Exhibit 10.35
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective this 16th day of May, 2002 by and between
FirstMerit Corporation, its subsidiaries and affiliates ("FirstMerit") and
Xxxxx X. Xxxxx ("Xxxxx").
WITNESSETH:
A. WHEREAS, FirstMerit and Xxxxx desire to enter into a relationship
whereby Xxxxx will become employed by FirstMerit under the terms of
this Agreement as Executive Vice President and Chief Credit Officer;
and
B. WHEREAS, as a condition of continued employment, FirstMerit has
required that Xxxxx agree to refrain from competing with FirstMerit
or disseminating or improperly using confidential information of
FirstMerit and Xxxxx is willing to make such a commitment, in
accordance with the provisions of this Agreement; and
C. WHEREAS, FirstMerit and Xxxxx desire to enter into this Agreement to
provide for the continuation of Xxxxx'x services to FirstMerit for a
term certain.
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, Xxxxx shall serve as Executive Vice
President and Chief Credit Officer. The Chairman and Chief Executive Officer
shall, from time to time and subject to modification at any time and at his sole
discretion, hereafter assign such responsibilities and duties as they may deem
appropriate. Xxxxx 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 Chairman of the Board and Chief Executive Officer of FirstMerit.
2. Term of Agreement
The term of this Agreement shall commence May 16, 2002, and shall continue
until December 31, 2005, unless such term is earlier terminated as hereinafter
provided. Xxxxx and FirstMerit agree that on January 1, 2006 Xxxxx shall become
an at will employee of FirstMerit. In the event of a Change in Control during
the term of this Agreement, employee shall receive the compensation and benefits
set forth in paragraph 3 and 4 below for the remainder of the term of this
Agreement. The term change in control shall be defined under the Change in
Control Agreement and Displacement Agreement between Xxxxx and FirstMerit of
even date. Any compensation and benefits to which Xxxxx is entitled under this
Agreement are in addition to any compensation and benefits to which he may be
entitled under the Change in Control Agreement and Displacement Agreement
between Xxxxx and FirstMerit.
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3. Compensation
During the term of this Agreement, FirstMerit shall pay Xxxxx for his
services the sum of Nine Thousand Three Hundred Seventy-five Dollars ($9,375.00)
paid semimonthly, subject to any salary increases that may occur from time to
time and at the sole discretion of FirstMerit. 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.
Xxxxx shall also 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. Employee Benefits
During the term of this Agreement, Xxxxx shall be eligible to participate
in the following employee benefits from FirstMerit as applicable:
(a) Xxxxx shall be eligible to participate in such retirement,
medical, and other employee benefit plans as may be maintained by
FirstMerit during the term of this Agreement.
(b) Xxxxx shall be eligible to participant in the Executive Life
Insurance Program that FirstMerit may maintain during the term of this
Agreement. Xxxxx shall be personally obligated to pay any and all taxes
associated with this life insurance benefit.
(c) Xxxxx shall be granted stock options of FirstMerit common stock
in accordance with the Restricted Stock Award Agreement dated May 16,
2002. Any unexercised and outstanding stock options will vest and will be
exercisable in accordance with the terms of the Agreement.
(d) Xxxxx shall be eligible to participate in the Executive
Supplemental Retirement Plan ("SERP"). Such SERP benefits are defined in
the plan documents as may be amended from time to time at the discretion
of the FirstMerit Board of Directors.
(e) Xxxxx shall be eligible to participate in the FirstMerit
Executive Incentive Plan at performance levels established from time to
time by the FirstMerit Board of Directors.
5. Termination
(a) FirstMerit may terminate the employment of Xxxxx under the
Agreement without notice for Just Cause. Notwithstanding anything to the
contrary contained herein, it shall be considered Just Cause to terminate
the Xxxxx'x employment upon the happening of any of the following:
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1. The retirement or death of Xxxxx;
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, Xxxxx 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 Xxxxx.
6. Trade Secrets and Confidential Information.
Xxxxx acknowledges that, as Chief Credit 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").
Xxxxx agrees that the Confidential Information is and will be of special and
unique value to FirstMerit. Xxxxx 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, Xxxxx 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. Excluded from the definition of
Confidential Information is (a) information which is publicly available, other
than as a result of actions by Xxxxx in breach of this Agreement; and (b)
information which is disclosed by FirstMerit to third parties on a
non-confidential basis.
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7. 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 Xxxxx,
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 Xxxxx'x consent.
8. 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.
9. Entire Agreement
This Agreement sets forth the entire agreement of the parties herein with
regard to the employment of Xxxxx 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 16th day of May, 2002.
Witnesses: FIRSTMERIT CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Its: Chairman and Chief Executive Officer
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/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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