TRANSITION AGREEMENT BY AND BETWEEN FIRSTMERIT CORPORATION AND JOHN R. COCHRAN
EXHIBIT 99.1
Effective as of the Effective Date (as defined in Section 10.03[4]), FirstMerit Corporation
(“Corporation”), an Ohio corporation, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“▇▇. ▇▇▇▇▇▇▇”), collectively, the
“Parties,” enter into this Transition Agreement (“Agreement”) to describe the terms and conditions
of ▇▇. ▇▇▇▇▇▇▇’▇ continuing employment with the Corporation and subsequent retirement at the end of
the Term (as defined below) of this Agreement.
ARTICLE 1 TERM OF AGREEMENT
Unless it terminates at an earlier date as provided in Article 5, this Agreement will remain in
effect from the Effective Date until January 1, 2007 (“Term”), at which time ▇▇. ▇▇▇▇▇▇▇ agrees
that he will voluntarily terminate employment with the Corporation because of retirement.
ARTICLE 2 POSITIONS; DUTIES
2.01 Position, Transition Duties and Retirement. ▇▇. ▇▇▇▇▇▇▇ agrees:
[1] To continue to serve as [a] President and Chief Executive Officer of the Corporation and
to perform the services customarily performed by persons in a similar executive capacity
until the Corporation’s new President and Chief Executive Officer begins active employment
with the Corporation (“Transition Date”) and [b] Chairman of the Corporation’s Board of
Directors (“Board”) until January 1, 2007.
[2] Effective as of the Transition Date, [a] to resign as President and Chief Executive
Officer of the Corporation, but [b][i] to continue in active employment with the Corporation
until January 1, 2007 and [ii] to perform services necessary to ensure the successful
transition and orientation of the Corporation’s new President and Chief Executive Officer.
[3] Effective as of January 1, 2007, to resign as an employee of the Corporation, as
Chairman of the Board and as a member of the Board and of the board of directors of any
other entity that is related through common ownership to the Corporation (all entities
related through common ownership to the Corporation are called “Group Members” and the
Corporation and all Group Members collectively are called the “Group”).
[4] During the Term, in addition to the obligations described in Article 6, not to engage in
any other business activity, whether or not for gain, profit or other pecuniary advantage,
that does not involve promoting the Corporation’s, the Group’s or any Group Member’s
business. However, ▇▇. ▇▇▇▇▇▇▇ may serve as a director of companies that are not Group
Members if that service:
[a] Does not violate any term or condition of this Agreement;
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[b] Does not injure the Group or any Group Member;
[c] Is not prohibited by law or by rules adopted by any Group Member; and
[d] Is approved in advance by the Board.
2.02 Other Activities. The restrictions described in Section 2.01[4] will not be construed to
prevent ▇▇. ▇▇▇▇▇▇▇ from:
[1] Continuing to serve as a director of any company for which he serves as a director on
the Effective Date, except as provided under Section 2.01[3];
[2] Investing his personal assets in [a] businesses that do not compete or do business with
any Group Member and do not require ▇▇. ▇▇▇▇▇▇▇ to perform any services connected with the
operation or affairs of the businesses in which the investment is made or [b] stocks or
corporate securities described in Section 6.03 but subject to the limits described in that
section; or
[3] Participating in, or serving as a trustee or director of, civic and charitable
organizations or activities, but only if the activity does not materially interfere with the
performance of his duties under this Agreement and does not conflict with the restrictions
set forth in Section 2.01[4].
2.03 Reporting. ▇▇. ▇▇▇▇▇▇▇ will report directly and solely to the Board.
ARTICLE 3 COMPENSATION
During the Term and subject to this section and to Article 5:
3.01 Base Salary. The Corporation will pay to ▇▇. ▇▇▇▇▇▇▇ a “Base Salary” at an annualized rate of
$740,000, prorated to reflect partial calendar months and years of employment and paid in
installments that correspond with the Corporation’s normal payroll practices. During the Term, the
Base Salary will not be reduced without ▇▇. ▇▇▇▇▇▇▇’▇ consent.
3.02 Benefits. ▇▇. ▇▇▇▇▇▇▇ will be entitled to participate in the hospitalization, life insurance
and other employee benefit plans and programs, if any, that the Corporation maintains during the
Term in accordance with the provisions of those plans and programs and on the same basis as other
full-time salaried employees of the Corporation who participate in those employee benefit plans.
▇▇. ▇▇▇▇▇▇▇ also may exercise his vested stock options during the Term and to continue to vest in
his stock options during the Term, subject to the terms of the plans and award agreements through
which those stock options were issued.
3.03 Life Insurance. The Corporation will pay to ▇▇. ▇▇▇▇▇▇▇ an amount equal to 140 percent of the
premiums payable by ▇▇. ▇▇▇▇▇▇▇ on the permanent whole life insurance policy, which is owned by ▇▇.
▇▇▇▇▇▇▇ and provides ▇▇. ▇▇▇▇▇▇▇ with $1,000,000 in life insurance (“Executive Life Insurance
Policy”). ▇▇. ▇▇▇▇▇▇▇ will be responsible for the payment of all taxes associated with the payment
of the premiums.
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3.04 Financial Planning. The Corporation will reimburse ▇▇. ▇▇▇▇▇▇▇ for income tax preparation and
financial planning fees in accordance with the policies of the Corporation applicable to all of its
executives.
3.05 Club Memberships. The Corporation will pay, or reimburse ▇▇. ▇▇▇▇▇▇▇ for, all membership dues
and special assessments, and any sales tax assessed or payable with respect to those dues or
assessments, incurred in connection with ▇▇. ▇▇▇▇▇▇▇’▇ membership at Portage Country Club (where he
currently is a member).
3.06 No Duplicate Payments. Nothing in this Article 3 is intended to result in the duplication of
any payments or benefits provided to ▇▇. ▇▇▇▇▇▇▇ prior to the execution of this Agreement or under
the terms of the Amended and Restated Employment Agreement, dated as of January 1, 2001 and amended
through December 1, 2003, by and between ▇▇. ▇▇▇▇▇▇▇ and the Corporation (“Prior Employment
Agreement”) or under any other employee benefit plan or program maintained or sponsored by the
Corporation on or before the Effective Date. Also, ▇▇. ▇▇▇▇▇▇▇ agrees that none of the events
contemplated in this Agreement constitute a basis for a “good reason” termination under the Prior
Employment Agreement.
ARTICLE 4 BUSINESS-RELATED EXPENSES
The Corporation will pay (or reimburse) ▇▇. ▇▇▇▇▇▇▇ for all reasonable, ordinary and necessary
expenses that he incurs prior to and during the Term to perform his duties under this Agreement.
Reimbursement will be made within 30 days after the date ▇▇. ▇▇▇▇▇▇▇ submits appropriate evidence
of the expenditure (and all other information required under the Corporation’s business expense
reimbursement policy) to the Corporation and otherwise complies with reimbursement procedures the
Corporation applies to its senior executives.
ARTICLE 5 TERMINATION OF EMPLOYMENT
5.01 Expiration of Term. ▇▇. ▇▇▇▇▇▇▇ agrees that he will comply with the terms of this Agreement
and will voluntarily terminate his employment because of retirement at the expiration of the Term.
In exchange, but subject to ▇▇. ▇▇▇▇▇▇▇’▇ execution and non-revocation of a general release,
substantially in the form attached hereto as Exhibit B (“General Release”), and any restrictions
imposed under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), and to the
terms of this section, ▇▇. ▇▇▇▇▇▇▇ will receive the payments and benefits described in this
section.
[1] ▇▇. ▇▇▇▇▇▇▇ (or, if applicable, his beneficiary) will be entitled to receive:
[a] Accrued Base Salary. Any unpaid installments of his Base Salary, calculated
through the Termination Date (as defined in Section 5.08[4]), will be paid on the
next payroll date after the Termination Date.
[b] Base Salary. Continuation of his Base Salary for the period beginning on the
Termination Date and ending on February 28, 2008 in substantially equal installments
that correspond to the Corporation’s normal payroll practices; provided that [i] any
installments due to ▇▇. ▇▇▇▇▇▇▇ during the first six months following the
Termination Date will be paid to ▇▇. ▇▇▇▇▇▇▇ in a lump sum on the
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first day of the seventh month following the Termination Date and [ii] the remaining
installments will be paid, beginning on the first day of the seventh month after the
Termination Date.
[c] Incentive Bonus. A lump sum cash payment equal to $791,543 in lieu of an
incentive bonus opportunity and the continuation of certain perquisites, which will
be paid to ▇▇. ▇▇▇▇▇▇▇ on the first day of the seventh month after the Termination
Date.
[d] Financial Planning, Accounting and Legal Fees. A lump sum cash payment equal to
$35,000 reduced (but not below $00.00) by the amounts incurred and reimbursed under
Section 3.04 from the Effective Date of this Agreement through the Termination Date.
This amount will be paid to ▇▇. ▇▇▇▇▇▇▇ on the first day of the seventh month after
the Termination Date.
[2] Life Insurance. The Corporation will continue to pay to ▇▇. ▇▇▇▇▇▇▇ 140 percent of the
annual premium due on the Executive Life Insurance Policy until the Executive Life Insurance
Policy becomes a fully-paid and non-assessable policy or, if earlier, the date of ▇▇.
▇▇▇▇▇▇▇’▇ death; provided that reimbursement for any premium due during the first six months
following the Termination Date will be paid to him in a lump sum on the first day of the
seventh month after the Termination Date.
[3] Restricted Stock and Stock Options.
[a] Restricted Stock. All restrictions on ▇▇. ▇▇▇▇▇▇▇’▇ restricted stock will lapse
as described in Exhibit A attached hereto.
[b] Stock Options that are not Performance-Based Stock Options. All of ▇▇.
▇▇▇▇▇▇▇’▇ outstanding stock options that are not performance-based stock options
will become vested in accordance with the terms and conditions of the applicable
plans and award agreements and will be exercisable as described in Exhibit A.
[c] Performance-Based Stock Options. All of ▇▇. ▇▇▇▇▇▇▇’▇ outstanding
performance-based stock options will become fully vested and will be exercisable as
described in Exhibit A.
[4] AD&D Insurance. The Corporation will provide for accidental death and dismemberment
insurance for ▇▇. ▇▇▇▇▇▇▇ through its current accidental death and dismemberment policy
until the earlier of his death or February 28, 2008; provided that any amounts subject to
Code §409A generated by this subsection will be paid no earlier than the first day of the
seventh month after the Termination Date.
[5] Medical Coverage. If ▇▇. ▇▇▇▇▇▇▇ elects to continue group health coverage after the
Termination Date in accordance with the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended (“COBRA”), [a] ▇▇. ▇▇▇▇▇▇▇ will pay all COBRA premiums due during the first
six months beginning on the Termination Date
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and [b] on the first day of the seventh month after the Termination Date, the Corporation
will reimburse ▇▇. ▇▇▇▇▇▇▇ for the amount paid under Section 5.01[5][a]. Subsequently, the
Corporation will pay 100% of ▇▇. ▇▇▇▇▇▇▇’▇ COBRA premiums until the earlier of his death or
February 6, 2008. However, any amounts subject to Code §409A generated by this subsection
will be paid no earlier than the first day of the seventh month after the Termination Date.
After ▇▇. ▇▇▇▇▇▇▇ reaches age 65 and until his death, the Corporation will pay 100% of the
premiums to provide ▇▇. ▇▇▇▇▇▇▇ with coverage under the Hartford Group Retirement Insurance
Plan (“Retiree Medical Program”), consistent with the coverage available under the Retiree
Medical Program as of the Effective Date of this Agreement.
[6] Medical Coverage for Spouse.
[a] Until the earliest of [i] the date ▇▇▇. ▇▇▇▇ ▇. (▇▇▇▇▇) ▇▇▇▇▇▇▇ (“Spouse”) is no
longer married to ▇▇. ▇▇▇▇▇▇▇ (other than due to his death), [ii] the Spouse’s death
or [iii] her 65th birthday, the Corporation will provide health and major medical
coverage for the Spouse. The Corporation will provide this coverage by purchasing
and paying the premiums for an individual medical insurance policy, which provides
coverage consistent with that provided through the group health coverage provided to
▇▇. ▇▇▇▇▇▇▇.
[b] After the Spouse reaches age 65 (but only if she is then living and is married
to ▇▇. ▇▇▇▇▇▇▇ or if ▇▇. ▇▇▇▇▇▇▇ has died while they were married) and until the
earlier of [i] the Spouse’s death or [ii] the date the Spouse is no longer married
to ▇▇. ▇▇▇▇▇▇▇ (other than due to his death), the Corporation will pay 100% of the
premiums to provide the Spouse with coverage under the Retiree Medical Program,
consistent with the coverage available under the Retiree Medical Program as of the
Effective Date of this Agreement.
[7] Retirement Plan Benefits. ▇▇. ▇▇▇▇▇▇▇ (or, if applicable, his beneficiary) will be
entitled to all benefits he has accrued through the Termination Date under:
[a] The FirstMerit Corporation and Affiliates Employees’ Salary Savings Retirement
Plan.
[b] The Pension Plan for Employees of FirstMerit Corporation and Subsidiaries.
[c] The FirstMerit Corporation Unfunded Supplemental Benefit Plan.
[d] The FirstMerit Corporation Executive Supplemental Retirement Plan. These
amounts will be calculated by crediting ▇▇. ▇▇▇▇▇▇▇ with an additional two years of
service (i.e. two years of service more than he actually has been credited with
under this plan).
[e] The FirstMerit Corporation Amended and Restated Executive Deferred Compensation
Plan.
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The amounts distributable under Section 5.01[7] will be distributed subject to the terms and
conditions of each plan in effect on the Termination Date and to any distribution elections
▇▇. ▇▇▇▇▇▇▇ has made as of the Effective Date, including, with respect to the plans
described in Sections 5.01[7][c], [d] and [e], any election made under (and subject to the
restrictions and limits of) any applicable transition rule described in Section XI, C of the
Preamble to Proposed Treasury Regulations 1.409A-1, et. seq.; provided that any amount
subject to Code §409A, which would otherwise be payable on account of a termination of
employment or separation from service will not be paid before the first day of the seventh
month after the Termination Date.
5.02 Termination of Employment Before Expiration of Term for Death, Disability, or any Other Reason
Other Than by the Corporation for Cause or by ▇▇. ▇▇▇▇▇▇▇ Without Good Reason. If, before the
expiration of the Term on January 1, 2007, ▇▇. ▇▇▇▇▇▇▇’▇ employment terminates for death,
Disability, or for any other reason other than a termination by the Corporation for Cause (as
defined in Section 5.08[1]) or a termination by ▇▇. ▇▇▇▇▇▇▇ without Good Reason (as defined in
Section 5.08[3]), then, subject to the execution and non-revocation of the General Release by ▇▇.
▇▇▇▇▇▇▇ or, if applicable, his representative, he (or, if applicable, his beneficiary) will be
entitled to the payments and benefits described in (and subject to the terms of) Section 5.01.
5.03 Termination of Employment Before Expiration of Term by the Corporation for Cause or by ▇▇.
▇▇▇▇▇▇▇ Without Good Reason. If, before the expiration of the Term on January 1, 2007, ▇▇.
▇▇▇▇▇▇▇’▇ employment is terminated by the Corporation for Cause or by ▇▇. ▇▇▇▇▇▇▇ without Good
Reason, then ▇▇. ▇▇▇▇▇▇▇ (or, if applicable, his beneficiary) will be entitled to:
[1] The payments described in Section 5.01[1][a] and any benefits he has earned under the
employee benefit plans and programs described in Section 3.02 (but without regard to the
additional service credits described in Section 5.01[7][d]).
[2] Retain the Executive Life Insurance Policy (although ▇▇. ▇▇▇▇▇▇▇ will be solely
responsible for all premiums due after the Termination Date).
[3] All of ▇▇. ▇▇▇▇▇▇▇’▇ outstanding stock options will be exercisable and the restrictions
on his shares of restricted stock will lapse to the extent provided under the terms relating
to terminations of employment for similar reasons contained in the plan and the award
agreements through which they were granted.
5.04 Effect of Other Severance Benefits. Regardless of any other provision of this Agreement and
except as specifically provided in this Agreement, all amounts paid under this Article 5 will be in
lieu of any amounts payable to ▇▇. ▇▇▇▇▇▇▇ from any broad-based severance program in which ▇▇.
▇▇▇▇▇▇▇ participates and, by signing this Agreement, ▇▇. ▇▇▇▇▇▇▇ specifically waives any rights to
receive any amounts from any broad-based severance program in which he participates.
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5.05 Effect of Multiple Termination Events. Except as provided otherwise in this Agreement, ▇▇.
▇▇▇▇▇▇▇ will receive the benefits and payments attributable to the first termination event to
occur, the effects of which are described in this Article 5.
5.06 Excess Parachute Payments.
[1] In the event that any amount or benefit paid or distributed to ▇▇. ▇▇▇▇▇▇▇ under this
Agreement, taken together with any amounts or benefits otherwise paid or distributed to ▇▇.
▇▇▇▇▇▇▇ by the Corporation or any affiliated company (collectively, the “Covered Payments”),
are or become subject to the tax (“Excise Tax”) imposed under Code §4999, or any similar tax
that may hereafter be imposed, the Corporation will pay to ▇▇. ▇▇▇▇▇▇▇ at the time specified
in this Section 5.06 an additional amount (“Excise Tax Reimbursement”) so that the net
amount retained by ▇▇. ▇▇▇▇▇▇▇ with respect to the Covered Payments, after deduction of any
Excise Tax on the Covered Payments and any Federal, state and local income or employment tax
and Excise Tax on the Excise Tax Reimbursement provided for by this Section 5.06, but before
deduction for any Federal, state or local income or employment tax withholding on the
Covered Payments, will be equal to the amount of the Covered Payments.
[2] For purposes of determining whether any of the Covered Payments will be subject to the
Excise Tax and the amount of the Excise Tax:
[a] Covered Payments will be treated as “parachute payments” within the meaning of
Code §280G, and all “parachute payments” in excess of the “base amount” (as defined
under Code §280G(b)(3)) will be treated as subject to the Excise Tax, unless, and
except to the extent that, in the good faith judgment of the Corporation’s
independent certified public accountants appointed before the date upon which the
change in control (as defined in Code §280G) became effective or tax counsel
selected by those accountants (the “Accountants”), the Corporation has a reasonable
basis to conclude that Covered Payments (in whole or in part) either do not
constitute “parachute payments” or represent reasonable compensation for personal
services actually rendered (within the meaning of Code §280G(b)(4)(B)) in excess of
the “base amount,” or “parachute payments” are otherwise not subject to the Excise
Tax; and
[b] The value of any non-cash benefits or any deferred payment or benefit will be
determined by the Accountants in accordance with the principles of Code §280G.
[3] For purposes of determining the amount of the Excise Tax Reimbursement, ▇▇. ▇▇▇▇▇▇▇ will
be deemed to pay:
[a] Federal income taxes at the highest applicable marginal rate of Federal income
taxation for the calendar year in which the Excise Tax Reimbursement is to be made
net of the maximum reduction in Federal income taxes which could be obtained from
the deduction of any state or local taxes if paid in that year and calculated as
provided in Section 5.06[3][b]; and
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[b] Any applicable state and local income taxes at the highest applicable marginal
rate of taxation for the calendar year in which the Excise Tax Reimbursement is to
be made.
[4] If the Excise Tax is subsequently determined by the Accountants or pursuant to any
proceeding or negotiations with the Internal Revenue Service (“IRS”) to be less than the
amount taken into account in calculating the Excise Tax Reimbursement made, ▇▇. ▇▇▇▇▇▇▇ will
repay to the Corporation, at the time that the amount of the Excise Tax is finally
determined, the portion of the prior Excise Tax Reimbursement that would not have been paid
if the proper amount of the Excise Tax had been applied in initially calculating the Excise
Tax Reimbursement, plus interest on the amount of that repayment at the rate provided in
Code §1274(b)(2)(B). However, any portion of the Excise Tax Reimbursement to be refunded to
the Corporation that has been paid to any Federal, state or local tax authority, will not be
required to be repaid until it has actually been credited or refunded to ▇▇. ▇▇▇▇▇▇▇, and
interest payable to the Corporation will not exceed interest received or credited to ▇▇.
▇▇▇▇▇▇▇ by the tax authority for the period it held that amount. ▇▇. ▇▇▇▇▇▇▇ and the
Corporation will mutually agree upon the course of action to be pursued (and the method of
allocating the expenses of that action) if ▇▇. ▇▇▇▇▇▇▇’▇ good faith claim for refund or
credit is denied.
[5] If the Excise Tax is later determined by the Accountants or pursuant to any proceeding
or negotiations with the IRS to exceed the amount taken into account at the time the Excise
Tax Reimbursement is made (including by reason of any payment the existence or amount of
which cannot be determined at the time of the Excise Tax Reimbursement), the Corporation
will make an additional Excise Tax Reimbursement in respect of that excess (plus any
interest or penalty payable with respect to that excess) at the time that the amount of that
excess is finally determined.
[6] The Excise Tax Reimbursement described in Section 5.06[1] will be paid to ▇▇. ▇▇▇▇▇▇▇
not later than ten business days following the payment of the Covered Payments. If the
amount of the Excise Tax Reimbursement cannot be finally determined on or before the date
the Covered Payments are due, the Corporation will pay to ▇▇. ▇▇▇▇▇▇▇ the Excise Tax
Reimbursement within ten days after the amount of the Excise Tax Reimbursement is finally
determined by the Accountants.
5.07 Notice of Termination. Any purported termination of employment by the Corporation or by ▇▇.
▇▇▇▇▇▇▇ (other than due to ▇▇. ▇▇▇▇▇▇▇’▇ death) must be communicated by written Notice of
Termination to the other Party. For purposes of this Agreement, a “Notice of Termination” means a
notice that indicates the specific termination provision in this Agreement relied upon and will set
forth in reasonable detail the facts and circumstances claimed to provide a basis for termination
of employment under the provision so indicated. The Corporation may terminate ▇▇. ▇▇▇▇▇▇▇’▇
employment [1] for Cause as described in Section 5.08[1] or [2] without Cause to be effective 90
days after the written notice is delivered to ▇▇. ▇▇▇▇▇▇▇ but not later than January 1, 2007. ▇▇.
▇▇▇▇▇▇▇ may terminate his employment, with or without Good Reason, to be effective 90 days after
the written notice is delivered to the Corporation but not later than January 1, 2007. However,
any Notice of Termination that cites a reason that may
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be cured will be deemed to not have been given if the condition cited is corrected within the 90
day (or shorter) period described in the preceding sentence.
5.08 Definitions.
[1] “Cause” means the termination of ▇▇. ▇▇▇▇▇▇▇’▇ employment by the Corporation for any of
the following reasons:
[a] Conviction of, or plea of guilty or nolo contendere to, a felony, whether or not
affecting the Corporation or any Group Member.
[b] Disclosure to unauthorized persons of material information of the Corporation or
any Group Member which is believed by the Board, acting in good faith, to be
confidential; provided, that a disclosure will not be considered “Cause” to the
extent that [i] it is required pursuant to a court order or subpoena from an
appropriate regulatory agency or otherwise required by law or regulation, [ii] it is
made by ▇▇. ▇▇▇▇▇▇▇ in the ordinary course of business within the scope of his
authority or [iii] it is in the context of a dispute between ▇▇. ▇▇▇▇▇▇▇ and the
Corporation or any Group Member and limited to the court or arbitrator considering
the dispute, legal counsel and the other parties to the dispute. In addition, it
will not be “Cause” for ▇▇. ▇▇▇▇▇▇▇ to provide truthful testimony regarding the
Corporation or any Group Member to governmental or regulatory authorities and any
disclosure that does not constitute “Cause” will be deemed not to violate Section
6.01.
[c] Engagement (in connection with the business of the Corporation or any Group
Member) in illegal conduct or in gross misconduct, in either case, that causes
material financial or material reputational harm to the Corporation or any Group
Member.
[d] Failure to perform substantially ▇▇. ▇▇▇▇▇▇▇’▇ responsibilities as the Chairman
and Chief Executive Officer of the Corporation in accordance with Article 2 of this
Agreement, after demand for substantial performance has been given by the Board that
specifically identifies how ▇▇. ▇▇▇▇▇▇▇ has not substantially performed his
responsibilities in accordance with Article 2 of this Agreement. “Cause” does not,
however, include any failure after the Corporation gives a notice of a termination
without Cause or ▇▇. ▇▇▇▇▇▇▇ gives notice of a termination for Good Reason.
[e] Material breach of the Corporation’s written code of conduct and business
ethics. However, to the extent the breach is curable, the Corporation must give ▇▇.
▇▇▇▇▇▇▇ notice and a reasonable opportunity to cure as described in Section 5.07.
[f] Attempt to obstruct or willful failure to cooperate with any investigation
authorized by the Board or any governmental or regulatory agency.
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[g] Being subject to the prohibitions of Section 19(a)(1) of the Federal Deposit
Insurance Act.
However, Cause will not arise solely because ▇▇. ▇▇▇▇▇▇▇ is absent from active employment
during periods of paid time-off, consistent with the Corporation’s applicable paid-time-off
policy, sickness or illness or while suffering from an incapacity due to physical or mental
illness, including a condition that does or may result in a disability or other period of
absence initiated by ▇▇. ▇▇▇▇▇▇▇ and approved by the Corporation.
[2] “Disability” means ▇▇. ▇▇▇▇▇▇▇’▇ inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period beyond expiration of the Term on January 1, 2007, as determined by ▇▇.
▇▇▇▇▇▇▇’▇ physician.
[3] “Good Reason” means the termination of ▇▇. ▇▇▇▇▇▇▇’▇ employment by ▇▇. ▇▇▇▇▇▇▇ for any
of the following reasons:
[a] Reduction in ▇▇. ▇▇▇▇▇▇▇’▇ Base Salary without his consent; or
[b] Involuntary discontinuance of ▇▇. ▇▇▇▇▇▇▇’▇ participation in any employee
benefit plans maintained by the Corporation, other than [i] by reason of legal
restrictions or limitations or [ii] as required by applicable law; or
[c] Failure by the Corporation to obtain an assumption of the Corporation’s
obligations under this Agreement by any successor to the Corporation, regardless of
whether that entity becomes a successor to the Corporation as a result of a merger,
consolidation, sale of assets of the Corporation or other form of reorganization; or
[d] Termination of employment by the Corporation which is not effected pursuant to a
Notice of Termination satisfying the requirements of Section 5.07; or
[e] A material breach of this Agreement by the Corporation, which breach is not
corrected within the time prescribed pursuant to Section 5.07 after ▇▇. ▇▇▇▇▇▇▇
notifies the Corporation in writing of his intent to terminate employment due to
that material breach.
However, it is specifically understood that none of the events contemplated by the Agreement
(including those described in Section 2.01) constitutes “Good Reason” either under this
Agreement or under the Prior Employment Agreement.
[4] “Termination Date” means the earlier of [a] January 1, 2007, [b] the date specified in
the Notice of Termination provided pursuant to Section 5.07, [c] ▇▇. ▇▇▇▇▇▇▇’▇ death, or [d]
▇▇. ▇▇▇▇▇▇▇’▇ Disability.
10
ARTICLE 6 POST-TERMINATION OBLIGATIONS
6.01 Non-Disclosure of Confidential Information. ▇▇. ▇▇▇▇▇▇▇ expressly covenants and agrees that,
during and after the Term, he will not reveal, divulge or make known to any person, firm, company
or corporation any Confidential Information without the prior express written consent of the
Corporation. “Confidential Information” shall mean financial information about the Corporation or
any of its affiliates, strategies and techniques, trade secrets, contract terms with vendors and
suppliers, supplier lists and data, and such other confidential, proprietary, or sensitive
information concerning or relating to the Corporation, any Group Member or any of their respective
affiliates or any third party that has disclosed or provided any of the same to the Corporation on
a confidential basis. Confidential Information shall not include [1] any information which was or
becomes generally available to the public other than as a result of a wrongful disclosure by ▇▇.
▇▇▇▇▇▇▇, or [2] any information disclosed by ▇▇. ▇▇▇▇▇▇▇ which he reasonably and in good faith
believes is required for the performance of his duties under this Agreement, or [3] any information
compelled to be disclosed by applicable law; provided that ▇▇. ▇▇▇▇▇▇▇, to the extent not
prohibited from so doing by applicable law, will give the Corporation prior written notice of the
information to be so disclosed pursuant to clause [3] of this sentence as far in advance of its
disclosure as may be practical, will disclose no more information than is required and will
cooperate with any attempts by the Corporation or any Group Member to obtain a protection order or
similar treatment.
6.02 Return of Materials. ▇▇. ▇▇▇▇▇▇▇ agrees [1] to deliver or return to the Corporation upon
termination or expiration of this Agreement all written Confidential Information furnished by the
Corporation or any Group Member or prepared by ▇▇. ▇▇▇▇▇▇▇ in connection with his services
hereunder and [2] that he will not retain any copies of any of the materials described in Section
6.02[1]. In addition, upon ▇▇. ▇▇▇▇▇▇▇’▇ termination of employment for any reason, he agrees to
immediately return to the Corporation all property of the Corporation or any Group Member which is
in his possession, including, but not limited to, memoranda, books, papers, computer files,
laptops, credit cards and keys.
6.03 Non-Competition. During the Term and for a period of 24 months after ▇▇. ▇▇▇▇▇▇▇’▇
termination of employment, regardless of whether that termination is by the Corporation with or
without Cause or ▇▇. ▇▇▇▇▇▇▇ with or without Good Reason, ▇▇. ▇▇▇▇▇▇▇ will not (except as an
officer, director, employee, agent or consultant of the Corporation) directly or indirectly, own,
manage, operate, join, or have a financial interest in, control or participate in the ownership,
management, operation or control of, or be employed as an employee, agent or consultant or in any
other individual or representative capacity whatsoever, or use or permit his name to be used in
connection with, or be otherwise connected in any manner with any business or enterprise that is
actively engaged in any business which is in competition with the Corporation or any Group Member
in any geographic area in which the Corporation or any Group Member does business on the
Termination Date. However, this section will not prohibit the ownership by ▇▇. ▇▇▇▇▇▇▇ of not
more than one percent of any class of securities of any corporation whose securities are registered
pursuant to the Securities Exchange Act of 1934, which securities are publicly owned and regularly
traded on any national exchange or in the over-the-counter market and that ownership represents a
passive investment and that neither ▇▇. ▇▇▇▇▇▇▇ nor any group of persons including ▇▇. ▇▇▇▇▇▇▇ in
any way, either directly or indirectly, manages or exercises
11
control of the corporation, guarantees any of its financial obligations, otherwise takes part in
its business other than exercising his rights as a shareholder, or seeks to do any of the
foregoing.
6.04 Non-Disparagement. ▇▇. ▇▇▇▇▇▇▇ and the Corporation (on its behalf and in behalf of each other
Group Member) agree that he or it will not make any disparaging remarks about the other, provided
that neither ▇▇. ▇▇▇▇▇▇▇ nor the Corporation will be precluded from making any remarks in any
legally required communication in the course of any legal proceeding.
6.05 Injunctive Relief. ▇▇. ▇▇▇▇▇▇▇ acknowledges that it is impossible to measure in money the
damages that will accrue to the Corporation by reason of ▇▇. ▇▇▇▇▇▇▇’▇ failure to observe any of
the obligations imposed on him by this Article 6. Accordingly, if the Corporation institutes an
action to enforce the provisions hereof, ▇▇. ▇▇▇▇▇▇▇ hereby waives the claim or defense that an
adequate remedy at law is available to the Corporation, and ▇▇. ▇▇▇▇▇▇▇ agrees not to urge the
claim or defense that a remedy at law exists. Also, if a final determination is made by a court
having competent jurisdiction that the time or territory or any other restriction contained in
Section 6.03 is an unenforceable restriction on ▇▇. ▇▇▇▇▇▇▇’▇ activities, the provisions of Section
6.03 will not be rendered void but will be deemed amended to apply the maximum time and territory
and other restrictions the court judicially determines or otherwise indicates to be reasonable.
ARTICLE 7 INDEMNIFICATION
To the extent permitted by law, the Corporation will indemnify ▇▇. ▇▇▇▇▇▇▇ pursuant to the terms of
the Indemnification Agreement, dated April 12, 1995, by and between the Corporation and ▇▇. ▇▇▇▇▇▇▇
and the Corporation’s Articles of Incorporation and Code of Regulations. In addition, while
employed by the Corporation and for six years after the Termination Date, the Corporation will
cause ▇▇. ▇▇▇▇▇▇▇ to be covered by a directors’ and officers’ liability insurance policy at least
to the same extent as other persons then serving as directors or executive officers of the
Corporation. This Article 7 will survive any termination of this Agreement or of ▇▇. ▇▇▇▇▇▇▇’▇
employment.
ARTICLE 8 ASSIGNMENT OF AGREEMENT
8.01 Except as specifically provided in this section, the Corporation may not assign this Agreement
to any person or entity that is not a Group Member. However, this Agreement may and will be
assigned or transferred to, and will be binding upon and inure to the benefit of, any successor of
the Corporation, in which case this Agreement will be interpreted and applied by substituting that
successor for the “Corporation” under the terms of this Agreement. For these purposes, “successor”
means any person, firm, corporation or business entity which at any time, whether by merger,
purchase or otherwise acquires all or substantially all of the assets or the business of the
Corporation.
8.02 Because the services to be provided by ▇▇. ▇▇▇▇▇▇▇ to the Corporation under this Agreement are
personal to him, ▇▇. ▇▇▇▇▇▇▇ may not assign the duties allocated to him under this Agreement to any
other person or entity. However, this Agreement will inure to the benefit of and be enforceable by
▇▇. ▇▇▇▇▇▇▇’▇ personal or legal representatives, executors and
12
administrators, successors, heirs, distributees, devisees, and legatees to the extent of any
amounts payable to ▇▇. ▇▇▇▇▇▇▇ that are due to ▇▇. ▇▇▇▇▇▇▇ upon his death.
ARTICLE 9 DISPUTE RESOLUTION
9.01 Except as provided in the penultimate sentence of this section and Section 6.05, any
disagreement arising under this Agreement that is not resolved by agreement between the Parties,
including the basis on which ▇▇. ▇▇▇▇▇▇▇’▇ employment is terminated, will be resolved by
arbitration in accordance with the rules of the American Arbitration Association. The award of the
arbitrator will be final, conclusive and nonappealable and judgment upon the award rendered by the
arbitrator may be entered in any court having competent jurisdiction. The arbitrator must be an
arbitrator qualified to serve in accordance with the rules of the American Arbitration Association
and one who is approved by the Corporation and ▇▇. ▇▇▇▇▇▇▇. If the Corporation and ▇▇. ▇▇▇▇▇▇▇
fail to agree on an arbitrator, each must designate a person qualified to serve as an arbitrator in
accordance with the rules of the American Arbitration Association and these persons will select the
arbitrator from among those persons qualified to serve in accordance with the rules of the American
Arbitration Association. Any arbitration relating to this Agreement will be held in Summit County,
Ohio. Regardless of the scope of this section, the Parties agree that nothing in this section
prevents either Party from seeking injunctive or other equitable relief if there is a breach or
threatened breach of any provision of this Agreement. Also, if otherwise due, payments not being
contested under the procedures described in this paragraph will not be deferred during the pendency
of procedures described in this section.
9.02 The Corporation will bear the arbitrator’s fee and other costs associated with any
arbitration, unless the arbitrator, acting under Federal Rule of Civil Procedure 54(b), elects to
award these fees to the Corporation.
ARTICLE 10 RELEASES, WAIVERS AND REVOCATION RIGHTS
10.01 Release. In consideration of receipt of the payments and benefits set forth herein, ▇▇.
▇▇▇▇▇▇▇ does hereby fully and forever surrender, release, acquit and discharge the Corporation, and
its principals, stockholders, directors, officers, agents, administrators, insurers, subsidiaries,
affiliates, employees, successors, assigns, related entities, and legal representatives, personally
and in their representative capacities, and each of them (collectively, “Released Parties”), of and
from any and all claims for costs of attorneys’ fees, expenses, compensation, and all losses,
demands and damage of whatsoever nature or kind in law or in equity, whether known or unknown,
including without limitation those claims arising out of, under, or by reason of ▇▇. ▇▇▇▇▇▇▇’▇
employment with the Corporation or any Group Member, ▇▇. ▇▇▇▇▇▇▇’▇ relationship with the
Corporation or any Group Member and/or the termination of ▇▇. ▇▇▇▇▇▇▇’▇ employment relationship and
any and all claims which were or could have been asserted in any charge, complaint, or related
lawsuit. Without limiting the generality of the foregoing, ▇▇. ▇▇▇▇▇▇▇ specifically releases and
discharges, but not by way of limitation, any obligation, claim, demand or cause of action based
on, or arising out of, any alleged wrongful termination, breach of employment contract, breach of
implied covenants of good faith and fair dealing, defamation, fraud, promissory estoppel,
intentional or negligent infliction of emotional distress, discrimination based on age, pain and
suffering, personal injury, punitive damages, and any and all claims arising from any alleged
violation by the Released Parties of any federal, state, or local
13
statutes, ordinances or common laws, including but not limited to the Ohio Civil Rights Act,
including all provisions of the Ohio Revised Code concerning discrimination on the basis of age,
the Age Discrimination in Employment Act of 1967 (“ADEA”), Title VII of the Civil Rights Act of
1964, the Americans With Disabilities Act or the Employee Retirement Income Security Act of 1974.
This release of rights is knowing and voluntary. The Corporation acknowledges that ▇▇. ▇▇▇▇▇▇▇
does not release herein any rights or claims which may arise after the Effective Date of this
Agreement nor any rights he has under this Agreement, any rights he may have regarding the
enforcement of this Agreement, his rights under COBRA or his rights to indemnification.
10.02 Waiver of Right to ▇▇▇. Except for the Corporation’s promises and obligations contained in
this Agreement, ▇▇. ▇▇▇▇▇▇▇ further agrees, promises and covenants that neither he, nor any person,
organization, or any other entity acting on his behalf will file, charge, claim, ▇▇▇ or cause or
permit to be filed, charged or claimed, any action for damages or other relief (including
injunctive, declaratory, monetary relief or other) against the Corporation, involving any matter
occurring in the past up to the Effective Date of this Agreement or involving any continuing
effects of actions or practices which arose prior to the Effective Date of this Agreement or the
termination of ▇▇. ▇▇▇▇▇▇▇’▇ employment.
10.03 Older Workers’ Benefit Protection Act Waiver. ▇▇. ▇▇▇▇▇▇▇ has certain individual federal
rights, which must be explicitly waived. Specifically, ▇▇. ▇▇▇▇▇▇▇ is protected by the ADEA from
discrimination in employment because of his age. By executing this Agreement, ▇▇. ▇▇▇▇▇▇▇ waives
these rights as to any past or current claims. Notwithstanding anything else in this Agreement,
excluded from this Agreement are ADEA age claims that may arise after execution of this Agreement.
In connection with the releases in Section 10.01 and waivers in Section 10.02 of any and all claims
or disputes that ▇▇. ▇▇▇▇▇▇▇ has or may have on the date hereof, ▇▇. ▇▇▇▇▇▇▇ makes the following
acknowledgements:
[1] By signing this Agreement, ▇▇. ▇▇▇▇▇▇▇ waives all claims against the Released Parties
for discrimination based on age, including without limitation, any claim which arises under
or by reason of a violation of the ADEA.
[2] In consideration of the releases, waivers and covenants made by ▇▇. ▇▇▇▇▇▇▇ under this
Agreement, ▇▇. ▇▇▇▇▇▇▇ will be receiving the payments and other benefits in the amounts and
manner described in Articles 3, 4 and 5 of this Agreement.
[3] ▇▇. ▇▇▇▇▇▇▇ represents and acknowledges that he has consulted with an attorney prior to
executing this Agreement and ▇▇. ▇▇▇▇▇▇▇ has been given a period of at least twenty-one (21)
days within which to consider whether or not to enter into this Agreement.
[4] ▇▇. ▇▇▇▇▇▇▇ understands that this Agreement shall be effective as of May 18, 2006
(“Effective Date”), provided that the Agreement is not revoked by ▇▇. ▇▇▇▇▇▇▇ within seven
days after he signs the Agreement. For a period of seven days after he signs the Agreement,
▇▇. ▇▇▇▇▇▇▇ has the right to revoke and/or cancel this Agreement by the delivery of notice
in writing of revocation and/or cancellation to the Corporation. In the
14
event that ▇▇. ▇▇▇▇▇▇▇ does not revoke and/or cancel this Agreement during this period, this
Agreement shall become effective on the Effective Date. In the event that ▇▇. ▇▇▇▇▇▇▇
revokes this Agreement, ▇▇. ▇▇▇▇▇▇▇ shall not be entitled to any of the consideration set
out in this Agreement.
ARTICLE 11 MISCELLANEOUS
11.01 Notices. Any notices, consents, requests, demands, approvals or other communications to be
given under this Agreement must be given in writing and must be sent by registered or certified
mail, return receipt requested, to ▇▇. ▇▇▇▇▇▇▇ at the last address he has filed in writing with the
Corporation or, in the case of the Corporation, to the lead Director of the Board at the
Corporation’s principal offices.
11.02 Entire Agreement. This Agreement including Exhibit A attached hereto, supersedes any prior
agreements or understandings, oral or written, between the Parties, or between ▇▇. ▇▇▇▇▇▇▇ and the
Corporation, with respect to the subject matter described in this Agreement and Exhibit A,
including the Prior Employment Agreement, and constitutes the entire agreement of the Parties with
respect to any matter covered in this Agreement and Exhibit A.
11.03 Amendment and Modification. This Agreement may not be varied, altered, modified, canceled,
changed or in any way amended except by written agreement of the Parties. However, by signing this
Agreement, ▇▇. ▇▇▇▇▇▇▇ agrees, without any further consideration, to consent to any amendment
necessary to avoid penalties under Code §409A.
11.04 Severability. If any provision or portion of this Agreement is determined to be invalid or
unenforceable for any reason, the remaining provisions of this Agreement will remain in full force
and effect.
11.05 Counterparts. This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original, but all of which together will constitute one and the same Agreement.
Facsimile signatures will have the same legal effect as original signatures.
11.06 Tax Withholding. The Corporation will withhold from any benefits payable under this
Agreement all federal, state, city or other taxes as required by any applicable law or governmental
regulation or ruling. Except to the extent provided in Section 5.06, ▇▇. ▇▇▇▇▇▇▇ will be
responsible for the payment of all taxes associated with any payments or benefits provided under
this Agreement.
11.07 Beneficiaries. ▇▇. ▇▇▇▇▇▇▇ may designate one or more persons or entities as the primary
and/or contingent beneficiaries of any amounts to be received under this Agreement that are unpaid
when ▇▇. ▇▇▇▇▇▇▇ dies. This designation must be written and presented in a form acceptable to the
Board or the Board’s designee, if appropriate, or in the form required by any affected benefit plan
or program. Subject to any rules prescribed by the Board, its designee or the affected benefit
plan or program, ▇▇. ▇▇▇▇▇▇▇ may make or change his designation at any time.
11.08 Waiver. Failure to insist upon strict compliance with any of the terms, covenants or
conditions described in this Agreement [1] will not constitute a waiver of that or any other term,
15
covenant or condition and [2] will not constitute a waiver or relinquishment of the Party’s right
to insist subsequently on strict compliance of the affected (and all other) terms, covenants or
conditions of this Agreement.
11.09 No Mitigation. In no event will ▇▇. ▇▇▇▇▇▇▇ be obligated to seek other employment or take
any other action to mitigate the amounts payable to him under any of the provisions of this
Agreement, nor will the amount of any payment hereunder be reduced by any compensation earned as
result of ▇▇. ▇▇▇▇▇▇▇’▇ employment by another employer, except that any continued welfare benefits
provided for by Sections 5.01[4], [5] and [6] will not duplicate any benefits that are provided to
▇▇. ▇▇▇▇▇▇▇ and his family by any other employer and will be secondary to any coverage provided by
that other employer to the extent permitted by law.
11.10 Governing Document. The terms of this Agreement will supersede and control over any
conflicting language in any other agreement, plan, program or practice of the Corporation.
11.11 Applicable Law. To the extent not preempted by federal law, the provisions of this Agreement
will be construed and enforced in accordance with the laws of the state of Ohio.
11.12 Code §409A Fail Safe. Notwithstanding anything in this Agreement to the contrary, if payment
of any amount or other benefit that is “deferred compensation” subject to Code §409A at the time
otherwise specified in this Agreement would subject such compensation to additional tax pursuant to
Code §409A(a)(1), the payment thereof shall be postponed to the earliest commencement date on which
such amounts could be paid without incurring such additional tax. In the event a deferral of
payment should be required, any payments that would have been made prior to such earliest
commencement date but for Code §409A shall be accumulated and paid in a single lump sum on such
earliest commencement date. If any benefits permitted or required under this Agreement are
otherwise reasonably determined by the Corporation or ▇▇. ▇▇▇▇▇▇▇ to be subject for any reason to a
material risk of additional tax pursuant to Code §409A(a)(1), the Corporation and ▇▇. ▇▇▇▇▇▇▇ agree
to negotiate in good faith appropriate provisions to avoid such risk without materially changing
the economic value of this Agreement to ▇▇. ▇▇▇▇▇▇▇ or the economic value or financial effect of
this Agreement on the Corporation.
11.13 Headings. The descriptive headings in this Agreement are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
11.14 Survival of ▇▇. ▇▇▇▇▇▇▇’▇ Rights. All of ▇▇. ▇▇▇▇▇▇▇’▇ rights hereunder, including his
rights to compensation and benefits, and his obligations under Article 6 hereof, shall survive the
termination of ▇▇. ▇▇▇▇▇▇▇’▇ employment and/or the termination of this Agreement.
11.15 Joint and Several Liability. The obligations of the Corporation and the Group Members to ▇▇.
▇▇▇▇▇▇▇ under this Agreement are joint and several.
11.16 Approvals. The Corporation represents and warrants to ▇▇. ▇▇▇▇▇▇▇ that it has taken all
corporate action necessary to authorize this Agreement.
16
IN WITNESS WHEREOF, the Parties have executed this Agreement, as of June 6, 2006.
FIRSTMERIT CORPORATION
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | Date signed: June 6, 2006 | ||||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Lead Director | ||||||
| ▇▇. ▇▇▇▇▇▇▇ | ||||||
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | Date signed: June 6, 2006 | ||||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
17
EXHIBIT A
Status of Outstanding Equity Awards Under Transition Agreement Between FirstMerit
Corporation and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dated June 6, 2006
Status of Outstanding Equity Awards Under Transition Agreement Between FirstMerit
Corporation and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dated June 6, 2006
| Number of | ||||||||||||||||
| Shares | Exercise Period | |||||||||||||||
| Subject to | Following | |||||||||||||||
| Award and | Exercise | ▇▇. ▇▇▇▇▇▇▇’▇ | ||||||||||||||
| Award Type | Grant Date | Vested | Price | Termination Date | ||||||||||||
Time-based NSOs |
04/10/97 | 110,000 | $ | 20.31 | Through 04/09/07 | |||||||||||
Time-based restricted
stock |
04/10/97 | 25,200 | N/A | Restrictions lapse 01/01/07 |
||||||||||||
Performance-based NSOs |
03/19/98 | 40,000 | $ | 34.00 | From 01/01/08 through 03/18/08 |
|||||||||||
Time-based NSOs |
03/19/98 | 80,000 | $ | 34.00 | Through 03/18/08 | |||||||||||
Performance-based NSOs |
02/18/99 | 40,000 | $ | 26.00 | From 01/01/08 through 12/31/08 |
|||||||||||
Time-based NSOs |
02/18/99 | 80,000 | $ | 26.00 | Through 02/17/09 | |||||||||||
Performance-based NSOs |
02/17/00 | 40,000 | $ | 16.44 | Through 12/31/07 | |||||||||||
Time-based NSOs |
02/17/00 | 80,000 | $ | 16.44 | Through 02/16/10 | |||||||||||
Time-based NSOs |
01/18/01 | 67,300 | $ | 25.88 | Through 01/17/11 | |||||||||||
Performance-based NSOs |
02/15/01 | 40,000 | $ | 26.19 | From 01/01/10 through 12/31/10 |
|||||||||||
Time-based NSOs |
02/15/01 | 80,000 | $ | 26.19 | Through 02/14/11 | |||||||||||
Time-based NSOs |
04/17/02 | 180,000 | $ | 29.26 | Through 12/31/11 | |||||||||||
Time-based NSOs |
04/16/03 | 150,000 | $ | 19.12 | Through 12/31/11 | |||||||||||
Time-based NSOs |
04/21/04 | 150,000 | $ | 23.52 | Through 12/31/11 | |||||||||||
Time-based NSOs |
04/20/05 | 150,000 | $ | 25.74 | Through 12/31/11 | |||||||||||
Time-based NSOs |
04/19/06 | 52,500 | $ | 24.28 | Through 12/31/11 | |||||||||||
Time-based restricted
stock |
04/19/06 | 30,625 | N/A | Restrictions lapse 01/01/07 |
||||||||||||
18
EXHIBIT B
GENERAL RELEASE
This General Release (the “Agreement”) is made and entered into as of [___], by and between
FirstMerit Corporation (“Corporation”), an Ohio Corporation, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“▇▇. ▇▇▇▇▇▇▇”)
(collectively, the “Parties”).
ARTICLE I RELEASES, WAIVERS AND REVOCATION RIGHTS
1.01 Release. In consideration of receipt of the payments and benefits set forth in Article 5 of
the Transition Agreement by and between the Corporation and ▇▇. ▇▇▇▇▇▇▇, effective as of May 18,
2006 (“Transition Agreement”), ▇▇. ▇▇▇▇▇▇▇ does hereby fully and forever surrender, release, acquit
and discharge the Corporation, and its principals, stockholders, directors, officers, agents,
administrators, insurers, subsidiaries, affiliates, employees, successors, assigns, related
entities, and legal representatives, personally and in their representative capacities, and each of
them (collectively, “Released Parties”), of and from any and all claims for costs of attorneys’
fees, expenses, compensation, and all losses, demands and damage of whatsoever nature or kind in
law or in equity, whether known or unknown, including without limitation those claims arising out
of, under, or by reason of ▇▇. ▇▇▇▇▇▇▇’▇ employment with the Corporation or any Group Member (as
defined in the Transition Agreement), ▇▇. ▇▇▇▇▇▇▇’▇ relationship with the Corporation or any Group
Member and/or the termination of ▇▇. ▇▇▇▇▇▇▇’▇ employment relationship and any and all claims which
were or could have been asserted in any charge, complaint, or related lawsuit. Without limiting
the generality of the foregoing, ▇▇. ▇▇▇▇▇▇▇ specifically releases and discharges, but not by way
of limitation, any obligation, claim, demand or cause of action based on, or arising out of, any
alleged wrongful termination, breach of employment contract, breach of implied covenants of good
faith and fair dealing, defamation, fraud, promissory estoppel, intentional or negligent infliction
of emotional distress, discrimination based on age, pain and suffering, personal injury, punitive
damages, and any and all claims arising from any alleged violation by the Released Parties of any
federal, state, or local statutes, ordinances or common laws, including but not limited to the Ohio
Civil Rights Act, including all provisions of the Ohio Revised Code concerning discrimination on
the basis of age, the Age Discrimination in Employment Act of 1967 (“ADEA”), Title VII of the Civil
Rights Act of 1964, the Americans With Disabilities Act or the Employee Retirement Income Security
Act of 1974. This release of rights is knowing and voluntary. The Corporation acknowledges that
▇▇. ▇▇▇▇▇▇▇ does not release herein any rights or claims which may arise after the Effective Date
of this Agreement (as defined in Section 1.03 of this Agreement) nor any rights he has under the
Transition Agreement, any rights he may have regarding the enforcement of the Transition Agreement,
his rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or his
rights to indemnification.
1.02 Waiver of Right to ▇▇▇. Except for the Corporation’s promises and obligations contained in
the Transition Agreement, ▇▇. ▇▇▇▇▇▇▇ further agrees, promises and covenants that neither he, nor
any person, organization, or any other entity acting on his behalf will file, charge, claim, ▇▇▇ or
cause or permit to be filed, charged or claimed, any action for damages or other relief (including
injunctive, declaratory, monetary relief or other) against the Corporation,
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involving any matter occurring in the past up to the Effective Date of this Agreement or involving
any continuing effects of actions or practices which arose prior to the Effective Date of this
Agreement or the termination of ▇▇. ▇▇▇▇▇▇▇’▇ employment.
1.03 Older Workers’ Benefit Protection Act Waiver. ▇▇. ▇▇▇▇▇▇▇ has certain individual federal
rights, which must be explicitly waived. Specifically, ▇▇. ▇▇▇▇▇▇▇ is protected by the ADEA from
discrimination in employment because of his age. By executing this Agreement, ▇▇. ▇▇▇▇▇▇▇ waives
these rights as to any past or current claims. Notwithstanding anything else in this Agreement,
excluded from this Agreement are ADEA age claims that may arise after execution of this Agreement.
In connection with the releases in Section 1.01 and waivers in Section 1.02 of any and all claims
or disputes that ▇▇. ▇▇▇▇▇▇▇ has or may have on the date hereof, ▇▇. ▇▇▇▇▇▇▇ makes the following
acknowledgements:
[1] By signing this Agreement, ▇▇. ▇▇▇▇▇▇▇ waives all claims against the Released Parties
for discrimination based on age, including without limitation, any claim which arises under
or by reason of a violation of the ADEA.
[2] In consideration of the releases, waivers and covenants made by ▇▇. ▇▇▇▇▇▇▇ under this
Agreement, ▇▇. ▇▇▇▇▇▇▇ will be receiving the payments and other benefits in the amounts and
manner described in Article 5 of the Transition Agreement.
[3] ▇▇. ▇▇▇▇▇▇▇ represents and acknowledges that he has consulted with an attorney prior to
executing this Agreement and ▇▇. ▇▇▇▇▇▇▇ has been given a period of at least twenty-one (21)
days within which to consider whether or not to enter into this Agreement.
[4] ▇▇. ▇▇▇▇▇▇▇ understands that this Agreement shall be effective as of the Termination
Date (as defined in the Transition Agreement) (“Effective Date”), provided that the
Agreement is not revoked by ▇▇. ▇▇▇▇▇▇▇ within seven days after he signs the Agreement. For
a period of seven days after he signs the Agreement, ▇▇. ▇▇▇▇▇▇▇ has the right to revoke
and/or cancel this Agreement by the delivery of notice in writing of revocation and/or
cancellation to the Corporation. In the event that ▇▇. ▇▇▇▇▇▇▇ does not revoke and/or
cancel this Agreement during this period, this Agreement shall become effective on the
Effective Date. In the event that ▇▇. ▇▇▇▇▇▇▇ revokes this Agreement, ▇▇. ▇▇▇▇▇▇▇ shall not
be entitled to any of the consideration set out in Article 5 of the Transition Agreement.
ARTICLE 2 MISCELLANEOUS
2.01 Counterparts. This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original, but all of which together will constitute one and the same Agreement.
Facsimile signatures will have the same legal effect as original signatures.
2.02 Applicable Law. To the extent not preempted by federal law, the provisions of this Agreement
will be construed and enforced in accordance with the laws of the state of Ohio.
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2.03 Headings. The descriptive headings in this Agreement are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement, as of ___, 200___.
FIRSTMERIT CORPORATION
By:
|
Date signed: | |||||
Title: |
||||||
| ▇▇. ▇▇▇▇▇▇▇ | ||||||
By:
|
Date signed: | |||||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
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