EXHIBIT 10.1 FORM OF AMENDED MANAGEMENT SEVERANCE AGREEMENT BY AND BETWEEN
SECOND BANCORP INCORPORATED AND THE FOLLOWING EXECUTIVE
OFFICERS: XXXX X. BLOSSOM, XXXXX X. XXXXXXXXX, XXXXXXXXXXX
XXXXXXX, XXXXXX X. XXXXX, XXXXX X. XXXXXX, XXXX X. XXXXXXX,
XXXXX XXXXXXXX, AND XXXXXX XXXX.
MANAGEMENT SEVERANCE AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of the___ day of March
2004, by and between SECOND BANCORP INCORPORATED ("Bank") and _________________
("Executive").
WHEREAS, effective as of June 1, 2003, Bank and Executive entered into a
Management Severance Agreement (the "MSA");
WHEREAS, Bank and Executive desire to amend the MSA; and
WHEREAS, Bank and Executive desire to enter into a noncompetition,
nonsolicitation and confidentiality agreement; and
WHEREAS, Bank and Executive desire to mutually agree upon other
compensation related matters;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), Bank and Executive agree as follows:
1. MSA Amendment.
(a) Section 7 of the MSA is deleted in its entirety and the
following new Section 7 inserted in place thereof
7. Benefits. Upon the occurrence of a Covered Termination,
Executive shall be entitled (i) until the end of the "Benefits
Period" (as hereafter defined), to the health/dental/vision
coverage, supplemental health coverage (Exec-U-Care), life
insurance coverage, and accidental death and dismemberment
coverage, as described in Xxxxxx Consulting's March 23, 2004 ten
(10) page calculations letter which is incorporated by reference
herein ("Xxxxxx Report'), and (ii) during Executive's ___________
Severance Period ___________________________________ consecutive
monthly nonqualified supplemental pension payments as described
in the Xxxxxx Report. For purposes of this Section 7, "Benefits
Period" means that period of time beginning on the day after the
Executive's last day of employment with the Corporation and
ending on the earlier of (a) the end of his Severance Period, or
(b) the date on which the Executive becomes
eligible for benefits in connection with his acceptance of a
position with another company or employer.
(b) Section 9 of the MSA is deleted in its entirety and the
following new Section 9 inserted in place thereof.
9. Limitation on Payments and Benefits. Notwithstanding
anything to the contrary contained in this Agreement, if any
payment made or to be made or other benefit provided or to be
provided to the Executive, whether under this Agreement or
otherwise, would constitute an Excess Parachute Payment (as that
term is define din Section 280G of the Internal Revenue Code of
1986, as amended), then the Executive may elect either (i) to
receive one additional payment (a "Gross-Up Payment ") in an
amount that will cover the excise tax on the Excess Parachute
Payment, but will not include any excise tax or other tax imposed
upon the Gross-Up Payment; or (ii) to specify that the aggregate
amount or value of the payments due, or benefits provided to, the
Executive under this Agreement or otherwise, the value of which
may be included in determining the existence of an Excess
Parachute Payment, shall be reduced to the minimum extent
necessary so that no portion of the payment made to, or benefits
provided to, the Executive, as so reduced, constitutes an Excess
Parachute Payment.
2. Noncompetition, Nonsolicitation and Confidentiality Agreement. In
consideration of the mutual covenants contained herein and, in addition, Bank's
payment of ________________________________________________________________ to
Executive, Executive and Bank shall, upon the execution of this Agreement, enter
into and execute the Noncompetition, Nonsolicitation and Confidentiality
Agreement attached hereto as Exhibit A and incorporated by reference herein. The
cash amount will be paid in a single lump sum cash amount upon execution of the
Noncompetition, Nonsolicitation and Confidentiality Agreement or within a
reasonable period thereafter.
3. Limitations. The calculation of Executive's "base amount," "annualized
includible compensation for the base period," and potential "excess parachute
payments" (as such terms are defined in Section 280G of the Internal Revenue
Code of 1986, as amended ("Code") with respect to payments or benefits made or
to be made under the MSA or under any other agreement, plan or program shall be
mutually agreed upon by Bank, Executive and Sky Financial Group, Inc. ("Sky").
Executive agrees that (i) up to Twenty-Five Thousand Dollars ($25,000) below the
"Threshold" (as hereafter defined) and an amount above the Threshold up to the
"Upper Limit" (as hereafter defined) shall be restructured in a manner specified
by Sky; and (ii) all amounts in excess of the Upper Limit are hereby forfeited
by Executive. As used herein, the term "Threshold" means three (3) times
Executive's "base amount;" and the term "Upper Limit" means the amount above the
Threshold specified by Sky to be restructured; provided, however, that the Upper
Limit shall not be less than ______________________________. In the event either
there is a final determination by a court of competent jurisdiction or Sky
concedes an
Internal Revenue Service determination that any such restructured amounts
constitute "excess parachute payments" within the meaning of Code Section 280G,
then, unless Executive elects to reduce the amounts payable to Executive to the
minimum amount necessary so that no portion of payments made, or benefits
provided, to Executive constitute "excess parachute payments," Executive shall
be paid (a) one payment in an amount equal to the excise tax on such "excess
parachute payments" (but which will not include any excise tax or other tax
imposed upon such payment), and (b) one payment equal to any penalties and
interest assessed by the Internal Revenue Service upon Executive relating to
such "excess parachute payments."
4. Successors: Binding Agreement.
(a) This Agreement shall be binding upon, and inure to the benefit of,
the Bank, Affiliates, and its Successors and Assigns. The Bank shall require its
Successors and Assigns to agree to perform this Agreement to the same extent
that the Bank would be required to perform.
(b) Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive, his or her beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive and Executive's legal personal representative.
5. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Ohio without giving effect
to the conflict of laws principles thereof. Any action brought by any party to
this Agreement shall be brought and maintained in a court of competent
jurisdiction in Trumbull County in the State of Ohio.
6. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto, and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto,
with respect to the subject matter hereof.
7. Counterparts. This Agreement may be executed in one or more separate
counterparts, each of which shall be deemed to be an original and which taken
together shall constitute one and the same agreement.
8. Executive Representations. The Executive represents and warrants to the
Bank that upon the execution and delivery of this Agreement by the Bank and
Executive, this Agreement shall be the valid and binding obligation of the
Executive, enforceable in accordance with its terms.
9. Survival. This Agreement shall survive and continue in full force in
accordance with its terms notwithstanding any termination of the Executive's
termination of employment with the Bank, any Affiliate, or Successors and
Assigns.
10. Definitions.
(a) Affiliate. For purposes of this Agreement, "Affiliate" means any
entity, directly or indirectly, controlled by, controlling or under common
control with the Bank including, without limitation, any subsidiary of the Bank.
(b) Successors and Assigns. For purposes of this Agreement,
"Successors and Assigns" shall mean, with respect to the Bank, a corporation or
other entity acquiring all or substantially all the assets and business of the
Bank, as .the case may be, whether by operation of law or otherwise (including
implementation of the Merger Agreement), or the surviving corporation of a
merger involving the Bank, including, without limitation, Sky, and Sky's
subsidiaries and affiliates, pursuant to the Agreement and Plan of Merger dated
as of January 8, 2004, by and between Bank and Sky ("Merger Agreement").
11. Taxes. To the extent required by applicable law, the Bank, and its
Successors and Assigns, shall deduct and withhold all necessary federal, state,
local and employment taxes and any other similar sums required by law to be
withheld from any payments made pursuant to the terms of this Agreement
(including, without limitation, the Noncompetition, Nonsolicitation and
Confidentiality Agreement) and the MSA.
12. MSA Section 10. Section 10 of the MSA is hereby amended by deleting the
phrase "question, interpretation" therefrom.
13. Condition on Agreement. This Agreement will have no force or effect and
will be revoked ab initio (and the MSA reinstated as if this Agreement had not
been signed) if the Bank and Sky do not merge under the terms described in the
Merger Agreement.
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IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed by
its duly authorized officer and the Executive has executed this Agreement as of
the day and year first above written, but on the dates indicated below each.
SECOND BANCORP INCORPORATED
000 Xxxx Xxxxxx, X.X.
X.X. Xxx 0000
Xxxxxx, Xxxx 00000-0000
By:
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Title:
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Date:
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EXECUTIVE:
Signature:
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Printed Name:
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Address:
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Date:
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