FIRSTMERIT
CORPORATION
2008 EXCESS BENEFIT PLAN
Effective
as of January 1, 2008 (the “Effective Date”), the
Company adopts this Plan for the benefit of a select group of
management or highly compensated employees. The primary purpose of
the Plan is to provide supplemental retirement benefits to certain
employees that are not able to be provided under the Qualified Plan
as a result of limitations imposed by Section 401(a)(17) of
the Code. The Plan is an unfunded arrangement and is intended to be
exempt from the participation, vesting, funding and fiduciary
requirements set forth in Title I of ERISA.
When
used in this Plan, the following words, terms and phrases have the
meanings given to them in this Article unless another meaning is
expressly provided elsewhere in this document. When applying these
definitions and any other word, term or phrase used in this Plan,
the form of any word, term or phrase will include any and all of
its other forms.
1.01
“ Account ” means the bookkeeping account
established for each Participant as provided in Section 5.01
hereof.
1.02
“ Affiliate ” means any person that, along with
the Company, would be considered a single employer under Sections
414(b) and 414(c) of the Code.
1.03
“ Aggregated Plan” means any arrangement that,
along with this Plan, would be treated as a single nonqualified
deferred compensation plan under Treasury
Regulation Section 1.409A-1(c)(2).
1.04
“ Board ” means the Board of Directors of the
Company.
1.05
“ Cause ” means “cause” as defined
in any written agreement between the Participant and the Company or
any Affiliate or, if there is no written agreement or such term is
not defined therein, “Cause” means one or more of the
following acts of the Participant:
(a) Any
act of fraud, intentional misrepresentation, embezzlement,
misappropriation or conversion by the Participant of the assets or
business opportunities of the Company or any of its
Affiliates;
(b) Conviction
of the Participant of (or plea by the Participant of guilty to) a
felony (or a misdemeanor that originally was charged as a felony
but was reduced to a misdemeanor as part of a plea bargain) or
intentional and repeated violations by the Participant of the
written policies or procedures of the Company or any Affiliate, as
the case may be;
(c) Disclosure,
other than through mere inadvertence, to unauthorized persons of
any Confidential Information (as defined in
Section 1.11);
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(d) Intentional
breach of any contract with or violation of any legal obligation
owed to the Company or any of its Affiliates;
(e) The
Participant’s (i) willful and continued refusal to
substantially perform assigned duties (other than any refusal
resulting from sickness or illness or while suffering from an
incapacity due to physical or mental illness, including a condition
that does or may result in a Disability), (ii) willful
engagement in gross misconduct materially and demonstrably
injurious to the Company or any of its Affiliates or
(iii) breach of any term of this Plan; or
(f) Any
intentional cooperation with any party attempting to effect a
Change in Control unless (i) the Board has approved or
ratified that action before the Change in Control or (ii) that
cooperation is required by law.
Notwithstanding
the foregoing, “Cause” will not arise solely because
the Participant is absent from active employment during periods of
paid time off, consistent with the applicable paid time off policy
of the Company or any Affiliate, as the case may be, sickness or
illness or while suffering from an incapacity due to physical or
mental illness, including a condition that does or may result in a
Disability or other period of absence initiated by the Participant
and approved by the Company or an Affiliate, as the case may
be.
1.06
“ Change in Control ” means “change in
control” as defined in any written agreement between the
Participant and the Company or any Affiliate or, if there is no
such written agreement or such term is not defined therein, then
“change in control” as defined in the FirstMerit
Corporation Amended and Restated 2006 Equity Plan, as amended from
time to time.
1.07
“ Code ” means the Internal Revenue Code of
1986, as amended.
1.08
“ Committee ” means the Compensation Committee
of the Board.
1.09
“ Company ” means FirstMerit Corporation, an
Ohio corporation.
1.10
“Company Contributions ” means any Discretionary
Contributions and/or any Supplemental Matching
Contributions.
1.11
“ Confidential Information ” means any and all
information (other than information in the public domain) related
to the Company’s or any Affiliate’s business, including
all processes, inventions, trade secrets, computer programs,
technical data, drawings or designs, information concerning pricing
and pricing policies, marketing techniques, plans and forecasts,
new product information, information concerning methods and manner
of operations and information relating to the identity and location
of all past, present and prospective customers and
suppliers.
(a) the
Participant is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve
(12) months; or
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(b) the
Participant is, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than twelve
(12) months, receiving income replacement benefits for a
period of not less than three (3) months under an accident and
health plan covering employees of the Participant’s employer;
or
(c) the
Participant is determined to be totally disabled by the Social
Security Administration or Railroad Retirement Board.
1.13
“ Discretionary Contribution ” means a
contribution made by the Company or an Affiliate that is credited
to a Participant’s Account in accordance with
Sections 3.02 and 3.03 of this Plan.
1.14
“ Distribution Election Form ” means the form
prescribed by the Committee that each Eligible Employee or
Participant, as the case may be, may complete to designate the form
of distribution of his or her Account.
1.15
“ Eligible Employee ” means any person employed
by the Company or an Affiliate who is a member of a select group of
management or a highly compensated employee (both within the
meaning of Title I of ERISA), as determined by the Committee in its
sole and absolute discretion.
1.16
“ ERISA ” means the Employee Retirement Income
Security Act of 1974, as amended.
1.17
“ Good Reason ” means “good reason”
as defined in any written Change in Control Termination Agreement
or Displacement Agreement between the Participant and the Company
or any Affiliate or, if there is no such written agreement or such
term is not defined therein, “Good Reason” means any of
the following to which the Participant has not specifically
consented in writing:
(a) at
any time on or after a Change in Control, any breach of this Plan
by or on behalf of the Company or any Affiliate;
(b) at
any time on or after a Change in Control, a reduction in the
Participant’s title, duties, responsibilities or status, as
compared to either (i) the Participant’s title, duties,
responsibilities or status immediately before the Change in Control
or (ii) any enhanced or increased title, duties,
responsibilities or status assigned to the Participant on or after
the Change in Control;
(c) at
any time on or after a Change in Control, the permanent assignment
to the Participant of duties that are inconsistent with
(i) the Participant’s office immediately before the
Change in Control or (ii) any more senior office to which the
Participant is promoted on or after the Change in
Control;
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(d) during
any calendar year ending on or after a Change in Control (or any
fractional calendar year ending on or after a Change in Control), a
fifteen percent (15%) or larger reduction (other than a reduction
that is attributable to any Separation from Service due to death,
after reaching age sixty-five (65) (but only if the Participant is
then entitled to an immediate, unreduced benefit under a deferred
compensation plan described in Section 401(a) of the Code),
Disability or Cause, voluntary Separation from Service by the
Participant other than for Good Reason or for any period of
temporary absence protected by law or initiated by the Participant
and approved by the entity with which the Participant has a direct
employment relationship (the “Employer”)) in the
aggregate value of the highest of the Participant’s total
compensation for the calendar year ending before the date of
Separation from Service (including base salary, cash bonus
potential, the value of employee benefits, other than value
associated solely with the performance of investments the
Participant controls, and fringe benefits but excluding
compensation attributable to the exercise or liquidation of stock
options) or, if higher, the Participant’s total compensation
for the last calendar year ending before the Change in Control
(including base salary, cash bonus potential, the value of employee
benefits, other than value associated solely with the performance
of investments the Participant controls, and fringe
benefits);
(e) at
any time on or after a Change in Control, a requirement that the
Participant relocate to a principal office or worksite (or accept
indefinite assignment) to a location more than fifty
(50) miles distant from (i) the principal office or
worksite to which the Participant was assigned immediately before
the Change in Control or (ii) any location to which the
Participant agreed, in writing, to be assigned after a Change in
Control;
(f) at
any time on or after a Change in Control, the imposition on the
Participant of business travel obligations substantially greater
than the Participant’s business travel obligations during the
twelve (12) consecutive-calendar-month period ending
immediately before the Change in Control but determined without
regard to any special business travel obligations associated with
activities relating to the Change in Control;
(g) at
any time on or after a Change in Control, the Employer’s
(i) failure to continue in effect any material fringe benefit
or compensation plan, retirement or deferred compensation plan,
life insurance plan, health and accident plan, sick pay plan or
disability plan in which the Participant is participating (or was
eligible to participate) immediately before the Change in Control,
(ii) modification of any of the plans or programs just
described that adversely affects the potential value of the
Participant’s benefits under those plans (other than value
associated solely with the performance of investments the
Participant controls) or (iii) failure to provide the
Participant, after a Change in Control, with the same number of
paid vacation days to which the Participant is or becomes entitled
at or anytime after the Change in Control under the terms of the
Employer’s vacation policy or program. However, Good Reason
will not arise under this subsection solely because (x) the
Company or any Affiliate terminates or modifies any such program on
or after a Change in Control solely to comply with applicable law
but only to the extent required to meet applicable legal standards,
(y) a plan or benefit program expires under self-executing
terms contained in that plan or benefit program before the Change
in Control or (z) the Company or any Affiliate replaces a plan
or program with a successor plan or program of equal or equivalent
value to the Participant;
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(h) for
the duration of any period of any absence from active employment
that begins or continues at any time on or after a Change in
Control, failure to provide or continue for the Participant any
benefits (including disability benefits) available to employees who
are absent from active employment (including because of Disability)
under programs maintained by the Company or any Affiliate on the
date the absence (including Disability) begins;
(i) on
or after a Change in Control, the Participant is unable to perform
normally assigned duties because of a physical or mental condition
and, before the Participant’s Disability is established for
purposes of this Plan, the Participant incurs a Separation from
Service by the Company or any Affiliate before the end of the
Disability determination period;
(j) on
or after a Change in Control, the Company or any Affiliate
unsuccessfully attempts to cause the Participant to incur a
Separation from Service for Cause;
(k) on
or after a Change in Control, the Company attempts to amend or
terminate this Plan without regard to the procedures described in
Section 12.07; or
(l) failure
at any time to obtain an assumption of the Company’s or any
Affiliate’s obligations under this Plan by any successor to
any of them, regardless of whether such entity becomes a successor
to the Company or any Affiliate as a result of a merger,
consolidation, sale of assets or any other form of
reorganization.
Notwithstanding
the foregoing, if, within thirty (30) days after the date the
Participant gives the Company written notice of a Separation from
Service for Good Reason, the Company or its Affiliates, as the case
may be, corrects to reasonable satisfaction of the Participant the
condition specified in such notice as the basis for the Separation
from Service, such notice shall be deemed to have been withdrawn
and will be of no effect.
1.18
“ Investment Fund ” means each deemed investment
vehicle which serves as a means to measure value, increases or
decreases with respect to a Participant’s Account.
1.19
“ Participant ” means an Eligible Employee who
becomes a participant as described in Article 2.
1.20
“ Plan ” means the FirstMerit Corporation 2008
Excess Benefit Plan, as amended from time to time.
1.21
“ Plan Year ” means each calendar year during
which the Plan is in effect.
1.22
“ Qualified Plan ” means The FirstMerit
Corporation and Affiliates Employees’ Salary Savings
Retirement Plan, as amended from time to time.
1.23
“ Retirement ” means the date a Participant
Separates from Service and would qualify for retirement eligibility
under the Pension Plan for Employees of FirstMerit Corporation
& Affiliates if the Participant were eligible to participate in
such plan.
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1.24
“ Separation from Service ” means a
“separation from service” with the Company and its
Affiliates within the meaning of Section 409A of the Code and
Treasury Regulation Section 1.409A-1(h).
1.25
“ Specified Employee ” means a Participant who
is a “specified employee” as defined in Section 409A of
the Code and Treasury Regulation Section 1.409A-1(i) and
as determined under the Company’s policy for determining
specified employees.
1.26
“ Supplemental Matching Contribution ” means the
excess, if any, of (a) the maximum matching contribution which
could have been credited to an account for the Participant’s
benefit for the Plan Year under the Qualified Plan if the
limitations under Section 401(a)(17) of the Code were not
applied, minus (b) the actual matching contribution which was
credited to an account for the Participant’s benefit for such
Plan Year under the Qualified Plan.
1.27
“ Trust Fund ” means the trust established under
the Trust Agreement, if any.
1.28
“ Trust Agreement ” means an agreement, if any,
between the Company and a trustee under which the assets intended
to pay benefits under the Plan may be held, administered and
managed, which shall be substantially in the form provided under
Revenue Procedure 92-64.
1.29
“Valuation Date” means the last day of each
calendar month or any other more frequent date or dates fixed by
the Committee from time to time for the valuation and adjustments
of Accounts.
Article 2
— Participation
2.01
Commencement of Participation . Each Eligible Employee shall
become a Participant in the first Plan Year during which the
Eligible Employee is a participant in the Qualified Plan and the
Eligible Employee’s benefits under the Qualified Plan are
affected by the limitations under Section 401(a)(17) of the
Code.
2.02
Loss of Eligible Employee Status . Except as provided in
Section 3.03, a Participant who is no longer an Eligible
Employee or who no longer meets the requirements set forth in
Section 2.01 of this Plan shall not be eligible to receive
Company Contributions. Amounts credited to the Account of a
Participant who is no longer an Eligible Employee shall continue to
be held pursuant to the terms of the Plan and shall be distributed
as provided in Article 6.
Article 3
— Company Contributions
3.01
Supplemental Matching Contributions . With respect to each
Plan Year, the Company will make a deemed contribution to each
Participant’s Account in an amount equal to the Supplemental
Matching Contribution for such Plan Year.
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3.02
Discretionary Contributions . The Company and its Affiliates
reserve the right to make Discretionary Contributions to the
Account of one or more Participants in such amount and in such
manner as may be determined by the Board.
3.03
Crediting of Company Contributions . Company Contributions
for a Plan Year shall be credited to a Participant’s Account
only if the Participant has not Separated from Service prior to the
end of the Plan Year, unless such Separation from Service is due to
the Participant’s death, Disability or Retirement or as
otherwise determined by the Committee in its sole discretion. A
Company Contribution shall be credited to a Participant’s
Account as soon as administratively practicable following the
earlier of (a) the end of the applicable Plan Year or
(b) to the extent applicable, the Participant’s
Separation from Service.
4.01
Vesting of Company Contributions — In General
.
(a)
Vesting of Supplemental Matching Contributions . Subject to
Section 4.02 and provided that the Participant has not
Separated from Service, a Participant shall be vested in the
Participant’s Supplemental Matching Contributions in the same
percentage that the Participant is vested in matching contributions
under the Qualified Plan.
(b)
Vesting of Discretionary Contributions . Subject to
Section 4.02, each Participant shall have a vested right to
the portion of his or her Account attributable to any Discretionary
Contribution and any deemed earnings and losses on the investment
of such Discretionary Contribution in accordance with the vesting
schedule determined by the Board at the time the Discretionary
Contribution is made.
4.02
Accelerated Vesting Events . A Participant shall become one
hundred percent (100%) vested in the Participant’s Account
upon the earliest to occur of: (a) a determination that the
Participant is Disabled prior to the Participant’s Separation
from Service; (b) the Participant’s Separation from
Service due to his or her death or (c) the
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