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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
_____________, 1999, by and between FIFTH THIRD BANK, NORTHWESTERN OHIO, N.A., a
national banking association (the "Company") and XXXXXX X. XXXXXXX (the
"Employee").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of an Affiliation Agreement, dated as of
___________, 1999 (the "Affiliation Agreement"), The Strongsville Savings Bank
("Strongsville") will merge with and into the Company with the Company as the
surviving corporation; and,
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 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 Executive Vice President of the Company, and
shall be subject to the general supervision, direction and control of
the President and CEO of the Company. The Employee shall perform such
duties as are customary and appropriate in such capacities or offices.
2.2 It is understood and agreed that, without prior written approval
from the Board (which approval shall not be unreasonably withheld), the
Employee may 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)
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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 of Fifth Third
Bancorp ("Fifth Third Bancorp").
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 $366,700 for the
first twelve (12) months hereof; $383,800 for the
second twelve (12) months hereof; and $401,500 for
the final twelve (12) months hereof ("Annual Base
Salary"). The Annual Base Salary will be payable in
accordance with the standard payroll practices of the
Company.
(b) Annual Bonus - During the Employment Period Employee
will be eligible to receive an annual bonus up to the
following amounts: $238,355 with respect to the first
twelve (12) months hereof; $249,470 with respect to
the second twelve (12) months hereof; and $260,975
with respect to the final twelve (12) months hereof.
(c) The Employee shall be entitled to participate on a
non-discriminatory basis with all other similarly
situated employees of the Company, in any employee
voluntary 401(k), insurance or medical insurance
plan, or other benefit plan adopted by Fifth Third
Bancorp, or an Affiliate of Fifth Third Bancorp and
in effect from time to time, to the extent that such
plan is
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made available to similarly situated employees of the
Company and the Employee is eligible to participate
in such plan under the applicable provisions thereof.
Employee however, shall not participate in the Profit
Sharing or Variable Compensation Plans. Employee may
participate in the Fifth Third Bancorp Stock Option
Plan at the discretion of the Company.
(d) Notwithstanding any provision contained herein or in
the Affiliation Agreement, except for benefits under
any severance plan and/or change-in-control
agreement, the Employee shall retain any benefit that
he had accrued under any employee benefit plan
sponsored by Strongsville Savings Bank or any of its
affiliates as of the day preceding the Effective Time
(as defined in 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. Employee shall also continue vesting
under the Executive Supplemental Benefit Agreement
between Strongsville and Employee dated July 15, 1997
and the Executive Supplemental Benefit Agreement
between Strongsville and Employee dated January 1,
1995 as amended pursuant to an amendment dated July
15, 1997 (collectively, the "SERPs"). The vesting
schedule which is part of those agreements is
attached as Exhibit 1 hereto. The Company and the
Employee agree that the Employee will have no right
to receive a lump sum distribution under the SERPs
upon the change-in-control of the ownership of
Emerald Financial Corp. or Strongsville. Upon the
early retirement or termination of employment of
Employee, the Company shall pay to Employee all
benefits vested under the SERPs at the time of such
early retirement or termination in a lump sum payment
pursuant to Section 2 of the SERPs.
(e) Subject to Employee's collateral assignment of the
insurance policy to the Company, the Company shall
continue to pay through and including the policy's
seventh anniversary on March 1, 2003 the annual
premiums due on Employee's Split Dollar Life
Insurance Policy (policy #L1020632) issued pursuant
to the Split Dollar Life Insurance Agreement dated
April 16, 1997. Even if the Employee's employment
with the Company is terminated prior to the seventh
anniversary of the policy, the Company will continue
to pay the premiums due on the policy through and
including the policy's seventh anniversary on March
1, 2003, subject to Employee's continued collateral
assignment of the policy to the Company.
Notwithstanding any provision in the Split Dollar
Life Insurance Agreement, there shall be no
acceleration of benefits under the Split Dollar Life
Insurance Agreement upon a change-in-control of
Strongsville or the Company.
(f) Within six (6) months from the Effective Date of this
Agreement, the Company shall provide Employee with
written notice of its determination
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of whether or not the Company intends to continue to
maintain the Key Man Life Insurance Policy on
Employee (policy #L1029117). If the Company
determines not to maintain the policy, Employee shall
have a right of first refusal to purchase the policy
for the policy's interpolated terminal reserve value.
Such right of first refusal must be exercised by
Employee within fifteen (15) days from the date the
Company gives written notice of its decision pursuant
to this Section 3.1(f). If the Company elects to
continue to maintain the policy but later elects to
discontinue the policy, the Company will use
reasonable efforts to offer the Employee the right to
purchase the policy but the Company will have no
liability to the Employee for failure to make such
offer.
(g) The Company acknowledges that the Employee owns that
certain disability policy insuring the Employee
described as policy nos. LAD 052339, LAD 280954 and
LAD 283480 issued by UNUM (the "Disability Policy").
The Company further acknowledges that Strongsville
currently pays the premiums owed under the Disability
Policy. On the Effective Date of this Agreement, the
Company agrees to assume the obligation to pay the
premiums under the Disability Policy and will
continue to make such payments until such time as
Employee's employment with the Company is terminated
or Employee retires from such employment, on which
date the Company shall cease to make such premium
payments.
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. In the event of the mutual agreement of the
parties to the termination of the Employee's employment with the
Company under this Agreement (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.
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(b) In the event of Death or Total Disability, Employee
(or Employee's estate in the event of death) shall be
entitled to receive Annual Base Salary, as described
in Section 3.1(a) for the remaining term of this
Agreement; and the Annual Bonus payable with respect
to the year during which the Agreement was terminated
prorated for the number of months during that year of
the Agreement that this Agreement remained in effect
(for example if the Employee's employment is
terminated pursuant to this Section after six months
of any year that this Agreement is in effect,
Employee will be entitled to one-half of his Annual
Bonus for that year).
(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.
(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) personal
dishonesty; (ii) incompetence; (iii) material breach
of any provision of this Agreement; (iv) breach of
fiduciary duty involving personal profit; (v)
intentional failure to perform stated duties; (vi) a
material breach of the reasonable policies and
procedures for the operation of the Company provided
to the Employee by formal action of the Board; (vii)
willful violation of any law, rule, regulation (other
than a law, rule or regulation relating to a traffic
violation or similar offense) or final
cease-and-desist order; or (viii) willful misconduct.
(b) Upon any termination pursuant to Section 4.3(a) the
Employee (i) shall be entitled to all accrued but
unpaid Annual Base Salary under Section 3.1(a)
through the date of termination, and (ii) shall
forfeit all entitlements to unpaid Annual Base Salary
and Annual Bonus and all related benefits 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).
(c) (i) For the purposes of Paragraph 4.3(a)(i),
"incompetence" shall mean the Employee's inability to
perform his duties hereunder due to insufficient
knowledge or skills; when determining incompetence,
the Board shall measure the Employee's acts and
omissions against standards then prevailing in the
banking industry. (ii) For purposes of Paragraph
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4.3(a)(vii) and 4.3(a)(viii), no act, or failure to
act, on the Executive's part shall be considered
"willful" unless he has 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. (iii) For purposes of
Paragraph 4.3(a)(vii), a cease-and-desist order shall
not become final until exhaustion or lapse of all
(administrative and judicial) appeal rights in
relation thereto.
(d) The Employee shall not be deemed to have been
terminated for cause unless there shall have been
delivered to the Employee a copy of a resolution duly
adopted by the affirmative vote of not less than a
majority of the entire membership of the Board at a
meeting of the Board called and held for the purpose
(after reasonable notice to the Employee and an
opportunity for the Employee, together with his
counsel, to be heard before the Board) , finding that
in the good faith opinion of the Board, the Employee
was guilty of conduct set forth above in the second
sentence of this Paragraph 4.3(a) and specifying the
particulars thereof in detail. In no event will the
Employee be subject to termination for cause pursuant
to Paragraph 4.3(a)(iii) above unless the Employee
shall have failed to cure, correct or prevent the
alleged breach within thirty (30) days after such
resolution has been delivered to the Employee.
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 Annual Base Salary, as described in Section 3.1(a)
for the remaining term of this Agreement; and the Annual Bonus payable
with respect to the year during which the Agreement was terminated
prorated for the number of months during that year of the Agreement
that this Agreement remained in effect (for example if the Employee's
employment is terminated pursuant to this Section after six months of
any year that this Agreement is in effect, Employee will be entitled to
one-half of his Annual Bonus for that year); provided, however, that if
Employee is terminated by the Company for any reason other than Cause
prior to a date which is six months from the Effective Date of this
Agreement, Employee shall be entitled to receive one-half of his first
year's Annual Bonus. "Resignation for Good Reason" shall mean the
termination of this Agreement by the Employee in the event that there
is: (a) A change in the Employee's status, title, position or
responsibilities (including reporting responsibilities) which, in the
Employee's reasonable judgment, does not represent a promotion from his
status, title, position or responsibilities as in effect immediately
prior thereto; the assignment to the Employee of any duties or
responsibilities which, in the Employee's reasonable judgment, are
inconsistent with such status, title, position or responsibilities; or
any removal of the Employee from or failure to reappoint him to any of
such positions, except in connection with the termination of his
employment for (i) disability, (ii) Cause, (iii) as a result of his
death or (iv) by the Employee other than for Good Reason; (b) A
reduction by the Company in the Employee's Annual Base Salary or Annual
Bonus; (c) Requiring the Employee to be based at any place other than
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Strongsville, Ohio, except for reasonably required travel on the
Company's business which is not materially greater than such travel
requirements prior to the date of this Agreement; (d) The adverse and
substantial alteration in the nature and quality of the office space
within which the Employee performs his duties, including the size and
location thereof, as well as the secretarial and administrative support
provided to the Employee; (e) The failure by the Company to continue to
provide the Employee with compensation and benefits provided for under
this Agreement or benefits substantially similar to those provided to
him under any of the employee benefit plans in which the Employee
becomes a participant, or the taking of any action by the Company which
would directly or indirectly materially reduce any of such benefits or
deprive the Employee of any material fringe benefit enjoyed by him
prior to the Effective Time and continued by the terms of this
Agreement; (f) Any material breach by the Company of any provision of
this Agreement; and (g) Removal of Employee as a member of the Board of
the Company.
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 who 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 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's spouse or any of his
children or other family members and shall not be
applicable to any activity of the Employee which
existed at the time of this Agreement and which was
disclosed by the Employee to the Company.
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(b) The term "Restricted Period" shall mean the period
beginning on the Effective Date and ending the
earlier of: (i) two years after termination of
Employee's employment; or (ii) three years from the
Effective Date.
(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.
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 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.
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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 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
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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 or obligations hereunder without the prior written
consent of the other party. Any merger or consolidation of the Company
(or any direct or indirect parent thereof) or any sale or transfer of
all or substantially all of the stock or assets of the Company (or any
direct or indirect parent thereof) shall be deemed an assignment in
violation of the terms of this Section 9. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
heirs, personal representatives, successors and permitted assigns.
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.
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All communications will be sent to the party to whom they are directed
at the addresses set forth below:
(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. Although this Agreement has been executed
by the parties as of the date written above, this Agreement shall
become effective only and immediately upon consummation of the merger
described in the Affiliation Agreement.
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.
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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.
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. Except for the determination of disability provided for in
Section 4.2, any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then
in effect. Judgement may be entered on the arbitrator's award in any
court having jurisdiction.
21. PAYMENT OF LEGAL FEES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel)
incurred by the Employee as a result of (i) Employee's termination of
employment including all such fees and expenses, if any, incurred in
contesting or disputing any such termination of employment or (ii) the
Employee seeking to obtain or enforce any right or benefit provided by
this Agreement or by any other plan or arrangement maintained by the
Company under which the Employee is or may be entitled to receive
benefits.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
FIFTH THIRD BANK,
NORTHWESTERN OHIO, N.A.
By:
Its:
EMPLOYEE
Xxxxxx X. Xxxxxxx
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