EXHIBIT (10)I.(i)
MANAGEMENT CONTINUITY AGREEMENT
The Amendment and Renewal of this Agreement is effective as of
November 20, 1996 between FIRST OF AMERICA BANK CORPORATION, a
Michigan Corporation with an office at 211 S. Rose St., Kalamazoo,
Michigan 49007 (the "Company") and
[EMPLOYEE NAME]
whose address is: [ADDRESS]
(the "Officer")
W I T N E S S E T H
WHEREAS, the Officer is employed by the Company as an officer of
the Company with the title and salary current at the effective date of
this Agreement as set forth in this Agreement; and
WHEREAS, the Officer and the Company are parties to a Management
Continuity Agreement effective February 15, 1995, and the Officer and
the Company wish to amend and renew said Management Continuity
Agreement; and
WHEREAS, the Company wishes to attract and retain highly
qualified executives and to achieve this goal it is in the best
interests of the Company to secure the continued services of the
Officer regardless of a change in control of the Company; and
WHEREAS, the Company is willing, in order to provide the Officer
a measure of security with respect to his employment with the Company
in the event of a change in control of the Company so that the Officer
will be in a position to act with respect to a possible change in
control of the Company in the best interests of First of America Bank
Corporation and its shareholders, without concern as to the Officer's
own financial security, and in order to induce the Officer to remain
in employment with the Company, to agree that employment of the
Officer shall be terminable only for cause for a limited period after
a change in control of the Company.
NOW, THEREFORE, the Company and the Officer agree as follows:
Section 1
Employment
1.1 Term. The Company shall employ the Officer as Senior Vice
President, First of America Bank Corporation and the Officer shall
remain in employment with the Company for a period of five years from
the effective date of this Agreement (the "Term") unless terminated
prior to the expiration of the Term pursuant to Section 2.
1.2 Compensation. As compensation for services provided to the
Company by the Officer pursuant to this Agreement, the Company shall
pay the Officer an annual base salary of $___________, which salary
may be increased from time to time by the Company. The Officer shall
also be eligible to actively participate in any other compensation and
benefit plans generally available to executive employees of the
Company of like grade and salary including, but not limited to,
retirement plans, group life, disability, accidental death and
dismemberment, travel and accident, and health and dental insurance
plans, incentive compensation plans, stock compensation plans,
deferred compensation plans, supplemental retirement plans and excess
benefit plans. Such other compensation and benefit plans are
hereinafter referred to collectively as the "Compensation and Benefit
Plans".
1.3 Duties. The Officer shall perform such duties and functions
as are assigned to him by the bylaws of the Company, as amended or
restated, the Board of Directors of the Company, or by a duly
authorized committee of the Board of Directors of the Company, or by
an officer of more senior rank than the Officer. In the event of an
actual or potential Change in Control (as defined in Section 2.9), the
Officer shall perform his duties and functions in a manner that is
consistent with the best interest of the Company and its shareholders,
without regard to the effect that the potential or actual Change in
Control may have on the Officer personally.
1.4 Duty of Loyalty. The Officer shall work full-time for the
Company only, provided that:
(a) he may also engage in charitable, civic and other
similar activities;
(b) with the consent of the Board of Directors or the Chief
Executive Officer of the Company, he may serve as a
director of a business organization not competing with
the Company; and
(c) he may make such investments and reinvestment in
business activities as shall not require a substantial
portion of his time.
1.5 Duty Not to Disclose Confidential Information. The Officer
acknowledges that his relationship with the Company is one of high
trust and confidence, and that he has access to Confidential
Information (as hereinafter defined) of the Company. The Officer
shall not, directly or indirectly, communicate, deliver, exhibit or
provide any Confidential Information to any person, firm, partnership,
corporation, organization or entity, except as required in the normal
course of the Officer's duties. The duties contained in this
paragraph shall be binding upon the Officer during the time that he is
employed by the Company and following the termination of such
employment. Such duties will not apply to any such Confidential
Information which is or becomes in the public domain through no action
on the part of the Officer, is generally disclosed to third parties by
the Company without restriction on such third parties, or is approved
for release by written authorization of the Board of Directors of the
Company. The term "Confidential Information" shall mean any and all
confidential, proprietary, or secret information relating to the
Company's business, services, customers, business operations, or
activities and any and all trade secrets, products, methods of
conducting business, information, skills, knowledge, ideas, know-how
or devices used in, developed by, or pertaining to the Company's
business and not generally known, in whole or in part, in any trade or
industry in which the Company is engaged.
Section 2
Termination
2.1 Termination of Agreement. Unless sooner terminated in
accordance with the terms of this Section 2, this Agreement shall
terminate at the expiration of the Term, and all obligations hereunder
shall terminate except as specifically set forth in Section 2.5. The
Officer may, with the consent of the Company, continue in the employ
of the Company after the expiration of the Term on such terms and
conditions as may be agreed upon by the Company and the Officer.
2.2 Termination by the Officer. The Officer may voluntarily
terminate this Agreement by providing two weeks notice to the Company,
in which event the Company shall have no further obligation to the
Officer hereunder from the date of such termination and the Officer
shall have no further obligation to the Company hereunder except the
duty to not disclose Confidential Information in accordance with
Section 1.5. In the event the Officer's employment with the Company
is terminated due to the Officer's death, the Company shall have no
further obligation to the Officer, his heirs or legatees hereunder
from the date of such termination, except to pay any benefits due
under the Compensation and Benefit Plans and for a period of one year
from the date of the Officer's death, to pay to the Officer's
surviving spouse the salary payments described in Section 1.2, in the
amount in effect on the Officer's date of death. In the event the
Officer's employment with the Company is terminated due to the
Officer's Permanent Disability, the Company shall have no further
obligation to the Officer, hereunder from the date of such
termination, except, for a period of six months from the date salary
continuation payments under the Company's short term disability policy
cease, to pay to the Officer the salary payments described in Section
1.2, in the amount in effect on the date the Officer becomes
permanently disabled, but less the amount of any benefits received by
the Officer during such period from the Company's long-term disability
plan, to pay any other benefits due under the Compensation and Benefit
Plans and for a period of one year from the date of the Officer's
Permanent Disability, to provide benefits to the Officer under the
Company's dental and health plans.
For purposes of this Agreement, the term "Permanent Disability"
means a physical or mental condition of the Officer which:
(a) has continued uninterrupted for six months;
(b) is expected to continue indefinitely; and
(c) is determined by the Company to render the Officer
incapable of adequately performing his duties under
Section 1.3 of this Agreement.
2.3 Termination by the Company Without Cause. The Company may
terminate this Agreement without cause prior to the Firm Term, by
providing two weeks notice to the Officer. In such event, the Officer
shall have no further obligation to the Company hereunder, except the
duty to not disclose Confidential Information in accordance with
Section 1.5, and the Company shall have no further obligation to the
Officer hereunder from the date of such termination except the
obligation to pay any other benefits due under the Compensation and
Benefit Plans.
2.4 Termination by the Company With Cause. During the Firm
Term, the Company may terminate this Agreement for Cause. For
purposes of this Agreement, Cause shall mean;
(a) the Officer's willful and material breach of the
provisions of this Agreement, other than such breach
resulting from incapacity due to physical or mental
disability, after the Board of Directors of the Company
delivers a written demand to cure such breach, which
specifically identifies the manner in which the Board
of Directors of the Company believes that the Officer
has not substantially performed his duties, or
(b) the Officer willfully engages in illegal conduct or
gross misconduct which materially and demonstrably
injures the Company.
For purposes of this determining whether "Cause" exists, no act or
failure to act, on the Officer's part shall be considered "willful,"
unless it is done, or omitted to be done, by the Officer in bad faith
or without reasonable belief by the Officer that his action or
omission was in the best interests of the Company. Any act or failure
to act, based upon authority given pursuant to a resolution adopted by
the Board of Directors of the Company, shall be conclusively presumed
to be done, or omitted to be done, by the Officer in good faith and in
the best interests of the Company. The cessation of the Officer's
employment shall not be deemed for "Cause," unless and until the
Officer receives a copy of a resolution adopted by the affirmative
vote of not less than two-thirds of the entire membership of the Board
of Directors of the Company at a meeting of the Board of Directors of
the Company called and held for such purpose (after reasonable notice
is provided to the Officer and the Officer is given the opportunity,
together with counsel, to be heard before the Board of Directors of
the Company), finding that, in the good faith opinion of the Board of
Directors of the Company, the Officer's termination is for Cause.
In the event of the Officer's termination for Cause, the Company
will have no further obligation to the Officer under the Agreement
from the date of such termination.
2.5 Termination Following Change in Control. In the event there
is a Change in Control of the Company, as defined in Section 2.9,
during the Term, and:
(a) within the period commencing three months prior to the
date of a Change in Control and ending two years
following the date of the Change in Control (the "Firm
Term"), the Officer's employment hereunder is
terminated by the Company other than for Cause, as
defined in Section 2.4;
(b) within the Firm Term, the Officer resigns from his
employment hereunder upon thirty days written notice
given to the Company within thirty days following a
material change in the Officer's title, authorities or
duties, in effect immediately prior to the Change in
Control, a reduction in the compensation or a reduction
in benefits provided pursuant to this Agreement or the
Compensation and Benefit Plans below the amount of
compensation and benefits in effect immediately prior
to the Change in Control, or a change of the Officer's
principal place of employment without his consent to a
city different from the city which is the principal
place of the Officer's employment immediately prior to
the Change in Control, or
(c) the Officer voluntarily terminates his employment with
the Company during the thirty day period immediately
following the first anniversary of the Change in
Control,
then the Officer shall be entitled to receive the compensation and
benefits described in Section 2.6. The date of the Officer's
termination of employment under subsection (a), (b) or (c) shall be
referred to in this Agreement as the "Termination Date."
2.6 Change in Control Severance Payments. Upon any of the
events described in Section 2.5, the Company shall pay the Officer
compensation and benefits for the three year period immediately
following the Termination Date (the "Continuation Period"), as
follows:
(a) during the Continuation Period, the Officer shall (i)
continue to receive salary under Section 1.2 at the
greater of the rate in effect at the Termination Date
or the rate in effect immediately prior to the Change
in Control, and (ii) continue to actively participate
in the Compensation and Benefit Plans, except as
otherwise provided below, that he actively participated
in as of the Termination Date as though he continued in
the employment of the Company (without regard to any
amendment or termination of the Compensation and
Benefit Plans made on or after the date of a Change in
Control); provided, however, that any benefit to be
provided by a Compensation and Benefit Plan may be
provided by the Company through cash of equivalent
value or through a non-qualified arrangement or
arrangements if, in the judgment of the Company,
permitting the Officer to participate in such plan
after the Termination Date would adversely affect the
tax status of such plan; and
(b) the Officer shall receive a lump sum payment within
thirty days after the Termination Date equal to the
product of three and the greatest of the Officer's
target annual incentive award (expressed as a dollar
value) under the Company's Annual Incentive
Compensation Plan (the "Annual Target Award") as of the
Termination Date, the Annual Target Award as of the
date of the Change in Control, or the Officer's annual
target incentive award (expressed as a dollar value)
under any annual incentive compensation plan of the
Company's successor; and
(c) the Officer shall receive a lump sum payment within
thirty days after the Termination Date equal to the
Officer's target long term incentive award (expressed
as a dollar value and based on the greater of the
Officer's Salary as of the date of the Change in
Control, or as of the Termination Date), if any, under
the Company's Long Term Incentive Compensation Plan, or
if greater, the Officer's target award under any long
term incentive plan of the Company's successor, for the
performance period ending in the fiscal year in which
the Termination Date occurs; and
(d) during the Continuation Period, the Officer shall not
participate in the Company's Employees' Stock
Compensation Plan, except that options giving the
Officer the right to purchase any stock of the Company
or any affiliate of the Company and shares of
restricted stock, which had been granted prior to the
Officer's Termination Date, shall, to the extent
provided for by the terms and conditions of the
Employees' Stock Compensation Plan, and any agreements
between the Company and the Officer thereunder, become
immediately and fully exercisable (or, in the case of
restricted stock shares, become nonforfeitable) or
shall be paid in the form of limited stock appreciation
rights.
The payments described in this Section 2.6 shall be in addition
to any salary payments or Compensation and Benefit Plan payments due
to the Officer as of the Termination Date.
The Company's obligation to make payments under this Section 2.6
shall not be affected by the earnings or any other income of the
Officer, except to the extent provided in the non-compete provisions
contained in Section 2.7. To the extent benefits to be provided
pursuant to this Section 2.6 are determined on the basis of the
Officer's compensation, the compensation to be used to determine such
benefits after the Officer's Termination Date shall be the greater of
the Officer's compensation used to determine such benefits immediately
prior to the Change in Control or the Officer's compensation used to
determine such benefits immediately prior to the Officer's Termination
Date. The Officer's compensation, which is used to determine benefits
under this Section 2.6, shall be assumed to have continued for the
entire Continuation Period, regardless of whether such payments are
paid in a lump-sum payment pursuant to this Agreement or an election
of the Officer. To the extent that benefits to be provided by the
Company pursuant to this Section 2.6 are matching contributions
pursuant to the Company Reserve Plus Retirement Savings Plan or
Supplemental Savings Plan, the amount of matching contributions to be
paid by the Company in any year following the date of the Officer's
Termination Date shall be the greater of the amount of the matching
contribution made by the Company for the most recent plan year that
ended prior to the Change in Control or the amount of matching
contributions made by the Company for the most recent plan year that
ended prior to the Officer's Termination Date. To the extent benefits
payable pursuant to this Section 2.6 are determined by reference to
the Officer's years of service with the Company, such as the
determination of the Officer's accrued benefits under the Company's
qualified or non-qualified retirement plans, such years of service
shall be determined by including years that occur during the
Continuation Period, regardless of whether the Officer elects to
receive salary payments payable to him in a lump-sum payment pursuant
to Section 2.8 of this Agreement. In addition, to the extent the
Officer is less than 100% vested in any benefits provided by the
Compensation and Benefit Plans, he shall become 100% vested upon his
Termination Date.
For purposes of determining an Officer's right under this Section
2.6 to accrue benefits during the Continuation Period under the
Company Employees' Retirement Plan, Supplemental Retirement Plan and
Excess Benefit Plan, the Officer's accrued benefits (including early
retirement subsidies) shall be calculated by taking into account the
years of service that the Officer would have accrued during the
Continuation Period, the Officer's compensation, as such term is
defined in the Company Employees' Retirement Plan ("Retirement
Compensation"), payable for the Continuation Period and the retirement
points that the Officer would have accumulated under the Company
Employees' Retirement Plan based on the Officer's projected age and
years of service at the end of the Continuation Period. The benefit
accrued pursuant to this Section 2.6 shall include both the additional
benefit, based on the service, Retirement Compensation, and retirement
points that are credited during the Continuation Period, and the
increase in the retirement benefits accrued prior to the Continuation
Period due to the crediting of additional service, Retirement
Compensation and retirement points during the Continuation Period.
All of the retirement benefits accrued pursuant to this Section 2.6
shall be paid in a single, lump-sum payment, pursuant to Section 2.8
of this Agreement.
In addition to any cash equivalency payment or medical benefit
coverage provided to the Officer for the Continuation Period, the
Officer shall also be eligible to receive a lump-sum cash payment
equal to the difference between the amount of retiree medical premium
payments that would be paid by the Company until the Officer's
attainment of age 65 under the Company Employees' Health Care Plan, as
in effect immediately prior to the Change in Control (the "Health Care
Plan"), based on the Officer's age and years of service on the date of
the Officer's Termination Date, and the amount of such premium
payments that would have been paid under the Health Care Plan based on
the projected age and years of service of the Officer through the end
of the Continuation Period. If, after taking into consideration the
Officer's projected age and years of service through the end of the
Continuation Period, the Officer would not have been entitled to
Company paid retiree medical premium payments, but the Officer would
have completed five or more years of service with the Company and
attained age 55 (thereby making the Officer eligible for retiree
medical coverage under the Health Care Plan), then the lump-sum
payment shall be calculated by assuming that the Company would have
paid 25% of the cost of retiree medical premium payments until the
Officer's attainment of age 65. For purposes of determining the
amount of any lump-sum payment to the Officer under this paragraph,
amounts that the Company would have paid for retiree medical premium
payments shall be determined by assuming that the Company's Health
Care Plan premium costs would increase at the rate of 7% per year.
For purposes of determining the lump-sum payment of retiree medical
premium payments and cash equivalency or medical benefit coverage to
be provided to the Officer during the Continuation Period, such
amounts or benefits shall include coverage for the Officer's spouse,
provided that the Officer's spouse was covered by the Health Care Plan
immediately prior to the Change in Control.
2.7 Non-Compete Provisions. In the event of the Officer's
termination of employment following a Change in Control, and the
Officer becomes entitled to compensation and benefit payments under
Section 2.6 of this Agreement, the Officer agrees not to compete with
the Company, pursuant to the following terms and conditions.
For a period of eighteen months following the Termination Date,
the Officer shall not engage in any employment activity or directly or
indirectly own (except for passive investments in which the Officer
owns less than a 5% ownership interest), manage, operate, control or
be employed by, participate in or be connected in any manner with the
ownership, operation or control of any business that provides
commercial, retail or mortgage lending services or sells financial
products or services, which are competitive with or substantially
similar to the commercial, retail, mortgage, trust, investment or
insurance services or products of the Company, its subsidiaries and
other affiliates, at any location in the United States of America. If
any court shall determine that the duration or geographical limit of
any restriction contained in this covenant not to compete (the
"Covenant") is unenforceable under applicable law, this Covenant shall
not thereby be terminated, but shall be deemed amended to the extent
required to render it valid and enforceable, such amendment to apply
only with respect to the operation of the Covenant in the jurisdiction
of the Court that has made such determination.
Other than amendments that are deemed to be made pursuant to the
preceding paragraph of this Agreement, no change or modification of
this Covenant shall be valid unless the same be in writing and signed
by the Company and Officer.
Upon a breach by Officer of this Covenant, the Company shall be
entitled to recover, as liquidated damages, one and one-half times the
greater of the Officer's annual base salary in effect on the date of
the Termination Date or the Officer's base salary in effect
immediately prior to the date of the Change in Control. This amount
shall be deducted from the payments due to the Officer pursuant to
Section 2.6 of this Agreement. In the event that all payments
pursuant to Section 2.6 have been made to the Officer, the Officer
shall pay the aforementioned amount to the Company.
If any legal action or proceeding is brought for the enforcement
of this Covenant, or because of an alleged dispute, breach, default or
misrepresentation in connection with this Covenant, the successful or
prevailing party in such action shall be entitled to recover
reasonable attorneys' fees and costs connected with such action or
proceeding in addition to all other recovery or relief.
2.8 Timing of Payments. All salary payments to be made by the
Company pursuant to Section 2.6 shall be made in monthly installments
during the Continuation Period, on the first day of each month
following the Officer's Termination Date. Notwithstanding the
foregoing, by an election in writing and delivered to the Company at
least thirty days prior to the Firm Term, the Officer may elect to
receive any or all such salary payments in a single lump-sum payment,
payable within thirty days following the Termination Date. All other
payments to be made in cash pursuant to Section 2.6 shall be paid in a
single lump-sum payment, payable within thirty days following the
Officer's Termination Date. Any lump-sum payment to be made to the
Officer shall be equal to the present value of the payments otherwise
payable to the Officer, using an interest rate assumption equal to the
annual, short-term, adjusted applicable federal interest rate, as
determined for the month during which the lump-sum payment is made
pursuant to Section 1274(d) of the Internal Revenue Code of 1986 (the
"Code"), except that the lump-sum payment of any non-qualified
retirement benefit (other than benefits from the Company Supplemental
Savings Plan or Reserve Plus Retirement Savings Plan) payable to the
Officer shall be calculated pursuant to the actuarial assumptions of
the Company Employees' Retirement Plan in effect on the date of the
Change in Control. The Company shall withhold any applicable taxes
from any amounts payable to the Officer pursuant to this Agreement,
which the Company determines, in good faith, it is required to
withhold pursuant to applicable law.
2.9 Change in Control Defined. A Change in Control of the
Company shall have occurred:
(a) on the fifth day preceding the scheduled expiration
date of a tender offer by, or exchange offer by any
corporation, person, other entity or group (other than
the Company or any of its wholly owned subsidiaries),
to acquire Voting Stock of the Company if:
(i) after giving effect to such offer such
corporation, person, other entity or group would
own 25% or more of the Voting Stock of the
Company;
(ii) there shall have been filed documents with the
Securities and Exchange Commission in connection
therewith (or, if no such filing is required,
public evidence that the offer has already
commenced); and
(iii) such corporation, person, other entity or
group has secured all required regulatory
approvals to own or control 25% or more of
the Voting Stock of the Company;
(b) if the shareholders of the Company approve a definitive
agreement to merge or consolidate the Company with or
into another corporation in a transaction in which
neither the Company nor any of its wholly owned
subsidiaries will be the surviving corporation, or to
sell or otherwise dispose of all or substantially all
of the Company's assets to any corporation, person,
other entity or group (other that the Company or any of
its wholly owned subsidiaries), and such definitive
agreement is consummated;
(c) if any corporation, person, other entity or group
(other than the Company or any of its wholly owned
subsidiaries) becomes the Beneficial Owner (as defined
in the Company's Articles of Incorporation) of stock
representing 25% or more of the Voting Stock of the
Company; or
(d) if during any period of two consecutive years
Continuing Directors cease to comprise a majority of
the Company's Board of Directors.
The term "Continuing Director" means:
(a) any member of the Board of Directors of the Company at
the beginning of any period of two consecutive years;
and
(b) any person who subsequently becomes a member of the
Board of Directors of the Company; if
(i) such person's nomination for election or election
to the Board of Directors of the Company is
recommended or approved by resolution of a
majority of the Continuing Directors; or
(ii) such person is included as a nominee in a proxy
statement of the Company distributed when a
majority of the Board of Directors of the Company
consists of Continuing Directors.
"Voting Stock" shall mean those shares of the Company
entitled to vote generally in the election of directors.
2.10 Obligation to Reimburse for Taxes. The Company shall not
be obligated to reimburse the Officer due to the Officer's liability
to pay any applicable federal, state or local income or employment
taxes which result from any payments made pursuant to this Agreement.
Notwithstanding the foregoing, in the event it shall be determined
that any payment by the Company to or for the benefit of the Officer
(whether paid or payable pursuant to the terms of this Agreement, but
determined without regard to any additional payments required by this
Section 2.10) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred
by the Officer with respect to such excise tax (such excise tax,
together with any such interest and penalties are hereinafter
collectively referred to as the "Excise Tax"), then the Officer shall
be entitled to receive an additional payment (a "Gross-Up Payment") in
an amount such that after payment by the Officer of all taxes
(including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Officer retains an amount of
the Gross-Up payment equal to the Excise Tax imposed upon the
Payments.
Subject to the remaining provisions of Section 2.10, all
determinations required to be made under this Section 2.10, including
whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at
such determination, shall by made by KPMG Peat Marwick or such other
certified public accounting firm that may be designated by the
Company, and agreed to by the Officer (the "Accounting Firm"). All
fees and expenses of the Accounting Firm shall be borne by the
Company. Any Gross-Up Payment, as determined pursuant to this Section
2.10, shall be paid by the Company to the Officer within thirty days
of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the Company
and the Officer. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by
the Accounting Firm hereunder, it is possible that Gross-Up Payments
which will not have been made by the Company should have been made (an
"Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies
pursuant to provisions of this Section 2.10 below, and the Officer
thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that
has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Officer.
The Officer shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification
shall be given as soon as practicable but no later than ten business
days after the Officer is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid. The Officer shall not pay such
claim prior to the expiration of the thirty day period following the
date on which he gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Officer in writing
prior to the expiration of such period that it desires to contest such
claim, the Officer shall:
(a) give the Company any information reasonably requested
by the Company relating to such claim,
(b) take such action in connection with contesting such
claim as the Company shall reasonably request in
writing from time to time, including, without
limitation, accepting legal representation with respect
to such claim by an attorney selected by the Company,
(c) cooperate with the Company in good faith in order to
effectively contest such claim, and
(d) permit the Company to participate in any proceedings
relating to such claim,
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold
the Officer harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing, the Company shall
control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either
direct the Officer to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and the Officer agrees to
prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Officer to pay such claim and sue for
a refund, the Company shall advance the amount of such payment to the
Officer, on an interest-free basis and shall indemnify and hold the
Officer harmless, on an after-tax basis, from any Excise Tax or income
tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income
with respect to such advance; and further provided that any extension
of the statute of limitations relating to payment of taxes for the
taxable year of the Officer with respect to which such contested
amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Officer shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
If, after the receipt by the Officer of any amount advanced by
the Company pursuant to the preceding paragraph, the Officer becomes
entitled to receive any refund with respect to such claim, the Officer
shall (subject to the Company's complying with the requirements of the
preceding paragraph) promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Officer of an
amount advanced by the Company pursuant to the preceding paragraph, a
determination is made that the Officer shall not be entitled to any
refund with respect to such claim and the Company does not notify the
Officer in writing of its intent to contest such denial of refund
prior to the expiration of thirty days after such determination, then
such advance shall be forgiven and shall not be required to be repaid
and the amount of such advance shall offset, to the extent thereof,
the amount of the Gross-Up Payment required to be paid.
2.11 Officer's Costs of Enforcement. The Company shall pay all
expenses of the Officer, including but not limited to attorney fees,
incurred in enforcing payments by the Company pursuant to this
Agreement.
Section 3
Miscellaneous
3.1 Assignment of Officer's Rights The Officer may not assign,
pledge or otherwise transfer any of the benefits of this Agreement
either before or after termination of employment, and any purported
assignment, pledge or transfer of any payment to be made by the
Company hereunder shall be void and of no effect. No payment to be
made to the Officer hereunder shall be subject to the claims of
creditors of the Officer.
3.2 Agreements Binding on Successors. This Agreement shall be
binding and inure to the benefit of the parties hereto and their
respective successors, assigns, personal representatives, heirs,
legatees and beneficiaries.
3.3 Notices. Any notice required or desired to be given under
this Agreement shall be deemed given if in writing and sent by first
class mail to the Officer or the Company at his or its address as set
forth above, or to such other address of which either the Officer or
the Company shall notify the other in writing.
3.4 Waiver of Breach. The waiver by either party of a breach of
any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by either the Officer or the Company.
3.5 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes the Management Continuity
Agreement between the Officer and the Company, which was effective
February 15, 1995. It may be modified or amended only by an agreement
in writing signed by the party against whom enforcement of any change
or amendment is sought.
3.6 Severability of Provisions. If for any reason any
paragraph, term or provision of this Agreement is held to be invalid
or unenforceable, all other valid provisions herein shall remain in
full force and effect and all paragraphs, terms and provisions of this
Agreement shall be deemed to be severable in nature.
3.7 Governing Law. This Agreement is made in, and shall be
governed by, the laws of the State of Michigan.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first set forth above.
_________________________________
Officer
FIRST OF AMERICA BANK CORPORATION
Attest:
_____________________________ By: ______________________________
Secretary
Its: ______________________________
EXHIBIT (10)I.(ii)
MANAGEMENT CONTINUITY AGREEMENT
This Agreement is effective as of November 24, 1997 between FIRST
OF AMERICA BANK [CORPORATION/[SUBSIDIARY NAME]], a Michigan
Corporation with an office at 211 S. Rose St., Kalamazoo, Michigan
49007 (the "Company") and
[EMPLOYEE NAME]
whose address is: [ADDRESS]
(the "Employee")
W I T N E S S E T H
WHEREAS, the Employee is employed by the Company with the salary
current at the effective date of this Agreement as set forth in this
Agreement; and
WHEREAS, the Company wishes to attract and retain highly
qualified executives and to achieve this goal it is in the best
interests of the Company to secure the continued services of the
Employee regardless of a change in control of the Company; and
WHEREAS, the Company is willing, in order to provide the Employee
a measure of security with respect to his employment with the Company
in the event of a change in control of the Company so that the
Employee will be in a position to act with respect to a possible
change in control of the Company in the best interests of First of
America Bank Corporation and its shareholders, without concern as to
the Employee's own financial security, and in order to induce the
Employee to remain in employment with the Company, to agree that
employment of the Employee shall be terminable only for cause for a
limited period after a change in control of the Company.
NOW, THEREFORE, the Company and the Employee agree as follows:
Section 1
Employment
1.1 Term. The Company shall employ the Employee and the
Employee shall remain in employment with the Company for a period of
three years from the effective date of this Agreement (the "Term")
unless terminated prior to the expiration of the Term pursuant to
Section 2.
1.2 Compensation. As compensation for services provided to the
Company by the Employee pursuant to this Agreement, the Company shall
pay the Employee an annual base salary of $__________, which salary
may be increased from time to time by the Company. The Employee shall
also be eligible to actively participate in any other compensation and
benefit plans generally available to executive employees of the
Company of like grade and salary including, but not limited to,
retirement plans, group life, disability, accidental death and
dismemberment, travel and accident, and health and dental insurance
plans, incentive compensation plans, stock compensation plans,
deferred compensation plans, supplemental retirement plans and excess
benefit plans. Such other compensation and benefit plans are
hereinafter referred to collectively as the "Compensation and Benefit
Plans".
1.3 Duties. The Employee shall perform such duties and
functions as are assigned to him by the bylaws of the Company, as
amended or restated, the Board of Directors of the Company, or by a
duly authorized committee of the Board of Directors of the Company, or
by a manager of more senior rank than the Employee. In the event of
an actual or potential Change in Control (as defined in Section 2.9),
the Employee shall perform his duties and functions in a manner that
is consistent with the best interest of the Company and its
shareholders, without regard to the effect that the potential or
actual Change in Control may have on the Employee personally.
1.4 Duty of Loyalty. The Employee shall work full-time for the
Company only, provided that:
(a) he may also engage in charitable, civic and other
similar activities;
(b) with the consent of the Board of Directors, the Chief
Executive Officer of the Company or an Executive Vice
President of the Company he may serve as a director of
a business organization not competing with the Company;
and
(c) he may make such investments and reinvestment in
business activities as shall not require a substantial
portion of his time.
1.5 Duty Not to Disclose Confidential Information. The Employee
acknowledges that his relationship with the Company is one of high
trust and confidence, and that he has access to Confidential
Information (as hereinafter defined) of the Company. The Employee
shall not, directly or indirectly, communicate, deliver, exhibit or
provide any Confidential Information to any person, firm, partnership,
corporation, organization or entity, except as required in the normal
course of the Employee's duties. The duties contained in this
paragraph shall be binding upon the Employee during the time that he
is employed by the Company and following the termination of such
employment. Such duties will not apply to any such Confidential
Information which is or becomes in the public domain through no action
on the part of the Employee, is generally disclosed to third parties
by the Company without restriction on such third parties, or is
approved for release by written authorization of the Board of
Directors of the Company. The term "Confidential Information" shall
mean any and all confidential, proprietary, or secret information
relating to the Company's business, services, customers, business
operations, or activities and any and all trade secrets, products,
methods of conducting business, information, skills, knowledge, ideas,
know-how or devices used in, developed by, or pertaining to the
Company's business and not generally known, in whole or in part, in
any trade or industry in which the Company is engaged.
Section 2
Termination
2.1 Termination of Agreement. Unless sooner terminated by the
Employee or the Company in accordance with the terms of this Section
2, this Agreement shall terminate at the expiration of the Term, and
all obligations hereunder shall terminate except as specifically set
forth in Section 2.5. The Employee may, with the consent of the
Company, continue in the employ of the Company after the expiration of
the Term on such terms and conditions as may be agreed upon by the
Company and the Employee.
2.2 Termination by the Employee. The Employee may voluntarily
terminate this Agreement by providing two weeks notice to the Company,
in which event the Company shall have no further obligation to the
Employee hereunder from the date of such termination and the Employee
shall have no further obligation to the Company hereunder except the
duty to not disclose Confidential Information in accordance with
Section 1.5. In the event the Employee's employment with the Company
is terminated due to the Employee's Permanent Disability or death, the
Company shall have no further obligation to the Employee, his heirs or
legatees hereunder from the date of such termination, except to pay
any benefits due under the Compensation and Benefit Plans.
For purposes of this Agreement, the term "Permanent Disability"
means a physical or mental condition of the Employee which:
(a) has continued uninterrupted for six months;
(b) is expected to continue indefinitely; and
(c) is determined by the Company to render the Employee
incapable of adequately performing his duties under
Section 1.3 of this Agreement.
2.3 Termination by the Company Without Cause. The Company may
terminate this Agreement without cause prior to the Firm Term, by
providing two weeks notice to the Employee. In such event, the
Employee shall have no further obligation to the Company hereunder,
except the duty to not disclose Confidential Information in accordance
with Section 1.5, and the Company shall have no further obligation to
the Employee hereunder from the date of such termination except the
obligation to pay any other benefits due under the Compensation and
Benefit Plans. Notwithstanding the foregoing, the Employee may, with
the consent of the Company, continue in the employ of the Company
after the expiration of the Term on such terms and conditions as may
be agreed upon by the Company and the Employee.
2.4 Termination by the Company With Cause. During the Firm
Term, the Company may terminate this Agreement for Cause. For
purposes of this Agreement, Cause shall mean;
(a) the Employee's willful and material breach of the
provisions of this Agreement, other than such breach
resulting from incapacity due to physical or mental
disability, after the Board of Directors or the Chief
Executive Officer of the Company delivers a written
demand to cure such breach, which specifically
identifies the manner in which the Board of Directors
or the Chief Executive Officer believes that the
Employee has not substantially performed his duties, or
(b) the Employee willfully engages in illegal conduct or
gross misconduct which materially and demonstrably
injures the Company.
For purposes of determining whether "Cause" exists, no act or failure
to act, on the Employee's part shall be considered "willful," unless
it is done, or omitted to be done, by the Employee in bad faith or
without reasonable belief by the Employee that his action or omission
was in the best interests of the Company. Any act or failure to act,
based upon authority given pursuant to a resolution adopted by the
Board of Directors, or upon the instructions of the Chief Executive
Officer of the Company, shall be conclusively presumed to be done, or
omitted to be done, by the Employee in good faith and in the best
interests of the Company. The cessation of the Employee's employment
shall not be deemed for "Cause," unless and until the Employee
receives written notice from the Chief Executive Officer of the
Company.
In the event of the Employee's termination for Cause, the Company
will have no further obligation to the Employee under the Agreement
from the date of such termination.
2.5 Termination Following Change in Control. In the event there
is a Change in Control of the Company, as defined in Section 2.9,
during the Term, and:
(a) within the period commencing three months prior to the
date of a Change in Control and ending two years
following the date of the Change in Control (the "Firm
Term"), the Employee's employment hereunder is
terminated by the Company other than for Cause, as
defined in Section 2.4;
(b) within the Firm Term, the Employee resigns from his
employment hereunder upon thirty days written notice
given to the Company within thirty days following a
material change in the Employee's authorities or duties
in effect immediately prior to the Change in Control, a
reduction in the compensation or a reduction in
benefits provided pursuant to this Agreement or the
Compensation and Benefit Plans below the amount of
compensation and benefits in effect immediately prior
to the Change in Control, or a change of the Employee's
principal place of employment without his consent to a
city different from the city which is the principal
place of the Employee's employment immediately prior to
the Change in Control, or
(c) the Employee voluntarily terminates his employment with
the Company during the thirty day period immediately
following the first anniversary of the Change in
Control,
then the Employee shall be entitled to receive the compensation and
benefits described in Section 2.6. The date of the Employee's
termination of employment under subsection (a), (b) or (c) shall be
referred to in this Agreement as the "Termination Date."
2.6 Change in Control Severance Payments. Upon any of the
events described in Section 2.5, the Company shall pay the Employee
compensation and benefits for the eighteen month period immediately
following the Termination Date (the "Continuation Period"), as
follows:
(a) during the Continuation Period, the Employee shall (i)
continue to receive salary under Section 1.2 at the
greater of the rate in effect at the Termination Date
or the rate in effect immediately prior to the Change
in Control, and (ii) continue to actively participate
in the Compensation and Benefit Plans, except as
otherwise provided below, that he actively participated
in as of the Termination Date as though he continued in
the employment of the Company (without regard to any
amendment or termination of the Compensation and
Benefit Plans made on or after the date of a Change in
Control); provided, however, that any benefit to be
provided by a Compensation and Benefit Plan may be
provided by the Company through cash of equivalent
value or through a nonqualified arrangement or
arrangements if, in the judgment of the Company,
permitting the Employee to participate in such plan
after the Termination Date would adversely affect the
tax status of such plan; and provided further, that the
Employee shall not continue to accrue benefits in or be
entitled to contributions to, or receive the cash
equivalent of benefit accruals in or contributions to
any Employee Pension Plan, as defined by Section 3(2)
of the Employee Retirement Income Security Act of 1974,
maintained by the Company, except to the extent that an
additional benefit accrual or contribution is
attributable to service prior to the Continuation
Period; and provided further that the Employee shall
not accrue any right to retiree medical coverage other
than such rights, if any, that the Employee has as of
the Employee's Termination Date; and
(b) the Employee shall receive a lump sum payment within
thirty days after the Termination Date equal to the
product of one and one-half (1 1/2) and the greatest of
the Employee's target annual incentive award (expressed
as a dollar value) under the Company's Annual Incentive
Compensation Plan (the "Annual Target Award") as of the
Termination Date, the Annual Target Award as of the
date of the Change in Control, or the Employee's annual
target incentive award (expressed as a dollar value)
under any annual incentive compensation plan of the
Company's successor; and
(c) the Employee shall receive a lump sum payment within
thirty days after the Termination Date equal to the
Employee's target long term incentive award (expressed
as a dollar value and based on the greater of the
Employee's Salary as of the date of the Change in
Control, or as of the Termination Date), if any, under
the Company's Long Term Incentive Compensation Plan, or
if greater, the Employee's target award under any long
term incentive plan of the Company's successor, for the
performance period ending in the fiscal year in which
the Termination Date occurs; and
(d) during the Continuation Period, the Employee shall not
participate in the Company's Stock Compensation Plan,
except that options giving the Employee the right to
purchase any stock of the Company or any affiliate of
the Company, which had been granted prior to the
Employee's Termination Date, shall, to the extent
provided for by the terms and conditions of the
Employees' Stock Compensation Plan, and any agreements
between the Company and the Employee thereunder, become
immediately and fully exercisable or shall be paid in
the form of limited stock appreciation rights.
The payments described in this Section 2.6 shall be in addition
to any salary payments or Compensation and Benefit Plan payments due
to the Employee as of the Termination Date.
The Company's obligation to make payments under this Section 2.6
shall not be affected by the earnings or any other income of the
Employee, except to the extent provided in the non-compete provisions
contained in Section 2.7. To the extent benefits to be provided
pursuant to this Section 2.6 are determined on the basis of the
Employee's compensation, the compensation to be used to determine such
benefits after the Employee's Termination Date shall be the greater of
the Employee's compensation used to determine such benefits
immediately prior to the Change in Control or the Employee's
compensation used to determine such benefits immediately prior to the
Employee's Termination Date. The Employee's compensation, which is
used to determine benefits under this Section 2.6, shall be assumed to
have continued for the entire Continuation Period, regardless of
whether such payments are paid in a lump-sum payment pursuant to this
Agreement or an election of the Employee. In addition, to the extent
the Employee is less than 100% vested in any benefits provided by the
Compensation and Benefit Plans, he shall become 100% vested upon his
Termination Date.
2.7 Non-Compete Provisions. In the event of the Employee's
termination of employment following a Change in Control, and the
Employee becomes entitled to compensation and benefit payments under
Section 2.6 of this Agreement, the Employee agrees not to compete with
the Company, pursuant to the following terms and conditions.
For a period of nine months following the Termination Date, the
Employee shall not engage in any employment activity or directly or
indirectly own (except for passive investments in which the Employee
owns less than a 5% ownership interest), manage, operate, control or
be employed by, participate in or be connected in any manner with the
ownership, operation or control of any business that provides
commercial, retail or mortgage lending services or sells financial
products or services, which are competitive with or substantially
similar to the commercial, retail, mortgage, trust, investment or
insurance services or products of the Company, its subsidiaries and
other affiliates, at any location in the States of Michigan, Indiana
and Illinois. If any court shall determine that the duration or
geographical limit of any restriction contained in this covenant not
to compete (the "Covenant") is unenforceable under applicable law,
this Covenant shall not thereby be terminated, but shall be deemed
amended to the extent required to render it valid and enforceable,
such amendment to apply only with respect to the operation of the
Covenant in the jurisdiction of the Court that has made such
determination.
Other than amendments that are deemed to be made pursuant to the
preceding paragraph of this Agreement, no change or modification of
this Covenant shall be valid unless the same be in writing and signed
by the Company and Employee.
Upon a breach by Employee of this Covenant, the Company shall be
entitled to recover, as liquidated damages, three-fourths (3/4) times
the greater of the Employee's annual base salary in effect on the date
of the Termination Date or the Employee's base salary in effect
immediately prior to the date of the Change in Control. This amount
shall be deducted from the payments due to the Employee pursuant to
Section 2.6 of this Agreement. In the event that all payments
pursuant to Section 2.6 have been made to the Employee, the Employee
shall pay the aforementioned amount to the Company.
If any legal action or proceeding is brought for the enforcement
of this Covenant, or because of an alleged dispute, breach, default or
misrepresentation in connection with this Covenant, the successful or
prevailing party in such action shall be entitled to recover
reasonable attorneys' fees and costs connected with such action or
proceeding in addition to all other recovery or relief.
2.8 Timing of Payments. All salary payments to be made by the
Company pursuant to Section 2.6 shall be made in monthly installments
during the Continuation Period, on the first day of each month
following the Employee's Termination Date. Notwithstanding the
foregoing, by an election in writing and delivered to the Company at
least thirty days prior to the Firm Term, the Employee may elect to
receive any or all such salary payments in a single lump-sum payment,
payable within thirty days following the Termination Date. All other
payments to be made in cash pursuant to Section 2.6 shall be paid in a
single lump-sum payment, payable within thirty days following the
Employee's Termination Date. Any lump-sum payment to be made to the
Employee pursuant to this Agreement shall be equal to the present
value of the payments otherwise payable to the Employee, using an
interest rate assumption equal to the annual, short-term, adjusted
applicable federal interest rate, as determined for the month during
which the lump-sum payment is made pursuant to Section 1274(d) of the
Internal Revenue Code of 1986 (the "Code"). The Company shall
withhold any applicable taxes from any amounts payable to the Employee
pursuant to this Agreement, which the Company determines, in good
faith, it is required to withhold pursuant to applicable law.
2.9 Change in Control Defined. A Change in Control of the
Company shall have occurred:
(a) on the fifth day preceding the scheduled expiration
date of a tender offer by, or exchange offer by any
corporation, person, other entity or group (other than
the Company or any of its wholly owned subsidiaries),
to acquire Voting Stock of the Company if:
(i) after giving effect to such offer such
corporation, person, other entity or group would
own 25% or more of the Voting Stock of the
Company;
(ii) there shall have been filed documents with the
Securities and Exchange Commission in connection
therewith (or, if no such filing is required,
public evidence that the offer has already
commenced); and
(iii) such corporation, person, other entity or
group has secured all required regulatory
approvals to own or control 25% or more of
the Voting Stock of the Company;
(b) if the shareholders of the Company approve a definitive
agreement to merge or consolidate the Company with or
into another corporation in a transaction in which
neither the Company nor any of its wholly owned
subsidiaries will be the surviving corporation, or to
sell or otherwise dispose of all or substantially all
of the Company's assets to any corporation, person,
other entity or group (other that the Company or any of
its wholly owned subsidiaries), and such definitive
agreement is consummated;
(c) if any corporation, person, other entity or group
(other than the Company or any of its wholly owned
subsidiaries) becomes the Beneficial Owner (as defined
in the Company's Articles of Incorporation) of stock
representing 25% or more of the Voting Stock of the
Company; or
(d) if during any period of two consecutive years
Continuing Directors cease to comprise a majority of
the Company's Board of Directors.
The term "Continuing Director" means:
(a) any member of the Board of Directors of the Company at
the beginning of any period of two consecutive years;
and
(b) any person who subsequently becomes a member of the
Board of Directors of the Company; if
(i) such person's nomination for election or election
to the Board of Directors of the Company is
recommended or approved by resolution of a
majority of the Continuing Directors; or
(ii) such person is included as a nominee in a proxy
statement of the Company distributed when a
majority of the Board of Directors of the Company
consists of Continuing Directors.
"Voting Stock" shall mean those shares of the Company
entitled to vote generally in the election of directors.
2.10 Obligation to Reimburse for Taxes. The Company shall not
be obligated to reimburse the Employee due to the Employee's liability
to pay any applicable federal, state or local income, employment or
excise taxes which result from any payments made pursuant to this
Agreement.
2.11 Employee's Costs of Enforcement. The Company shall pay all
expenses of the Employee, including but not limited to attorney fees,
incurred in enforcing payments by the Company pursuant to this
Agreement.
2.12 Reduction of Salary Payments. If payments or benefits under
this Agreement, after taking into account all other payments or
benefits to which the Employee is entitled from the Company, and which
are in whole or in part considered contingent upon a Change in
Control, are expected to result in an excise tax to the Employee or
the loss of certain tax deductions by the Company by reason of
Sections 280G and 4999 of the Internal Revenue Code of 1986 or any
successor provisions to those Sections, salary payments under Section
2.6(a) shall be reduced by the least amount required to avoid such
excise tax and loss of deductions unless the failure to reduce such
salary payments would be financially beneficial to the Employee. The
failure to reduce such salary payments will be financially beneficial
to the Employee if it results in an after-tax value to the Employee of
all payments and benefits referenced in the preceding sentence,
despite the application of the excise tax and income tax, which value
is greater than the after-tax value the Employee would realize if
salary payments were reduced to avoid the application of the excise
tax. If the Employee and the Company shall disagree as to whether a
payment under this Agreement could result in the loss of a deduction,
the matter shall be resolved by an opinion of KPMG Peat Marwick, or if
KPMG Peat Marwick is unable to provide such an opinion, another
accounting firm selected by the Company. The accounting firm's
opinion need not be unqualified. The accounting firm shall determine
the base amount of and excess parachute payments payable to the
Employee, as such terms are defined by Section 280G of the Code or its
successor. The accounting firm's opinion shall be based on these
determinations. The Company shall pay the fees and expenses of such
accounting firm, and shall make available such information as may be
reasonably requested by such accounting firm to prepare the opinion.
If the maximum amount payable to the Employee pursuant to this Section
2.12 cannot be determined prior to the due date for such payment, the
Company shall pay on the due date the minimum amount which it in good
faith determines to be payable, and shall pay the remaining amount as
soon as practicable after such remaining amount is determined.
Section 3
Miscellaneous
3.1 Assignment of Employee's Rights The Employee may not
assign, pledge or otherwise transfer any of the benefits of this
Agreement either before or after termination of employment, and any
purported assignment, pledge or transfer of any payment to be made by
the Company hereunder shall be void and of no effect. No payment to
be made to the Employee hereunder shall be subject to the claims of
creditors of the Employee.
3.2 Agreements Binding on Successors. This Agreement shall be
binding and inure to the benefit of the parties hereto and their
respective successors, assigns, personal representatives, heirs,
legatees and beneficiaries.
3.3 Notices. Any notice required or desired to be given under
this Agreement shall be deemed given if in writing and sent by first
class mail to the Employee or the Company at his or its address as set
forth above, or to such other address of which either the Employee or
the Company shall notify the other in writing.
3.4 Waiver of Breach. The waiver by either party of a breach of
any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by either the Employee or the Company.
3.5 Entire Agreement. This Agreement contains the entire
understanding of the parties. It may be modified or amended only by
an agreement in writing signed by the party against whom enforcement
of any change or amendment is sought.
3.6 Severability of Provisions. If for any reason any
paragraph, term or provision of this Agreement is held to be invalid
or unenforceable, all other valid provisions herein shall remain in
full force and effect and all paragraphs, terms and provisions of this
Agreement shall be deemed to be severable in nature.
3.7 Governing Law. This Agreement is made in, and shall be
governed by, the laws of the State of Michigan.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first set forth above.
_________________________
Employee
FIRST OF AMERICA BANK
[CORPORATION/SUBSIDIARY NAME]
Attest:
________________________________ By: _________________________
Secretary
Its: _________________________