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EXHIBIT 10.8
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 XXXXX X. XXXXX (the "Employee").
W I T N E S S E T H :
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 of CitFed Bancorp, Inc. ("CitFed") into the
Company 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, The Fifth Third Bank of Western
Ohio (the "Bank") 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 and as a director of The Fifth Third Bank of Western Ohio. 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 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
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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) 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.
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(b) Annual Bonus - During the Employment Period Employee will
receive from the Company an annual bonus of $150,000.
(c) Incentive Award - On the Effective Date, the Company will
grant the Employee an option to acquire 50,000 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 or termination of the employment of the Employee
for any reason other than Termination for Cause or
resignation of the Employee (other than Resignation for
Good Reason). To the extent vested, the Option will remain
exercisable until ten (10) years from the date of grant,
notwithstanding termination of the employment of the
Employee for any reason other than Termination for Cause
and notwithstanding any provision of such Plan.
(d) Retirement Benefit - The Company shall provide a
Retirement Benefit to the Employee that will provide an
annual benefit equal to 17% of the Employee's Annual
Salary and Annual Bonus. The Employee shall be paid from
the Retirement Benefit after the Expiration Date, or upon
termination of employment for any reason if earlier.
Employee shall be paid the annual Retirement Benefit 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 with appropriate reduction in the annual
payment to result in the same present value). 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 CitFed or its affiliates.
(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, including, without limitation the
Company's Master Profit Sharing Plan (the
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"Profit Sharing Plan"), 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.
Notwithstanding any other provision of this Agreement,
in the event that the vested contribution to the
Employee under the Profit Sharing Plan does not equal or
exceed at least 14% of the total of the Employee's Base
Salary and Bonus for the prior year, the Company will
provide Employee with an additional benefit such that
the total vested benefit provided to Employee with
respect to the Profit Sharing Plan and such additional
benefit totals at least 14% of Employee's Base Salary
and Bonus for the prior year.
(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 which
have been fully paid and satisfied, the Employee shall
retain any benefit that he had accrued under any employee
benefit plan sponsored by CitFed or any of its affiliates
as of the day preceding the Effective Time (as defined in
the Affiliation Agreement between the Company and CitFed
dated as of January __, 1998 (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 and Employee shall specifically,
without limitation, be entitled to all post-retirement
health benefits provided in the Supplemental Executive
Retirement Plan maintained by CitFed prior to the date
hereof.
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
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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 the Employee.
(b) The Employee's right to receive Annual Salary under
Section 3.1(a) 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 (or his designated
beneficiary or estate) shall be entitled to receive any
compensation that was awarded to the Employee prior to the
date of termination but remains unpaid and in any event
Employee shall be entitled to receive (if Employee has not
already received) at least one year's Annual Salary, Bonus and
Profit Sharing (and other benefits as provided in Section
3.1(e) above) under this Agreement. In addition, Employee (or
Employee's estate) shall continue to receive the Non-Compete
payment provided in Section 5.1(e). 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 Section 3.1(c) and all other
benefits will be exercisable in accordance with the applicable
Plans.
(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) intentional misconduct and/or
gross negligence by the Employee that has a material
adverse affect on the Company or the Bank, monetarily or
otherwise, or (ii) material breach of any provision of
this Agreement by Employee. No act by the Employee shall
be considered intentional unless the Employee acted or
failed to act with an absence of good faith and without a
reasonable belief that his action or failure to act was in
the best interest of the Company. Notwithstanding the
foregoing, the Employee shall not be deemed to have been
Terminated for Cause unless and until there shall have
been delivered to the Employee a copy of a resolution,
duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board at a
meeting of the Board duly called and held for such purpose
(after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's
counsel , to be heard before the Board), stating that in
the good faith opinion of the Board the Employee has
engaged in conduct described in the preceding sentence and
specifying the particulars thereof in detail.
(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(a) 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) and shall continue to
receive the Non-Compete payment pursuant to Section
5.1(e). 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(a); Annual Bonus described in Section 3.1(b); the
Incentive Award, as described in Section
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3.1(c); the Retirement Benefits, as described in Section 3.1(d),
with no reduction in the present value amount contained in such
Section; the Profit Sharing or such additional benefit described
in Section 3.1(e); and the Non-Compete payment described in
Section 5.1(e). 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 25 miles from Employee's work location while with CitFed,
or (ii) Employee's duties under this Agreement are subject to 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, or (v) the
Employee is not appointed or elected to the Board of Directors
of the Company and as Chairman of the Board of Directors of the
Bank.
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 which 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
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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 five (5) years after the
Expiration Date, 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 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.
(e) As separate consideration for the covenants contained in
this Section 5.1, the Employee shall receive an annual payment
equal to $250,000 per year (the "Non-Compete" payment). The
Non-Compete payment shall be paid in monthly installments
beginning on the Expiration Date and continuing for a period of
five (5) years thereafter. Regardless of any other provision of
this Agreement, the Non-Compete payment shall be paid
notwithstanding the resignation, death, disability or
termination (whether or not for Cause) of the Employee.
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
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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 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
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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 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
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or obligations hereunder without the prior written consent of the other
party; provided, however, that the Company shall require any successor
or assign (whether direct or indirect, by purchase, merger,
consolidation, operation of law or otherwise) to all or substantially
all of the business and/or assets of the Company, by an assumption
agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform if
no such succession or assignment had taken place. Failure of the
Company to obtain such an assumption agreement prior to the
effectiveness of any such succession or assignment shall be a breach of
this Agreement and shall entitle the Employee to compensation and
benefits from the Company in the same amount and on the same terms that
he would be entitle to hereunder if he terminated his employment for
Good Reason. For purposes of implementing the provisions of this
Section 9, the date on which any such succession becomes effective
shall be deemed the date of termination of this Agreement.
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 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:
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(a) If to Employee:
(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. This Agreement shall become effective as of
the date hereof.
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.
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.
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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.
20. ARBITRATION. Any disputes between the Company and the Employee under
this Agreement shall be submitted to final and binding arbitration
before a panel of three arbitrators in Dayton, Ohio in accordance with
the rules of the American Arbitration Association then in effect. Any
legal costs incurred by the Employee shall be reimbursed by the Company
as and when paid by the Employee in an amount up to but not to exceed
$50,000. If the Employee does not prevail in any such dispute the
Employee shall reimburse the Company for all legal expenses advanced to
the Employee and the Employee shall also be responsible for the
Company's legal expenses in an amount up to $50,000.
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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Xxxxx X. Xxxxx
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