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Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
September 8, 1998, by and between FIFTH THIRD BANCORP, an Ohio corporation (the
"Company") and XXXXXXX XXXXXXXX III (the "Employee").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of an Affiliation Agreement, dated as of
September 8, 1998 (the "Affiliation Agreement"), ASHLAND BANKSHARES, INC.
("Ashland") will merge with and into 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, which shall be contingent upon the
closing of the transaction contemplated by the Affiliation Agreement and
which employment shall be effective on the date of closing of the
Affiliation Agreement (the "Effective Date") and expiring on the earlier of
December 31, 2001 or the date the Employee's employment with the Company is
terminated as hereinafter provided (the "Expiration Date"). 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 period between the Effective Date and the Expiration
Date (the "Employment Period"), the Employee shall be employed by the
Company in the position of Chairman of the Board of Fifth Third Bank of
Southern Ohio, an Ohio banking corporation ("Fifth Third Southern
Ohio") 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 Fifth Third Southern
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 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
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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 $212,000 ("Annual Base Salary").
The Annual Base Salary will be payable in accordance with the
standard payroll practices of the Company.
(b) Incentive Compensation - During the Employment Period Employee
will be entitled to receive an annual bonus up to a maximum
amount of 35% of Employee's Annual Base Salary in accordance
with the terms of the Company's Officer's Incentive
Compensation Program. The Employee will be eligible for
payment of the first such bonus the fourth quarter of 1999.
(c) Option Awards - On the Effective Date, the Company will grant
the Employee an option to acquire ten Thousand (10,000) 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 fully vest on the
date of grant and will remain exercisable until ten (10) years
from the date of grant. During the Employment Period, the
Employee shall be eligible to participate in Fifth
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Third's Employee Stock Option Plan and shall be entitled to
receive grants of additional options on the dates, in amounts
and for vesting periods in accordance with the terms of the
Plan.
(d) 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), profit sharing,
vacation, disability, life 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, 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 plans under the applicable provisions thereof.
(e) 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.
(f) 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 Ashland Bankshares, Inc. 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.
(g) Fifth Third acknowledges that, pursuant to a lease agreement,
dated July 15, 1998, between Xxx Xxxx Chevrolet-Oldsmobile and
Ashland (the "Lease") a copy of which is attached hereto as
Exhibit A, Ashland leased a 1999 Chevrolet Tahoe automobile
for the benefit of the Employee. During the Employment Period,
the Company agrees either (to be determined in the Company's
discretion) to assume the Lease and permit the Employee to
continue to drive the automobile or to reimburse the Employee
for amounts owed under the Lease, in each case until the
earlier of the end of the original term of the Lease or the
end of the Employment Period, which reimbursement shall be
increased by an amount equal to any taxes owed by the Employee
as a result of such reimbursement.
(h) The Company acknowledges that Ashland maintains for the
benefit of the Employee the policies of life insurance on the
life of the Employee described on Exhibit B attached hereto
(the "Policies"). In the event the Company elects, in its sole
discretion, not to continue to pay premiums on the Policies,
the Employee shall be granted the right of first refusal to
purchase the Policies. The Company shall notify the Employee
at least 20 days prior to the date it will cease to make
payments of the Premiums on the Policies and the Employee will
have ten days to notify the Company whether or not he wishes
to assume the Policies. The purchase price for the Policies
shall be determines by Fifth Third. In the event that any
Policies purchased by the Employee have a cash value, the
purchase price shall include reimbursement for such cash
value.
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(i) The Company acknowledges that the Employee is a member of the
___________ Country Club, and that Ashland has reimbursed the
Employee for annual dues in the amount of $4,000 per year.
During the Employment Period, the Company agrees to either pay
directly or reimburse the Employee (grossed up for taxes owed
on such amount) for the amount of such dues.
(j) The Company acknowledges the existence of a supplemental
executive retirement plan ("SERP") in an amount which is shown
on the financial statements of Ashland for the benefit of
certain executives, including but not limited to the Employee.
The Company agrees to permit a contribution by Ashland to the
SERP not to exceed $15,000 for fiscal year 1998 and to either,
in the Company's discretion, (i) merge the SERP into a similar
supplemental executive retirement plan maintained by the
Company so that the Employee may continue its benefits under
the SERP, or (ii) liquidate the SERP and distribute the
benefits to the Employee which amount shall be grossed up to
take into effect the taxes owed on such amount (unless the
Employee may roll over such amounts into a tax free retirement
account).
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 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 shall be entitled to
receive any compensation that was awarded to the Employee
prior to the date of termination
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but remains unpaid. All retirement benefits as described in
Section 3.1 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 remain vested vest and will
be exercisable in accordance with the Fifth Third Stock Option
Plan, or such other relevant benefit plan.
(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) any material breach of any of the terms of this
Agreement by the Employee and any such breach shall not be
remedied within thirty (30) days from the date the Company
delivers written notice thereof to Employee specifically
identifying the nature of the facts constituting Cause under
any such case; (ii) fraud, embezzlement, misappropriation; or
any willful misconduct of the Employee in connection with his
employment hereunder; (iii) any violation of any statutory or
common law fiduciary duty or duty of loyalty to the Company or
any of the Company's clients as determined by a court of
competent jurisdiction; (iv) any finding or adjudication by a
court, government agency or regulatory authority that the
Employee has violated any law, rule or regulation relating to
the regulation of banks or financial institutions, which
finding or adjudication, in the reasonable judgment of the
Board, could have a material adverse effect on the reputation
or business of the Company and its Affiliates on a
consolidated basis, or (v) any order, judgment or decree
(whether entered by consent or after trial or adjudication) of
any court, government agency or regulatory authority which
censures or imposes any sanctions on the Employee in
connection with banking or financial institutions related
activities or which enjoins, bars, suspends or otherwise
limits the Employee from engaging in any activity in
connection with the business of banking or financial
institutions.
(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
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termination for Cause). 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); the Incentive Award, as described in Section 3.1(b);
and the Retirement Benefits, as described in Section 3.1(d),
with no reduction in the present value amount contained in
such Section. 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 50 miles from Employee's work
location while with Ashland Bankshares, Inc., 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.
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,
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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 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 two years after
termination of Employee's employment, 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.
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
non-confidential 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
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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. All communications will be sent to the party to
whom they are directed at the addresses set forth below:
(a) If to Employee: Xxxxxxx Xxxxxxxx III
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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(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.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
FIFTH THIRD BANCORP
By: /s/ XXXXXX X. XXXXXXX
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Its: Executive Vice President
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/s/ XXXXXXX XXXXXXXX III
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XXXXXXX XXXXXXXX III
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