's common stock, on the basis of one vote per share, have the
right to vote for the election of members of the Board of Directors of
the Registrant and the right to vote on all other matters, except those
matters in which a separate class of the Registrant's shareholders vote
by class or series. Holders of the Registrant's common stock have no
cumulative voting rights in electing directors. Holders of the
Registrant's common stock have no preemptive rights to subscribe for any
additional shares of capital stock which the Registrant may issue. The
Registrant's common stock is neither convertible nor redeemable. All
outstanding shares of the Registrant's common stock are fully paid and
non-assessable and have tandem shareholder rights (the "Preferred Stock
Purchase Rights"). The Registrant's common stock is listed for trading
on the Nasdaq over-the-counter market.
The Registrant has also reserved 50,000 shares of preferred stock for
issuance as Series A Junior Participating Preferred Stock, $1.00 par
value, upon the exercise of the Preferred Stock Purchase Rights issued
to holders of and in tandem with all outstanding shares of the Registrant's
common stock. The terms of the preferred stock purchase rights are
described in the Registrant's Registration Statement dated December 20,
1990 on Form 8-A and the Registrant's Rights Agreement dated as of December
19, 1990 filed therewith and incorporated herein by reference.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Sections 551 through 569 of the Michigan Business Corporation Act (the
"Act") and Article 5 of the Registrant's Bylaws relate to indemnification
of the Registrant's directors and officers, among others, in a variety of
circumstances against liabilities arising in connection with the
performance of their duties. The Registrant's Bylaws generally permit
indemnification to the same extent provided by the Act.
The Act provides for indemnification of directors and officers acting in
good faith and in a manner they reasonably believe to be in or not opposed
to the best interest of the Registrant (and, if a criminal proceeding, who
have no reasonable cause to believe their conduct to be unlawful) against
(i) expenses (including attorney's fees) and amounts paid in settlement
actually and reasonably incurred in connection with any threatened,
pending, or completed action, suit or proceeding (other than an action by,
or in the right of the Registrant) arising out of a position with the
Registrant (or with some other entity at the Registrant's request) and
(ii) expenses (including attorney's fees) and amounts paid in settlement
actually and reasonably incurred in connection with threatened, pending,
or completed actions or suits by or in the right of the Registrant, unless
the director or officer is found liable to the Registrant and an
appropriate court does not determine that he or she is nevertheless fairly
<PAGE> 5
and reasonably entitled to indemnity. The Act requires indemnification
for expenses to the extent that a director or officer is successful in
defending against any such action, suit or proceeding, and otherwise
requires in general that the indemnification provided for in (i) and
(ii) above be made only on a determination by a majority vote of a quorum
of the Board of Directors who were not parties to or threatened to be
made parties to the action, suit, or proceeding, by a majority vote of a
committee of not less than two disinterested directors, by independent
legal counsel, by all independent directors not parties to or threatened
to be made parties to the action, suit or proceeding, or by the
shareholders, that the applicable standards of conduct were met. In
certain circumstances, the Act further permits advances to cover such
expenses before a final determination that indemnification is permissible,
upon receipt of an undertaking, which need not be secured, by or on behalf
of the directors or officers to repay such amounts unless it shall
ultimately be determined that they are entitled to indemnification.
Indemnification under the Act is not exclusive of other rights to
indemnification to which a person may be entitled under the Articles of
Incorporation, the Bylaws or a contractual agreement.
The Act permits the Registrant to purchase insurance on behalf of its
directors and officers against liabilities arising out of their positions
with the Registrant, whether or not such liabilities would be within the
foregoing indemnification provisions. Pursuant to this authority, the
Registrant maintains such insurance on behalf of its directors and
officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following Exhibits are filed or incorporated by reference as part of
this Registration Statement.
4. (a) Articles of Incorporation of Empire Banc Corporation (incorporated
by reference to Exhibit B to Registrant's definitive Proxy Statement
filed March 27, 1994 in connection with Registrant's 1994 Annual
Meeting of Shareholders, File No. 0-15839).
(b) Bylaws of Empire Banc Corporation (incorporated by reference to an
exhibit to Registrant's Current Report on Form 8-K dated January 26,
1995, File No. 0-15839).
(c) Rights Agreement dated December 19, 1990 between Registrant and
Empire National Bank of Traverse City as Rights Agent (incorporated
by reference to an exhibit to Registrant's Current Report on Form
8-K dated December 19, 1990, File No. 0-15839).
5. (a) Opinion and Consent of Howard & Howard Attorneys, P.C.
15. Not applicable.
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23. (a) Consent of Crowe, Chizek and Company LLP
(b) Consent of Howard & Howard Attorneys, P.C. (incorporated by
reference to Exhibit 5 of this Registration Statement).
28. Not applicable.
99. Empire Banc Corporation Directors' Deferred Compensation Plan,
as amended and restated February 20, 1997.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement;
(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13
or section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective
amendment of any of the securities being registered which
remain unsold at the termination of the offering.
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(b) The undersigned Registrant hereby certifies that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, directors
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer, or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Traverse, State of Michigan,
on September 25, 1997.
EMPIRE BANC CORPORATION
By: /s/ William T. Fitzgerald, Jr.
______________________________________
William T. Fitzgerald, Jr.
Its: Vice President and Secretary/Treasurer
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POWER OF ATTORNEY
The undersigned officers and directors of Empire Banc Corporation, a
Michigan corporation, do hereby constitute and appoint William T.
Fitzgerald, Jr., James E. Dutmers, Jr., Robert J. Israel and either of
them, the lawful attorneys and agents or attorneys and agent, with power
and authority to do any and all acts and things and to execute any and
all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and
any rules or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers
granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to
this Registration Statement, to any and all amendments, both pre-effective
and post-effective, and supplements to this Registration Statement and to
any and all instruments or documents filed as part of or in conjunction
with this Registration Statement or amendments or supplements thereto,
and each of the undersigned hereby ratifies and confirms all that said
attorneys and agents or any of them shall do or cause to be done by
virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 25th day of September, 1997.
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<S> <C>
/s/ James E. Dutmers, Jr. /s/ John R. Anderson
_____________________________________ ______________________________
James E. Dutmers, Jr. John R. Anderson
Chairman and Chief Executive Officer Director
(principal executive officer)
/s/ Robert L. Israel
_____________________________________ ______________________________
Robert L. Israel Michael H. Dennos
President and Chief Operating Officer Director
/s/ William T. Fitzgerald, Jr. /s/ Don A. Good, M.D.
____________________________________ ______________________________
William T. Fitzgerald, Jr. Don A. Good, M.D.
Chief Financial Officer, Secretary/ Director
Treasurer (Principal Financial and
Accounting Officer)
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/s/ Deborah J. Knudsen
___________________________________ __________________________________
Deborah J. Knudsen John M. Rockwood, Jr.
Director Director
/s/ Thomas G. McIntyre /s/ Laurence P. Skendzel, M.D.
___________________________________ __________________________________
Thomas G. McIntyre Laurence P. Skendzel, M.D.
Director Director
/s/ Ronald G. Reffitt, Sr.
___________________________________ __________________________________
Ronald G. Reffitt, Sr. Louis A. Smith
Director Director
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<PAGE> 10
EXHIBIT INDEX
Number
__________________________________________________________________________
5(a) Opinion of Howard & Howard Attorneys, P.C., including Consent
23(a) Consent of Crowe, Chizek and Company LLP
99 Empire Banc Directors' Deferred Compensation Plan
Howard & Howard Attorneys, P.C.
1400 N. Woodward Avenue, Suite 101
Bloomfield Hills, Michigan 48304-2856
(810) 645-1483
September 24, 1997
Empire Banc Corporation
1227 E. Front Street
Traverse City, Michigan 49686
Attention: William T. Fitzgerald, Jr.
Greetings:
We have acted as counsel to Empire Banc Corporation (the "Company") in
connection with the preparation and filing of a registration statement
on Form S-8 (the "Registration Statement") under the Securities Act of
1933, relating to the registration of 52,500 shares of the Company's
Common Stock, par value $5.00 per share, plus an equal number of Rights
to purchase shares of Registrant's Series A Junior Participating Preferred
Stock, to be issued pursuant to the Empire Banc Corporation Directors'
Deferred Compensation Plan (the "Plan").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such corporate records, certificates, and other
documents and conducted interviews with officers as we considered necessary
or appropriate for the purpose of this opinion.
It is our opinion that, when the Registration Statement has become
effective in accordance with applicable law, the 52,500 shares of the
Company's Common Stock being registered, when issued pursuant to and in
accordance with the terms of the Plan, will be validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion and to the reference to
Howard & Howard in Exhibit 5 to the Registration Statement.
This opinion is rendered pursuant to Item 8 of Form S-8 and Item 601 of
Regulation S-K may be relied upon only by the Company and the Securities
and Exchange Commission and may not be used, quoted or referred to and/or
filed with any other person without our prior written permission.
Very truly yours,
HOWARD & HOWARD ATTORNEYS, P.C.
/s/ Melanie Mayo West
______________________________
Melanie Mayo West
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
of Empire Banc Corporation on Form S-8 for the Empire Banc Corporation
Directors' Deferred Compensation Plan, of our report dated January 23,
1997 on the consolidated financial statements of Empire Banc Corporation,
as of December 31, 1996 and 1995 and for each of the three years in the
period ended December 31, 1996, which report is included in the 1996
Annual Report on Form 10-K of Empire Banc Corporation.
/s/ Crowe, Chizek and Company LLP
_____________________________________
CROWE, CHIZEK AND COMPANY LLP
Grand Rapids, Michigan
September 18, 1997
EMPIRE BANC CORPORATION
DIRECTORS' DEFERRED COMPENSATION PLAN
AS AMENDED AND RESTATED
FEBRUARY 20, 1997
1. Establishment. Empire Banc Corporation (the Company), hereby amends,
restates and combines the Empire Banc Corporation Directors' Deferred
Compensation and Stock Investment Plan (the "Stock Plan") and the Empire
Banc Corporation Directors' Fee Deferral Plan (the "Cash Plan") for
Eligible Directors of the Company. The amended, restated and combined
plans shall be collectively referred to as the Empire Banc Corporation
Directors' Deferred Compensation Plan (the "Combined Plan" or the "Plan").
2. Effective Date. The Stock Plan and the Cash Plan became effective
May 1, 1995. The Combined Plan shall become effective May 1, 1997.
3. Purpose. The purpose of the Stock Plan was to provide Eligible
Directors with a means of expressing their commitment to the Company and
an additional incentive to perform their duties in a manner that maximizes
shareholder value by relating the rate of return on their deferred retainer
fees to the stock market performance of the Company's stock. The purpose
of the Cash Plan was to provide Eligible Directors with the opportunity to
defer the payment of income taxes on meeting fees and to establish a rate
of return on such deferrals that provides additional incentives to Eligible
Directors to perform their duties in a manner that enhances the Company's
financial performance. The Combined Plan will continue to serve both
purposes, while increasing incentives for Eligible Directors to perform
their duties in a manner that maximizes shareholder value by adding the
ability to relate the rate of return on deferred meeting fees to the stock
market performance of the Company's stock.
4. Definitions
Administrative Committee. The term "Administrative Committee" shall
mean the directors described in Paragraph 9 of the Plan.
Bank. The term "Bank" shall mean Empire National Bank.
Cash Reserve Account. The term "Cash Reserve Account" shall have the
meaning given in Paragraph 7 of the Plan.
Company. The term "Company" shall mean Empire Banc Corporation, and
its successors and assigns.
Compensation Committee. The term "Compensation Committee" shall mean
the Compensation Committee of the Company's Board of Directors.
Conversion Agreement. The term "Conversion Agreement" shall mean the
agreement executed by an Eligible Director and delivered to the Company
hereunder indicating the intention to convert the balance of his or her
Cash Reserve Account into his or her Stock Reserve Account, the form of
which is attached to the Plan as Exhibit B, and is incorporated by
reference herein.
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Crediting Rate. For any Plan Year, the term "Crediting Rate" shall
mean the Bank's average earning asset rate for the immediately preceding
fiscal year, as reported to shareholders in the Company's annual report,
as determined by the Administrative Committee.
Dividend Payment Date. The term "Dividend Payment Date" shall mean the
date on which dividends are paid to the Company's shareholders.
Election Agreement. The term "Election Agreement" shall mean each and
every Election Agreement executed by an Eligible Director and delivered
to the Company hereunder, the form of which is attached to the Plan as
Exhibit A, and is incorporated by reference herein.
Eligible Director. The term "Eligible Director" shall mean any present
or future director of the Company, the Bank or any affiliate of Company
that adopts this Plan, who is not an employee of the Company or any
affiliate of the Company.
Market Price. The term "Market Price" shall mean the average of the
bid and ask price, on the OTC Bulletin Board, or if the Stock is reported
on the NASDAQ/National Market System or any other national securities
exchange, the closing price of the Stock on such national securities
exchange, on the date of the required calculation or, if there were no
Stock transactions on such day, on the next preceding day on which there
were Stock transactions.
Meeting Fees. The term "Meeting Fees" shall mean the per diem fees
payable to a Participating Director for attendance at meetings of the
board, or any committee of the board, of the Company, the Bank, or any
affiliate of the Company that has adopted the Plan during the Plan Year
in question. In no event does the term Meeting Fees include any Retainer
Fee paid by the Company, the Bank, or any affiliate of the Company.
Participating Director. The term "Participating Director" shall mean
any past or present Eligible Director who has executed and delivered an
Election Agreement to the Company.
Payment Date. The term "Payment Date" shall mean the earliest to occur
of the following dates:
(i) The date of the Participating Director's sixty-fifth
birthday; or
(ii) The date of the Participating Director's Retirement;
or
(iii) The Participating Director's death; or
(iv) The Participating Director's cessation of service as
a Director due to total and permanent disability.
Plan. The term "Plan" shall mean the Empire Banc Corporation Directors'
Deferred Compensation Plan, representing a combination of the Empire Banc
Corporation Directors' Deferred Compensation and Stock Investment Plan and
Empire Banc Corporation Directors' Fee Deferral Plan, as it may be amended
from time to time.
<PAGE> 3
Record Date. The term "Record Date" shall mean the date as of which the
shareholders of the Company of record are determined for purposes of
paying Stock dividends.
Plan Year. The Plan Year shall be May 1 to April 30, of each year.
Retainer Fee. The term "Retainer Fee" shall mean the retainer fee
designated by the Board of Directors payable to a Participating Director
for service as a director on the board of the Company, the Bank or any
affiliate of the Company that has adopted the Plan during the Plan Year
in question.
Retirement. The term "Retirement" shall mean the voluntary or
involuntary resignation of a director, the removal of a director with or
without cause or the conclusion of a director's term of office where the
director is not reelected by shareholders of the Company to a succeeding
term.
Stock. The term "Stock" shall mean the $5 par value common stock of
the Company.
Stock Reserve Account. The term "Stock Reserve Account" shall have the
meaning given in Paragraph 6 of the Plan.
5. Directors' Elections
(a) Retainer Fee Deferral Election. Each Eligible Director shall be
given an opportunity by the Company on an annual basis to defer receipt of
all (but not less than all) of the Retainer Fee which such Eligible
Director has the opportunity to earn during the next succeeding Plan Year
through service as an Eligible Director. In order to participate in the
Plan for a particular Plan Year, an Eligible Director must elect in writing
to participate, and such election must be made at least one month prior to
the first day of the applicable Plan Year, unless otherwise specified by
the Compensation Committee, except that the election for the first Plan
Year under the Combined Plan may be made at any time prior to the first day
of its effective date.
To make an effective election, a properly completed and executed Election
Agreement must be received by the Company at the address specified on such
Election Agreement. In addition, the Compensation Committee or the Board
of Directors of the Company must have given any approval necessary to
ensure that credits to Stock Reserve Accounts will be exempt from the
short-swing profit liability provisions of Section 16 of the Securities
Exchange Act of 1934, as amended.
(b) Meeting Fee Deferral Election. Each Eligible Director shall be
given an opportunity by the Company on an annual basis to defer receipt of
all (but not less than all) of the Meeting Fees, which such Eligible
Director has the opportunity to earn during the next succeeding Plan Year
through service as an Eligible Director. In order to participate in the
Plan for a particular Plan Year, an Eligible Director must elect in writing
to participate, and such election must be made prior to the first day of
the applicable Plan Year, except that the election for the first Plan Year
may be made at any time prior to the first day of the Effective Date.
<PAGE> 4
To make an effective election, a properly completed and executed Election
Agreement must be received by the Company at the address specified on such
Election Agreement. In addition, the Compensation Committee or the Board
of Directors of the Company must have given any approval necessary to
ensure that credits to Stock Reserve Accounts will be exempt from the
short-swing profit liability provisions of Section 16 of the Securities
Exchange Act of 1934, as amended.
6. Stock Reserve Account
(a) Establishment of Stock Reserve Account. The Company shall
establish and maintain a Stock Reserve Account for each Participating
Director. The Stock Reserve Account shall reflect all entries required
to be made pursuant to the terms and conditions of the Participating
Director's Election Agreements made under the Stock Plan and the
Combined Plan or the Participating Director's Conversion Agreement.
(b) Credits to Stock Reserve Account. The Company shall credit
to a Participating Director's Stock Reserve Account a number (to four
decimal places) of units that is equal to 110% of the amount of the
Participating Directors' Retainer Fee and/or Meeting Fees deferred
pursuant to an Election Agreement, divided by the Market Price on the
day when such amounts are earned. For the purpose of this Paragraph 6(b),
the amounts of a Participating Director's Retainer Fee or Meeting Fees
are deemed earned when paid.
The Company shall credit to the Stock Reserve Account on each Dividend
Payment Date that number (to four decimal places) of units that is equal
to the total number of units in the Participating Director's Reserve
Account on the Record Date for such dividend, multiplied by the cash
dividend per share of Stock divided by the Market Price on the Dividend
Payment Date for such dividend. The number of units credited to a Stock
Reserve Account shall be adjusted appropriately by the Company in the event
of any change in the Stock by reason of stock dividends, split-ups,
recapitalizations, combinations, exchanges of shares and other like capital
changes, but no adjustment shall be required by reason of any sales of
shares of Stock by the Company at any price, whether below, at or above
Market Price, and whether by or pursuant to warrant, option, right,
conversion right or privilege or otherwise, and a Participating Director
shall have no rights as a holder of Stock unless and until a certificate
for shares of Stock is issued by the Company.
7. Cash Reserve Account
(a) Establishment of Cash Reserve Account. The Company shall
establish and maintain a Cash Reserve Account for each Participating
Director. The Cash Reserve Account shall reflect all entries required
to be made pursuant to the terms and conditions of the Participating
Director's Election Agreements made under the Cash Plan or the
Combined Plan.
(b) Credits to Cash Reserve Account. The Company shall credit to
a Participating Director's Cash Reserve Account the Meeting Fees that
would be payable to the Participating Director, had the Participating
Director not elected to participate in the Plan. The amounts that are
credited to a Participating Director's Cash Reserve Account shall accrue
interest at an annual rate equal to the Crediting Rate, credited on a
<PAGE> 5
monthly basis, and such interest shall be calculated based on the average
monthly balance of the Participating Director's Cash Reserve Account
during each Plan Year. The Administrative Committee shall keep such
records as are necessary to determine the value of a Participating
Director's Cash Reserve Account. The Administrative Committee shall
adjust the Crediting Rate as of the first day of each Plan Year to reflect
the then current earning asset rate of the Bank.
8. Payment of Reserve Account Value
(a) Stock Reserve Accounts. The Company shall, with respect to each
Stock Reserve Account for each Participating Director, cause to be delivered
to such Participating Director (or any applicable alternate payee, as
determined under the Plan or the applicable Election Agreement) on or
promptly after the applicable Payment Date, the Payment Date value of such
Stock Reserve Account in the form of shares of Stock, all pursuant to the
express terms and conditions of the Plan and the applicable Election
Agreement. If the Payment Date is the Participating Director's sixty-fifth
birthday, he or she may elect not to receive payment on such date, and
instead elect to receive payments under this Plan as of the next applicable
Payment Date. Such election must be made at least 90 days before, and in
the calendar year prior to, his or her sixty-fifth birthday.
(b) Cash Reserve Accounts. Except as otherwise provided below, the
Company shall, with respect to the Cash Reserve Account for each
Participating Director, cause to be paid to such Participating Director
(or any applicable alternate payee, as determined under the Plan or the
applicable Election Agreement) on or promptly after the applicable Payment
Date, the value of such Cash Reserve Account in 120 substantially equal
monthly payments, which shall be determined by assuming that the rate of
return on the Cash Reserve Account, while it is being paid to the
Participating Director, is the Crediting Rate in effect on the Payment
Date, all pursuant to the express terms and conditions of the Plan and
the applicable Election Agreement. If the Payment Date is the
Participating Director's sixty-fifth birthday, he or she may elect not
to receive payment on such date, and instead elect to receive payments
under this Plan as of the next applicable Payment Date. Such election
must be made at least 90 days before, and in the calendar year prior
to, his or her sixty-fifth birthday. In lieu of 120 substantially
equal monthly payments, a Participating Director may elect to receive
a lump sum payment of his or her Cash Reserve Account balance, as of
his or her Payment Date, provided that such election is made at least
90 days before and in the calendar year prior to the Payment Date.
(c) Disability. If a Payment Date occurs by reason of a
determination by the Company that the Participating Director has become
totally and permanently disabled, and if the disability is due to mental
incapacity, any shares of Stock deliverable shall be issued in the name
of, and any cash payable shall be paid to, the Participating Director's
legally appointed personal representative. If no such representative has
been appointed, then delivery shall be in the name of or paid to the
Participating Director's spouse, or if the Participating Director is
then unmarried, then any shares of Stock to be issued or cash to be paid
shall be held until the persons, who would be entitled thereto if the
Participating Director were then to die intestate, make proper claim to
the Company for such shares of Stock or cash. Such payment shall be made
<PAGE> 6
to the Participating Director if the disability is not due to mental
incapacity.
(d) Death. If a Payment Date occurs because the Participating
Director dies, the shares of Stock required to be delivered shall be
promptly issued in the name of, and any cash to be paid shall be promptly
paid to, the Participating Director's beneficiary (or beneficiaries) as
designated in the applicable Election Agreement, or, if none are so
designated, in the name of and to the legally appointed personal
representative of the Participating Director's estate. If no legal
proceedings for such appointment have been instituted within sixty days
after receipt by the Company of notice of the Participating Director's
death, such delivery shall be made as if no legal representative has been
appointed in accordance with Paragraph 8.(c), 8.(d) above. If cash
payments have already commenced to a Participating Director and the
Participating Director dies, the remaining payments shall be made to the
individuals or entities as otherwise determined in this Paragraph 8.(c),
8.(d), at the same time such payments would have been made to the
Participating Director.
9. Administration. Directors of the Company, the Bank, or any affiliate
of the Company that adopts this Plan, who are not Eligible Directors shall
be generally responsible for the administration of the Plan, but may
delegate any portion of such responsibility that they determine to be
appropriate. To the extent consistent with the terms of the Plan, such
directors shall have the power to interpret any Plan provision,
to prescribe, amend and rescind rules and regulations relating to the Plan
and to make all other determinations that they deem necessary or advisable
to administer the Plan. Such directors shall constitute the Administrative
Committee for the Plan.
10. Status of Stock and Cash Reserve Accounts. The Company shall have
full and unrestricted use of all property or amounts payable pursuant to
the Plan, and title to and beneficial ownership of any assets which the
Company may earmark to pay the amounts hereunder shall at all times remain
in the Company and no Eligible Director shall have any property interest
whatsoever in any specific assets of the Company. Neither the Stock
Reserve Account nor the Cash Reserve Account is intended to be a trust
account or escrow account for the benefit of a Participating Director or
any other person, or an asset segregation for the benefit of a
Participating Director or any other person. The sole right of a
Participating Director, or a Participating Director's heirs or personal
representatives, is a right as an unsecured general creditor of the
Company to claim any shares of Stock or dollar amounts consistent with
the Participating Director's Election Agreement and the Plan.
Notwithstanding the above provisions, the Company may establish a grantor
trust to provide additional security to Participating Directors that
amounts under this Plan will be properly paid, provided that the status
of Participating Directors with respect to assets of the grantor trust
remains that of general unsecured creditors. The Company shall provide
each Participating Director with an annual report of his or her Stock or
Cash Reserve Account balances within 30 days following the end of each
Plan Year.
11. Amendment or Termination. The Compensation Committee may, at any
time and from time to time, terminate the Plan or make such amendments as
<PAGE> 7
it deems advisable; provided, however, that no such termination or
amendment shall adversely affect or impair the contract rights of a
Participating Director with respect to an effective Election Agreement,
unless such Participating Director shall consent in writing to such
termination or amendment. An amendment may not, without the approval of
the Company's shareholders, materially increase the benefits accruing to
Eligible Directors under the Plan, increase the number of shares of Stock
distributed under the Plan, or materially modify the requirements as to
eligibility under the Plan. The Compensation Committee's right to amend
the Plan without shareholder approval shall include the right to amend
prospectively the initial Crediting Rate and to change the form of payments
that may be made from the Plan.
12. Stock Subject to Plan. The maximum number of shares of Stock that
shall be reserved for issuance under the Plan is 52,500 shares, which
includes the originally authorized 40,000 shares plus capitalization
adjustments for a 25% stock dividend and a 5% stock dividend, subject to
further adjustment upon changes in the capitalization of the Company as
provided in Paragraph 6 of the Plan.
13. Compliance with Securities Laws. Transactions under this Plan are
intended to avoid giving rise to potential short-swing profit liability
under Section 16 of the Securities Exchange Act of 1934, as amended. To
the extent that operation of the Plan or action by the Compensation
Committee or the Administrative Committee gives rise to such potential
liability, it shall be deemed null and void, to the extent permitted by
law and deemed advisable by the Compensation Committee.
14. Non-Plan Deferral Arrangements. The Company does not intend that
this Combined Plan affect any presently existing retainer deferral
arrangement (other than the Stock Plan and the Cash Plan) or preclude
the Company from implementing additional deferral arrangements.
15. Costs of Enforcement. The Company shall pay all expenses of a
Participating Director, including but not limited to attorney fees,
incurred in enforcing payments by the Company pursuant to this Plan.
16. Future Director Terms. Nothing in this Plan or in any Election
Agreement shall obligate a Participating Director to continue to serve as
a director, or to accept any nomination for a future term as a director of
the Company, or require the Company to nominate or cause the nomination of
the Participating Director for a future term as a director of the Company.
For purposes of this provision, the term "Company" shall include the Bank
and any affiliate of the Company that adopts this Plan.
17. No Alienation. No shares of Stock or cash amounts deliverable
under the Plan or under an Election Agreement shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrances or change, other than by will or the laws of descent and
distribution.
18. Withholding. The Company is entitled to withhold and deduct from
any amounts due from the Company to a Participating Director, all legally
required amounts necessary to satisfy any federal, state or local
withholding and employment-related taxes arising directly or indirectly
in connection with the Plan or any Election Agreement, and the Company
<PAGE> 8
may require the Participating Director to remit promptly to the Company
the amount of such taxes before taking any future actions with respect
to the Participating Director's Stock or Cash Reserve Accounts or Election
Agreements. For purposes of this provision, the term "Company" shall
include the Bank, and any affiliate of the Company that has adopted this
Plan.
19. Binding Effect. This Agreement shall bind the Director, the
Company, the Bank, and any affiliate of the Company that has adopted the
Plan, and their beneficiaries, survivors, executors, administrators and
transferees.
20. Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of Michigan, except to the extent preempted by the
laws of the United States of America.
CERTIFICATION
The foregoing Combined Plan was duly adopted by the Board of Directors
on the 20th day of February, 1997.
EMPIRE BANC CORPORATION
By: /s/ William T. Fitzgerald
-------------------------
Its: Secretary
<PAGE> 9
EXHIBIT A
EMPIRE BANC CORPORATION
DIRECTORS' DEFERRED COMPENSATION PLAN
ELECTION AGREEMENT
_____________________________________
Deferral Election
For the Plan Year beginning May 1, ______ and ending April 30, ______:
__ I elect to defer the Retainer Fee payable to me by the Company in
exchange for payment in shares of Stock of the Company upon the
applicable Payment Date in accordance with the Plan.
__ I elect to defer the Meeting Fees payable to me by the Company in
exchange for payment in shares of Stock of the Company upon the
applicable Payment Date in accordance with the Plan.
__ I elect to defer the Meeting Fees payable to me by the Company in
exchange for cash payment from the Company upon the applicable Payment
Date in accordance with the Plan.
Form of Benefit
Except as described below, your benefit payment will be paid upon your
first Payment Date under the Plan. "Payment Date" means the earliest of
your Retirement as a director, your 65th birthday, your death or your total
and permanent disability. If your first Payment Date is the attainment of
your 65th birthday, you may elect to commence receiving your benefit
payment on the next Payment Date, provided that you make such election in
writing and delivered to the Company's Secretary at least 90 days prior to
and in the calendar year preceding your first Payment Date.
This Election Agreement must be delivered to the Company at 1227 East
Front Street, Traverse City, Michigan 49684, Attention: William T.
Fitzgerald, Jr. at least one month prior to the first day of the applicable
Plan Year, unless otherwise specified by the Compensation Committee.
_________________________________
Dated: _________________________
Accepted by the Company this ____ day of ___________.
By: ______________________________
Its:______________________________
Approved by the Compensation Committee on ______________.
<PAGE> 10
EXHIBIT B
EMPIRE BANC CORPORATION
DIRECTORS' DEFERRED COMPENSATION PLAN
CONVERSION AGREEMENT
______________________________________
Conversion Election
For all Plan Years beginning prior to May 1, 1997:
__ I elect to receive payment of deferred Meeting Fees in shares of Stock
of the Company upon the applicable Payment Date in accordance with the
Plan, in lieu of cash payment from the Company.
Form of Benefit
Except as described below, your benefit payment will be paid upon your
first Payment Date under the Plan. "Payment Date" means the earliest of
your Retirement as a director, your 65th birthday, your death or your
total and permanent disability. If your first Payment Date is the
attainment of your 65th birthday, you may elect to commence receiving your
benefit payment on the next Payment Date, provided that you make such
election in writing and delivered to the Company's Secretary at least 90
days prior to and in the calendar year preceding your first Payment Date.
This Election Agreement must be delivered to the Company at 1227 East
Front Street, Traverse City, Michigan 49684, Attention: William T.
Fitzgerald, Jr. prior to April 15, 1997, unless otherwise specified by the
Compensation Committee.
_________________________________
Dated: _________________________
Accepted by the Company this ____ day of ___________.
By: ______________________________
Its:______________________________
Approved by the Compensation Committee on ______________.
