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Exhibit 10.14
FIRSTMERIT CORPORATION
AMENDED AND RESTATED
EXECUTIVE DEFERRED COMPENSATION PLAN
Effective January 1, 2001
ARTICLE 1
PURPOSES AND DEFINITIONS
1.1 PURPOSES. The purposes of the Plan are (i) to provide executives with
flexibility with respect to the form and timing of Compensation, (ii) to
more closely align the interests of executives with the interests of the
Corporation's shareholders and (iii) to assist the Corporation and its
Subsidiaries in attracting and retaining qualified executives.
1.2 DEFINITIONS. Whenever used in the Plan, the following terms shall have
the meaning set forth or referenced below:
(a) "BASE COMPENSATION" means the base salary of an Eligible Employee
for services as an employee of the Corporation or a Subsidiary, as
indicated by the records of the Corporation or such Subsidiary, as
the case may be.
(b) "BOARD" means the Board of Directors of the Corporation.
(c) "BUSINESS DAY" means a day, except for a Saturday, Sunday or a
legal holiday.
(d) "CHANGE IN CONTROL" means Change in Control as defined in Section
4.3.
(e) "CLOSING PRICE" means the closing price of the Common Stock as
reported on the National Association of Securities Dealers
Automated Quotation System ("Nasdaq").
(f) "COMMITTEE" means the Compensation Committee of the Board.
(g) "COMMON STOCK" means the common stock, no par value, of the
Corporation.
(h) "COMPENSATION" means Base Compensation and Incentive Compensation.
(i) "CORPORATION" means FirstMerit Corporation, and any successor
corporation.
(j) "DEFERRED COMPENSATION" means Base Compensation deferred pursuant
to Section 2.4 and/or Incentive Compensation deferred pursuant to
Section 2.3.
(k) "ELIGIBLE EMPLOYEE" means an Eligible Employee as defined in
Section 2.1.
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(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(m) "INCENTIVE COMPENSATION" means the annual incentive award, if
any, payable to an Eligible Employee under the Corporation's or
a Subsidiary's annual incentive plan.
(n) "KEY EMPLOYEE" means an employee of the Corporation or a
Subsidiary designated by the Chief Executive Officer of the
Corporation as a key employee for purposes of the Plan.
(o) "PARTICIPANT" means an Eligible Employee, who has elected to
defer all or any portion of his Compensation under the Plan or
to receive all or a portion of his Incentive Compensation in
shares of Common Stock under the Plan.
(p) "PLAN" means the FirstMerit Corporation Executive Deferred
Compensation Plan.
(q) "PLAN YEAR" means the calendar year.
(r) "REAMORTIZATION DATE" means the date on which benefit payments
are recalculated to account for changes in investment
performance. This date shall be the last business day of
October, effective on January 1 of the next Plan Year.
(s) "RETIREMENT" means retirement at or after age 65 or, with the
consent of the Committee, prior to age 65 but at or after age
55.
(t) "STOCK ACCOUNT" means the account maintained by the Committee in
the name of a Participant pursuant to Section 2.5.
(u) "STOCK CREDIT" means a credit to a Participant's Stock Account,
calculated pursuant to Section 2.5.
(v) "SUBSIDIARY" means a subsidiary of the Corporation to which the
Plan has been extended by the Board.
(w) "VALUATION DATE" means the last day of the month in which the
Participant terminates employment as an employee of the
Corporation or any Subsidiary.
ARTICLE 2
PARTICIPATION IN THE PLAN
2.1 ELIGIBILITY. The Committee shall from time to time designate one or more
Key Employees as eligible to participate in the Plan (an "Eligible
Employee").
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2.2 INCENTIVE COMPENSATION IN COMMON STOCK.
(a) To the extent that an Eligible Employee has not timely
elected, pursuant to Section 2.3, to defer receipt of any
Incentive Compensation payable to him with respect to a Plan
Year, such Eligible Employee may irrevocably elect, in
increments of one percent (1%), to receive such Incentive
Compensation in whole shares of Common Stock (and cash for any
fractions of a share). Such election must be made in writing
and delivered to the Committee prior to July l of the Plan
Year with respect to which such Incentive Compensation may be
payable or, if earlier, not later than six months in advance
of the date as of which such Incentive Compensation will be
paid, unless the Committee establishes a different time (which
may be earlier or later than the time provided herein) as of
which such election must be made. Absent such a timely
election, an Eligible Employee shall be deemed to have elected
to receive such Incentive Compensation entirely in cash.
(b) The number of shares of Common Stock payable to a Participant
pursuant to an election under Section 2.2(a) shall be equal to
the number of shares of Common Stock that could have been
purchased with the amount of Incentive Compensation that would
otherwise have been paid to the Participant in cash at the
Closing Price of shares of Common Stock on the day such
Incentive Compensation would otherwise have been so paid.
(c) An Eligible Employee may, pursuant to Section 2.2(a), file a
new election or revoke a prior election each Plan Year. Unless
and until such a new election or revocation of a prior
election is timely made, the election or deemed election in
effect with respect to the immediately preceding Plan Year
shall continue to be effective and irrevocable with respect to
the then current Plan Year.
2.3 DEFERRED INCENTIVE COMPENSATION.
(a) An Eligible Employee may irrevocably elect, in increments of
twenty- five percent (25%), to defer receipt of any Incentive
Compensation otherwise payable to him with respect to any Plan
Year. Such election must be made in writing and delivered to
the Committee prior to September 15 of the Plan Year with
respect to which such Incentive Compensation may be payable
or, if earlier, not later than six months in advance of the
date as of which such Incentive Compensation will otherwise be
paid, unless the Committee establishes a different time (which
may be earlier or later than the time provided herein) as of
which such election must be made. Absent such a timely
election, an Eligible Employee shall be deemed to have elected
not to defer receipt of any such Incentive Compensation.
(b) An Eligible Employee may, pursuant to Section 2.3(a), file a
new election or revoke a prior election each Plan Year. Unless
and until such a new election or revocation of
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a prior election is timely made, the election or deemed
election in effect with respect to the immediately preceding
Plan Year shall continue to be effective and irrevocable with
respect to the then current Plan Year.
2.4 DEFERRED BASE COMPENSATION.
(a) (i) An Eligible Employee may irrevocably elect, in
increments of one percent (1%), to defer receipt of
Base Compensation otherwise payable to him. Such
election must be made in writing and delivered to the
Committee prior to July l of any Plan Year and shall
be effective with respect to Base Compensation
otherwise payable to the Participant during the
twelve-month period commencing on January l of the
immediately succeeding Plan Year, unless the
Committee establishes a different time (which may be
earlier or later than the time provided herein) as
of, or with respect to, which such election must be
made and/or shall be effective.
(ii) In the first Plan Year in which a Key Employee
becomes an Eligible Employee, such Eligible Employee
may irrevocably elect, in increments of one percent
(1%), to defer receipt of Base Compensation otherwise
payable to him. Such election must be made in writing
and delivered to the Committee within thirty (30)
days of the date as of which such Key Employee became
an Eligible Employee and shall be effective with
respect to Base Compensation otherwise payable to him
during the period commencing six months after the
date on which such election was made and delivered to
the Committee and ending on the immediately following
December 31, unless the Committee establishes a
different time (which may be earlier or later than
the time provided herein) as of, or with respect to,
which such election shall be effective.
(b) A Participant may, pursuant to Section 2.4(a), file a new
election or revoke a prior election each Plan Year applicable
to Base Compensation otherwise payable to him during the
twelve-month period commencing on January l of the immediately
succeeding Plan Year. Unless and until such a new election or
revocation of a prior election is timely made, the election,
if any, then in effect shall continue to be effective and
irrevocable.
2.5 STOCK ACCOUNT.
(a) A Stock Account shall be maintained by the Committee in the
name of each Participant. A Participant shall be one hundred
percent (100%) vested in his Stock Account at all times.
(b) The Stock Account of a Participant shall be credited, as of
the day Deferred Compensation otherwise would have been paid
to such Participant, with Stock Credits
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equal to the number of shares of Common Stock (including
fractions of a share) that could have been purchased with the
amount of such Deferred Compensation at the Closing Price of
shares of Common Stock on the day as of which such Stock
Account is so credited and shall be reduced as of the day that
any amount is distributed therefrom by the number of Stock
Credits attributable to such distribution.
(c) As of the date any dividend is paid to holders of shares of
Common Stock, a Participant's Stock Account shall be credited
with additional Stock Credits equal to the number of shares of
Common Stock (including fractions of a share) that could have
been purchased, at the Closing Price of shares of Common Stock
on such date, with the amount that would have been paid as
dividends on that number of shares of Common Stock (including
fractions of a share) which is equal to the number of Stock
Credits attributable to the Participant's Stock Account as of
the record date of such dividend. In the case of dividends
paid in property, the amount of the dividend shall be deemed
to be the fair market value of the property at the time of the
payment thereof, as determined in good faith by the Committee.
2.6 DISTRIBUTIONS UPON TERMINATION OF EMPLOYMENT.
(a) Distribution of a Participant's Stock Account shall be made or
commence in accordance with this Section 2.6 within thirty
(30) days following the Valuation Date.
(b) A Participant may elect, in the event his employment as an
employee of the Corporation or any Subsidiary terminates due
to Retirement, to receive his Stock Account in monthly
installments not to exceed one hundred twenty (120) separate
installments or in a single, lump sum distribution. Such
installments or such single, lump sum distribution shall be
paid in whole shares of Common Stock. If the Participant's
Stock Account includes a fractional Stock Credit, the number
of Stock Credits in the Participant's Stock Account shall be
increased to the next highest whole number by transferring
from the Participant's Cash Account an amount equal to 1 minus
the fractional Stock Credit in the Participant's Stock Account
multiplied by the Closing Price of shares of Common Stock on
the date that the distribution is to commence. The Committee
shall distribute such Stock Account, as adjusted pursuant to
the preceding sentence, in accordance with such election or,
if no such election is made, in a single, lump sum
distribution.
(i) The number of Stock Credits attributable to an
installment shall be determined by calculating the
product of the current number of Stock Credits
allocated to such Stock Account, adjusted pursuant to
the third sentence of Section 2.6(b), and a fraction,
the numerator of which is one (1) and the denominator
of which is the total number of installments elected
minus the number of installments previously paid, and
rounding such product to the next lowest whole number
of Stock Credits. The final installment shall be
equal to the balance of the undistributed Stock
Credits in the Participant's Stock Account. All
monthly installments shall commence within thirty
(30) days following the Valuation Date and shall
continue on the same day of each succeeding month
until all
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installments have been paid.
(ii) An election pursuant to this Section 2.6(b) must be
in writing and delivered to the Committee at the time
an Eligible Employee becomes a Participant. A
Participant may at any time not less than one year
prior to the date as of which the distribution of
such Participant's Stock Account pursuant to this
Section 2.6(b) is made or commences change such
election pursuant to an election in writing delivered
to the Committee, which election shall be irrevocable
during such one-year period.
(c) In the event a Participant's employment as an employee of the
Corporation and any Subsidiary terminates other than due to
Retirement or death, the participant shall receive a single,
lump sum distribution of the Stock Credits allocated to his
Stock Account, adjusted pursuant to the third sentence of
Section 2.6(b). This distribution shall be paid within 30 days
following the Valuation Date.
(d) Notwithstanding any other provision of this Plan, if the value
of the Participant's Stock Account is five thousand dollars
($5,000) or less on the Valuation Date, or when the Stock
Account balance is reduced to five thousand dollars ($5,000)
as a result of payout, the benefit, or the remaining account
balance, shall be paid in a lump sum.
2.7 IN-SERVICE DISTRIBUTIONS.
(a) In-Service Withdrawal. A Participant may elect to withdraw all
or a portion of his Stock Account in a single sum or
substantially equal annual installments of the Stock Account
amortized over a period of up to five (5) years. If a
Participant elects to withdraw all of his Stock Account, the
amount to be distributed in installment payments shall be
redetermined in the same manner as that set forth in Section
2.6(b)(i), as of January 1 of each year in which an
installment is to be received, based on the remaining Stock
Account balance as adjusted for gains or losses and the
remaining number of installment payments. Adjustments for
investment gains and losses shall continue on the
undistributed balance of the Stock Account. Any such election
must be in writing and delivered to the Committee not less
than one (1) year in advance of the payment date; provided,
however, that if the Participant's employment as an employee
of the Corporation and any Subsidiary terminates prior to the
payment date, such election shall be deemed automatically
revoked. Unlike an accelerated distribution, there is no
penalty for an in-service withdrawal.
(b) Accelerated Distribution. A Participant may elect to receive,
upon written request to the Committee, a single-sum
distribution of more than $10,000, or if less, the entire
balance held in his Stock Account, from the Participant's
Stock Account as of the end of the calendar month prior to the
month in which the Committee receives the written request. The
amount requested by the Participant under this Section shall
be paid in
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a single sum within thirty (30) days following the receipt of
the notice by the Committee from the Participant. The
Participant shall permanently forfeit ten percent (10%) of the
amount requested and the Participant shall not be eligible to
participate in the Plan or to receive an accelerated
distribution for a period of one (1) year from the date of
distribution. The Company shall have no obligation to the
Participant or his beneficiary with respect to such forfeited
amount.
2.8 DISTRIBUTION UPON DEATH. Notwithstanding any other provision of this
Plan, upon the death of a Participant, whether before or after
Retirement or other termination of employment as an employee of the
Corporation and any Subsidiary, the Committee shall pay all of such
Participant's Stock Account as elected by the Participant to such
person, persons, or entity as designated by the Participant. If there
is no beneficiary designation or if such persons shall have all
predeceased the Participant or otherwise ceased to exist, such
distributions shall be made to the executor or administrator of the
Participant's estate. Any distribution under this Section 2.8 shall be
made as soon as practicable following the end of the month in which the
Committee is notified of the Participant's death or is satisfied as to
the identity of the appropriate payee, whichever is later. The amount
payable under this Section 2.8 shall be equal to the Stock Credits then
allocated to such Stock Account on the last Business Day of the month
immediately preceding the month of such Participant's death. If the
Participant's Stock Account includes a fractional Stock Credit, the
number of Stock Credits in the Participant's Stock Account shall be
increased to the next highest whole number by transferring from the
Participant's Cash Account an amount equal to 1 minus the fractional
Stock Credit in the Participant's Stock Account multiplied by the
Closing Price of shares of Common Stock on the date that the
distribution is to commence.
2.9 WITHHOLDING TAXES. Any withholding of taxes or other amounts required
by federal, state, or local law shall be withheld from Compensation
other than Deferred Compensation. If necessary, the Corporation may
reduce the amount of Deferred Compensation and/or shares of Common
Stock payable pursuant to Section 2.2(a) by an amount equal to any
required withholding. In addition, the Corporation may defer making
payments under the Plan until satisfactory arrangements have been made
for the payment of any federal, state or local taxes required to be
withheld with respect to such payment or delivery. Each Participant
shall be entitled to irrevocably elect, at least six months prior to
the date shares of Common Stock would otherwise be delivered hereunder,
to have the Corporation withhold shares of Common Stock having an
aggregate value equal to the amount required to be withheld. The value
of fractional shares remaining after payment of the withholding taxes
shall be paid to the Participant in cash. Shares so withheld shall be
valued at the Closing Price on the Business Day immediately preceding
the date such shares would otherwise be transferred hereunder.
2.10 DISABILITY. If a Participant suffers a disability, as defined in the
Corporation's long term disability plan, Participant's deferrals that
otherwise would have been credited to the Participant's Stock Account
will cease during such disability. The Participant's Stock Account will
continue to receive the stock investment results. If, after 24 months,
the Participant is still
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disabled, the Participant shall be considered to have terminated
employment and his Stock Account balance will be paid out under Section
2.6.
ARTICLE 3
THE COMMITTEE
3.1 AUTHORITY. The Committee shall have full power and authority to
administer the Plan, including the power to (i) promulgate forms to be
used with respect to the Plan, (ii) promulgate rules of Plan
administration, (iii) settle any disputes as to rights or benefits
arising from the Plan, (iv) interpret the terms of the Plan and (v)
make such decisions or take such action as the Committee, in its sole
discretion, deems necessary or advisable to aid in the proper
administration of the Plan.
3.2 ELECTIONS, NOTICES. All elections and notices required to be provided
to the Committee under the Plan must be on such forms, contain such
information, and be made or given at such times as the Committee may
require.
3.3 AGENTS. The Committee may appoint an individual to be the Committee's
agent with respect to the day-to-day administration of the Plan. In
addition, the Committee may, from time to time, employ other agents and
delegate to them such administrative duties as it sees fit, and may
from time to time consult with counsel who may be counsel to the
Corporation.
3.4 BINDING EFFECT OF DECISIONS. The decision or action of the Committee
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the
rules and regulations promulgated hereunder shall be final and binding
upon all persons having any interest in the Plan.
3.5 INDEMNITY OF COMMITTEE. The Corporation has entered into
Indemnification Agreements with each of the members of the Committee
protecting them against such claims, losses, damages, expenses or
liabilities arising from any action or failure to act with respect to
this Plan, except as otherwise indicated in such Agreement.
3.6 CLAIMS PROCEDURE. Any person claiming an amount under the Plan,
requesting an interpretation or ruling under the Plan, or requesting
information under the Plan shall present the request in writing to the
Committee, which shall respond in writing within ninety (90) days
following receipt of the request. If the claim or request is denied,
the written notice of denial shall state (i) the reasons for denial,
(ii) the reference to the pertinent Plan provisions or legal doctrine
upon which the denial is based; (iii) a description of any additional
material or information required and an explanation of why it is
necessary; and (iv) an explanation of the Plan's claim review
procedure. Any person whose claim or request is denied may make a
second request for review by notice given in writing to the Committee.
The claim or request shall be reviewed further by the Committee, and
the Committee may, but shall not be required to, grant the claimant a
hearing. A decision on such second request shall normally be made
within sixty (60) days after the date of the second request. If an
extension of time is required
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for a hearing or other special circumstances, the claimant shall be
notified and the time limit shall be one hundred twenty (120) days from
the date of the second request. The decision shall be in writing and
shall be final and bind all parties concerned.
ARTICLE 4
SHARES AVAILABLE
4.1 NUMBER. Three hundred thousand (300,000) shares of Common Stock are
available for issuance under the Plan in accordance with the provisions
hereof and such other provisions as the Committee may from time to time
deem necessary. This authorization may be increased from time to time
by approval of the Board and by the shareholders of the Corporation if,
in the opinion of counsel for the Corporation, such shareholder
approval is required. Stock Credits to Participant's Stock Account
shall be applied to reduce the maximum number of shares of Common Stock
remaining available under the Plan. Shares of Common Stock issuable
under the Plan may be taken either from authorized but unissued or
treasury shares, as determined by the Corporation.
4.2 ADJUSTMENTS. If at any time the number of outstanding shares of Common
Stock shall be increased as the result of any stock dividend, stock
split, subdivision or reclassification of shares, the number of shares
of Common Stock available under Section 4.1 and the number of Stock
Credits with which each Participant's Stock Account is credited shall
be increased in the same proportion as the outstanding number of shares
of Common Stock is increased. If the number of outstanding shares of
Common Stock shall at any time be decreased as the result of any
combination, reverse stock split or reclassification of shares, the
number of shares of Common Stock available under Section 4.1 and the
number of Stock Credits with which each Participant's Stock Account is
credited shall be decreased in the same proportion as the outstanding
number of shares of Common Stock is decreased. In the event the
Corporation shall at any time be consolidated with or merged into any
other corporation and holders of shares of Common Stock receive shares
of the capital stock of the resulting or surviving corporation, there
shall be credited to each Participant's Stock Account, in place of the
Stock Credits then credited thereto, new Stock Credits in an amount
equal to the product of the number of shares of capital stock exchanged
for one share of Common Stock upon such consolidation or merger and the
number of Stock Credits with which the Participant's Stock Account then
is credited, and the number of shares of Common Stock available under
Section 4.1 shall be similarly adjusted. If in such a consolidation or
merger, holders of shares of Common Stock shall receive any
consideration other than shares of the capital stock of the resulting
or surviving corporation or its parent corporation, the Committee, in
its sole discretion, shall determine the appropriate change in
Participants' Stock Accounts.
4.3 CHANGE IN CONTROL. Notwithstanding any other provision of this Plan, in
the event of a Change in Control of the Corporation, each Participant's
Stock Account shall, within five Business Days thereafter, be
distributed in a single, lump sum equal to the number of Stock
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Credits then allocated to his Stock Account as of the last Business Day
immediately preceding the Change in Control. For purposes of this
Section 4.3, Change in Control means the occurrence of any one of the
following events:
(a) individuals who, on April 19, 2000, constitute the Board (the
"Incumbent Directors") cease for any reason to constitute at
least a majority of the Board, provided that any person
becoming a director subsequent to April 19, 2000 whose
election or nomination for election was approved by a vote of
at least two thirds (2/3rds) of the Incumbent Directors then
on the Board (either by a specific vote or by approval of the
proxy statement of the Corporation in which such person is
named as a nominee for director, without written objection to
such nomination) shall be an Incumbent Director; provided,
however, that no director of the Corporation initially as a
result of an actual or threatened election contest with
respect to directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of any
person other than the Board shall be deemed to be an Incumbent
Director;
(b) any "person" (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934 (the "Exchange Act") and
as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act)
is or becomes a "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of the Corporation representing 25% or more of the combined
voting power of the Corporation's then outstanding securities
eligible to vote for the election of the Board (the "Company
Voting Securities"); provided, however, that the event
described in this paragraph (b) shall not be deemed to be a
Change in Control by virtue of any of the following
acquisitions:
(i) by the Corporation or any Subsidiary,
(ii) by any employee benefit plan sponsored or maintained
by the Corporation or any Subsidiary,
(iii) by any underwriter temporarily holding securities
pursuant to an offering of such securities,
(iv) pursuant to a Non-Control Transaction (as defined in
paragraph (c)), or
(v) a transaction (other than one described in (c) below)
in which Company Voting Securities are acquired from
the Corporation, if a majority of the Incumbent
Directors then on the Board approve a resolution
providing expressly that the acquisition pursuant to
this clause (v) does not constitute a Change in
Control under this paragraph (b);
(c) the consummation of a merger, consolidation, statutory share
exchange or similar
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form of corporate transaction involving the Corporation or any
of its Subsidiaries that requires the approval of the
Corporation's stockholders, whether for such transaction or
the issuance of securities in the transaction (a "Business
Combination"), unless immediately following such Business
Combination:
(i) more than 50% of the total voting power of (A) the
corporation resulting from such Business Combination
(the "Surviving Entity"), or (B) if applicable, the
ultimate parent corporation that directly or
indirectly has beneficial ownership of 100% of the
voting securities eligible to elect directors ("Total
Voting Power") of the Surviving Entity (the "Parent
Entity"), is represented by Company Voting Securities
that were outstanding immediately prior to such
Business Combination (or, if applicable, shares into
which such Company Voting Securities were converted
pursuant to such Business Combination), and such
voting power among the holders thereof is in
substantially the same proportion as the voting power
of such Company Voting Securities among the holders
thereof immediately prior to the Business
Combination,
(ii) no person (other than any employee benefit plan (or
related trusts) sponsored or maintained by the
Surviving Entity or the Parent Entity), is or becomes
the beneficial owner, directly or indirectly, of 25%
or more of the Total Voting Power of the outstanding
voting securities eligible to elect directors of the
Parent Entity (or, if there is no Parent Entity, the
Surviving Entity), and
(iii) at least a majority of the members of the board of
directors of the Parent Entity (or, if there is no
Parent Entity, the Surviving Entity) following the
consummation of the Business Combination were
Incumbent Directors at the time of the Board's
approval of the execution of the initial agreement
providing for such Business Combination (any Business
Combination which satisfies all of the criteria
specified in (i), (ii) and (iii) above shall be
deemed to be a "Non-Control Transaction"); or
(d) the stockholders of the Corporation approve a plan of complete
liquidation or dissolution of the Corporation.
Notwithstanding the foregoing, a Change in Control of the Corporation
shall not be deemed to occur solely because any person acquires
beneficial ownership of more than 25% of the Company Voting Securities
as a result of the acquisition of Company Voting Securities by the
Corporation which reduces the number of Company Voting Securities
outstanding; provided, that if after such acquisition by the
Corporation such person becomes the beneficial owner of additional
Company Voting Securities that increases the percentage of outstanding
Company Voting Securities beneficially owned by such person by more
than one percent, a Change in Control of the Corporation shall then
occur.
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ARTICLE 5
MISCELLANEOUS
5.1 UNFUNDED PLAN. No promise hereunder shall be secured by any specific
assets of the Corporation, nor shall any assets of the Corporation be
designated as attributable or allocated to the satisfaction of such
promises. Participants shall have no rights under the Plan other than
as unsecured general creditors of the Corporation. Notwithstanding the
foregoing, the Corporation may, but is not obligated to, establish a
grantor trust (the "Trust") for purposes of segregating assets
necessary to satisfy the Corporation's obligations under this Plan. All
amounts contributed to the Trust shall remain subject to the claims of
the Corporation's creditors in the event of the Corporation's
insolvency (as defined in the Trust document) until paid to the
Participant or his beneficiaries in such manner and at such times as
specified in this Plan. It is the intention of the Corporation that the
Trust shall constitute an unfunded arrangement and shall not affect the
status of this Plan as an unfunded plan maintained for the purpose of
providing deferred compensation for a select group of highly
compensated employees for purposes of Title I of the Employee
Retirement Income Security Act of 1974 and for tax purposes.
Participants shall have no control or incidence of ownership with
respect to the assets contributed to the Trust by the Corporation.
5.2 NON-ALIENATION OF BENEFITS. No benefit under the Plan shall be subject
in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, or charge, and any attempt to do so shall be void.
No such benefit, prior to receipt thereof pursuant to the provisions of
the Plan, shall be in any manner liable for or subject to the debts,
contracts, liabilities, engagements or torts of the Participant.
5.3 INVALIDITY. If any term or provision contained herein is to any extent
invalid or unenforceable, such term or provision will be reformed so
that it is valid, and such invalidity or unenforceability will not
affect any other provision or part hereof.
5.4 GOVERNING LAW. This Plan shall be governed by the laws of the State of
Ohio, without regard to the conflict of law provisions thereof.
5.5 AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board at any
time may terminate and in any respect amend or modify the Plan;
provided, however, that no such termination, amendment or modification
shall adversely affect the rights of any Participant or beneficiary,
including his rights with respect to Stock Credits credited prior to
such termination, amendment or modification, without his consent.
Notwithstanding the foregoing, the provisions of this Plan that
determine the amount, price or timing of benefits related to Stock
Credits shall not be amended more than once every six months (other
that as may be necessary to conform to any applicable changes in the
Internal Revenue Code of 1986, as amended or the rules thereunder),
unless such amendment would be consistent with
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the provisions of Rule 16b-3 (or any successor provisions) promulgated
under the Exchange Act.
5.6 SUCCESSORS AND HEIRS. The Plan and any properly executed elections
hereunder shall be binding upon the Corporation and Participants, and
upon any assignee or successor in interest to the Corporation and upon
the heirs, legal representatives and beneficiaries of any Participant.
5.7 STATUS AS SHAREHOLDERS. Stock Credits are not, and do not constitute,
shares of Common Stock, and no right as a holder of shares of Common
Stock shall devolve upon a Participant unless and until such shares are
issued to the Participant.
5.8 RIGHTS. This Plan shall not give any person the right to continue as an
employee of the Corporation or any Subsidiary or any rights or
interests other than as herein provided.
5.9 USE OF TERMS. The masculine includes the feminine and the plural
includes the singular, unless the context clearly indicates otherwise.
5.10 STATEMENT OF ACCOUNTS. Each Participant in the Plan during the
immediately preceding Plan Year shall receive a statement of his Stock
Account under the Plan as of December 31 of such preceding Plan Year.
Such statement shall be in a form and contain such information as is
deemed appropriate by the Committee.
5.11 COMPLIANCE WITH LAWS. This Plan and the offer, issuance and delivery of
shares of Common Stock and/or the payment and deferral of Compensation
under this Plan are subject to compliance with all applicable federal
and state laws, rules and regulations (including but not limited to
state and federal reporting, registration, insider trading and other
securities laws) and to such approvals by any listing agency or any
regulatory or governmental authority as may, in the opinion of counsel
for the Corporation, be necessary or advisable in connection therewith.
Any securities delivered under this Plan be subject to such
restrictions, and the person acquiring the securities shall, if
requested by the Corporation, provide such assurances and
representations to the Corporation as the Corporation may deem
necessary or desirable to assure compliance with all applicable legal
requirements.
5.12 PLAN CONSTRUCTION. Anything in this Plan to the contrary
notwithstanding, is the intent of the Corporation that transactions
under the Plan satisfy the applicable requirements of Rule 16b-3
promulgated under Section 16 of the Exchange Act so that persons who
are or become subject to Section 16 of the Exchange Act will be
entitled to the benefits of such Rule 16b-3 or other exemptive rules
under Section 16 of the Exchange Act and will not be subjected to
avoidable liability thereunder. To the extent any provision of the
Plan, action by the Committee or election by a Participant or Eligible
Employee fails to so comply, it shall be deemed null and void to the
extent permitted by law.
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5.13 HEADINGS NOT PART OF PLAN. Headings and subheadings in the Plan are
inserted for reference only and are not to be considered in the
construction of the Plan.
5.14 STOCKHOLDER APPROVAL; EFFECTIVE DATE. This Plan has been approved by
the Board and became effective as of January 1, 1996, due to the
approval of this Plan by the stockholders of the Corporation at the
Annual Shareholders Meeting in 1996. The Plan was amended and restated
in November, 1996, and in July, 1997, by the Board to make certain
administrative changes to the Plan. The Plan was amended and restated
in October 21, 2000 to amend the definition of Change in Control. The
Plan was amended and restated effective as of January 1, 2001 to
eliminate the option of receiving distributions from the Plan in the
form of cash and to modify the provisions dealing with in-service
distributions.
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