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Exhibit 10.1 FIRSTMERIT CORPORATION
AMENDED AND RESTATED
CHANGE IN CONTROL TERMINATION AGREEMENT
(GREIG) THIS AGREEMENT
("Agreement") originally was effective May 18, 2006
("Effective Date"), by and between FirstMerit Corporation, an Ohio
corporation (the "Company"), and Paul Greig, the executive employee
who has executed this Agreement ("Employee"). Effective as of this
8th day of January, 2009, the parties hereby amend and restate the
Agreement (as previously amended and restated from time to time) as
set forth herein. RECITALS:
A. The Employee serves as an
executive and is considered a key corporate officer of the Company
or one of its affiliates. B. The
Board of Directors of the Company ("Board") has determined that the
interests of the Company’s shareholders will be best served
by ensuring that key corporate officers will adhere to the policies
of the Board and senior management with respect to any event by
which another entity would acquire effective control of the
Company. C. The Board has also
determined that it is in the best interests of the shareholders to
promote stability among key officers and employees, particularly
during the period leading up to and after another entity acquires
effective control of the Company.
D. Employee and the Company may
have previously entered into a Change in Control Termination
Agreement, which agreement is being replaced in its entirety by
this Agreement, and have also entered into a Displacement Agreement
which protects Employee in the circumstance of a displacement of
the Employee which occurred due to a merger or acquisition
described in the Displacement Agreement. If an event (or series of
events) creates an entitlement under both the Displacement
Agreement and this Agreement, the Employee will not be entitled to
be paid benefits under both this Agreement and the Displacement
Agreement but will be entitled to the benefit under this Agreement.
IN CONSIDERATION OF THE FOREGOING,
the mutual covenants hereinafter contained and other good and
valuable consideration, receipt of which is hereby acknowledged,
the Company and the Employee agree as follows:
1. Duties of Employee .
In exchange for the compensation and benefits described in this
Agreement, the Employee agrees to discharge the obligations
described in paragraph 9 and, consistent with his duties to
shareholders and other legal obligations, the Employee shall
support the position of the Board and the Company’s senior
management and shall take any action reasonably requested by the
Board and the Company’s senior management with respect to any
event that may or will constitute a Change in Control. The Employee
agrees (on his own behalf and in behalf of his heirs, assigns and
beneficiaries) that the compensation and benefits described in this
Agreement are adequate consideration for the obligations assumed in
this Agreement.
2. Change in Control. The
term "Change in Control" shall mean the occurrence of the earliest
to occur of any one of the following events on or after the
Effective Date and while the Employee is in the employ of the
Company or any Subsidiary ( i.e., any entity related to the
Company through common ownership as determined under
Sections 414 or 1563 of the Code) before a Change in Control
or, after a Change in Control, the Change Entity (as defined below)
or any Related Entity ( i.e., any entity related to the
Change Entity through common ownership as determined under
Sections 414 or 1563 of the Code):
(a) Individuals who, on
April 19, 2000, constituted the Board (the "Incumbent
Directors") cease for any reason to constitute at least a majority
of the Board, provided that any person becoming a director
subsequent to April 19, 2000 whose election or nomination for
election was approved by a vote of at least 2/3rds of the then
Incumbent Directors (either by a specific vote or by approval of
the proxy statement of the Company in which such person is named as
a nominee for director, without written objection to such
nomination) shall be an Incumbent Director; provided, however, that
no individual elected or nominated as a director of the Company
initially as a result of an actual or threatened election contest
with respect to directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of any person
other than the Board shall ever be deemed to be an Incumbent
Director; (b) Any "person" (as
such term is defined in Section 3(a)(9) of the Securities
Exchange Act of 1934 (the "Exchange Act") and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) becomes
through any means (including those described in paragraph (c)(i)
through (v)) a "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
the Company representing 50% or more of the combined voting power
of the Company’s then outstanding securities eligible to vote
for the election of the Board (the "Company Voting Securities");
(c) Any "person" (as such term
is defined in Section 3(a)(9) of the Exchange Act and as used
in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) becomes
a "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of Company Voting Securities
representing 25% or more (but less than 50%) of the Company Voting
Securities; provided, however, that the event described in this
paragraph (c) shall not be deemed to be a Change in Control
for purposes of this paragraph (c) by virtue of any of the
following acquisitions: (i) by
the Company or any Subsidiary;
(ii) by or through any employee
benefit plan sponsored or maintained by the Company or any
Subsidiary and described (or intended to be described) in Section
401(a) of the Code;
(iii) directly through an equity
compensation plan maintained by the Company or any Subsidiary,
including a program described in Section 423 of the Code;
(iv) by any underwriter
temporarily holding securities pursuant to an offering of such
securities;
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(v) by any entity or "person"
(including a "group" as contemplated by Sections 13(d)(3) and
14(d)(2) of the Exchange Act) with respect to which that acquirer
has filed SEC Schedule 13G indicating that the securities were
not acquired and are not held for the purpose of or with the effect
of changing or influencing, directly or indirectly, the
Company’s management or policies (regardless of whether such
acquisition of securities is considered to constitute the
acquisition of control under the Bank Holding Company Act of 1956
pursuant to Regulation Y promulgated thereunder), unless and
until that entity or person files SEC Schedule 13D, at which
point this exception will not apply to such Company Voting
Securities, including those previously subject to an SEC
Schedule 13G filing; or
(vi) pursuant to a Non-Control
Transaction (as defined in paragraph (d)).
(d) The consummation of a
merger, consolidation, statutory share exchange or similar form of
corporate transaction involving the Company or any of its
Subsidiaries that requires the approval of the Company’s
shareholders, whether with respect to such transaction or the
issuance of securities in connection with the transaction (a
"Business Combination"), unless immediately following such Business
Combination: (i) more than 50%
of the total voting power of (y) the corporation resulting
from such Business Combination (the "Surviving Entity"), or
(z) if applicable, the ultimate parent corporation that
directly or indirectly has beneficial ownership of 100% of the
voting securities eligible to elect directors ("Total Voting
Power") of the Surviving Entity (the "Parent Entity"), is
represented by Company Voting Securities that were outstanding
immediately prior to such Business Combination (or, if applicable,
shares into which such Company Voting Securities were converted
pursuant to such Business Combination), and such voting power among
the holders thereof is in substantially the same proportion as the
voting power of such Company Voting Securities among the holders
thereof immediately prior to the Business Combination; and
(ii) at least a majority of the
members of the board of directors of the Parent Entity (or, if
there is no Parent Entity, the Surviving Entity) following the
consummation of the Business Combination were Incumbent Directors
at the time of the Board’s approval of the execution of the
initial agreement providing for such Business Combination
Any Business Combination which
satisfies all of the criteria specified in (d)(i) and (d)(ii) shall
be deemed to be a "Non-Control Transaction");
(e) The shareholders of the
Company approve a plan of complete liquidation or dissolution of
the Company; or (f) Any other
event that constitutes a "change in control event" as defined in
Section Treasury Regulation §1.409A-3(i)(5) (a
"Section 409A Change in Control").
Notwithstanding the foregoing, a
Change in Control of the Company shall not be deemed to occur
solely because any person acquires beneficial ownership of more
than 25% of the Company Voting Securities as a result of the
acquisition of Company Voting Securities by the Company which
reduces the number of Company Voting Securities outstanding;
provided, that if
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after such acquisition by the Company such person becomes the
beneficial owner of additional Company Voting Securities that
increases the percentage of outstanding Company Voting Securities
beneficially owned by such person by more than one percent, a
Change in Control of the Company shall then occur.
For purposes of this Agreement, the
entity resulting from a Change in Control (including, if
appropriate, the Company) or succeeding to the Company’s
interest in connection with a Change in Control is referred to as
the "Change Entity." If more than one
event that constitutes a Change in Control occurs during a
Protection Period (as defined below), the Employee shall be
entitled to the amount that equals the largest after-tax amount
generated by any of the Changes in Control.
If one or more events generate a
payment under both this Agreement and the Displacement Agreement,
the Employee will be entitled only to the benefit described in this
Agreement. Notwithstanding any other
provision of this Agreement, the Employee will not be entitled to
any amount under this Agreement if he acted in concert with any
person or group (as defined above) to effect a Change in Control,
other than at the specific direction of the Board and in his
capacity as an employee of the Company or any Subsidiary.
2A. Benefits Upon Certain Changes
in Control .
(a) On
the occurrence of any Change in Control during Employee’s
employment with the Company or any Subsidiary, the Employee shall
be entitled to (and each of the Change Entity and all Related
Entities shall be jointly liable for) the benefits provided in
subparagraphs (b) and (c) below; provided that such
benefits shall not apply if such Employee’s employment with
the Company or any Subsidiary is subsequently terminated for Cause
(as used for purposes of this Agreement). For the avoidance of
doubt, nothing in this paragraph 2A shall operate to accelerate the
payment or settlement of any amount or benefit in a manner that
would violate Section 409A of the Internal Revenue Code of
1986, as amended ("Code").
(b) Except
as provided in subparagraph (a) above, upon a Change in
Control during Employee’s employment with the Company or any
Subsidiary (i) the Employee’s outstanding stock options,
restricted stock and other stock, phantom stock, stock appreciation
rights or similar arrangements in which he participates, whether
issued before, in connection with or after the Change in Control
will be fully vested and exercisable and settled as described in
the applicable plan or plans and (ii) notwithstanding any
provisions to the effect that rights terminate upon termination of
employment, the Employee (or his beneficiary) shall be given the
remaining period provided in the grant (determined without regard
to any termination of employment by the Employee following the
Change in Control), to realize or exercise all rights or options
provided under such plans with respect to any stock option, and
other stock, phantom stock, stock appreciation rights or similar
grants.
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(c) Except
as provided in subparagraph (a) above, upon a Change in
Control during Employee’s employment with the Company or any
Subsidiary, the following shall apply for purposes of calculating
the Employee’s benefits, if applicable, under the FirstMerit
Corporation Amended and Restated Supplemental Executive Retirement
Plan, originally effective on February 13, 1987 and amended
and restated effective of as November 20, 2008, and as maybe
amended from time to time, and/or any other nonqualified plan of
deferred compensation in effect during the Protection Period (the
"SERP"):
(i) The
Employee’s Average Monthly Earnings for purposes of the SERP
shall be deemed to be equal to the higher of (x) the
Employee’s Average Monthly Earnings under the SERP as then in
effect and (y) the total of the highest monthly base salary
earned by the Employee during the 24 months immediately
preceding the Employee’s termination of employment and the
value of the incentive compensation payment the Employee would
receive if payout was made at the "target" percentage for the
Employee under the Company’s Executive Incentive Plan (and/or
any analogous plan adopted after the date of this Agreement) in the
year of the Employee’s termination of employment (or any
higher percentage based on objective criteria specified in the
Incentive Compensation Plan for the year in which the date of
termination occurs and/or any analogous plan adopted after the date
of this Agreement) that the Employee has achieved before the date
of termination) in the year of Employee’s termination of
employment divided by 12.
(ii)
The terms of this paragraph 2A(c) shall apply only if the Employee
is a participant in the SERP, and shall supersede any contrary
provisions of the SERP and any membership agreement executed
between the Company and the Employee in connection with the
Employee’s participation in the SERP, unless expressly
provided otherwise in such membership agreement. The
Employee’s SERP benefit, calculated using the provisions of
this paragraph 2A(c), is assumed to commence on the earliest date
upon which the Employee is eligible to retire under the SERP for
purposes of determining the Actuarial Equivalent (as defined in the
SERP) of such benefit. 3.
Company’s Right to Terminate . The entity with which
the Employee has a direct employment relationship ("Employer") may
terminate the Employee’s employment at any time during the
term of this Agreement, subject to the terms of this Agreement and
the obligation to provide the amounts stated herein if due. For
purposes of this Agreement, any reference to the Employee’s
"termination" or "termination of employment" (or any form thereof)
shall mean the Employee’s "separation from service", within
the meaning of Section 409A of the Code, from the Employer and
all entities that, along with the Employer would be treated as a
single employer under Sections 414(b) and (c) of the Code.
4. Termination in Connection
With a Change in Control . In the event of termination of
employment from the Company or any Subsidiary before a Change in
Control or, after a Change in Control, the Change Entity or any
Related Entity (including an involuntary termination while the
employee is absent from active employment pending determination of
Disability under the procedures described in paragraph 4(a)) within
the "Protection Period" ( i.e. , the period beginning on the
date the Board first learns of an act or event that results in a
Change
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in Control, even if that period begins before the Effective
Date, and ending on the last day of the number of calendar months
specified in Item 10 on Exhibit A beginning coincident
with or immediately after a Change in Control), the Employee shall
be entitled to the benefits provided in paragraph 6 unless such
termination is because of the Employee’s death or
determination of Disability (as described in paragraph 4(a)), for
Cause, or by the Employee other than for Good Reason.
(a)
Disability . The term "Disability" shall mean termination
because of Total and Permanent Disability as defined in the
Long-Term Disability Plan in effect at any time during the
Protection Period in which the Employee is or was participating
when the condition began (or, if the Employee is or was not
participating in a Long-Term Disability Plan when the condition
begins, as defined under any long-term disability program in effect
at any time during the Protection Period). If the Employee is
deemed Disabled, his date of termination will be the end of any
period prescribed under the long-term disability plan for
determining eligibility for long term disability benefits and any
termination occurring before that date will not be a termination
for Disability. Also, any adjustment to the Employee’s
compensation, job duties or other circumstances of employment
during the period his Disability is being established will not
constitute a basis for "Good Reason" under paragraph 4(c).
(b)
Cause . The term "Cause" shall mean one or more of the
following acts of the Employee:
(i) any
act of fraud, intentional misrepresentation, embezzlement,
misappropriation or conversion by the Employee of the assets or
business opportunities of the Company or any Subsidiary before a
Change in Control or, after a Change in Control, the Change Entity
or any Related Entity;
(ii)
conviction of the Employee of (or plea by the Employee 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 Employee of the
Employer’s written policies or procedures;
(iii)
disclosure, other than through mere inadvertence, to unauthorized
persons of any Confidential Information (as defined below);
(iv)
intentional breach of any contract with or violation of any legal
obligation owed to the Company or any Subsidiary before a Change in
Control or, after a Change in Control, the Change Entity or any
Related Entity;
(v)
dishonesty relating to the duties owed by the Employee to the
Company or any Subsidiary before a Change in Control or, after a
Change in Control, the Change Entity or any Related Entity;
(vi)
the Employee’s (x) willful and continued refusal to
substantially perform assigned duties (other than any refusal
attributable to an event that constitutes Good Reason, as defined
in paragraph (c)), (y) willful engagement in gross
misconduct
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materially and demonstrably injurious to the Company or any
Subsidiary before a Change in Control or, after a Change in
Control, the Change Entity or any Related Entity or (z) breach of
any term of this Agreement; or
(vii)
any intentional cooperation with any party attempting to effect a
Change in Control unless (y) the Board has approved or
ratified that action before the Change in Control or (z) that
cooperation is required by law.
However, Cause will not arise solely
because the Employee is absent from active employment during
periods of vacation, consistent with the Employer’s
applicable vacation policy, 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 Employee and approved by the Employer.
The term "Confidential Information"
shall mean any and all information (other than information in the
public domain) related to the Company’s, any
Subsidiary’s, the Change Entity’s or any Related
Entity’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.
(c)
Good Reason . The term "Good Reason" shall mean any of the
following to which the Employee has not specifically consented in
writing:
(i) at
any time during the Protection Period, any breach of this Agreement
(including breach of the commitments undertaken under paragraph
9(d) of any nature whatsoever) by or on behalf of the Company or
any Subsidiary before a Change in Control or, after a Change in
Control, the Change Entity or any Related Entity;
(ii) at
any time during the Protection Period, a reduction in the
Employee’s title, duties, responsibilities or status, as
compared to either (y) the Employee’s title, duties,
responsibilities or status immediately before the beginning of the
Protection Period or (z) any enhanced or increased title, duties,
responsibilities or status assigned to the Employee during the
Protection Period;
(iii)
at any time during the Protection Period, the permanent assignment
to the Employee of duties that are inconsistent with (y) the
Employee’s office immediately before the beginning of the
Protection Period or (z) any more senior office to which the
Employee is promoted during the Protection Period;
(iv)
during any calendar year ending during the Protection Period (or
any fractional calendar year ending within the Protection Period),
a 15 percent (or larger) reduction (other than a reduction
that is attributable to any termination for death, after reaching
age 65 (but only if the Employee is then entitled to an immediate,
unreduced benefit under a deferred compensation plan described in
Section 401(a) of the Code),
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Disability or Cause, voluntary termination by the Employee other
than for Good Reason or for any period of temporary absence
protected by law or initiated by the Employee and approved by the
Employer) in the aggregate value of the highest of the
Employee’s total compensation for the calendar year ending
before the Date of Termination, as determined under paragraph 5
(including base salary, cash bonus potential, the value of employee
benefits, other than value associated solely with the performance
of investments the Employee controls, and fringe benefits but
excluding compensation attributable to the exercise or liquidation
of stock options) or, if higher, the Employee’s total
compensation for the last calendar year ending before the beginning
of the Protection Period (including base salary, cash bonus
potential (as distinguished from the cash bonus earned), the value
of employee benefits, other than value associated solely with the
performance of investments the Employee controls, and fringe
benefits) but, in both cases, determined without regard to any
amounts, paid or payable, under paragraphs 6, 7, 8 and 11;
(v) at
any time during the Protection Period, a requirement that the
Employee relocate to a principal office or worksite (or accept
indefinite assignment) to a location more than 50 miles distant
from (y) the principal office or worksite to which the
Employee was assigned immediately before the beginning of the
Protection Period or (z) any location to which the Employee
agreed, in writing, to be assigned after a Change in Control;
(vi) at
any time during the Protection Period, the imposition on the
Employee of business travel obligations substantially greater than
the Employee’s business travel obligations during the
12-consecutive-calendar-month period ending immediately before the
beginning of the Protection Period but determined without regard to
any special business travel obligations associated with activities
relating to the Change in Control;
(vii)
at any time during the Protection Period, the Employer’s
(u) 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 Employee is participating (or was
eligible to participate) immediately before the beginning of the
Protection Period, (v) modification of any of the plans or
programs just described that adversely affects the potential value
of the Employee’s benefits under those plans (other than
value associated solely with the performance of investments the
Employee controls) or (w) failure to provide the Employee,
after a Change in Control, with the same number of paid vacation
days to which the Employee is or becomes entitled at or anytime
during the Protection Period 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 Subsidiary before a Change in Control or, after a
Change in Control, the Change Entity or any Related Entity
terminates or modifies any such program during the Protection
Period 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 Subsidiary before a Change in Control
or, after a Change in Control, the
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Change Entity or any Related Entity replaces a plan or program
with a successor plan or program of equal or equivalent value to
the Employee;
(viii)
for the duration of any period of any absence from active
employment that begins or continues at any time during the
Protection Period, failure to provide or continue for the Employee
any benefits (including disability benefits) available to employees
who are absent from active employment (including because of
disability) under programs maintained by the Company, a Subsidiary,
the Change Entity or any Related Entity on the date the absence
(including disability) begins;
(ix)
during the Protection Period, the Employee is unable to perform
normally assigned duties because of a physical or mental condition
and before his Disability is established under paragraph 4(a), the
Company or any Subsidiary before a Change in Control or, after a
Change in Control, the Change Entity or any Related Entity
terminates the Employee before the end of the Disability
determination period described in paragraph 4(a);
(x)
during the Protection Period, the Company or any Subsidiary before
a Change in Control or, after a Change in Control, the Change
Entity or any Related Entity unsuccessfully attempts to terminate
the Employee for Cause, in which case the Effective Period will not
end earlier than 60 days after the conclusion of the
Employer’s unsuccessful attempt to terminate the Employee for
Cause;
(xi)
during the Protection Period, the Employer attempts to amend or
terminate this Agreement wi
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