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Exihibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of ,
1998, by and between FIFTH THIRD BANCORP, an Ohio corporation (the "Company")
and XXXXXX XXXXXXXXXXX (the "Employee").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of an Affiliation Agreement, dated as of January
__, 1998 (the ""Affiliation Agreement"), State Savings Co. ("State Savings")
will merge with and into Company with the Company as the surviving corporation;
and,
WHEREAS, the services of the Employee are of a special, unique and unusual
character which gives them distinctive value and the Company desires that the
Employee continue after the merger to render services to the Company, in
accordance with the terms and conditions set forth herein; and,
WHEREAS, the Employee desires to be employed by the Company pursuant to the
terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual benefits and
covenants contained herein, it is hereby agreed as follows:
1. EMPLOYMENT. The Company hereby employs the Employee and the Employee
hereby accepts employment with the Company, all in accordance with the
terms and conditions hereof on the date hereof (the "Effective Date")
and expiring on the date three (3) years from the Effective Date (the
"Expiration Date") or the Employee's employment with the Company is
terminated as hereinafter provided. The term of the Employee's
employment as set forth above is referred to herein as the "Employment
Period".
2. DUTIES.
2.1 During the Employment Period, the Employee shall be employed by the
Company in the position of Chairman of Fifth Third Bank of Columbus, and
shall be subject to the general supervision, direction and control of
the Board of Directors of the Company (the "Board"). The Employee shall
also be appointed as a director of the Company. The Employee shall
perform such duties as are customary and appropriate in such capacities
or offices.
2.2 During the Employment Period, the Employee shall devote Employee's
substantial business time, energies, attention and ability to the
business of the Company, and shall faithfully and diligently perform
the duties of Employee's employment with the Company and of any office
or offices held by Employee in the Company, provided
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that there shall be no set time or minimum time during which Employee
shall perform such services. It is understood and agreed that, without
prior written approval from the Board (which approval shall not be
unreasonably withheld), the Employee may not engage in any other
business activities during the period of Employee's employment by the
Company, whether or not for profit or other pecuniary advantage.
Notwithstanding the foregoing, (a) nothing contained in this Section 2.2
shall preclude the Employee from any investment or activity that existed
at the time of this Agreement and which was disclosed by the Employee to
the Company; (b) the Employee may make personal financial investments
after the date of this Agreement which do not involve any active
participation on Employee's part if such investments are made in
compliance with Section 5.2 below, and (c) the Employee may engage in
charitable, educational, religious, civic, trade associations and
similar types of activities, and (d) the Employee may serve on the board
of directors of such other entities as may be approved by the Board;
provided, however, that any such activities described in item (c) above
must be reported promptly to the Board, and any such activities
described in items (c) and (d) above (i) must not interfere with the
business of the Company or any Affiliate (as defined in Section 2.3
below) or the performance of the Employee's duties under this Agreement,
and (ii) must not conflict with the Company's or any Affiliate's
policies concerning conflicts of interest. Any director's or other fees
received by the Employee related to activities described in (a) and (d)
above may be retained by such Employee.
2.3 For purposes of this Agreement, an "Affiliate" of any person shall
mean any other person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified
person. For the purposes of this definition, "control" when used with
respect to any specified person means the power to direct the
management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing. The term "person", for purposes of this definition,
shall include any corporation, partnership, limited liability company,
trust or other entity but shall not include any individual. The
Employee acknowledges that all references to an "Affiliate" of the
Company shall include, without limitation, any of its direct or
indirect wholly owned or majority-owned subsidiaries.
3. COMPENSATION.
3.1 As consideration for the services that the Employee shall render
hereunder, the Employee shall be entitled to the following, subject to
the provisions of Section 4:
(a) Initial Payment - Within ten (10) days following the
Effective Date, the Company will make a payment to the
Employee in the amount of $500,000. If this Agreement is
terminated due to the resignation of
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Employee (other than for Resignation for Good Reason
pursuant to Section 4.4) or terminated pursuant to
Section 4.3 (Termination for Cause) hereof prior to the
end of the Employment Period, Employee shall repay to
the Company a percentage of the Initial Payment equal to
the percentage of the Employment Period remaining at the
time of termination.
(b) Annual Salary - During the Employment Period Employee will
receive an annual salary of $550,000 ("Annual Base
Salary"). The Annual Base Salary will be payable in
accordance with the standard payroll practices of the
Company.
(c) Incentive Award - On the Effective Date, the Company will
grant the Employee an option to acquire 75,000 shares of
the Company's stock (an "Option") pursuant to the terms of
the Company's existing Stock Option Plan. The Option will
have an exercise price equal to the fair market value of
the stock subject thereto on the date of grant, will vest
in four equal installments over a three year period and
will vest immediately in the event of termination of this
Agreement for any reason or no reason and will remain
exercisable until ten (10) years from the date of grant.
(d) Retirement Benefit - As of the Effective Date the Company
will purchase an annuity on behalf of the Employee with a
present value of $5,485,000. Such annuity shall be owned
by and be the property of the Company, and the payments
described in the following provisions of this Section
3.1(d) shall constitute a promise by the Company to make
such payments (from the annuity or otherwise) to the
Employee in the future. The Employee shall be paid from
the annuity after the Expiration Date, or upon termination
of employment for any reason if earlier. Employee shall be
paid an annual retirement benefit pursuant to such annuity
on such terms as may be selected by the Employee for his
life (and if selected by Employee, for the life of his
surviving spouse). If this Agreement terminates pursuant
to the resignation of the Employee (other than for
Resignation for Good Reason pursuant to Section 4.4) or
pursuant to Section 4.3 (Termination for Cause) hereof,
the then present value of Employee's Retirement Benefit as
set forth in this Section 3.1(d) will be reduced by a
percentage equal to the percentage of the Employment
Period remaining at the time of termination. The reduction
described in the preceding sentence shall not occur in any
circumstance other than such a resignation or Termination
for Cause. The Retirement Benefit payable to Employee
under this Section 3.1(d) shall be in addition to (and
shall not be offset by) any benefit payable from any
retirement or deferred compensation plan maintained by the
Company or previously maintained by State Savings Co. or
its affiliates.
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(e) The Employee shall be entitled to participate on a
non-discriminatory basis with all other similarly situated
employees of the Company, in any 401(k), insurance or
medical insurance plan, or other benefit plan adopted by
the Company, or an Affiliate of the Company and in effect
from time to time, to the extent that such plan is made
available to similarly situated employees of the Company
and the Employee is eligible to participate in such plan
under the applicable provisions thereof.
(f) The Employee shall be entitled to participate in any
benefit plan or program made available to senior
management employees and/or directors of the Company, in
accordance with the terms and conditions of such plan or
program.
(g) Notwithstanding any provision contained herein or in the
Affiliation Agreement, except for benefits under any
severance plan and/or change-in-control agreement, the
Employee shall retain any benefit that he had accrued
under any employee benefit plan sponsored by State Savings
Co. or any of its affiliates as of the day preceding the
Effective Time (as defined in the Affiliation Agreement).
By way of example, and not by way of limitation, the
Employee shall be entitled to all pension, retirement
and/or deferred compensation accrued under such plans or
as of such date.
3.2 The Employee shall be entitled to reimbursement privileges with
respect to reasonable business expenses in accordance with the
Company's standard reimbursement policy for employees of the Company.
3.3 The Employee agrees that, unless otherwise approved in writing by
the Board, the Employee shall not receive any additional compensation
for serving as an officer or director of the Company.
4. TERMINATION. Employment under this Agreement shall terminate prior to
the Expiration Date upon the occurrence of any of the following events:
4.1 MUTUAL AGREEMENT. The parties mutually agree to the termination of
the Employee's employment with the Company under this Agreement. In the
event of such termination (other than pursuant to the sole decision of
Employee to resign other than a Resignation for Good Reason pursuant to
Section 4.4) the parties shall mutually agree as to the treatment of
compensation and benefits to be paid hereunder.
4.2 DEATH OR TOTAL DISABILITY.
(a) The Employee's employment with the Company under this
Agreement shall terminate in the event of the death or
Total Disability (as defined below) of
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the Employee.
(b) The Employee's right to receive Annual Salary under
Section 3.1(b) shall terminate at the end of the month
during which death or Total Disability occurs; provided,
however, that whether or not a Total Disability of the
Employee shall have occurred, any payments pursuant to a
salary continuation or disability insurance plan of the
Company shall be deducted from any salary which may
otherwise be paid to the Employee during the period of the
Employee's illness or incapacity; and, provided further,
that Employee shall be entitled to receive any
compensation that was awarded to the Employee prior to the
date of termination but remains unpaid. All retirement
benefits as described in Section 3.1(d) will be paid (with
no reduction in the present value amount contained in such
Section) in the event of death or Total Disability in
accordance with the payment option selected by the
Employee and all other benefits and the Option described
in Section 3.1(c) will vest and will be exercisable in
accordance with the Fifth Third Stock Option Plan, or such
other relevant benefit plan.
(c) For the purposes of this Agreement, "Total Disability"
shall be deemed to have the meaning set forth in any long
term disability insurance plans in which Employee
participates, or, if no such plan is in place, when the
Employee shall have been unable to perform the duties of
the Employee's employment by reason of illness or
incapacity for a period of ninety (90) consecutive days or
for a period of one hundred twenty (120) days in any
period of fifty-two (52) consecutive weeks, all as
determined in good faith by the Board.
4.3 Termination for Cause.
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(a) The Employee's employment with the Company under this
Agreement may be terminated by the Company for Cause, at
any time upon written notice from the Company to the
Employee. For purposes of this Agreement, the term "Cause"
shall be defined as: (i) any material breach of any of the
terms of this Agreement by the Employee and any such
breach shall not be remedied within thirty (30) days from
the date the Company delivers written notice thereof to
Employee specifically identifying the nature of the facts
constituting Cause under any such case; (ii) fraud,
embezzlement, misappropriation; or any willful misconduct
of the Employee in connection with his employment
hereunder; (iii) any violation of any statutory or common
law fiduciary duty or duty of loyalty to the Company or
any of the Company's clients as determined by a court of
competent jurisdiction; (iv) any finding or adjudication
by a court, government agency or regulatory authority that
the Employee has violated any law, rule or regulation
relating
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to the regulation of banks or financial institutions,
which finding or adjudication, in the reasonable
judgment of the Board, could have a material adverse
effect on the reputation or business of the Company and
its Affiliates on a consolidated basis, or (v) any
order, judgment or decree (whether entered by consent or
after trial or adjudication) of any court, government
agency or regulatory authority which censures or imposes
any sanctions on the Employee in connection with banking
or financial institutions related activities or which
enjoins, bars, suspends or otherwise limits the Employee
from engaging in any activity in connection with the
business of banking or financial institutions.
(b) Upon any termination pursuant to Section 4.3(a) the
Employee (i) shall be entitled to all accrued but unpaid
Annual Salary under Section 3.1(b) through the date of
termination, and (ii) shall forfeit all entitlements to
unpaid Annual Salary related benefits but, subject to
reduction of the amount as set forth therein, shall
continue to receive the Retirement Benefits described in
Paragraph 3.1(d) above and all benefits vested in the
Employee prior to termination (unless the applicable
benefits plan provides for loss of vested benefits in
the event of a termination for Cause). In the event that
the Fifth Third Stock Option Plan provides for
expiration of the Option (or any portion thereof) in the
event of termination for Cause, Employee shall be given
sufficient notice and the opportunity to exercise the
outstanding Option (or any portion thereof) prior to the
effective date of such termination for Cause.
4.4 TERMINATION OTHER THAN FOR CAUSE; RESIGNATION BY THE EMPLOYEE FOR GOOD
REASON. If the Company terminates the Employee's employment for any
reason other than Cause (as defined in Section 4.3) or in the event of
the Employee's Resignation for Good Reason, the Employee shall be
entitled to receive all payments and benefits described in this
Agreement, including, but not limited to, Annual Salary, as described in
Section 3.1(b); the Incentive Award, as described in Section 3.1(c); and
the Retirement Benefits, as described in Section 3.1(d), with no
reduction in the present value amount contained in such Section.
Notwithstanding any provision contained in the Fifth Third Stock Option
Plan, if the Employee's employment is terminated pursuant to this
Section 4.4, he shall be entitled to exercise all of the options granted
to him under Section 3.1(c) (both vested and, if applicable, unvested)
at any time prior to the date which is ten (10) years from the date on
which such options were granted. For purposes of this Agreement,
"Resignation for Good Reason" shall mean the termination of this
Agreement by the Employee in the event that (i) Employee is required to
move to a new principal work location that is more than 50 miles from
Employee's work location while with State Savings Co., or (ii)
Employee's duties under this Agreement are subject to
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a substantial reduction, or (iii) the breach of this Agreement by the
Company, or (iv) there is a substantial reduction in the benefits
provided to the Employee by the Company.
5. RESTRICTED ACTIVITIES. In consideration of the benefits to be derived
by the Employee under this Agreement, and to preserve the goodwill
associated with the business of the Company, the Employee hereby agrees
to the following restrictions on the Employee's business activities:
5.1 (a) As a separate and independent covenant, the Employee
agrees that, during the Restricted Period (as defined below),
the Employee shall not directly or indirectly, whether for his
own account or for the account of any other person, firm,
corporation, or other business organization, (i) in the states
of Ohio, Kentucky, Indiana, Florida or Arizona, engage in
providing Banking Services (as defined below) on behalf of any
other business organization who is a competitor of the
Company, (ii) provide Banking Services to any Client (as
defined below), (iii) make any statement or take any actions
that may interfere with the Company's or any Affiliate's
business relationships with any Client, (iv) contact either
directly or indirectly any Client or otherwise induce or
attempt to induce any Client to enter into any business
relationship with any person or firm other than the Company or
an Affiliate relating to Banking Business of any type, (v)
endeavor or entice away from the Company any person who the
Employee has actual knowledge that such person is, or was at
any time during the period the Employee was employed by the
Company or during the Restricted Period, employed by or
associated with the Company as an executive, officer,
employee, manager, salesperson, consultant, independent
contractor, representative or other agent, or (vi) take any
actions that may interfere with the Company's property rights
in lists of Clients or otherwise diminish the value of such
lists to the Company. Notwithstanding any provision contained
in this Section 5.1(a), the restrictions contained herein
shall not be applicable to any activity of the Employee or any
activity of his spouse which existed at the time of this
Agreement and which was disclosed by the Employee to the
Company.
(b) The term "Restricted Period" shall mean the period
beginning on the Effective Date and ending two years after
termination of Employee's employment, or if later, the
termination of his services as a director of the Company.
(c) The term "Banking Services" shall mean retail or
commercial deposit or lending business, asset management and
all other services which are customarily provided by banks or
which are otherwise provided by the
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Company or its affiliates.
(d) For all purposes of this Agreement, the term "Client"
shall mean all persons or entities who are or were clients of
the Company at the date of termination of employment or at any
time during the two year period prior to the date of
termination of Employee's employment, any potential clients
who to Employee's actual knowledge, have been identified and
contacted by a representative of the Company. The term
"Client" shall not include any member of the Employee's
immediate family, as defined under Rule 16a-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") or any trust of which the Employee or any member of his
immediate family (as defined in Rule 16a-1 of the Exchange
Act) is a trustee or beneficiary.
5.2 As a separate and independent covenant, the Employee agrees that,
during the Restricted Period (as defined above), the Employee shall
not, either for the Employee's own account or on behalf of any person
or entity with which the Employee is associated or affiliated, without
prior written approval from the Board, directly or indirectly, own,
share in earnings of, or interest in the capital stock of any person,
firm or business organization which shall do or attempt to do any of
the activities described in Section 5.1, except in accordance with the
Employee Investment Criteria set forth below. For purposes hereof,
Employee Investment Criteria shall mean an investment in capital stock
which meets all of the following criteria: (a) such capital stock is
listed on any national or regional securities exchange or has been
registered under Section 12(g) of the Exchange Act or constitutes
securities of open end investment companies; (b) such investment does
not exceed, in the case of any class of the capital stock of any one
issuer, five percent (5%) of the issued and outstanding shares; and (c)
such investment is in compliance with the Company's code of ethics.
Notwithstanding any provisions contained in this Section 5.2, the
restrictions contained herein shall not be applicable to any investment
of the Employee or any investment of any person or entity with which
the Employee is associated or affiliated which existed at the time of
this Agreement and which was disclosed by the Employee to the Company.
5.3 The Employee agrees that, if Employee should breach any of the
covenants of Section 5.1 or 5.2 above, the Restricted Periods for all
such sections shall be extended by the length of time during which the
Employee is in breach of any such covenant.
5.4 The Employee and the Company agree that the periods of time and the
scope applicable to the covenants of Sections 5.1 and 5.2 are
reasonable and necessary to protect the legitimate business interests
of the Company without unduly limiting the Employee's ability to obtain
employment or otherwise earn a living at the same general level of
economic benefit as anticipated by this Agreement. However, if such
period or scope should be adjudged unreasonable in any judicial or
other dispute
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resolution proceeding, then the period of time or scope shall be reduced
by the extent deemed unreasonable, so that these covenants may be
enforced during such period and for such scope as are adjudged to be
reasonable.
5.5 It is understood by and between the parties hereto that the
covenants by the Employee set forth in this Section 5 are an essential
element of this Agreement and that, but for the agreement of the
Employee to comply with such covenants, the Company would not have
entered into this Agreement and would not have entered into the
Affiliation Agreement. The Company and the Employee have independently
consulted with their respective counsel and have been advised in all
respects concerning the reasonableness and propriety of such covenants,
with specific regard to the nature of the business conducted by the
Company and its Affiliates.
6. CONFIDENTIALITY. The Employee agrees that the Employee will not,
directly or indirectly, either during the period of the Employee's
employment with the Company or any time thereafter, divulge or use any
information regarding the business of the Company or any of its
Affiliates (including, without limitation, confidential records, Client
and customer lists, computer software, data, documents, operational
methods, pricing and investment policies and trade know-how and secrets)
compiled by, created by, obtained by, or furnished to, the Employee
while the Employee is employed by or associated with the Company;
provided, however, that this obligation to maintain confidentiality
shall not apply to any such information which (a) was already in the
Employee's possession prior to his employment with the Company or its
predecessor, (b) is or become generally available to the public other
than as a result of disclosure by the Employee in violation of this
Agreement, or (c) is disclosed to the Employee on a nonconfidential
basis from a source other than the Company and not known by the Employee
to be subject to a confidentiality agreement between such source and the
Company. All materials, records and documents (whether in writing or
other tangible form, including electronic media) made by the Employee or
coming into the Employee's possession concerning the business or affairs
of the Company or any of its Affiliates shall be the sole property of
the Company and its Affiliates. Upon the termination of the Employee's
employment hereunder for any reason or upon the request of the Company
during the Employment Period, the Employee shall promptly deliver such
materials, records and documents, and all copies thereof, to the Company
or to any Affiliate designated by the Company. The Employee's covenants
contained in this Section 6 shall survive any termination of the
Employee's employment with the Company hereunder for any reason, and
shall be enforceable as provided in Section 7 following such
termination.
7. SPECIFIC PERFORMANCE. The Employee's covenants contained in Sections 5
and 6 shall survive any termination of the Employee's employment with
the Company hereunder for any reason, and shall be enforceable following
such termination. Without intending to limit the remedies available to
the Company, the Employee agrees that
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damages at law will be an insufficient remedy to the Company in the
event that Employee violates any of the terms of Sections 5 and 6 and
that the Company may apply for and is entitled to injunctive relief in
any court of competent jurisdiction to restrain the breach or threatened
breach of, or otherwise to specifically enforce, any of the covenants of
such Sections, in each case without proof of actual damages.
Notwithstanding any provision contained herein, in the event that the
Employee violates any of the terms of Sections 5 or 6, he shall not
(except if such violation constitutes grounds for Termination for Cause
and results in reduction of benefits in the event of termination prior
to the Expiration Date as set forth in such sections) forfeit any
portion of either his Retirement Benefit, as described in Section
3.1(d); or his Incentive Award, as described in Section 3.1(c).
8. COMPLIANCE WITH OTHER AGREEMENTS. The Employee represents and warrants
to the Company that the execution of this Agreement by the Employee and
the Employee's performance of the Employee's obligations hereunder will
not, with or without the giving of notice and/or the passage of time,
conflict with, result in the breach of any provision of or the
termination of, or constitute a default under, any agreement to which
the Employee is a party or by which the Employee is or may be bound.
9. ASSIGNMENT. Neither party shall have the right to assign this Agreement
or any rights or obligations hereunder without the prior written consent
of the other party. Any merger or consolidation of the Company (or any
direct or indirect parent thereof) or any sale or transfer of all or
substantially all of the stock or assets of the Company (or any direct
or indirect parent thereof) shall be deemed an assignment in violation
of the terms of this Section 9. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their heirs,
personal representatives, successors and permitted assigns.
10. SEVERABILITY. The provisions of this Agreement are severable, and if any
one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any
partially unenforceable provisions to the extent enforceable, shall
nevertheless be binding and enforceable.
11. WAIVERS. Neither this Agreement nor any term or condition hereof or
right hereunder may be waived or shall be deemed to have been waived or
modified in whole or in party by any party or by the forbearance of any
party to exercise any of its rights hereunder, except by written
instrument executed by or on behalf of that party. The waiver by either
party of a breach by the other party of any of the provisions of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach by the other party.
12. NOTICES. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing
and shall be
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deemed effective (a) when delivered personally, (b) when sent by
confirmed facsimile, (c) one (1) day after deposit with a commercial
overnight courier with written verification of receipt, or (d) three (3)
days after deposit in the United States mail by certified mail postage
prepaid. All communications will be sent to the party to whom they are
directed at the addresses set forth below:
(a) If to Employee: ---------------------------
---------------------------
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(b) If to the Company: Fifth Third Bancorp
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: President & CEO
With Copies to: Fifth Third Bancorp
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: General Counsel
Any party may change the address to which such notices are to be sent
by giving the other parties notice thereof in the manner set forth.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties and supersedes all prior agreements and understandings,
oral or written, between the parties hereto with respect to the subject
matter hereof. Without limitation, nothing in this Agreement shall be
construed as giving Employee any right to be retained in the employ of
the Company beyond the expiration of the Employment Period, and
Employee specifically acknowledges that if Employee continues to be
employed by the Company thereafter, Employee shall be an
employee-at-will of the Company.
14. EFFECTIVENESS OF AGREEMENT. Although this Agreement has been executed
by the parties as of the date written above, this Agreement shall
become effective only and immediately upon consummation of the merger
described in the Affiliation Agreement.
15. NO AMENDMENTS. This Agreement may not be modified or amended except by
an instrument or instruments in writing signed by the party against
whom enforcement of any such modification or amendment is sought.
16. SECTION AND OTHER HEADINGS. The section and other headings contained in
this Agreement are for reference purposes only and shall not be deemed
to be a part of this Agreement or to affect the meaning or
interpretation of this Agreement.
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17. GENDER. Any masculine personal pronoun shall be considered to mean the
corresponding feminine personal pronoun, as the context requires.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without giving effect to
the conflicts of law principles hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
FIFTH THIRD BANCORP
By:
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Its:
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EMPLOYEE
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Xxxxxx Xxxxxxxxxxx
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