1
EXHIBIT 10.38
INDEPENDENT CONTRACTOR AGREEMENT
This Agreement has been entered into this 12th day of February, 1999,
by and between FirstMerit Corporation ("FirstMerit") and Xxxx Xxxxx
("Contractor").
WITNESSETH:
WHEREAS, FirstMerit seeks to engage Contractor to provide services as
necessary as an Independent Contractor. Contractor agrees to provide services as
necessary for FirstMerit as an Independent Contractor; and,
WHEREAS, the purpose of this Agreement is to establish the terms and
conditions under which Contractor will provide the above services for
FirstMerit.
NOW THEREFORE, in consideration of the premises and promises contained
in this Agreement and intending to be legally bound, the parties agree as
follows:
SECTION 1. TERM OF THIS AGREEMENT. This Agreement's Term shall begin on
February 13, 1999, and shall remain in full force until August 13, 1999, unless
terminated earlier by FirstMerit as a result of Contractor's death, Contractor's
incapacitation, Contractor's failure to perform services satisfactorily, or by
Contractor upon 30 day written notice. Written notice of termination must be
hand delivered to the other party.
SECTION 2. INDEPENDENT CONTRACTOR. Contractor expressly acknowledges
that he is acting as an independent contractor and not as an employee of
FirstMerit for all purposes, including Social Security, withholding and other
taxes provided for under the Internal Revenue Code. Further, Contractor is not
authorized to bind FirstMerit or make any representations on FirstMerit's
behalf, except such representations concerning the below-described consulting
services and as may be expressly authorized from time to time by FirstMerit in
writing. Contractor shall not obligate FirstMerit in any manner to a third party
or entity and shall hold FirstMerit completely harmless from damages and
liabilities arising out of any conduct and communication of this paragraph or
any misrepresentation of her services made to said third party.
SECTION 3. SERVICES. Contractor agrees to provide the following
services:
Contractor will help oversee the transition from Signal Corporation to
FirstMerit and such other tasks as FirstMerit shall assign him from time to
time.
From time to time, if and when requested to do so by FirstMerit,
Contractor shall provide FirstMerit with whatever written documentation it
requires and be available to representatives of FirstMerit for consultation with
respect to the services which Contractor provides.
Contractor's services shall be performed at times and places as shall
be mutually convenient for FirstMerit and Contractor.
2
SECTION 4. COMPENSATION. Contractor shall be compensated for his
consulting services at a rate of Nine Thousand Three Hundred Seventy-five
Dollars ($9,375) semi-monthly. Scheduling of services will be determined by the
mutual agreement of FirstMerit and Contractor. Contractor will be reimbursed for
travel expenses in accordance with FirstMerit's policy.
Contractor agrees that the above-referenced sum constitutes a total
compensation for which he is entitled from FirstMerit. Contractor further agrees
that he will not be entitled to any other compensation or participation in any
other benefit or welfare plan sponsored by FirstMerit of whatever type or
description.
SECTION 5. CONFIDENTIALITY. Contractor shall not, during the Term of
this Agreement or anytime thereafter, disclose any administrative or financial
records or other confidential, proprietary information. Contractor agrees that
all records, whether administrative or financial, are and shall remain the
exclusive property of FirstMerit. At the end of the Term of this Agreement,
Contractor shall return to FirstMerit, without making any copies, all such
written confidential information. Contractor agrees that this provision survives
the Term of this Agreement.
SECTION 6. ASSIGNMENT. This is a contract for personal services by
Contractor and may not be assigned without FirstMerit's prior written consent.
SECTION 7. ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement among the parties relating to this engagement and supersedes all prior
agreements or understandings between Contractor and FirstMerit. No promises or
oral or written statements upon which Contractor has been told to rely have been
made to him other than those specifically set forth in this Independent
Contractor Agreement.
SECTION 8. SEPARABILITY. If any provision, paragraph or subparagraph of
this Agreement is adjudicated by any court of law to be void or unenforceable,
in whole or in part, the adjudication shall not be deemed to affect the validity
of the remainder of the Agreement, including any other provision, paragraph, or
subparagraph. Each provision, paragraph, or subparagraph of this Agreement is
declared to be separable from every other provision, paragraph and subparagraph
and constitutes a separate and distinct covenant.
2
3
SECTION 9. GOVERNING LAW. This Agreement shall be governed and
interpreted in accordance with the laws of the state of Ohio.
FIRSTMERIT CORPORATION
Date:2/12/99 By: /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------------
Its: Senior Vice President
----------------------------------
Date:2/12/99 /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
3
