Exhibit 10.30
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is effective this 17th day of April, 2002 by and between
FirstMerit Corporation, its subsidiaries and affiliates ("FirstMerit") and Xxx
X. Xxxxxx ("Xxxxxx").
WITNESSETH:
A. WHEREAS, Xxxxxx has been serving as President and Chief
Operating Officer of FirstMerit, Corporation; and
B. WHEREAS, FirstMerit and Xxxxxx desire to enter into a
relationship whereby Xxxxxx will remain employed by FirstMerit
under the terms of this Agreement.
C. WHEREAS, as a condition of continued employment, FirstMerit
has required that Xxxxxx agree to refrain from competing with
FirstMerit or disseminating or improperly using confidential
information of FirstMerit and Xxxxxx is willing to make such a
commitment, in accordance with the provisions of this
Agreement.
D. WHEREAS, FirstMerit and Xxxxxx desire to enter into this
Agreement to provide for the continuation of Xxxxxx'x services
to FirstMerit for a term certain as Executive Consultant.
IN CONSIDERATION of the foregoing, the mutual covenants contained
herein and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. EMPLOYMENT DUTIES
During the term of this Agreement, Xxxxxx shall serve as an executive
consultant to the Chairman and Chief Executive Officer and the Board of
Directors. Xxxxxx will be responsible for providing vision and creativity for
FirstMerit and will provide leadership in developing and implementing certain
programs. The Chairman and Chief Executive Officer or the Board of Directors
shall, from time to time and subject to modification at any time and at its sole
discretion, hereafter assign such responsibilities and duties as they may deem
appropriate. Xxxxxx shall faithfully, diligently, competently, and to the best
of his ability, carry out those responsibilities and duties as assigned from
time to time by the Chief Executive Officer or the Board of Directors of
FirstMerit.
2. TERM OF AGREEMENT
The term of this Agreement shall commence April 17, 2002, and shall
continue until January 31, 2004, unless such term is earlier terminated as
hereinafter provided. Xxxxxx and FirstMerit agree that Xxxxxx'x retirement shall
become effective on February 1, 2004.
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3. COMPENSATION
During the term of this Agreement, FirstMerit shall pay Xxxxxx for his
services the sum of Seventeen Thousand Four Hundred Thirty-seven Dollars and
Fifty Cents ($17,437.50) paid semimonthly. The semimonthly amount to be paid
hereunder shall be paid in accordance with FirstMerit's policies and shall be
paid net of amounts withheld for federal, state or local income taxes, FICA, and
such other applicable amounts as may be required to be paid during the term of
this Agreement.
Xxxxxx shall not be eligible to participate in the bonus or other
incentive compensation plan or programs, and stock option grants, plans or
programs, offered or instituted by FirstMerit during the term of this Agreement.
4. TERMINATION UPON COMPLETION OF TERM
Xxxxxx shall serve FirstMerit as Executive Consultant until January 31,
2004, unless this Agreement is earlier terminated in accordance with Section 6.
At the completion of this term or upon termination in accordance with Section 6,
Xxxxxx agrees that his employment with FirstMerit will terminate.
5. EMPLOYEE BENEFITS
During the term of this Agreement, Xxxxxx shall be eligible to
participate in the following employee benefits from FirstMerit as applicable:
(a) Xxxxxx shall continue to participate in such retirement,
medical, and other employee benefit plans as may be maintained by
FirstMerit during the term of this Agreement including, without
limitation, the Pension Plan for Employees of FirstMerit Corporation
and Subsidiaries, the FirstMerit Corporation Executive Supplemental
Retirement Plan, the FirstMerit Unfunded Supplemental Benefit Plan
(effective as of January 1, 1984), the FirstMerit Corporation and
Subsidiaries Employees Salary Savings Retirement Plan, and the Amended
and Restated Executive Deferred Compensation Plan, according to the
terms of such plans, as amended from time to time, and on the same
basis as other full-time, salaried employees of FirstMerit who are
participating in such plans; except that Xxxxxx shall not be eligible
to participate in FirstMerit's Long Term Disability Insurance Pan and
that Xxxxxx'x participation in the FirstMerit Corporation Executive
Supplemental Retirement Plan shall be subject to the terms of the
Amended and Restated Membership Agreement with respect to the
FirstMerit Corporation Executive Supplemental Retirement Plan, dated
February 1, 2001, between FirstMerit and Xxxxxx.
(b) If Xxxxxx elects to continue as a participant in the
Executive Life Insurance Program, FirstMerit will, until such time as
the premium obligations have been fulfilled, continue payment of the
premium on Xxxxxx'x life insurance plus an additional amount equal to
forty percent (40%) of the premium, which policy shall provide life
insurance in the amount of $750,000.00 on the life of Xxxxxx. Xxxxxx
shall be personally obligated to
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pay any and all taxes associated with this life insurance benefit.
(c) During the term of this Agreement, Xxxxxx shall be
reimbursed for the cost of preparation of his personal income tax
returns up to $750.00 per year in accordance with the income tax
preparation reimbursement program available to senior officers of
FirstMerit.
(d) During the term of this Agreement and so long as Xxxxxx
owns his current Ohio residence, FirstMerit will pay all membership
dues and special assessments, and any sales taxes assessed or payable
with respect to such dues or assessments, incurred in connection with
Xxxxxx'x membership in Barrington Country Club. In addition, FirstMerit
will reimburse Xxxxxx for reasonable business expenses incurred by him
directly relating to his duties and responsibilities as assigned from
time to time by the Board of Directors. Such expenses shall be
submitted for approval and reimbursement in accordance with the
procedures and policies of FirstMerit. Upon the sale of Xxxxxx'x
current Ohio residence all payments relating to Xxxxxx'x membership at
Barrington Country Club will cease.
(e) Any unexercised and outstanding stock options will vest
and will be exercisable in accordance with the terms of the stock
option agreements between FirstMerit and Xxxxxx, dated February 2,
1998, February 8, 1999, February 17, 2000 and January 18, 2001,
respectively, as amended. Restrictions on the shares of restricted
stock granted to Xxxxxx pursuant to the Restricted Stock Agreement,
dated February 1, 1998, as amended, will lapse in accordance with the
terms of such agreement.
(f) The Employment Agreement between and among FirstMerit
Corporation, FirstMerit Bank, N.A. and Xxxxxx, dated February 1, 2001
and the Amended and Restated Change of Control Termination Agreement
between FirstMerit Corporation and Xxxxxx, dated February 1, 2001 shall
become null, invalid and of no force or effect on April 17, 2002.
(g) Other than the compensation and benefits provided under
this Agreement and the Stock Option Agreements and Restricted Stock
Award Agreement described in Subparagraph (e) above, Xxxxxx
acknowledges and agrees that he is not entitled to any other
compensation or remuneration pursuant to the employment relationship,
policies, or practices. Further, Xxxxxx acknowledges and agrees that he
is not entitled to any severance pay under the terms of any FirstMerit
agreement, policy, practice, or plan.
6. TERMINATION
(a) FirstMerit may terminate the employment of Xxxxxx under
the Agreement without notice for Just Cause. Notwithstanding anything
to the contrary contained herein, it shall be considered Just Cause to
terminate the Xxxxxx'x employment upon the happening of any of the
following:
1. The retirement or death of the Xxxxxx;
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2. Felonious criminal activity whether or not
affecting the Employer;
3. Disclosure to unauthorized persons of
Employer information which is considered by
FirstMerit to be confidential;
4. Breach of any contract with, or violation of
any legal obligation to, the FirstMerit or
dishonesty; or
5. Gross negligence or insubordination in the
performance of duties of the position held
by the Employee.
In the event of termination by the FirstMerit for Just Cause, the
Bostic shall not be entitled to receive salary or other benefits beyond the date
of termination.
(b) Upon termination of this Agreement pursuant to this
paragraphs 2 or 6, the obligations of each of the parties hereunder
shall expire as of the date of such termination, including, without
limitation, the obligations of FirstMerit to pay any compensation to
Xxxxxx.
7. COVENANT NOT TO COMPETE AND NON-SOLICITATION.
a. During the term of this Agreement and for a period of
two (2) years thereafter, Xxxxxx shall not, on his
own behalf or with others, directly or indirectly, as
a shareholder, partner, director, officer, employee,
agent or otherwise, manage, operate, control, own,
provide services to, participate in, consult with or
be connected in manner with any corporation,
partnership, proprietorship or other business entity
that engages in any business activity in which
FirstMerit is now engaged or otherwise provides
banking, financial or related services in locations
identified in Section 7, "Geographic Region".
Further, Xxxxxx is prohibited from engaging in the
above activities for entities located outside of the
Geographic Region, if that entity conducts business
within the Geographic Region.
x. Xxxxxx hereby further agrees and covenants that
during the aforementioned period, he shall not,
directly or indirectly, on his own behalf or with
others (i) induce or attempt to induce any employee
of FirstMerit to leave the employ of FirstMerit, or
in any way interfere with the relationship between
FirstMerit and any employee, (ii) knowingly hire any
such employee of FirstMerit, or (iii) induce or
attempt to induce any referral source, customer, or
other business relation of FirstMerit not to do
business with FirstMerit, or to cease doing business
with FirstMerit, or in any way interfere with the
relationship between any such referral source,
customer, or business relation and FirstMerit.
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8. GEOGRAPHIC REGION.
As for FirstMerit's banking and financial business, the Covenant Not to
Compete and Non-Solicitation provisions contained in Section 7 of this Agreement
shall be in force and binding upon Xxxxxx in all counties in the state of Ohio
in which FirstMerit currently has offices, and in Xxxxxxxx County, Pennsylvania.
("Geographic Region").
9. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
Xxxxxx acknowledges that, as Chief Operation Officer of FirstMerit
Corporation, he has had extensive access to and has acquired various
confidential information relating to the Business, including, but not limited
to, financial and business records, customer lists and records, business plans,
corporate strategies, information disclosed or discussed during any exit
conference, employee information, wage information, and related information and
other confidential information (collectively, the "Confidential Information").
Xxxxxx agrees that the Confidential Information is and will be of special and
unique value to FirstMerit. Xxxxxx further acknowledges and covenants that, at
all times, the Confidential Information is the sole property of FirstMerit and
will constitute trade secrets and confidential information of FirstMerit, and
that his knowledge of the Confidential Information will enable him to compete
with FirstMerit in a manner likely to cause FirstMerit irreparable harm upon the
use or disclosure of such matters. Therefore, Xxxxxx hereby irrevocably
covenants that he shall not, at any time after the date of this Agreement, use
or disclose to any third party, directly or indirectly, any of the Confidential
Information, except as permitted by this Agreement. This paragraph shall not be
limited by the time periods contained in Section 7 of this Agreement. Excluded
from the definition of Confidential Information is (a) information which is
publicly available, other than as a result of actions by Xxxxxx in breach of
this Agreement; and (b) information which is disclosed by FirstMerit to third
parties on a non-confidential basis.
10. ASSIGNMENT
This Agreement shall be binding upon the parties hereto, their
respective heirs, personal representatives, executors, administrators and
successors; provided, however, that no assignment or transfer of this Agreement
by Xxxxxx, including assignment or transfer by operation of law, shall be valid
without the prior written consent of FirstMerit. FirstMerit may freely assign
this Agreement without Xxxxxx'x consent.
11. GOVERNING LAW
This Agreement shall be construed under and governed by the internal
laws of the State of Ohio and properly venued in Summit County, Ohio. In the
event that any provision of this Agreement shall be held to be void or
unenforceable by a court of competent jurisdiction, this Agreement shall not be
rendered null and void thereby but shall be construed and enforced as if such
void or unenforceable provision was not originally a part of this Agreement.
12. ENTIRE AGREEMENT
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This Agreement sets forth the entire agreement of the parties herein
with regard to the employment of Xxxxxx and any oral or written statements,
representations, agreements or understandings made or entered into prior to or
contemporaneously with the execution of this Agreement, are hereby rescinded,
revoked and rendered null and void by the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed this 17th day of April, 2002.
Witnesses: FIRSTMERIT CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Chairman and CEO
/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
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