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EXHIBIT 10.24.1
FIRST AMENDMENT TO
RESTRICTED STOCK AWARD AGREEMENT
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FIRST AMENDMENT TO RESTRICTED STOCK AWARD AGREEMENT (the "First
Amendment"), effective as of the 18th day of March, 1999, between FirstMerit
Corporation, an Ohio Corporation (the "Company"), and Xxx X. Xxxxxx (the
"Grantee").
R E C I T A L S:
A. The Company and the Grantee entered into a Restricted Stock Award
Agreement, dated as of February 1, 1998, (the "Award Agreement") concerning the
issuance to Grantee of a restricted stock award of the Company's common stock,
no par value ("Common Stock") pursuant to the provisions of the FirstMerit
Corporation 1997 Stock Plan (the "Plan"). Capitalized terms used herein shall
have the meanings ascribed to them in the Award Agreement and the Plan unless
otherwise specifically indicated in this First Amendment.
B. Paragraph O of Article IV of the Plan provides that the Company may
amend the terms of any Award previously granted under the Plan, regardless of
whether such amendment is prospective or retrospective.
C. The Company desires to amend the Award Agreement to change the
limitation on the number of Award Shares that may become unrestricted as the
result of the occurrence of a Change of Control and the application of Section
280G of the Internal Revenue Code of 1986 (the "Code").
IN CONSIDERATION OF THE FOREGOING and good and valuable consideration,
the receipt of which is hereby acknowledged by both the Company and the Grantee,
the Company and Grantee mutually agree that the Award Agreement is hereby
amended, effective as of March 18, 1999, as follows:
1. The following Section 11 is added to the Award
Agreement:
11. LIMITATION ON BENEFITS. Notwithstanding any
provision of this Agreement or the Plan to the contrary, if the
compensation and benefits provided to the Grantee pursuant to this
Agreement, either alone or with other compensation and benefits
received by the Grantee from the Company, constitute Parachute
Payments, then the compensation and benefits payable to the Grantee
pursuant to this Agreement, and under any other employment agreement to
which the Grantee is party or employee benefit plan or program in which
the Grantee is participating, shall be reduced if, and only to the
extent that, a reduction will allow the Grantee to receive a greater
Net After Tax Amount than the Grantee would receive absent a
reduction. The following steps shall be followed in implementing the
provisions of this Section 11:
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(a) The Accountant shall first determine the total amount of
the Parachute Payments and the Net After Tax Amount of such Parachute
Payments.
(b) Next, the Accountant shall determine the amount of the
Grantee's Reduced Parachute Payments and the Net After Tax Amount of
such Reduced Parachute Payments.
(c) If the Accountant determines that the Net After Tax Amount
of the Reduced Parachute Payments is greater than the Net After Tax
Amount of the total Parachute Payments, the Grantee shall receive the
Reduced Parachute Payments. If the Accountant determines that the Net
After Tax Amount of the total Parachute Payments is greater than or
equal to the Net After Tax Amount of the Reduced Parachute Payments,
the Grantee shall receive the total Parachute Payments. If the
Accountant determines that the Grantee's Parachute Payments should be
reduced to an amount equal to the Reduced Parachute Payments, the
Company shall give prompt notice to that effect to the Grantee with a
copy of the Accountant's calculations. The Grantee may then elect, in
his sole discretion, within ten (10) days after his receipt of such
notice, which and how much of the Parachute Payments, including without
limitation Award Shares granted to the Grantee pursuant to this
Agreement, shall be eliminated or reduced to arrive at the amount of
the Reduced Parachute Payments. If the Grantee does not make an
election within such ten-day period, the Company shall, in its sole
discretion, make the election to reduce the Parachute Payments,
including the Award Shares granted to the Grantee pursuant to this
Agreement, to arrive at the amount of the Reduced Parachute Payments
and shall notify the Grantee promptly thereof. All determinations made
by the Accountant pursuant to this Section 11 shall be binding upon the
Company and the Grantee and shall be made within sixty (60)days after
the occurrence of a Change of Control.
(d) The following definitions shall apply for purposes of this
Section 11:
(1) "Accountant" means the accounting firm approved
by the Company's shareholders as the Company's independent
auditor
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immediately prior to the occurrence of a Change of Control.
(2) "Parachute Payment" means a payment that is
described in Code Section 280G(b)(2) (without regard to
whether the aggregate present value of such payment exceeds
the limit prescribed in Code Section 280G(b)(2)(A)(ii)). The
amount of any Parachute Payment shall be determined in
accordance with Code Section 280G and the regulations
promulgated thereunder, or, in the absence of final
regulations, the proposed regulations promulgated under Code
Section 280G.
(3) "Net After Tax Amount" means the amount of any
Parachute Payments or Reduced Parachute Payments, as
applicable, net of the taxes imposed under Code Sections 1,
3101(b) and 4999 and any state or local income taxes
applicable to the Grantee as in effect on the date of the
occurrence of a Change of Control. The determination of the
Net After Tax Amount shall be made using the highest combined
effective rates of the taxes described in the preceding
sentence imposed on income of the same character as the
Parachute Payments or Reduced Parachute Payments, as
applicable, in effect for the year for which the determination
is made.
(4) "Reduced Parachute Payments" means the largest
amount of Parachute Payments that may be paid to the Grantee
without liability for any excise tax under Code Section 4999.
2. Except as expressly modified by the provisions of this First
Amendment, the other provisions of the Award Agreement shall remain in full
force and effect.
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[Signature page follows]
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IN WITNESS WHEREOF, the Company and the Grantee have duly executed this
First Amendment this 20th day of April, 1999.
FIRSTMERIT CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Its: Chairman
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/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
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