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Exhibit 10(d)
FIRSTMERIT CORPORATION
1995 RESTRICTED STOCK PLAN
1. PURPOSE. The purpose of the FirstMerit Corporation 1995
Restricted Stock Plan (the "Plan") is to enable FirstMerit Corporation (the
"Company") and its subsidiaries to provide present and prospective officers and
key employees with an opportunity to obtain an equity ownership interest in the
Company through the grant of restricted stock awards ("Award" or "Awards") of
the Company's common stock, no par value ("Common Stock").
2. ADMINISTRATION. The Plan shall be administered by the
Compensation Committee (the "Committee") of the Board of Directors of the
Company. A majority of members of the Committee shall constitute a quorum, and
all determinations of the Committee shall be made by a majority of its members.
Any determination of the Committee under the Plan may be made without notice or
meeting, by a writing signed by a majority of the Committee members.
In accordance with and subject to the provisions of the Plan, the
Committee shall (A) select the Participants from those employees meeting the
eligibility criteria described in Section 4; (B) determine the number of Shares
to be subject to each Award; (C) determine the time at which Awards are made;
(D) determine the duration and nature of Award restrictions; (E) fix such other
provisions of the Awards as the Committee may deem necessary or desirable in
its sole discretion, consistent with the terms of the Plan; and (F) determine
the form or forms of agreement with Participants which shall evidence the
particular terms, conditions, rights and duties of the Company and the
Participants with respect to Awards (the "Award Agreements").
The Committee shall have the authority, subject to the provisions of
the Plan, to establish, adopt, and revise such rules and regulations relating
to the Plan as it may deem necessary or desirable for the administration of the
Plan. Each determination, interpretation, or other action made or taken by the
Committee pursuant to the provisions of the Plan shall be conclusive and
binding for all purposes and on all persons, including, without limitation, the
Company, the stockholders of the Company, the Committee and each of the members
thereof, the Board of Directors, officers and employees of the Company, and the
Participants and their respective successors in interest.
3. COMMON STOCK SUBJECT TO THE PLAN. There is hereby reserved
for issuance as Awards under the Plan an aggregate of 12,500 shares of Common
Stock, which may be authorized but unissued or treasury shares.
Any shares subject to Awards may thereafter be subject to new Awards
under this Plan if shares of Common Stock are issued under such Awards and are
thereafter reacquired by the Company pursuant to rights reserved by the Company
upon issuance thereof, including, without limitation, the forfeiture of shares
subject to an Award prior to the lapse of restrictions.
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If the Company shall at any time change the number of issued shares of
Common Stock without new considerations to the Company (by stock dividends,
stock splits, or similar transactions), the total number of shares reserved for
issuance under the Plan shall be adjusted proportionately. Awards may also
contain provisions for their continuation or for other equitable adjustments
after changes in the Common Stock resulting from reorganization, sale, merger,
consolidation or similar circumstances.
4. PARTICIPANTS. Participants will consist of such key employees
(including officers) of the Company and any present or future subsidiary as the
Committee, in its sole discretion, determines to be mainly responsible for the
success and future growth and profitability of the Company and value to its
stockholders and whom the Committee may designate from time to time to receive
Awards under the Plan. Awards may be granted under this Plan to persons who
have previously received Awards or other benefits under this or other plans of
the Company.
5. AWARDS. Awards will consist of grants of restricted shares of
Common Stock ("Restricted Shares") to Participants as a bonus for service
rendered to the Company without other payment therefor. In addition to the
restrictions described in Section 6, any Award under the Plan may be subject to
such other provision (whether or not applicable to an Award to any other
Participant) as the Committee deems appropriate, including, without limitation,
provisions for the forfeiture of and restrictions on the sale, resale or other
disposition of shares acquired under any Award, provisions giving the Company
the right to repurchase shares acquired under any Award, provisions to comply
with federal and state securities laws, or understandings or conditions as to
the Participant's employment in addition to those specifically provided for
under the Plan.
6. RESTRICTIONS. A Participant shall not have a right to retain
any Restricted Shares granted under an Award unless and until such restrictions
have by their terms lapsed. The lapsing of such restrictions is referred to
herein as "Vesting," and the shares after Vesting has occurred are referred to
herein as "Vested Shares." The restrictions which the Committee may place on
the Awards include, without limitation, the Participant's continued employment
with the Company for certain periods of time as determined by the Committee and
the attainment of various performance goals by the Participant and/or the
Company as specified by the Committee with respect to such Award. The
Committee may, in its sole discretion, require different periods of employment
or different performance goals with respect to different Participants, with
respect to different Awards or with respect to separate, designated portions of
an Award. The Committee may, in its sole discretion, terminate restrictions on
shares issued pursuant to an Award prior to the time such restrictions
otherwise would have lapsed. Any Restricted Shares granted under an Award
which have not become Vested Shares on or before the termination date, if any,
set forth in the Award Agreement shall permanently be forfeited, and shall
thereafter become available for reissuance under the Plan.
7. ENFORCEMENT OF RESTRICTIONS. The Committee in its sole
discretion, may employ one or more methods of enforcing the restrictions
referred to in Sections 6, 8, 9 and 11, including, without limitation, the
following: (A) placing a legend on the stock certificates
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referring to the restrictions; (B) requiring the Participant to keep stock
certificates, duly endorsed, in the custody of the Company or its designated
agent while the restrictions remain in effect; (C) not issuing certificates for
Restricted Shares until the shares become Vested Shares; or (D) retain a
possessory lien in the Award Shares as provided in Section 11 below.
8. PRIVILEGES OF SHAREHOLDER. Restricted Shares shall constitute
issued and outstanding shares of the Company for all corporate purposes, and
the Participant shall have all voting and (subject to any Award restrictions)
all dividend, liquidation and other rights with respect to Restricted Shares
while the corresponding Award remains in effect, as if such Participant were a
holder of record of unrestricted shares of Common Stock. Notwithstanding the
foregoing, prior to the time at which a Restricted Share becomes a Vested
Share, the Participant's right to assign or transfer such Restricted Share
shall be subject to the limitations of Section 9. Certificates representing
Restricted Shares shall bear a restrictive legend disclosing the restrictions,
the existence of the Plan, and the existence of the applicable Award.
9. NON-TRANSFERABILITY. No right or interest of any Participant
in any Award made pursuant to the Plan shall, prior to the satisfaction of all
restrictions applicable thereto, be assignable or transferable, in whole or in
part, during the lifetime of the Participant, either voluntarily or
involuntarily, or be made subject to any lien (except as provided in Sections 7
and 11), directly or indirectly, by operation of law or otherwise, including
execution, levy, garnishment, attachment, pledge or bankruptcy. In the event
of a Participant's death, a Participant's right and interest in any Award
shall, to the extent provided in the Award, be transferable by testamentary
will or the laws of descent and distribution, and the issuance of any shares
subject to an Award shall be made to the Participant's legal representatives,
heirs or legatees upon furnishing the Committee with evidence satisfactory to
the Committee of such status.
10. WITHHOLDING TAXES. The Company is entitled to (A) withhold
and deduct from future wages of the Participant, or make other arrangements for
the collection of, all legally required amounts necessary to satisfy any
federal, state, or local tax requirements attributable to the grant, vesting or
applicable tax elections (including, without limitation, elections under
Section 83(b) of the Code), with respect to the Restricted Shares, or the
payment of any dividends or other distributions with respect to the Restricted
Shares, or (B) require the Participant promptly to remit the amount of such
withholding to the Company as a condition to the continuation of such Award,
the delivery of certificates evidencing Vested Shares, or the payment of any
dividends paid on Restricted Shares.
11. LIEN ON SHARES. The Company may, in its sole discretion,
require that a Participant, as a condition to the receipt of an Award, grant to
the Company a possessory lien on the Restricted Shares in order to (A) secure
re-transfer of the Shares into the name of the Company, and (B) ensure adequate
provision for any tax withholding obligations arising with respect to such
Award, and to that end, may require that certificates evidencing Restricted
Shares be deposited by the Participant with the Company, together with stock
powers or other instruments of assignment, each endorsed in blank, which will
permit the transfer to the
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Company of all or any portion of the Restricted Shares which are forfeited or
required to be retained to satisfy the participant's withholding obligations to
the Company.
12. SHARE ISSUANCE AND TRANSFER RESTRICTIONS.
(A) SHARE ISSUANCE. Notwithstanding any other provision
of the Plan or any Award Agreement entered into pursuant hereto, the
Company shall not be required to issue or deliver any certificate for
shares under this Plan, unless and until both of the following are
satisfied:
(i) either:
(a) there shall be in effect with
respect to such shares a registration statement under
the Securities Act of 1933, as amended (the
"Securities Act") and any applicable state securities
laws, if the Committee, in its sole discretion, shall
have determined to file, cause to become effective
and maintain the effectiveness of such registration
statement; or
(b) if the Committee has determined not
to so register the shares, (1) exemptions from
registration under the Securities Act and applicable
state securities laws shall be available for such
issuance as determined by counsel for the Company and
(2) there shall have been received from the
Participant (or, in the event of death or disability,
the Participant's hear(s) or legal representative(s))
any representations or agreements requested by the
Company in order to permit such issuance to be made
pursuant to such exemptions; and
(ii) there shall have been obtained any other
consent, approval or permit from any state or federal
government agency which the Committee shall, in its sole
discretion and upon the advice of counsel, deem necessary or
advisable.
(B) TRANSFERS OF VESTED SHARES. Vested Shares may not be
sold, assigned, transferred, pledged, encumbered, or otherwise
disposed of (whether voluntarily or involuntarily) except pursuant to
registration under the Securities Act and applicable state securities
laws or pursuant to exemptions from such registrations. The Company
may condition the sale, assignment, transfer, pledge, encumbrance or
other disposition of such shares not issued pursuant to an effective
and current registration statement under the Securities Act and all
applicable state securities laws, on the receipt from the party to
whom the shares are to be so transferred of any representations or
agreements requested by the Company in order to permit such transfer
to be made.
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(C) LEGENDS. Unless a registration under the Securities
Act is in effect with respect to the issuance or transfer of Vested
Shares, each certificate representing such shares shall be endorsed
with a legend in substantially the following form, unless counsel for
the Company is of the opinion as to any such certificate that such
legend is unnecessary:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED
FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH
STATE LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION STATEMENT
UNDER THE ACT AND SUCH STATE LAWS, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
13. TENURE. An Award shall not confer upon the Participant any
right with respect to being continued in the employ of the Company or to
interfere in any way with the right of the Company to terminate his employment
at any time, for any reason, with or without cause, except as may otherwise be
stated in a written employment agreement between the Company and the
Participant.
14. ACCELERATION ON CHANGE OF CONTROL. The Committee may provide,
in its sole discretion, in one or more Awards, that notwithstanding the
provisions of each Award which would result in a forfeiture as a result of the
Participant's termination of employment with the Company prior to the Vesting
of Restricted Shares, the Restricted Shares subject to such Award shall
immediately become Vested Shares as a result of a Change in Control as defined
in the Award Agreement, or the affected Participant's employment or separation
agreement with the Company at the time of reference. Notwithstanding anything
to the contrary in the Plan, unless expressly provided to the contrary in the
Award Agreement, if Restricted Shares experience an acceleration in Vesting on
a Change in Control as permitted by the preceding sentence, the portion of the
Restricted Shares which experience such acceleration will be limited to that
number which will not cause or contribute to an "excess parachute payment" with
respect to the Participant, as reasonably determined by the Committee in
accordance with Section 280G of the Code.
15. AMENDMENT, MODIFICATION AND TERMINATION. The Board of
Directors may amend the Plan from time to time or terminate the Plan at any
time. In addition, the Committee may amend the terms of any Award previously
granted under this Plan, prospectively or retroactively. However, no action
authorized by this Section 15 shall impair the rights of any Participant
without the Participant's consent.
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16. EFFECTIVE DATE AND DURATION. The Plan is effective as of
March 1, 1995. The Plan shall continue in effect until it is terminated by
action of the Board of Directors, but such termination shall not affect the
then outstanding terms of any Award. No Award shall be granted more than 10
years after the date of adoption of this Plan; provided, however, that the
terms and conditions applicable to any Award granted within such period may
thereafter be amended or modified by mutual agreement between the Company and
the Participant or such other persons as may then have an interest therein.
Also, by mutual agreement between the Company and a Participant, or under any
future plan of the Company, Awards may be granted to such Participant in
substitution and exchange for, and in cancellation of, any Awards previously
granted such Participant under this Plan, or any benefit previously or
thereafter granted to him under any future plan of the Company.
17. EXCLUSIVITY OF THE PLAN. Nothing contained in this Plan is
intended to amend, modify or rescind any previously approved compensation plans
or programs adopted by the Company. The Plan will be construed to be in
addition to any and all such other plans or programs. The adoption of the Plan
by the Company will not be construed as creating any limitations on the power
or authority of the Board of Directors to adopt such additional or other
compensation arrangements as the Board of Directors may deem necessary or
desirable.
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