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Exhibit 99.1
AFFILIATION AGREEMENT
This Affiliation Agreement ("Affiliation Agreement") dated as of February 27,
1999 is entered into by and between FIFTH THIRD BANCORP, a corporation organized
and existing under the corporation laws of the State of Ohio with its principal
office located in Cincinnati, Hamilton County, Ohio ("Fifth Third"), and EMERALD
FINANCIAL CORP., a corporation organized and existing under the corporation laws
of the State of Ohio, with its principal office located in Strongsville,
Cuyahoga County, Ohio ("Emerald").
W I T N E S S E T H :
WHEREAS, Fifth Third is a registered bank holding company under the Bank Holding
Company Act of 1956, as amended, and Emerald is a unitary savings and loan
holding company under Section 10 of the Home Owners' Loan Act, as amended
("HOLA"), and Fifth Third and Emerald desire to effect a merger under the
authority and provisions of the corporation laws of the State of Ohio pursuant
to which at the Effective Time (as herein defined in Section IX) Emerald will be
merged into Fifth Third, with Fifth Third to be and become the surviving
corporation (the "Merger");
WHEREAS, Emerald owns all of the outstanding stock of The Strongsville Savings
Bank, an Ohio-chartered savings association ("Thrift Subsidiary"), which, at the
Effective Time, will be merged with and into Fifth Third's wholly owned
subsidiary Fifth Third Bank, Northwestern Ohio, N.A., a national banking
association ("Fifth Third Bank, N.W."), with Fifth Third Bank, N.W. to become
the surviving corporation (the "Subsidiary Merger");
WHEREAS, under the terms of this Agreement each of the issued and outstanding
shares of the Common stock, no par value per share, of Emerald which are issued
and outstanding (excluding any treasury shares and preferred shares) immediately
prior to the Effective Time will at the Effective Time be canceled and
extinguished and in substitution therefor such Emerald shares will, at the
Effective Time, be converted into shares of the Common Stock, without par value,
of Fifth Third ("Fifth Third Common Stock"), all as more fully provided in this
Agreement;
WHEREAS, the parties to this Agreement intend that the Merger qualify as a
"reorganization" within the meaning of Section 368(a)(1)(A) and related
provisions of the Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the mutual covenants herein contained, Fifth
Third and Emerald, agree together as follows:
I. MODE OF EFFECTUATING CONVERSION OF SHARES
A. Upon the terms and conditions set forth in the Agreement, Emerald shall be
merged with and into Fifth Third.
B. At the Effective Time (as defined in Article IX) all of the shares of Fifth
Third Common Stock that are issued and outstanding or held by Fifth Third as
treasury shares immediately prior to
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the Effective Time will remain unchanged and will remain outstanding or as
treasury shares, as the case may be, of the surviving corporation. Any stock
options, subscription rights, warrants or other securities outstanding
immediately prior to the Effective Time, entitling the holders to subscribe for
purchase of any shares of the capital stock of any class of Fifth Third, and any
securities outstanding at such time that are convertible into shares of the
capital stock of any class of Fifth Third will remain unchanged and will remain
outstanding, with the holders thereof entitled to subscribe for, purchase or
convert their securities into the number of shares of the class of capital stock
of Fifth Third to which they are entitled under the terms of the governing
documents.
C. 1. At the Effective Time, each of the shares of the Common Stock, no
par value per share, of Emerald that is issued and outstanding immediately prior
to the Effective Time ("Emerald Common Stock") will, when the Merger becomes
effective, be converted by virtue of the Merger and without further action, into
.30 shares of Fifth Third Common Stock (the "Exchange Ratio"), or cash in lieu
thereof for fractional shares, if any, as described in the immediately
succeeding paragraph, subject to adjustment as provided in Section I.F. below.
All issued and outstanding shares of the Preferred Stock of Emerald, if any,
shall be canceled at the Effective Time. At the Effective Time, all shares of
Emerald Common Stock held in treasury will be canceled and terminated and will
not be converted into shares of Fifth Third Common Stock.
2. At the Effective Time, each award, option, or other right to
purchase or acquire shares of Emerald Common Stock pursuant to stock options
("Emerald Rights") granted by Emerald under the 1994 Long Term Incentive Plan
and the 1998 Stock Option and Incentive Plan ("Stock Plan"), which are
outstanding at the Effective Time, whether or not exercisable, shall be
converted into and become options with respect to Fifth Third Common Stock, and
Fifth Third shall assume each Emerald Right, in accordance with the terms of the
Stock Plan and stock option agreement by which the Emerald Right is evidenced,
except from and after the Effective Time, (i) Fifth Third and its Compensation
Committee shall be substituted for the Committee of Emerald's Board of Directors
(including, if applicable, the entire Board of Directors of Emerald)
administering such Stock Plan, (ii) each Emerald Right assumed by Fifth Third
may be exercised solely for shares of Fifth Third Common Stock, (iii) the number
of shares of Fifth Third Common Stock subject to such Emerald Right shall be
equal to the number of shares of Emerald Common Stock subject to such Emerald
Right immediately prior to the Effective Time multiplied by the Exchange Ratio,
however, such number of Emerald Rights shall not exceed 481,412 shares in the
aggregate, which amount equals the number of Emerald Rights in existence on the
date of this Agreement, and (iv) the per share exercise price under each such
Emerald Right shall be adjusted by dividing the per share exercise price under
each such Emerald Right by the Exchange Ratio and rounding up to the nearest
four decimal places. Notwithstanding, the provisions of clause (iii) of the
preceding sentence, Fifth Third shall not be obligated to issue any fraction of
a share of Fifth Third Common Stock upon exercise of Emerald Rights and any
fraction of a share of Fifth Third Common Stock that otherwise would be subject
to a converted Emerald Right shall represent the right to receive a cash payment
equal to the product of such fraction and the difference between the Applicable
Market Value Per Share of Fifth Third Common Stock as defined in Article I
Section E hereof. In addition, notwithstanding the foregoing, each Emerald Right
which is an "incentive stock option" shall be adjusted as required by Section
424 of the Code so as not to constitute a modification, extension, or renewal of
the option, within the meaning of Section 424(h) of the
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Code. Fifth Third agrees to take all reasonable steps which are necessary to
effectuate the foregoing provisions of this Section.
3. The grants pursuant to the Stock Plan shall continue in effect on
the terms and conditions (subject to the adjustments required by Section I.C.2
after giving effect to the Merger), and Fifth Third shall take all reasonable
steps to comply with the terms of the Stock Plan to ensure, to the extent
reasonably required by, and subject to the provisions of, the Stock Plan, the
Emerald Rights which qualified as incentive stock options prior to the Effective
Time continue to qualify as incentive stock options after the Effective Time. At
or prior to the Effective Time, Fifth Third shall take all corporate action
necessary to reserve for issuance sufficient shares of Fifth Third Common Stock
for delivery upon exercise of Emerald Rights assumed by Fifth Third in
accordance with this Section. Within 60 days after the Effective Time, Fifth
Third shall file, if required by applicable laws or regulations, a registration
statement on Form S-3 or Form S-8, as the case may be (or any successor or
appropriate forms), with respect to shares of Fifth Third Common Stock subject
to the Emerald Rights assumed by Fifth Third in accordance with this Section and
shall use its reasonable efforts to maintain the effectiveness of such
registration statements and maintain the current status of the prospectus or
prospectuses contained therein), as well as comply with any applicable state
securities or "blue sky" laws, for so long as such options remain outstanding.
D. At the Effective Time, all of the shares of Emerald Common Stock, whether
issued or unissued (including treasury shares), will be canceled and
extinguished and the holders of certificates for shares thereof shall cease to
have any rights as shareholders of Emerald, except as aforesaid, their sole
rights as shareholders shall pertain to the Fifth Third Common Stock and cash in
lieu of fractional shares, if any (as described in the immediately succeeding
paragraph), into which their Emerald Common Stock shall have been converted by
virtue of the Merger.
E. After the Effective Time, each holder of a certificate or certificates for
shares of Emerald Common Stock, upon surrender of the same duly transmitted to
Fifth Third Trust Department, as Exchange Agent (or in lieu of surrendering such
certificates in the case of lost, stolen, destroyed or mislaid certificates,
upon execution of such documentation as may be reasonably required by Fifth
Third), shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of whole shares of Fifth Third Common Stock
into which such holder's shares of Emerald Common Stock shall have been
converted by the Merger pursuant to the Exchange Ratio, plus a cash payment for
any fraction of a share to which the holder is entitled, in lieu of such
fraction of a share, equal in amount to the product resulting from multiplying
such fraction by the per share closing price of Fifth Third Common Stock as
reported on the NASDAQ National Market System on the Effective Time (the
"Applicable Market Value Per Share of Fifth Third Common Stock"). Within seven
(7) business days after the Effective Time, the Exchange Agent will send a
notice and transmittal form to each Emerald shareholder of record at the
Effective Time advising such shareholder of the effectiveness of the Merger and
the procedures for surrendering to the Exchange Agent outstanding certificates
formerly evidencing Emerald Common Stock in exchange for new certificates of
Fifth Third Common Stock. Until so surrendered, each outstanding certificate
that prior to the Effective Time represented shares of Emerald Common Stock
shall be deemed for all corporate purposes to evidence ownership of the number
of full shares of Fifth Third Common Stock into which the same shall have been
converted; provided, however, that dividends or
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distributions otherwise payable with respect to shares of Fifth Third Common
Stock into which Emerald Common Stock shall have been so converted shall be paid
with respect to such shares only when the certificate or certificates evidencing
shares of Emerald Common Stock shall have been so surrendered (or in lieu of
surrendering such certificates in the case of lost, stolen, destroyed or mislaid
certificates, upon execution of such documentation as may be reasonably required
by Fifth Third) and thereupon any such dividends and distributions shall be
paid, without interest, to the holder entitled thereto subject however to the
operation of any applicable escheat or similar laws relating to unclaimed funds.
F. The Exchange Ratio referred to in Paragraph C of this Article I shall be
adjusted so as to give the Emerald shareholders the economic benefit of any
stock dividends, reclassifications, recapitalizations, split-ups, exchanges of
shares, distributions or combinations or subdivisions of Fifth Third Common
Stock effected between the date of this Agreement and the Effective Time. In the
event between the date of this Agreement and the Effective Time, Fifth Third has
engaged in either the distribution of any of its assets (other than a cash
dividend), or caused the distribution of capital stock in a company which holds
any asset(s) previously held by Fifth Third or in any affiliate thereof, to the
Fifth Third shareholders, then the Exchange Ratio shall be increased in such
amount so that the equivalent fair market value of such transaction shall also
be distributed to the Emerald shareholders, as of the Effective Time, provided,
however, if, prior to the Effective Time, Fifth Third should split, reclassify
or combine the Fifth Third Common Stock, or pay a stock dividend or other stock
distribution in Fifth Third Common Stock, as of a record date prior to the
Effective Time, appropriate adjustments (rounded to four digits to the right of
the decimal point) will be made to the Exchange Ratio and the total number of
shares of Fifth Third Common Stock to be issued in the transaction so as to
maintain the proportional interest in Fifth Third Common Stock which the
shareholders of Emerald would otherwise have received.
G. When all necessary documents have been filed and recorded in accordance with
the laws of the State of Ohio, and the Merger becomes effective, the separate
existence of Emerald shall cease and Emerald shall be merged into Fifth Third
(which will be the "Surviving Corporation"), and which shall continue its
corporate existence under the laws of the State of Ohio under the name "Fifth
Third Bancorp".
H. The Second Amended Articles of Incorporation, as amended, of Fifth Third of
record with the Secretary of State of Ohio as of the Effective Time shall be the
Articles of Incorporation of the Surviving Corporation, until further amended as
provided by law.
I. The Directors of Fifth Third who are in office at the Effective Time shall be
the directors of the Surviving Corporation, each of whom shall continue to serve
as a Director for the term for which he was elected, subject to the Regulations
of the Surviving Corporation and in accordance with law. The officers of Fifth
Third who are in office at the time the Merger becomes effective shall be the
officers of the Surviving Corporation, subject to the Regulations of the
Surviving Corporation and in accordance with law.
J. The Regulations of Fifth Third at the Effective Time shall be the Regulations
of the Surviving Corporation, until amended as provided therein and in
accordance with law.
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K. At the Effective Time, the effect of the Merger shall be as provided by the
applicable provisions of the laws of Ohio. Without limiting the generality of
the foregoing, and subject thereto, at the Effective Time: the separate
existence of Emerald shall cease; Fifth Third shall possess all assets and
property of every description, and every interest therein, wherever located, and
the rights, privileges, immunities, powers, franchises and authority, of a
public as well as a private nature, of each of Fifth Third and Emerald, and all
obligations owing by or due each of Fifth Third and Emerald shall be vested in,
and become the obligations of, Fifth Third, without further act or deed,
including, without limitation, any liability to Dissenting Shareholders under
Sections 1701.84 and 1701.85 of the Ohio Revised Code laws; and all rights of
creditors of each of Fifth Third and Emerald shall be preserved unimpaired, and
all liens upon the property of each of Fifth Third and Emerald shall be
preserved unimpaired, on only the property affected by such liens immediately
prior to the Effective Time.
L. From time to time as and when requested by the Surviving Corporation, or by
its successors or assigns, the officers and Directors of Emerald in office at
the Effective Time shall execute and deliver such instruments and shall take or
cause to be taken such further or other action as shall be necessary in order to
vest or perfect in the Surviving Corporation or to confirm of record or
otherwise, title to, and possession of, all the assets, property, interests,
rights, privileges, immunities, powers, franchises and authority of Emerald and
otherwise to carry out the purposes of this Agreement.
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M. This Agreement shall be filed (only if necessary) and recorded along with
Articles or a Certificate of Merger in accordance with the requirements of the
laws of the State of Ohio. This Agreement shall not be filed with the Secretary
of the State of Ohio until, but shall be filed promptly after, all of the
conditions precedent to consummating the Merger as contained in Article VI of
this Agreement shall have been fully met or effectively waived.
N. The Merger is a reorganization within the meaning of Section 368(a) of the
Code, and the Agreement and the Agreement is intended to be a "plan of
reorganization" within the meaning of the regulations promulgated under the Code
and for purposes of Section 354 and 361 of the Code.
O. 1. Each outstanding share of Emerald Common Stock the holder of which
has perfected his right to dissent under the Ohio General Corporation Law (the
"OGCL") and has not effectively withdrawn or lost such rights as of the
Effective Time shall not be converted into or represent a right to receive Fifth
Third Common Stock, and the holder thereof shall be entitled only to such rights
as are granted by the OGCL. Emerald shall give Fifth Third prompt notice upon
receipt by Emerald of any such written demands for payment of the fair value of
such shares (such shares being referred to as "Dissenting Shares") of Emerald
Common Stock and of withdrawals of such demands and any other instruments
provided pursuant to the OGCL (any shareholder duly making such demands being
hereinafter called a "Dissenting Shareholder"). Any payments made in respect of
Dissenting Shares shall be made by the Surviving Corporation or Fifth Third. If
any Dissenting Shareholders shall effectively withdraw or lose (through failure
to perfect or otherwise) his right to such payment, such holder's shares of
Emerald Common Stock shall be converted into a right to receive Fifth Third
Common Stock in accordance with the applicable provisions of this Agreement.
2. No holder of Fifth Third Common Stock shall be entitled to relief as
a dissenting shareholder pursuant to Section 1701.85 of the OGCL or otherwise.
II. REPRESENTATIONS AND WARRANTIES OF EMERALD.
Emerald represents and warrants to Fifth Third that as of the date hereof or as
of the indicated date, as appropriate, and except as otherwise disclosed in
Schedule 1 hereto delivered by Emerald to Fifth Third in connection with the
execution of this Agreement by Fifth Third:
A. Emerald (i) is duly incorporated, validly existing and in good standing as a
corporation under the corporation laws of the State of Ohio and is a registered
unitary savings and loan holding company under the HOLA; (ii) is duly authorized
to conduct the business in which it is engaged; (iii) has 20,000,000 shares, no
par value per share, of Emerald Common Stock and no shares of Preferred Stock
("Emerald Preferred Stock") authorized pursuant to its Articles of
Incorporation, which are the total number of shares Emerald is authorized to
have outstanding; (iv) has no outstanding securities of any kind, nor any
outstanding options, warrants or other rights entitling another person to
acquire any securities of Emerald of any kind, other than (a) 10,968,551 shares
of Emerald Common Stock, which presently are authorized, duly issued and
outstanding and fully paid and non-assessable as of February 24, 1999, and (b)
options to purchase a total of 481,412 shares of Emerald Common Stock as of
February 24, 1999, which were granted to and are currently
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held by the employees, officers and Directors of Emerald and/or Thrift
Subsidiary; (v) owns of record and beneficially free and clear of all liens and
encumbrances, all of the 2,530,800 outstanding shares of the capital stock of
the Thrift Subsidiary, no par value per share, (vi) owns of record and
beneficially free and clear of all liens and encumbrances, the one (1)
outstanding share of the common stock of the Emerald Development Corp., an Ohio
corporation ("EMD Corp."), no par value per share. EMD Corp. is an inactive
corporation without any assets or liabilities. Emerald has no direct or indirect
subsidiaries other than Thrift Subsidiary and EMD Corp.
B. Thrift Subsidiary is duly incorporated, validly existing and in good standing
as an Ohio-chartered savings association under the laws of the State of Ohio,
and has all the requisite power and authority to conduct the savings association
business as now conducted by it; and Thrift Subsidiary does not have any
outstanding securities of any kind, nor any outstanding options, warrants or
other rights entitling another person to acquire any securities of the Thrift
Subsidiary of any kind, other than 2,530,800 shares of the common stock, no par
value per share, of the Thrift Subsidiary owned of record and beneficially by
Emerald. The Thrift Subsidiary owns of record and beneficially free and clear of
all liens and encumbrances, all of the 1,000 outstanding shares of the capital
stock of the Dennis Financial Corp., an Ohio corporation ("DF Corp."), no par
value per share. DF Corp. is an inactive corporation with no assets or
liabilities. The Thrift Subsidiary has no direct or indirect subsidiaries other
than DF Corp.
C. Emerald has previously furnished to Fifth Third its audited, consolidated
balance sheets, statements of operations, statements of stockholders' equity and
cash flows as at December 31, 1997, and for the year then ended, together with
the opinions of its independent certified public accountants associated
therewith. Emerald also has previously furnished to Fifth Third the Thrift
Financial Reports as filed with OTS of the Thrift Subsidiary as at December 31,
1995, 1996 and 1997. Emerald also has furnished to Fifth Third (i) its
unaudited, consolidated financial statements as at December 31, 1998, and for
the twelve (12) months then ended, and (ii) the Thrift Financial Reports as
filed with the OTS of the Thrift Subsidiary for the quarter ended December 31,
1998. As soon as they are available, Emerald will provide to Fifth Third
Emerald's audited, consolidated balance sheets, statements of operations,
statements of stockholders' equity and cash flows as at December 31, 1998, and
for the year then ended, together with the opinions of Emerald's independent
certified public accountants associated therewith. Such audited consolidated
financial statements of Emerald fairly present or will fairly present, as
applicable, the consolidated financial condition of Emerald as of the date
thereof, and for the years or periods covered thereby in conformity with
generally accepted accounting principles, consistently applied (except as stated
therein and except for the omission of notes to unaudited statements and
year-end adjustments to interim results). There are no material liabilities,
obligations or indebtedness of Emerald or the Thrift Subsidiary required to be
disclosed in the financial statements so furnished other than the liabilities,
obligations or indebtedness disclosed in such financial statements (including
footnotes). Emerald shall furnish Fifth Third with unaudited, consolidated
financial statements as at March 31, 1999, June 30, 1999 and September 30, 1999,
and for the months then ended as soon as practicable, and shall continue to
furnish such financial information for subsequent monthly and quarterly periods
to Fifth Third as soon as practicable until the Closing Date.
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D. Emerald and the Thrift Subsidiary have good and marketable title to all of
the material properties and assets reflected in its separate statement of
financial condition as at December 31, 1998, and which are still owned by each
and each has good and marketable title to all material properties and assets
acquired by it after such date and still owned by it, subject to (i) any liens
and encumbrances that do not materially adversely impair the use of the
property, (ii) statutory liens for taxes not yet due and payable, and (iii)
minor defects and irregularities in title that do not materially adversely
impair the use of the property.
E. Except as disclosed in Schedule 1 and for events relating to the business
environment in general: (i) since December 31, 1998, to the date hereof there
have been no material adverse changes in the financial condition, operations or
business of Emerald and the Thrift Subsidiary on a consolidated or separate
basis; and (ii) Emerald is not aware of any events which have occurred since
December 31, 1998 to the date hereof or which as of the date hereof are
reasonably certain to occur in the future and which reasonably can be expected
to result in any material adverse change in the financial condition, operations
or business of Emerald and the Thrift Subsidiary on a consolidated or separate
basis, excluding in each instance matters (which shall include but not be
limited to changes in general economic condition, changes in interest rates,
changes in laws or regulations or changes in generally accepted accounting
principles) of general application to the thrift or banking industry.
F. Except as disclosed in Schedule 1, there are no actions, suits, proceedings,
investigations or assessments of any kind pending, or to the best knowledge of
Emerald, threatened against Emerald or the Thrift Subsidiary which reasonably
can be expected to result in any material adverse change in the financial
condition, operations or business of Emerald and the Thrift Subsidiary on a
consolidated or separate basis.
G. Except as disclosed in Schedule 1, since December 31, 1998, to the date
hereof Emerald and the Thrift Subsidiary each has been operated in the ordinary
course of business, has not made any changes in its respective capital or
corporate structures, nor any material changes in its methods of business
operations and has not provided any increases in employee salaries or benefits
other than in the ordinary course of business. Except as disclosed in Schedule
1, since December 31, 1998, to the date hereof Emerald has not declared or paid
any dividends nor made any distributions of any other kind to its shareholders.
H. Except as disclosed in Schedule 1, Emerald and the Thrift Subsidiary have
timely filed all federal, state and local tax returns required to be filed
(after giving effect to all extensions) by them, respectively, and have paid or
provided for all tax liabilities shown to be due thereon or which have been
assessed against them, respectively. All tax returns filed by Emerald or the
Thrift Subsidiary through the date hereof constitute complete and accurate
representations of the tax liabilities of Emerald and the Thrift Subsidiary for
such years and accurately set forth all items (to the extent required to be
included or reflected in such returns) relevant to its future tax liabilities,
including the tax basis of its properties and assets in all material respects.
I. Except as disclosed in Schedule 1, neither Emerald nor the Thrift Subsidiary
is a party to (i) any written employment contracts or written contracts of any
other kind with any of its officers, Directors or employees or (ii) any material
contract, lease or agreement of any other kind which is
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not assignable as a result of the merger provided for herein without the consent
of another party, except for contracts, leases or agreements which do not have
terms extending beyond six months from the date of this Agreement or contracts,
leases or agreements (excluding contracts, leases and agreements pursuant to
which credit has been extended by the Thrift Subsidiary) which do not require a
total expenditure over the term of the contract, lease or agreement of more than
$100,000.00 thereunder.
J. Except as disclosed in Schedule 1, since December 31, 1998, to the date
hereof the Thrift Subsidiary has not incurred any unusual or extraordinary loan
losses which are material to Emerald and the Thrift Subsidiary on a consolidated
basis; to the best knowledge of Emerald and in light of the Thrift Subsidiary's
historical loan loss experience and its management's analysis of the quality and
performance of its loan portfolio, as of December 31, 1998, its reserve for loan
losses was, in the opinion of Emerald, adequate to absorb all known and
reasonably anticipated losses as of such date.
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K. Except as disclosed in Schedule 1 and except for dealings with and
obligations to McDonald Investments Inc., neither Emerald nor the Thrift
Subsidiary has, directly or indirectly, dealt with any broker or finder in
connection with this transaction and neither has incurred or will incur any
obligation for any broker's or finder's fee or commission in connection with the
transactions provided for in this Agreement.
L. 1. The Directors of Emerald, by resolution adopted by the unanimous vote of
all Directors present at a meeting duly called and held in accordance with
applicable law, have duly approved this Agreement, and have directed that this
Agreement be submitted to a vote of Emerald's shareholders at the annual or a
special meeting of the shareholders to be called for that purpose, all in
accordance with and as required by law and in accordance with the Articles of
Incorporation and Code of Regulations of Emerald.
2. Emerald has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder subject to certain required
regulatory and shareholder approvals. The Agreement, when executed and
delivered, will have been duly authorized and will constitute the valid and
binding obligation of Emerald, enforceable in accordance with its terms, except
to the extent that (i) enforceability thereof may be limited by insolvency,
reorganization, liquidation, bankruptcy, readjustment of debt or other laws of
general application relating to or affecting the enforcement of creditors'
rights generally and (ii) the availability of certain remedies may be precluded
by general principles of equity, subject, however, to the receipt of requisite
regulatory approvals and the approval of Emerald's shareholders.
3. Except as disclosed in Schedule 1, neither the execution of the
Agreement, nor the consummation of the transactions contemplated hereby and
thereby, (i) conflicts with, results in a breach of, violates or constitutes a
default under, Emerald's Articles of Incorporation or Code of Regulations or, to
the best knowledge of Emerald, any federal, state or local law, statute,
ordinance, rule, regulation or court or administrative order, or any agreement,
arrangement, or commitment, to which Emerald or the Thrift Subsidiary is subject
or bound; (ii) to the best knowledge of Emerald, results in the creation of or
gives any person the right to create any material lien, charge, encumbrance, or
security agreement or any other material rights of others or other material
adverse interest upon any material right, property or asset belonging to Emerald
or the Thrift Subsidiary; (iii) except as disclosed in Schedule 1, terminates or
gives any person the right to terminate, amend, abandon, or refuse to perform
any material agreement, arrangement or commitment to which Emerald or the Thrift
Subsidiary is a party or by which Emerald's or the Thrift Subsidiary's rights,
properties or assets are subject or bound; or (iv) to the best knowledge of
Emerald, accelerates or modifies, or gives any party thereto the right to
accelerate or modify, the time within which, or the terms according to which,
Emerald or the Thrift Subsidiary is to perform any duties or obligations or
receive any rights or benefits under any material agreements, arrangements or
commitments. For purposes of subparagraphs (iii) and (iv) immediately preceding,
material agreements, arrangements or commitments exclude agreements,
arrangements or commitments having a term expiring less than six months from the
date of this Agreement or which do not require the expenditure of more than
$100,000 over the term of the agreement, arrangement or commitment (but shall
include all agreements, arrangements or commitments pursuant to which credit has
been extended by the Thrift Subsidiary).
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M. Complete and accurate copies of the (i) Articles of Incorporation and Code of
Regulations of Emerald and (ii) the Charter and Bylaws of the Thrift Subsidiary
in force as of the date hereof have been delivered to Fifth Third.
N. Except as disclosed in Schedule 1, neither Emerald nor the Thrift Subsidiary
nor any employee, officer or Director of any of them has engaged in any activity
or omitted to take any action which, in any material way, has resulted or could
result in the violation of, or material failure to comply with the regulatory
requirements of (i) any local, state or federal law (including without
limitation the Bank Secrecy Act, the Community Reinvestment Act, applicable
consumer protection and disclosure laws and regulations, including without
limitation, Truth in Lending, Truth in Savings and similar disclosure laws and
regulations, and equal employment and employment discrimination laws and
regulations) or (ii) any regulation, order, injunction or decree of any court or
governmental body, the violation of either of which could reasonably be expected
to have a material adverse effect on the financial condition of Emerald and the
Thrift Subsidiary. To the best knowledge of Emerald and except as disclosed in
Schedule 1, the Thrift Subsidiary possesses all licenses, franchises, permits
and other governmental authorizations necessary for the continued conduct of its
business without material interference or interruption.
O. Except as disclosed in Schedule 1, neither this Agreement nor any report,
statement, list, certificate or other information furnished by Emerald or the
Thrift Subsidiary to Fifth Third or its agents in connection with this Agreement
or any of the transactions contemplated hereby (including, without limitation,
any information which has been or shall be supplied with respect to their
business operations and financial condition for inclusion in the proxy
statement/prospectus and registration statement relating to the Merger) contains
or shall contain (or, in the case of information relating to the proxy
statement/prospectus, at the time it is mailed, in the case of the registration
statement, at the time it becomes effective and in the case of the proxy
statement/prospectus and the registration statement, at the time the annual or
special meeting of shareholders of Emerald is held to consider the adoption of
this Agreement) an untrue statement of material fact or omits or shall omit to
state a material fact necessary to make the statements contained herein or
therein, in light of the circumstances in which they are made, not misleading.
P. Except as disclosed in Schedule 1, there are no actions, proceedings or
investigations pending before any environmental regulatory body, with respect to
or threatened against or affecting Emerald or the Thrift Subsidiary in respect
to any "facility" owned, leased or operated by any of them (but excluding any
"facility" as to which sole interest of Emerald or the Thrift Subsidiary is that
of a lienholder or mortgagee, but including any "facility" to which title has
been taken pursuant to mortgage foreclosure or similar proceedings and including
any "facility" in which Emerald or the Thrift Subsidiary ever participated in
the financial management of such facility to a degree sufficient to influence,
or have the ability to influence, the facility's treatment of hazardous waste)
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended ("CERCLA"), or under any Federal, state, local or municipal
statue, ordinance or regulation in respect thereof, in connection with any
release of any toxic or "hazardous substance", pollutant or contaminant into the
"environment" which, if adversely determined, (a) would require the payment by
Emerald or the Thrift Subsidiary and/or require Emerald or the Thrift Subsidiary
to incur expenses of more than $25,000 (whether or not covered by insurance) or
(b) would otherwise have a material adverse effect on Emerald or the Thrift
Subsidiary, nor, to the best knowledge of Emerald after reasonable inquiry, is
there any reasonable basis for the institution of any such actions or
proceedings or investigations which is probable of assertion, nor are there any
such actions or proceedings or investigations in which Emerald or the Thrift
Subsidiary is a plaintiff or
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complainant. Neither Emerald nor the Thrift Subsidiary is liable in any material
respect under any applicable law for any release by either of them or for any
release by any other "person" of a hazardous substance caused by the spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing of hazardous wastes or other chemical substances,
pollutants or contaminants into the environment, nor is Emerald or the Thrift
Subsidiary liable for any material costs (as a result of the acts or omissions
of Emerald or the Thrift Subsidiary or, to the best knowledge of Emerald, as a
result of the acts or omissions of any other "person") of any remedial action
including, without limitation, costs arising out of security fencing,
alternative water supplies, temporary evacuation and housing and other emergency
assistance undertaken by any environmental regulatory body having jurisdiction
over Emerald or the Thrift Subsidiary to prevent or minimize any actual or
threatened release by Emerald or the Thrift Subsidiary of any hazardous wastes
or other chemical substances, pollutants and contaminants into the environment
which would endanger the public health or the environment. All terms contained
in quotation marks in this paragraph and the paragraph immediately following
shall have the meaning ascribed to such terms, and defined in, CERCLA.
Except as disclosed in Schedule 1, to the best knowledge of Emerald each
"facility" owned, leased or operated by Emerald or the Thrift Subsidiary (but
excluding any "facility" as to which the sole interest of Emerald or the Thrift
Subsidiary is that of a lienholder or mortgagee, but including any "facility" to
which title has been taken pursuant to mortgage foreclosure or similar
proceedings and including any "facility" in which Emerald or the Thrift
Subsidiary ever participated in the financial management of such facility to a
degree sufficient to influence, or have the ability to influence, the facility's
treatment of hazardous waste) is, in all material respects, in compliance with
all applicable Federal, state, local or municipal statutes, ordinances, laws and
regulations and all orders, rulings or other decisions of any court,
administrative agency or other governmental authority relating to the protection
of the environment, except to the extent a failure to comply would not have a
material adverse effect on the business, operations and financial condition of
Emerald and the Thrift Subsidiary taken as a whole.
Q. 1. Benefit Plans. Schedule 1 lists the name and a short description of each
Benefit Plan (as herein defined), together with an indication of its funding
status (e.g., trust, insured or general company assets). For purposes hereof,
the term "Benefit Plan" shall mean any plan, program, arrangement or system of
employee or director benefits maintained by Emerald or the Thrift Subsidiary for
the benefit of employees, former employees or Directors of Emerald or the Thrift
Subsidiary and shall include (a) any qualified retirement plan such as a
pension, profit sharing, stock bonus plan or employee stock ownership plan
("ESOP"), (b) any plan, program or arrangement providing deferred compensation,
bonus deferral or incentive benefits, whether funded through trust or otherwise,
and (c) any welfare plan, program or policy providing vacation, severance,
salary continuation, supplemental unemployment, disability, life, health
coverage, retiree health, Voluntary Employees' Beneficiary Association, medical
expense reimbursement or dependent care assistance benefits, in any such
foregoing case without regard to whether the Benefit Plan constitutes an
employee benefit plan under Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or the number of employees covered
under such Benefit Plan. Through the date of this Agreement neither Emerald nor
Thrift Subsidiary have made or have committed to make any contributions to any
Benefit Plan outside the ordinary course of business and inconsistent with past
practice with regard to amounts.
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2. Plan Documents, Reports and Filings. Except as disclosed on
Schedule 1, Emerald or the Thrift Subsidiary has provided true, complete and
correct copies of all plan documents, if any, comprising each Benefit Plan,
together with, when applicable, (a) the most recent summary plan description,
(b) the most recent actuarial and financial reports and the most recent annual
reports filed with any governmental agency and (c) all Internal Revenue Service
("IRS") or other governmental agency rulings and determination letters or any
open requests for IRS rulings or letters with respect to Benefit Plans.
3. Qualified Retirement Plan Compliance. With respect to each Benefit
Plan which is an employee pension benefit plan (as defined in section 3(2) of
ERISA) other than any such plan that meets the "top-hat" exception under section
201(1) of ERISA (a "Qualified Benefit Plan"), except as disclosed on Schedule 1:
(a) the IRS has issued a determination letter which determined that such
Qualified Benefit Plan (as amended by any and all amendments) satisfied the
requirements of section 401(a) of the Code, as amended by all of the laws
referred to in Section 1 of Revenue Procedure 93-39, such determination letter
has not been revoked or threatened to be revoked by the IRS, and the scope of
such determination letter is complete and does not exclude consideration of any
of the requirements or matters referred to in sections 4.02 through 4.04 of
Revenue Procedure 93-39; (b) such Qualified Benefit Plan is in material
compliance with all qualification requirements of Section 401(a) of the Code;
(c) such Qualified Benefit Plan is in substantial compliance with all notice,
reporting and disclosure requirements of ERISA and the Code; (d) any Qualified
Benefit Plan which is an ESOP as defined in Section 4975(e)(7) of the Code (an
"ESOP Qualified Benefit Plan") is in material compliance with the applicable
qualification requirements of Section 409 of the Code; (e) any previously
terminated Qualified Benefit Plan was terminated in material compliance with the
requirements of ERISA and the Code, has received a favorable determination
letter therefor, and the liabilities of such Qualified Benefit Plan and the
requirements of the Pension Benefit Guaranty Corporation ("PBGC") were fully
satisfied; and (f) any and all amendments to the Qualified Benefit Plans not
covered by an IRS determination letter do not adversely affect the qualified and
tax exempt status of such plans.
4. Welfare Plan Compliance. With respect to each Benefit Plan which is
an employee welfare benefit plan (as defined in Section 3(1) of ERISA) (a
"Welfare Benefit Plan"), except as noted on Schedule 1: (a) such Welfare Benefit
Plan, if it is intended to provide favorable tax benefits to plan participants,
has been, to the best knowledge of Emerald, in compliance with applicable Code
provisions; (b) such Welfare Benefit Plan has been, to the best knowledge of
Emerald, operated in substantial compliance with all applicable notice,
reporting and disclosure requirements of ERISA and the Code; and (c) such
Welfare Benefit Plan, if a group health plan subject to the requirements of
Section 4980B of the Code ("COBRA"), has been, to the best knowledge of Emerald,
operated in substantial compliance with such COBRA requirements.
5. Prohibited Transactions. No prohibited transaction under Section 406
of ERISA and not exempt under Section 408 of ERISA has occurred with respect to
any Benefit Plan which would result, with respect to any person, in (a) the
imposition, directly or indirectly, of a material excise tax under Section 4975
of the Code or (b) material fiduciary liability under Section 409 of ERISA.
6. Lawsuits or Claims. No material actions, suits or claims (other than
routine claims of benefits) are pending or, to the best knowledge of Emerald,
threatened against any Benefit Plan or against Emerald or the Thrift Subsidiary
with respect to any Benefit Plan.
7. Disclosure of Unfunded Liabilities. All material Unfunded
Liabilities with respect to each Benefit Plan have been recorded and disclosed
on the most recent financial statement of Emerald and the Thrift Subsidiary or,
if not, in Schedule 1. For purposes hereof, the term "Unfunded Liabilities"
shall mean any amounts properly accrued to date under generally accepted
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accounting principles in effect as of the date of this Agreement (GAAP), or
amounts not yet accrued for GAAP purposes but for which an obligation (which has
legally accrued and cannot legally be eliminated and which is subject to
reasonable estimate) exists for payment in the future which is attributable to
any Benefit Plan, including but not limited to (a) severance pay benefits, (b)
deferred compensation or unpaid bonuses, (c) any liabilities on account of the
change in control which will result from this Agreement, including any potential
20% excise tax under Section 4999 of the Code relating to excess parachute
payments under Section 280G of the Code, (d) any unpaid pension contributions
for the current plan year or any accumulated funding deficiency under Section
412 of the Code and related penalties under Section 4971 of the Code, including
unpaid pension contributions or funding deficiencies owed by members of a
controlled group of corporations which includes Emerald or the Thrift Subsidiary
and for which Emerald or the Thrift Subsidiary is liable under applicable law,
(e) any authorized but unpaid profit sharing contributions or contributions
under Section 401(k) and Section 401(m) of the Code, (f) retiree health benefit
coverage and (g) unpaid premiums for contributions required under any group
health plan to maintain such plan's coverage through the Effective Time.
8. Defined Benefit Pension Plan Liabilities. Emerald and the Thrift
Subsidiary (or any pension plan maintained by any of them) have not incurred any
material liability to the PBGC or the IRS with respect to any Benefit Plan which
is a defined benefit pension plan, except for the payment of PBGC premiums
pursuant to Section 4007 of ERISA, all of which if due prior to the date of this
Agreement have been fully paid, and no PBGC reportable event under Section 4043
of ERISA has occurred with respect to any such pension plan. Except as otherwise
disclosed in Schedule 1, the benefit liabilities, as defined in Section
4001(a)(16) of ERISA, of each Benefit Plan subject to Title IV of ERISA, using
the actuarial assumptions that would be used by the PBGC in the event of
termination of such plan, do not exceed the fair market value of the assets of
such plan. Neither Emerald, the Thrift Subsidiary nor any controlled group
member of Emerald or the Thrift Subsidiary participates in, or has incurred any
liability under Sections 4201, 4063 or 4064 of ERISA for a complete or partial
withdrawal from a multiple employer plan or a multi-employer plan (as defined in
Section 3(37) of ERISA).
9. Independent Trustee. Emerald and the Thrift Subsidiaries (a) have
not incurred any asserted or, to the best knowledge of Emerald, unasserted
material liability for breach of duties assumed in connection with acting as an
independent trustee of any employee pension plan (as defined in Section 3(2) of
ERISA) which is intended to be qualified under Section 401(a) of the Code and
which is maintained by an employer unrelated in ownership to Emerald or the
Thrift Subsidiary, (b) have not authorized nor knowingly participated in a
material prohibited transaction under Section 406 of ERISA and not exempt under
Section 408 of ERISA and (c) have not received notice of any material actions,
suits or claims (other than routine claims for benefits) pending or threatened
against the unrelated employer or against them.
10. Retiree Benefits. Except as listed on Schedule 1 and identified as
"Retiree Liability", Emerald and Thrift Subsidiary have no obligation to provide
medical benefits, or life insurance benefits to or with respect to retirees,
former employees or any of their relatives.
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11. Right to Amend and Terminate. Except as listed on Schedule 1,
Emerald or Thrift Subsidiary has all power and authority necessary to amend or
terminate each Benefit Plan without incurring any penalty or liability provided
that, in the case of an employee pension benefit plan (as defined in section
3(2) of ERISA), benefits accrued as of the date of amendment or termination are
not reduced.
12. Material. For purposes of this Paragraph Q as a whole, the term
"material" in connection with a liability shall mean a liability or loss, taxes,
penalties, interest and related legal fees in the total amount of $25,000 or
more, with such determination being made on the basis of the aggregate affected
participants of a Benefit Plan and not with respect to any single participant.
R. The investment portfolios of Emerald and the Thrift Subsidiary consist of
securities in marketable form. Except as disclosed in Schedule 1, since December
31, 1998 to the date hereof neither Emerald nor the Thrift Subsidiary has
incurred any unusual or extraordinary losses in its investment portfolio, and,
except for matters of general application to the thrift or banking industry
(including, but not limited to, changes in laws or regulations or generally
accepted accounting principles) or for events relating to the business
environment in general, including market fluctuations and changes in interest
rates, Emerald is not aware of any events which are reasonably certain to occur
in the future and which reasonably can be expected to result in any material
adverse change in the quality or performance of Emerald's and the Thrift
Subsidiary's investment portfolio on a consolidated basis.
S. Except as disclosed in Schedule 1, there are no actions, suits, claims,
proceedings, investigations or assessments of any kind pending, or to the best
knowledge of Emerald, threatened against any of the Directors or officers of
Emerald or the Thrift Subsidiary in their capacities as such, and no Director or
officer of Emerald or the Thrift Subsidiary currently is being indemnified or
seeking to be indemnified by either Emerald or the Thrift Subsidiary pursuant to
applicable law or Emerald's Articles of Incorporation or Code of Regulations or
the Thrift Subsidiary's Charter or Bylaws.
T. Schedule 1 sets forth, among other things, exceptions to Emerald's
representations and warranties in this Section II. While Emerald has used its
best efforts to identify in Schedule 1 the particular representation or warranty
to which such exception relates, each such exception shall be deemed disclosed
for purposes of any other representations and warranties in this Section II
unless otherwise expressly stated in on Schedule 1.
U. All representations and warranties contained in this Section II shall expire
at the Effective Time, and, thereafter, neither Emerald nor the Thrift
Subsidiary nor any officer or director of either of them shall have any
liability or obligations with respect thereto.
V. There is no agreement to which Emerald is a party which (i) prohibits or
restricts Emerald's ability to perform its obligations under this Agreement, or
its ability to consummate the transactions contemplated hereby, (ii) would have
the effect of invalidating or voiding this Agreement, or any provisions hereof,
or (iii) would subject Fifth Third to any impediment or condition in connection
with the exercise of any of Fifth Third rights under this Agreement.
W. All interest rate swaps, caps, floors and option agreements and other
interest rate risk management arrangements, whether entered into for Emerald's
own account, or for the account of one or more of its subsidiaries or their
customers, were entered into (i) in accordance with prudent banking practices
and all material applicable laws, rules, regulations and regulatory policies and
(ii) with counter-parties reasonably believed to be financially responsible at
the time; and each of them constitutes the valid and legally binding obligation
of Emerald or one of its subsidiaries, enforceable in accordance with its terms
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar laws of
general applicability relating to or affecting creditors' rights or by general
equity principles), and are in full force and effect (except to the extent that
they have been fully
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performed or terminated) in all respects material to Emerald. Neither Emerald
nor its subsidiaries, nor to its knowledge any other party thereto is, in any
respect material to Emerald on a consolidated basis, in breach of any of its
obligations under any such agreement or arrangement.
III. REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD
Fifth Third represents and warrants to Emerald that as of the date hereof or as
of the indicated date, as appropriate:
A. Fifth Third is duly incorporated, validly existing and in good standing as a
corporation under the corporation laws of the State of Ohio, is a registered
bank holding company under the Bank Holding Company Act of 1956, as amended, and
is duly authorized to conduct the business in which it is engaged, and Fifth
Third Bank, N.W., is a national banking association validly existing and in good
standing as a corporation under the laws of the United States of America and is
duly authorized to conduct the business in which it is engaged.
B. Pursuant to Fifth Third's Second Amended Articles of Incorporation, as
amended, the total number of shares of capital stock Fifth Third is authorized
to have outstanding is 300,500,000 of which 300,000,000 shares are classified as
Common Stock without par value ("Fifth Third Common Stock") and 500,000 shares
are classified as Preferred Stock without par value. Pursuant to its Proxy
Statement sent to its shareholders and filed with the SEC on February 9, 1999,
Fifth Third proposed to increase the authorized number of shares from
300,000,000 shares to 500,000,000 shares. As of the close of business on
February 1, 1999, 267,147,048 shares of Fifth Third Common Stock were issued and
outstanding and 681,214 shares were held in its treasury. As of the date of this
Agreement, no shares of its Preferred Stock have been issued. Fifth Third does
not have outstanding any stock options, subscription rights, warrants or other
securities entitling the holders to subscribe for or purchase any shares of its
capital stock other than options granted and to be granted to employees and
Directors under its stock option plans. At February 1, 1999, (a) 13,332,886
shares of Fifth Third Common Stock were reserved for issuance in connection with
outstanding options granted under it stock option plans and 11,102,535 shares
were reserved for issuance under options to be granted in the future, (b)
1,420,000 shares of Fifth Third Common Stock were reserved for the issuance to
the shareholders of Ashland Bankshares, Inc., (c) 1,800,000 shares of Fifth
Third Common Stock were reserved for the issuance to the shareholders of
Enterprise Federal Bancorp, Inc., and (d) 443,000 shares of Fifth Third Common
Stock were reserved for the issuance to the shareholders of South Florida Bank
Holding Corporation.
C. All shares of Fifth Third Common Stock to be received by the shareholders of
Emerald as a result of the merger pursuant to the terms of this Agreement shall
be, upon transfer or issuance, validly issued, fully paid and non-assessable,
and will not, upon such transfer or issuance, be subject to the preemptive
rights of any shareholder of Fifth Third.
D. Fifth Third has furnished to Emerald Fifth Third's consolidated financial
statements as at December 31, 1998, December 31, 1997 and December 31, 1996 and
for the respective years then ended together with the opinions of its
independent public accountants associated therewith.
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Such consolidated financial statements fairly present the consolidated financial
condition of Fifth Third as of their respective dates and for the respective
periods covered thereby in conformity with generally accepted accounting
principles consistently followed throughout the periods covered thereby. Neither
Fifth Third nor any significant subsidiaries of Fifth Third have any material
liabilities, obligations or indebtedness required to be disclosed in such
financial statements other than the liabilities, obligations and indebtedness
disclosed in such financial statements (including footnotes). Fifth Third will
furnish to Emerald its unaudited consolidated financial statements as at March
31, 1999 and for the three (3) month period then ended as soon as such
statements are publicly available, and shall continue to furnish information for
subsequent calendar quarter periods to Emerald as soon as such subsequent
quarterly statements become publicly available until the Closing Date.
E. Except for events relating to the business environment in general: (i) since
December 31, 1998, to the date hereof there have been no material adverse
changes in the consolidated financial condition, operations or business of Fifth
Third; (ii) the chief executive officer and the chief financial officer of Fifth
Third are not aware of any events which have occurred since December 31, 1998,
or which are reasonably certain to occur in the future and which reasonably can
be expected to result in any material adverse change in the consolidated
financial condition, operations or business of Fifth Third; and (iii) since
December 31, 1998, to the date hereof there have been no material changes in the
methods of business operations of Fifth Third and its subsidiaries.
F. 1. The Executive Committee of the Board of Directors of Fifth Third, by
resolution adopted by the members present at a meeting duly called and held, at
which meeting a quorum was at all times present and acting, has approved this
Agreement, including reserving for issuance to Emerald shareholders in
accordance with this Agreement, a sufficient number of shares of Fifth Third
Common Stock. Approval and adoption of this Agreement by the shareholders of
Fifth Third is not required under Ohio law or under the Second Amended Articles
of Incorporation, as amended, or Code of Regulations of Fifth Third.
2. Fifth Third has corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder subject to certain required
regulatory approvals. This Agreement, when executed and delivered, will have
been duly authorized and will constitute the valid and binding obligation of
Fifth Third, enforceable in accordance with its terms, except to the extent that
(i) enforceability thereof may be limited by insolvency, reorganization,
liquidation, bankruptcy, readjustment of debt or other laws of general
application relating to or affecting the enforcement of creditors' rights
generally and (ii) the availability of certain remedies may be precluded by
general principles of equity, subject, however, to the receipt of requisite
regulatory approvals.
3. Neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby and thereby, does or will (i) conflict with,
result in a breach of, violate or constitute a default, under Fifth Third's
Second Amended Articles of Incorporation, as amended, or Code of Regulations or,
to the best knowledge of its chief executive officer and chief financial
officer, any federal, foreign, state or local law, statute, ordinance, rule,
regulation or court or administrative order, or any agreement, arrangement, or
commitment to which Fifth Third is
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subject or bound; (ii) to the best knowledge of the chief executive officer and
chief financial officer of Fifth Third, result in the creation of or give any
person the right to create any material lien, charge, encumbrance, security
agreement or any other material rights of others or other material adverse
interest upon any material right, property or asset belonging to Fifth Third or
any of its subsidiaries other than such rights as may be given the shareholders
of Emerald pursuant to the provisions of Sections 1701.84 and 1701.85 of the
Ohio Revised Code; (iii) terminate or give any person the right to terminate,
amend, abandon, or refuse to perform any material agreement, arrangement or
commitment to which Fifth Third is a party or by which Fifth Third's rights,
properties or assets are subject or bound; or (iv) accelerate or modify, or give
any party thereto the right to accelerate or modify, the time within which, or
the terms according to which, Fifth Third is to perform any duties or
obligations or receive any rights or benefits under any material agreement,
arrangements or commitments.
G. Complete and accurate copies of (i) the Second Amended Articles of
Incorporation, as amended, and (ii) the Code of Regulations of Fifth Third in
force as of the date hereof have been delivered to Emerald.
H. To the best knowledge of the chief executive officer and chief financial
officer of Fifth Third, neither Fifth Third nor any of its subsidiaries has
knowingly engaged in any activity or omitted to take any action which, in any
material way, has resulted or could result in the violation of (i) any local,
state or federal law or (ii) any regulation, order, injunction or decree of any
court or governmental body, the violation of either of which could reasonably be
expected to have a material adverse effect on the financial condition Fifth
Third and its subsidiaries taken as a whole. To the best knowledge of the chief
executive officer and chief financial officer of Fifth Third, Fifth Third and
its subsidiaries possess all licenses, franchise, permits and other governmental
authorizations necessary for the continued conduct of their businesses without
material interference or interruption.
I. 1. To the best knowledge of the chief executive officer and chief
financial officer of Fifth Third, neither this Agreement nor any report,
statement, list, certificate or other information furnished or to be furnished
by Fifth Third to Emerald or Emerald's agents in connection with this Agreement
or any of the transactions contemplated hereby (including, without limitation,
any information which has been or shall be supplied with respect to its business
operations and financial condition for inclusion in the proxy
statement/prospectus and registration statement relating to the Merger) contains
or shall contain (in the case of information relating to the proxy
statement/prospectus, at the time it is mailed, and, in the case of the
registration statement, at the time it becomes effective and, in the case of the
proxy statement/prospectus and the registration statement, at the time the
annual or special meeting of shareholders of Emerald is held to consider the
adoption of this Agreement) an untrue statement of a material fact or omits or
shall omit to state a material fact necessary to make the statements contained
herein or therein, in light of the circumstances in which they are made, not
misleading.
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2. Fifth Third has furnished to Emerald or Emerald's agents true and
complete copies (including all exhibits and all documents incorporated by
reference) of the following documents as filed by Fifth Third with the SEC:
a. Fifth Third's Annual Report on Form 10-K for the year ended
December 31, 1998;
b. any Current Report on Form 8-K with respect to any event occurring
after December 31, 1998 and prior to the date of this Agreement;
c. any report filed by Fifth Third to amend or modify any of the
reports described above; and
d. all proxy statements prepared in connection with meetings of Fifth
Third's shareholders held or to be held subsequent to December 31,
1998.
The information set forth in the documents described in this subsection 2
(including all exhibits thereto and all documents incorporated therein by
reference) did not, as of the dates on which such reports were filed with the
SEC, (a) contain any untrue statement of a material fact, (b) omit any material
fact required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading, or (c) omit any material exhibit required to be filed therewith.
Prior to the date hereof no event has occurred subsequent to December 31, 1998
which Fifth Third is required to describe in a Current Report on Form 8-K other
than the Current Reports heretofore furnished by Fifth Third to Emerald. Fifth
Third timely shall furnish Emerald with copies of all reports filed by Fifth
Third with the SEC subsequent to the date of this Agreement and until the
Closing Date.
J. There are no actions, suits, proceedings, investigations or assessments of
any kind pending or, to the best knowledge of the chief executive officer and
chief financial officer of Fifth Third, threatened against Fifth Third or any
Fifth Third subsidiary, which reasonably can be expected to result in any
material adverse change in the consolidated financial condition, operations or
business of Fifth Third.
K. Since December 31, 1998 to the date hereof, none of Fifth Third's banking
subsidiaries and thrift subsidiaries has incurred any unusual or extraordinary
loan losses which would be material to Fifth Third on a consolidated basis; and
to the best knowledge and belief of the chief executive officer and chief
financial officer of Fifth Third, and in the light of any banking or thrift
subsidiary's historical loan loss experience and their managements' analysis of
the quality and performance of their respective loan portfolios, as of December
31, 1998, their consolidated reserves for loan losses are adequate to absorb all
known and reasonably anticipated losses as of such date.
L. Fifth Third and its subsidiaries have filed all federal, state and local tax
returns required to be filed (after giving effect to all extensions) by them,
respectively, and have paid or provided for all tax liabilities shown to be due
thereon or which have been assessed against them, respectively.
M. Fifth Third has not, directly or indirectly, dealt with any broker or finder
in connection with this transaction and has not incurred and will not incur any
obligation for any broker's or finder's fee or commission in connection with the
transactions provided for in this Agreement.
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N. Fifth Third has no unfunded liabilities with respect to any Benefit Plan (as
such term is defined in subparagraph Q.1. of Section II hereof, but applied to
Fifth Third, its subsidiaries and affiliates) that are material, either
individually or in the aggregate, to Fifth Third on a consolidated basis and
that have not been recorded and disclosed as required by generally accepted
accounting principles (GAAP) in the most recent year-end, audited financial
statements of Fifth Third supplied to Emerald pursuant to Paragraph D of Section
III hereof.
O. The investment portfolios of Fifth Third and its subsidiaries and affiliates
consist of securities in marketable form. Since December 31, 1998, to the date
hereof Fifth Third and its affiliates, on a consolidated basis, have not
incurred any unusual or extraordinary losses in their respective investment
portfolios, and, except for events relating to the business environment in
general, including market fluctuations, the management of Fifth Third is not
aware of any events which are reasonably certain to occur in the future and
which reasonably can be expected to result in any material adverse change in the
quality or performance of the investment portfolios of Fifth Third and its
affiliates on a consolidated basis.
P. As of the date hereof, Fifth Third is not aware of the existence of any
factor that would materially delay or materially hinder issuance of any of the
required regulatory approvals necessary to consummate the Merger or the other
transactions contemplated hereby.
Q. All representations and warranties contained in this Section III shall expire
at the Effective Time, and thereafter, neither Fifth Third nor any officer or
Director of Fifth Third shall have any further liability or obligation with
respect thereto, except for any misrepresentations, breaches of warranties or
violations of covenants that were made with intent to defraud.
IV. OBLIGATIONS OF EMERALD BETWEEN THE DATE OF THIS AGREEMENT AND
THE EFFECTIVE TIME.
A. Emerald, in consultation with Fifth Third, will take all actions necessary to
call and hold an annual or a special meeting of Emerald's shareholders as soon
as practicable after the Fifth Third registration statement relating to this
transaction has been declared effective by the Securities and Exchange
Commission (the "SEC") and under all applicable state securities laws for the
purpose of approving and adopting this Agreement and any other documents or
actions necessary to the consummation of the Merger provided for herein pursuant
to law. The Board of Directors of Emerald intends to inform the shareholders of
Emerald in the proxy materials relating to the annual or special meeting that
all Directors of Emerald presently intend to vote all shares of Emerald Common
Stock which they own of record in favor of approving this Agreement and any such
other necessary documents or actions, and all Directors will recommend approval
of this Agreement to the other shareholders of Emerald, subject only to such
Directors' fiduciary obligations, the Directors' receipt of an updated fairness
opinion from McDonald Investments Inc. received immediately prior to the
effectiveness of the registration statement and Emerald's review of Fifth
Third's registration statement to be filed with the SEC as set forth in Article
IV Section A hereof and Emerald's reasonable satisfaction with the information
set forth therein.
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B. (i) Consistent with generally accepted accounting principles, Emerald agrees
that on or before the Effective Time based on a review of the Thrift
Subsidiary's loan losses, current classified assets and commercial, multi-family
and residential mortgage loans and investment portfolio, Emerald will work with
Fifth Third with the goal of establishing collection procedures, internal
valuation reviews, credit policies and practices and general valuation
allowances which are consistent with the guidelines used within the Fifth Third
holding company system, provided that no adjustment to general valuation
allowances or reserves shall be made until immediately prior to the Effective
Time and all conditions precedent to the obligations of the parties hereto have
either been satisfied or waived as confirmed by such parties in writing. Fifth
Third shall provide such assistance and direction to Emerald as is necessary in
conforming to such polices, practices, procedures and asset dispositions which
are mutually agreeable between the date of this Agreement until the Effective
Time; and (ii) from the date of this Agreement until the Effective Time, Emerald
and the Thrift Subsidiary each will be operated in the ordinary course of
business, and neither of them will, without the prior written consent of Fifth
Third, which consent shall not be unreasonably withheld: except for ordinary
costs and expenses incurred in the construction of the Northfield branch and the
Avon Lake office (provided that Emerald consults with Fifth Third regarding the
Northfield branch prior to commencing any construction thereof) and payments
owed for labor, materials and furniture relating to the repairs and improvement
to Emerald's headquarters, make any changes in its capital or corporate
structures; issue any additional shares of its Common Stock other than pursuant
to the exercise of options granted prior to the date hereof; issue any other
equity securities, other than pursuant to the exercise of options granted prior
to the date hereof; or, issue as borrower any long term debt or convertible or
other securities of any kind, or right to acquire any of its securities; make
any material changes in its method of business operations; make, enter into any
agreement to make, or become obligated to make, any capital expenditures in
excess of $25,000, make, enter into or renew any agreement for services to be
provided to Emerald or the Thrift Subsidiary or permit the automatic renewal of
any such agreement, other than the agreements identified in Schedule 1 which are
specifically identified on such Schedule as agreements which Emerald intends to
renew, except any agreement for services having a term of not more than three
months or requiring the expenditure of not more than $25,000 (for this purpose
the phrase "permit the automatic renewal" includes the failure to send a notice
of termination of such contract if such failure would constitute a renewal),
open for business any branch office which has been approved by the appropriate
regulatory authorities but not yet opened or apply to the appropriate regulatory
authorities to establish a new branch office or expand any existing branch
office, however, Emerald may proceed to file an application with appropriate
regulatory authorities for operation of its proposed Northfield branch; acquire,
become obligated to acquire, or enter into any agreement to acquire, any banking
or non-banking company or any branch offices of any such companies; other than
such Agreements existing on the date hereof and disclosed to Fifth Third;
declare or pay any cash dividends on its own stock other than normal and
customary cash dividends per quarter paid in such amounts and at such times as
Emerald historically has done on its Common Stock and which shall not exceed
$.05 per share or be paid more frequently than once per calendar quarter,
provided this covenant shall only apply to Emerald, and provided further that
notwithstanding anything to the contrary herein, Emerald and Fifth Third shall
cooperate in selecting the Effective Time to ensure that the holders of Emerald
Common Stock do not become entitled to receive both a dividend with respect to
their Emerald Common Stock and a dividend with respect to their Fifth Third
Common Stock or fail to be entitled to receive any dividend with respect to any
quarterly period or portion thereof in which the Effective Time occurs; pay any
stock dividends or make any other distributions on its stock other than cash
dividends as described in the immediately preceding clause; change or otherwise
amend any Benefit Plans other than as required by law or as contemplated herein;
and provide any increases in employee salaries or benefits other than in the
ordinary course of business, Emerald agrees that it will not sell or otherwise
dispose of or encumber any of the shares of the capital stock of the Thrift
Subsidiary which are now owned by it.
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C. Not later than the 15th day prior to the mailing of Emerald's proxy statement
with respect to the Merger, Emerald shall deliver to Fifth Third a list of each
person that, to the best of Emerald's knowledge, is or is reasonably likely to
be, as of the date of the annual or special meeting called to approve the
Merger, deemed an "affiliate" of it as that term is used in Rule 145 under the
Securities Act of 1933, as amended, or SEC Accounting Series Releases 130 and
135 (the "Emerald Affiliates"). Emerald shall use its best efforts to cause each
Emerald Affiliate to execute and deliver to Fifth Third on or before the mailing
of such proxy statement an agreement in the form of Appendix D hereto.
D. Subsequent to December 31, 1998 through the Closing Date, Emerald and the
Thrift Subsidiary will accrue during 1999 (a) an amount to distribute as a
retention bonus to employees of the Thrift Subsidiary payable to the employees,
in the amounts and on the terms set forth on Schedule 1, and (b) an amount
sufficient to fund pro rata annual incentive compensation payments, annual bonus
plan payments and non-annual incentive plan payments in the amounts, for their
employees eligible for such payments all of which are payable as more fully set
forth in Schedule 1. Emerald shall be entitled to make such payments based upon
the earnings and operating profitability of Emerald and the Thrift Subsidiary
without deduction of merger-related expenses.
V. COOPERATION AND OTHER OBLIGATIONS AND OTHER COVENANTS
A. Fifth Third will, prepare and cause to be filed at its expense such
applications and other documents with the Board of Governors of the Federal
Reserve System, the Office of the Comptroller of the Currency, the Federal
Deposit Insurance Corporation, the Ohio Division of Financial Institutions, the
Office of Thrift Supervision, and any other governmental agencies as are
required to secure the requisite approval of such agencies to the consummation
of the transactions provided for in this Agreement, and the parties shall
cooperate in the preparation of an appropriate registration statement, including
the prospectus, proxy statement, and such other documents necessary to comply
with all federal and state securities laws relating to the registration and
issuance of the shares of Fifth Third Common Stock to be issued to the
shareholders of Emerald in this transaction (the expenses thereof, other than
accounting, legal, investment banking, financial consulting and associated
expenses of Emerald and its affiliates, to be paid by Fifth Third), and any
other laws applicable to the transactions provided for in this Agreement. Fifth
Third shall use all reasonable efforts to file all such applications within
ninety (90) days of the date of this Agreement and to secure all such approvals.
Emerald agrees that it will, as promptly as practicable after request and at its
own expense, provide Fifth Third with all information and documents concerning
Emerald and Thrift Subsidiary, as shall be required in connection with preparing
such applications, registration statements and other documents and in connection
with securing such approvals. Prior to filing any such applications or other
documents with the applicable governmental agencies, Fifth Third shall provide
copies thereof to Emerald. Fifth Third agrees that it will, as promptly as
practicable after request and at its own expense, provide Emerald with all
information and documents concerning Fifth Third and its subsidiaries as shall
be required in connection with preparing such applications, registration
statements and other documents which are to be prepared and filed by Emerald and
in connection with approvals required to be obtained by Emerald hereunder. Prior
to filing any such applications, statements or other documents with the
applicable governmental agency, Emerald shall provide, at least five (5) days
prior to the filing date, copies thereof to Fifth Third.
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B. Each of the parties hereto agrees to use its best efforts and to cooperate
with the other party in all reasonable respects in order to carry out and
consummate the transactions contemplated by this Agreement at the earliest
practicable time including, without limitation, the filing of applications,
notices and other documents with, and obtaining approval from, appropriate
governmental regulatory agencies.
C. Emerald agrees to permit Fifth Third, its officers, employees, accountants,
agents and attorneys, and Fifth Third agrees to permit Emerald, its officers,
employees, accountants, agents and attorneys, to have reasonable access during
business hours to their respective books, records and properties, and those of
the Thrift Subsidiary and Fifth Third Bank, N.W., as well, for the purpose of
making a detailed examination, or updating and amplifying prior examinations, of
the financial condition, assets, liabilities, legal compliance, affairs and the
conduct of the business of Emerald and the Thrift Subsidiary or Fifth Third or
Fifth Third Bank, N.W., as the case may be, prior to the Effective Time, and
also to permit the monitoring of the foregoing on an ongoing basis (such rights
of examination and monitoring to be subject to the confidentiality obligations
set forth in such Paragraph VII.D. hereof); provided, however, that any such
examination by Fifth Third or Emerald shall not relieve Fifth Third or Emerald
from any responsibility or liability for any material misrepresentation or
material breach of warranty hereunder discovered in the course of or
subsequently to such examination and prior to the Effective Time.
D. If all Emerald Rights have not been exercised prior to the Effective Time,
such Emerald Rights shall be converted to options to purchase Fifth Third Common
Stock based on the Exchange Ratio with the option exercise price adjusted
accordingly to take into account the change in the number of options.
E. (1) Emerald or Thrift Subsidiary shall take all actions necessary to
freeze the Qualified Benefit Plans as of a date least thirty (30) days prior to
the Effective Time such that no further contributions (including employee 401(k)
contributions) shall be made under the Qualified Benefit Plans after the
Effective Time. Emerald and Thrift Subsidiary shall have the right to make
discretionary contributions to the Thrift Subsidiary Profit Sharing Plan
("Profit Sharing Plan") with respect to the 1999 plan year but such
contributions shall not exceed $270,000 (as reduced, if applicable, by the
amounts described in (6) below), provided that the Profit Sharing Plan is first
amended in a manner approved in advance by Fifth Third (which approval shall not
be unreasonably withheld or delayed) to provide for the allocation of the
contribution for the period prior to the Effective Time. In addition, Emerald
and Thrift Subsidiary shall be entitled to continue to make employer
contributions to the 401(k) plan so long as such contributions are required by
the 401(k) plan and are consistent with prior levels and rates of employer
contributions.
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(2) If Fifth Third so requests, Emerald or the Thrift Subsidiary shall
develop a plan and timetable for terminating any or all of the Qualified Benefit
Plans, and, with the advance written approval of Fifth Third, shall proceed with
the implementation of said termination plan and timetable.
(3) Emerald and Thrift Subsidiary, without the advance written consent
of Fifth Third, which shall not be unreasonably withheld or delayed, shall not
(a) adopt any amendments to the Qualified Benefit Plans after the date of this
Agreement (except as set forth in Section (1) above); or (b) make any
distributions from the Qualified Benefit Plans after the date of this Agreement;
or (c) except as set forth in Section (1) above, make any contributions to the
Qualified Benefit Plans (except 401(k) employee contributions) after the date of
this Agreement.
(4) Emerald or Thrift Subsidiary shall provide to Fifth Third at least
sixty (60) days prior to the Effective Time, documentation reasonably
satisfactory to Fifth Third demonstrating that the requirements of Sections 404,
412, 415, 416, 401(k) and (m) of the Code have been satisfied by all of its
Qualified Benefit Plans.
(5) With respect to any Benefit Plan that provides for vesting of
benefits, there shall be no discretionary acceleration of vesting without Fifth
Third's consent whether or not such discretionary acceleration of vesting is
provided under the terms of the Benefit Plan; provided that a Benefit Plan which
pursuant to its terms provides for an acceleration of vesting upon a change of
control of Emerald shall not be deemed to involve a discretionary acceleration
of vesting and vesting thereunder shall accelerate as of the Effective Time.
(6) (a) Within three (3) weeks of the date of the Agreement, Emerald or
Thrift Subsidiary shall cause to be filed with the Internal Revenue Service
applications for complete determination letters covering (i) The Strongsville
Savings Bank 401(k) Retirement Savings Plan including any and all amendments to
that plan (including in particular the amendments executed on November 28, 1995
and March 26, 1997) and (ii) The Strongsville Savings Bank, Profit Sharing Plan
including any and all amendments to the plan.
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(b) Within three (3) weeks of the date of the Agreement, Emerald or
Thrift Subsidiary shall cause the testing required by Code Sections 415, 404 and
416 to be properly computed for the years 1995 through 1998; and the results of
those tests shall be provided to Fifth Third. If any of those limits are
violated, Fifth Third may require Emerald or Thrift Subsidiary to properly
compute the tests for earlier years.
(c) If there are any violations of the limits referred to in (b) above
or if any other violations or requirements applicable to the Qualified Benefit
Plans are identified, Emerald or Thrift Subsidiary shall take such corrective
actions as Fifth Third requires.
(d) Any and all costs incurred by Emerald or Thrift Subsidiary in
connection with (a), (b) and (c) above including but not limited to any required
plan contributions, taxes, penalties or other payments to the IRS, legal fees
and administrative firm fees that, in total are in excess of $100,000, shall
reduce the $270,000 amount that otherwise could be contributed under (1) above
so that only the net amount may be contributed.
VI. CONDITIONS PRECEDENT TO CLOSING.
A. Conditions to the Obligations of Each of the Parties:
The obligation of each of the parties hereto to consummate the transactions
provided for herein is subject to the fulfillment on or prior to the Effective
Time of each of the following conditions:
1. The shareholders of Emerald shall have duly approved and adopted
this Agreement in accordance with and as required by law and in accordance with
Emerald's Articles of Incorporation and Code of Regulations.
2. All necessary governmental and regulatory orders, consents,
clearances and approvals and requirements shall have been secured and satisfied
for the consummation of such transactions, including without limitation, those
of the Federal Reserve System, the Ohio Division of Financial Institutions, the
Office of Thrift Supervision and the Federal Deposit Insurance Corporation to
the extent required.
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3. Prior to or at the Effective Time, no material investigation by any
state or federal agency shall have been threatened or instituted seeking to
enjoin or prohibit, or enjoining or prohibiting, the transactions contemplated
hereby and no material governmental action or proceeding shall have been
threatened or instituted before any court or government body or authority,
seeking to enjoin or prohibit, or enjoining or prohibiting, the transactions
contemplated hereby other than investigations, actions and proceedings which
have been withdrawn prior to or at the Effective Time without material adverse
effect to Fifth Third or Emerald and other than regularly scheduled regulatory
examinations.
4. Any waiting period mandated by law in respect of the final approval
by any applicable Federal regulator(s) of the transaction contemplated herein
shall have expired.
B. Conditions to the Obligations of Fifth Third:
The obligation of Fifth Third to consummate the transactions provided for herein
is subject to the fulfillment at or prior to the Effective Time of each of the
following conditions unless waived by Fifth Third in a writing delivered to
Emerald which specifically refers to the condition or conditions being waived:
1. All of the representations and warranties of Emerald set forth in
Section II of this Agreement shall be true and correct in all material respects
as of the date of this Agreement and at and as of the Closing Date (as
hereinafter defined) as if each such representation and warranty was given on
and as of the Closing Date, except for (i) any such representations and
warranties made as of a specified date, which shall be true and correct in all
material respects as of such date, and (ii) inaccuracies of representations and
warranties which would not have, or would not reasonably be expected to have, a
material adverse effect on the financial condition, business or operations of
Emerald and the Thrift Subsidiary taken as a whole.
2. Emerald shall have performed all of the obligations required of it
under the terms of this Agreement, except for breaches of obligations which
would not have, or would not reasonably be expected to have, any material
adverse effect on the financial condition, business or operations of Emerald and
the Thrift Subsidiary taken as a whole.
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3. Grady & Associates, counsel for Emerald and the Thrift Subsidiary,
shall have delivered an opinion addressed to Fifth Third in substantially the
form appended hereto as Appendix A.
4. The aggregate amount of consolidated shareholders' equity (including
Common Stock and Retained Earnings and excluding Treasury Stock) of Emerald
immediately prior to the Effective Time, as shown by and reflected in its books
and records of accounts on a consolidated basis in accordance with generally
accepted principles, consistently applied, shall not be less than $54,784,000.
For purposes of this subparagraph 4 to Section VI.B., (A) any expenses or
accruals after the date hereof relating to (i) the adjustments contemplated by
Section IV.B.(i) herein, (ii) termination or funding of any of Emerald's or the
Thrift Subsidiary's Benefit Plans, as contemplated herein, (iii) expenses
associated with the Merger, or (iv) expenses or losses associated with the
valuing of the investments of Emerald or the Thrift Subsidiary at current market
value as required by generally accepted accounting principles (including without
limitation the requirements of accounting rule SFAS 115) shall be excluded for
purposes of calculation of Emerald's shareholders' equity as contemplated herein
prior to the Effective Time.
5. Emerald's independent certified public accountants shall have
reviewed the unaudited consolidated financial statements of Emerald as at the
end of the month immediately preceding the Effective Time, as well as the
unaudited separate financial statements of the Thrift Subsidiary as of the same
date, performed such other auditing procedures as may be requested by Fifth
Third and reported in good faith that they are not aware of any material
modifications which would have a material adverse effect on the financial
condition of Emerald or the Thrift Subsidiary that should be made in order for
such financial statements to (i) be in conformity with generally accepted
accounting principles, consistently applied, excluding the presentation of
footnotes, and (ii) accurately state the financial condition and results of
operations of Emerald and the Thrift Subsidiary, and such modifications, in
either case, would have a material adverse effect on the financial condition of
Emerald or the Thrift Subsidiary.
6. The receipt of a certificate from Emerald and the Thrift Subsidiary,
executed by the chief executive officer and chief financial officer of each,
dated the Closing Date, certifying to the best knowledge and belief of the chief
executive officer and chief financial officer of each that: (i) all of the
representations and warranties set forth in Section II hereof were true and
correct as of the date of this Agreement and as of the Closing Date in all
material respects, except for any such representations and warranties made as of
a specified date, which shall be true and correct in all material respects as of
such date; and (ii) each of Emerald and the Thrift Subsidiary has met and fully
complied in all material respects with all of the obligations required of each
of Emerald and the Thrift Subsidiary under the terms of this Agreement.
7. The total issued and outstanding shares of Emerald Common Stock
shall not exceed 11,449,963 shares including all options to purchase Emerald
Common Stock. As of the date of execution of this Agreement, Emerald shall have
taken all steps necessary to cease accepting contributions in the form of cash
or dividend reinvestments with respect to Emerald's Dividend Reinvestment Plan
(the "Emerald DRI Plan").
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8. (a) In consideration of the consummation of this transaction, the
Directors of Emerald shall execute and deliver to Fifth Third an agreement by
which the Directors shall agree for the Restricted Period to refrain from
directly or indirectly, whether for their own account or for the account of any
other person, firm, corporation, or other business organization, (i) in the
states of Ohio, Kentucky, Indiana, Florida or Arizona, engage in providing
Banking Services (as defined below) on behalf of any other business organization
who is a competitor of Fifth Third, (ii) provide Banking Services to any Client
(as defined below), (iii) make any statement or take any actions that may
interfere with Fifth Third's or any Affiliate's business relationships with any
Client, (iv) contact either directly or indirectly any Client or otherwise
induce or attempt to induce any Client to enter into any business relationship
with any person or firm other than Fifth Third or an Affiliate relating to
Banking Services of any type, (v) endeavor or entice away from Fifth Third any
person who the Director has actual knowledge that such person is, or was at any
time during the period the Director was employed by Fifth Third or during the
Restricted Period, employed by or associated with Fifth Third as an executive,
officer, employee, manager, salesperson, consultant, independent contractor,
representative or other agent, or (vi) take any actions that may interfere with
Fifth Third's property rights in lists of Clients or otherwise diminish the
value of such lists to Fifth Third. Notwithstanding any provision contained in
this Section 8, the restrictions contained herein shall not be applicable to (i)
any activity of the Director which existed at the time of this Agreement and
which was disclosed by the Director to Fifth Third, or (ii) any activity of the
Director's spouse.
(b) The term "Restricted Period" shall mean the period beginning on the
Effective Date and ending the earlier of: (i) two (2) years after the removal of
the Director from the Board of Directors or (ii) three (3) years from the
Effective Time.
(c) The term "Banking Services" shall mean retail or commercial deposit
or lending business, asset management and all other services which are
customarily provided by banks or which are otherwise provided by Fifth Third or
its affiliates.
(d) For all purposes of this Agreement, the term "Client" shall mean
all persons or entities who are or were clients of Fifth Third at the date of
termination of employment or at any time during the two year period prior to the
date of termination of the Director's term, any potential clients who to the
Director's actual knowledge, have been identified and contacted by a
representative of Fifth Third. The term "Client" shall not include any member of
the Employee's immediate family, as defined under Rule 16a-1 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or any trust of which the
Employee or any member of his immediate family (as defined in Rule 16a-1 of the
Exchange Act) is a trustee or beneficiary.
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9. No material adverse differences or deviations exist between the
financial information presented by Emerald's unaudited financial statements
dated as of December 31, 1998 and the audited financial statements delivered to
Fifth Third for the same period to be delivered to Fifth Third subsequent to the
execution of this Agreement.
10. On the date of execution of this Agreement, Joan M. Dzurilla
executes and delivers to Fifth Third a Shareholder Support Agreement in the form
of Appendix G attached hereto.
C. Conditions to the Obligations of Emerald:
The obligation of Emerald to consummate the transactions provided for herein is
subject to the fulfillment at or prior to the Effective Time of each of the
following conditions unless waived by Emerald in a writing delivered to Fifth
Third which specifically refers to the condition or conditions being waived:
1. All of the representations and warranties of Fifth Third set forth
in Section III of this Agreement shall be true and correct in all material
respects as of the date of this Agreement and at and as of the Closing Date as
if each such representation and warranty was given on and as of the Closing
Date, except for any such representations and warranties made as of a specified
date, which shall be true and correct in all material respects as of such date.
2. Fifth Third shall have performed all of the obligations required of
it under the terms of this Agreement in all material respects.
3. Paul L. Reynolds, counsel for Fifth Third, shall have delivered an
opinion addressed to Emerald in substantially the form appended hereto as
Appendix B.
4. The receipt of a certificate from Fifth Third, executed by its chief
executive officer and chief financial officer, dated the Closing Date,
certifying to each of such officers' best knowledge and belief that: (i) all of
the representations and warranties set forth in Section III were true and
correct as of the date of this Agreement and as of the Closing Date, except for
any such representations and warranties made as of a specified date, which shall
be true and correct in all material respects as of such date; and, (ii) Fifth
Third has met and fully complied in all material respects with all of the
obligations required of it under the terms of this Agreement.
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5. Fifth Third shall have registered its shares of Common Stock to be
issued to the Emerald shareholders hereunder with the SEC pursuant to the
Securities Act of 1933, as amended, and with all applicable state securities
authorities. The registration statement with respect thereto shall have been
declared effective by the SEC and all applicable state securities authorities
and no stop order shall have been issued. The shares of Fifth Third Common Stock
to be issued to the Emerald shareholders hereunder shall have been authorized
for trading on the National Market System of the National Association of
Securities Dealers upon official notice of issuance.
6. Fifth Third's Trust Department, as the Exchange Agent, will
acknowledge in writing to Emerald that Fifth Third's Trust Department is in
receipt of (i) certificates representing a whole number of shares of Fifth Third
Common Stock to be issued to the shareholders of Emerald pursuant to this
Agreement, and (ii) sufficient cash to be paid to the Emerald shareholders for
fractional shares.
7. Fifth Third shall have executed and delivered the Fifth Third
Employment Contracts (as defined in Article VII, Section B, Subsection 4 of this
Agreement) and provide, or make provision for payment of any and all severance
payments described in Article VII below.
8. Fifth Third and Emerald shall have received an opinion of Graydon,
Head & Ritchey, dated as of the Closing Date, in form and substance satisfactory
to Fifth Third and Emerald and its counsel, to the effect that, on the basis of
facts, representations and assumptions set forth in such opinion, the Merger
will qualify as a reorganization described in Section 368 (a) of the Code. In
rendering such opinion, Graydon, Head & Ritchey may require and rely upon the
representations contained in the certificates of officers of Fifth Third and
Emerald, as well as beneficial owners of five (5) percent or more of the
outstanding Emerald Common Stock if Graydon, Head & Ritchey determines that such
certificates are necessary for purposes of rendering their opinion.
9. Fifth Third shall have received a letter from Deloitte & Touche,
LLP, as Fifth Third's independent public accountant, and Emerald shall have
received a letter from KPMG Peat Marwick LLP, as Emerald's independent public
accountant to the effect that the Merger will qualify for "pooling of interests"
accounting treatment.
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VII. ADDITIONAL COVENANTS
A. The Thrift Subsidiary shall be merged with and into Fifth Third Bank, N.W.,
to be effective at the Effective Time. The parties hereto agree to cooperate
with one another to effect such merger. Upon consummation of any merger of the
Thrift Subsidiary, the separate corporate existence of the Thrift Subsidiary
shall cease by operation of law.
B. 1. Fifth Third shall consider employing at Fifth Third or other Fifth
Third subsidiaries or affiliates as many of the Emerald and Thrift Subsidiary
employees who desire employment within the Fifth Third holding company system as
possible, to the extent of available positions and consistent with Fifth Third's
standard staffing levels and personnel policies; provided that such continuing
employees will not be subject to any exclusion or penalty for pre-existing
conditions that were covered under the Thrift Subsidiary's medical plan
immediately prior to the Effective Time or any waiting period relating to
coverage under Fifth Third's medical plan.
2. Those employees who do not have an employment or severance agreement
and who are not to be employed by Fifth Third or who are terminated or
voluntarily resign after being notified that, as a condition of employment, such
employee must work at a location more than thirty (30) miles from such
employee's former location of employment or that such employee's salary will be
decreased, in any case and in both cases, within thirty (30) days after the
Effective Time, and who sign and deliver a termination and release agreement in
the form attached as Appendix C hereto, shall be entitled to severance pay equal
to, in the case of officers of Emerald or the Thrift Subsidiary, two (2) weeks
of pay for each year of service up to a maximum of twelve (12) weeks of pay; in
the case of all other exempt employees two (2) weeks of pay for each year of
service up to a maximum of eight (8) weeks of pay; and in the case of all other
employees two (2) weeks of pay for each year of service up to a maximum of eight
(8) weeks of pay for these purposes, if there has been a break in an employee's
period of employment, the prior period shall be added to the current period of
employment. Fifth Third shall provide sufficient notification to Emerald of
those employees it will not be hiring in order that such employees terminated by
Emerald can be given appropriate notice of termination in advance of the
effectiveness thereof. Nothing contained in this Paragraph VII.B.2 shall be
construed or interpreted to limit or modify in any way Fifth Third's at will
employment policy.
3. Any officer of Emerald or the Thrift Subsidiary who has an
employment or severance agreement with Emerald or the Thrift Subsidiary as of
December 31, 1998 (each a "Contract Officer") shall receive as of the Effective
Time, the severance or termination payments provided for in their respective
employment agreements in effect as of such date ("Contract Payments") as their
sole severance payments from Emerald and Fifth Third in connection with the
Merger. As a condition to receiving their Contract Payments each Contract
Officer shall sign and deliver to Fifth Third a termination and release
agreement. All such agreements shall be in the form attached hereto as Appendix
VII.B.3. Fifth Third agrees to honor and pay on the Effective Date the change in
control portions of the employment agreements of Thomas Perciak and John F.
Ziegler. In addition, Fifth Third agrees to pay Mr. Perciak a retention bonus of
$115,000 on the Closing Date provided Mr. Perciak remains employed by the Thrift
Subsidiary through that date. Notwithstanding the foregoing or any other
provision of this Agreement, in no event shall any Contract Officer receive any
payment that would be considered an "Excess Parachute Payment" pursuant to
Section 280(G) of the Code.
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4. Fifth Third agrees that (a) Thomas P. Perciak shall be appointed as
Executive Vice President and Director of Fifth Third Bank, N.W. for a term of
one (1) year from and after the Effective Time, (b) Kenneth J. Piechowski shall
be appointed a Director of Fifth Third Bank, N.W. for a term of one (1) year
from and after the Effective Time, and (c) Mike Kalinich, Sr. shall be appointed
shall be appointed as a Director of Fifth Third Bank, N.W. Fifth Third shall
enter into employment agreements with Thomas P. Perciak and John F. Ziegler to
be employed with Fifth Third Bank, N.W. in the form of Appendix E & Appendix F,
respectively, attached hereto (the "Fifth Third Employment Contracts").
5. Subject to normal credit evaluation and standard loan guidelines, a
Fifth Third subsidiary bank will provide financing to qualified option holders
to allow them to fully exercise any outstanding options to purchase Fifth Third
stock issued by Emerald.
6. On or before the dates of expiration thereof, Fifth Third agrees to
allow Emerald to renew the term of each of the severance agreements with the
employees of Emerald and the Thrift Subsidiary as more fully described on
Schedule 1, on the same terms and conditions as are currently in place, other
than the expiration date set forth therein, copies of which have been provided
to Fifth Third by Emerald.
7. Fifth Third agrees that it will honor, assume and perform the
obligations of Emerald and the Thrift Subsidiary under its Executive
Supplemental Benefit Agreements dated January 1, 1995 and dated July 15, 1997
relating to Messrs. Perciak and Ziegler (the "SERPs"). Messrs. Perciak and
Ziegler acknowledge and agree that there will be no vesting of benefits
thereunder by reason of a change in control and no payments to other officers
shall be made in any manner that would result in an "excess parachute payment"
(as defined in Section 280G of the Code).
C. (i) From and after the Effective Time, Fifth Third shall assume the
obligations of Emerald and Thrift Subsidiary or any of their subsidiaries
arising under applicable Ohio and Federal law in existence as of the date hereof
or as amended prior to the Effective Time and under the Emerald Articles of
Incorporation and Code of Regulations or Thrift Subsidiary Articles of
Incorporation, Constitution or Bylaws as in effect on the date hereof to
indemnify, defend and hold harmless each person who is now, or has been at any
time prior to the date hereof or who become, prior to the Effective Time, an
officer or director of Emerald, Thrift Subsidiary, or any of their subsidiaries
(the "Indemnified Parties") against losses, claims, damages, costs, expenses
(including reasonable attorneys' fees), liabilities or judgments or amounts that
are paid in settlement (which settlement shall require the prior written consent
of Fifth Third) of or in connection with any claim, action, suit, proceeding or
investigation (a "Claim") in which an Indemnified Party is, or is threatened to
be made, a party or a witness based in whole or in part on or arising in whole
or in part out of the fact that such person is or was a director or officer of
Emerald, the Thrift Subsidiary or any of their subsidiaries if such Claim
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pertains to any matter or fact arising, existing or occurring prior to the
Effective Time (including, without limitation, the merger and the transactions
contemplated by this Agreement), regardless of whether such Claim is asserted or
claimed prior to, at or after the Effective Time. Fifth Third shall pay expenses
in advance of the final disposition of any such action or proceeding to each
Indemnified Party to the full extent permitted by law and under the Emerald
Articles of Incorporation or Code of Regulations or Thrift Subsidiary's Articles
of Incorporation, Constitution or Bylaws. Fifth Third's assumption of the
indemnification obligations of Emerald, Thrift Subsidiary or any of their
subsidiaries as provided herein shall continue for a period of three years after
the Effective Time or, in the case of claims asserted prior to the fifth
anniversary of the Effective Time until such matters are finally resolved. Any
Indemnified Party wishing to claim indemnification under this provision, upon
learning of any Claim shall notify Fifth Third (but the failure to so notify
Fifth Third shall not relieve Fifth Third from any liability which Fifth Third
may have under this section except to the extent Fifth Third is materially
prejudiced thereby). Notwithstanding the foregoing, the Indemnified Parties as a
group may retain only one law firm to represent them with respect to each matter
under this section unless there is, under applicable standards of professional
conduct, a conflict on any one significant issue between the positions of any
two or more Indemnified Parties.
(ii) From and after the Effective Time, the directors, officers and
employees of Emerald and its subsidiaries who become directors, officers or
employees of Fifth Third or any of its subsidiaries, except for the
indemnification rights set forth in subparagraph (i) above, shall have
indemnification rights with prospective application only. The prospective
indemnification rights shall consist of such rights to which directors, officers
or employees of Fifth Third or the subsidiary by which such person is employed
are entitled under the provisions of the Articles of Incorporation of Fifth
Third or similar governing documents of Fifth Third or its applicable
subsidiaries, as in effect from time to time after the Effective Time, as
applicable, and provisions of applicable law as in effect from time to time
after the Effective Time.
(iii) The obligations of Fifth Third provided under this Section VII.C.
are intended to benefit, and be enforceable against Fifth Third directly by, the
Indemnified Parties, and shall be binding on all respective successors of Fifth
Third.
(iv) Fifth Third shall also purchase and keep in force for a three (3)
year period, a policy of directors' and officers' liability insurance to provide
coverage for acts or omissions of the type currently covered by Emerald's
existing directors' and officers' liability insurance for acts or omission
occurring on or prior to the Effective Time, but only to the extent such
insurance may be purchased or kept in full force on commercially reasonable
terms taking into account the cost thereof and the benefits provided thereby. It
is agreed that such costs shall be commercially reasonable so long as they do
not exceed 150% of the costs currently paid for such coverage by Emerald.
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D. Fifth Third will not disclose to others, shall not use in respect of its (or
any of its subsidiaries) business operations, and will hold in confidence any
non-public, confidential information disclosed to it by Emerald concerning
Emerald or the Thrift Subsidiary. Emerald will not disclose to others, shall not
use in respect of its (or any of its subsidiaries) business operations, and will
hold in confidence any non-public, confidential information disclosed to it
concerning Fifth Third or any of its affiliates. In the event the Merger is not
completed, all non-public financial statements, documents and materials, and all
copies thereof, shall be returned to Emerald or Fifth Third, as the case may be,
and shall not be used by Fifth Third or Emerald, as the case may be, in any way
detrimental to Emerald or Fifth Third.
E. All notices, requests, consents, and demands under this Agreement shall be in
writing and shall be sufficient in all respects if delivered in person or mailed
by certified mail, return receipt requested, with postage prepaid, or by
confirmed air courier, and addressed, if to Emerald to Mr. Thomas P. Perciak,
President and CEO, Emerald Financial Corp., 14092 Pearl Road, P.O. Box 360515,
Strongsville, Ohio 44136-8706, with a copy to Francis X. Grady, Esq., Grady &
Associates, 20800 Center Ridge Road, Suite 116, Rocky River, Ohio 44116-4306;
and, if to Fifth Third, to Mr. George A. Schaefer, Jr., President and Chief
Executive Officer, Fifth Third Bancorp, 38 Fountain Square Plaza, Cincinnati,
Ohio 45263, with a copy to Paul L. Reynolds, Esq., Senior Vice President and
General Counsel, Fifth Third Bank, Legal Division, 38 Fountain Square Plaza,
M.D. 10AT76, Cincinnati, Ohio 45263. Such notices shall be deemed to be received
when delivered in person or when deposited in the mail by certified mail, return
receipt requested with postage prepaid. If sent by confirmed air courier, such
notice shall be deemed to be given upon the earlier to occur of the date upon
which it is actually received by the addressee or the business day upon which
delivery is made at such address as confirmed by the air courier (or if the date
of such confirmed delivery is not a business day, the next succeeding business
day). If mailed, such notice shall be sent by certified mail, postage pre-paid,
return receipt requested.
F. This Agreement, together with the written instruments specifically referred
to herein and such other written agreements delivered by Fifth Third or Emerald
to each other pursuant hereto, constitute the entire agreement between the
parties with regard to the transactions contemplated herein and supersede any
prior agreements, whether oral or in writing. This Agreement may be hereafter
amended only by a written instrument executed by each of the parties pursuant to
Section X hereof.
G. During the period from the date of this Agreement to the Effective Time,
except with the prior approval of Fifth Third, Emerald shall not, and shall not
permit its representatives to, directly or indirectly, subject to the exercise
by the Directors of Emerald of their fiduciary duties, initiate, solicit,
negotiation with, encourage discussions with, provide information to, or agree
to a transaction with, any corporation, partnership, person or other entity or
group concerning any merger of either Emerald or the Thrift Subsidiary or any
sale of substantial assets, sale of shares of capital stock (or securities
convertible or exchangeable into or otherwise evidencing, or any agreement or
instrument evidencing, the right to acquire capital stock) or similar
transaction involving Emerald or the Thrift Subsidiary (any such transaction
being referred to herein as an "Acquisition Transaction"). Emerald promptly
shall communicate to Fifth Third the terms of any proposal which it may receive
in respect of an Acquisition Transaction and any request by or indication of
interest on the part of any third party with respect to initiation of any
Acquisition Transaction or discussions with respect thereto.
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H. Fifth Third and Emerald shall each indemnify and hold the other harmless for
any claim, liability or expense (including reasonable attorneys' fees) arising
from a misstatement or omission in the applications submitted to regulatory
agencies for approval of the transaction contemplated by this Agreement relating
to the indemnifying party which is based or made in reliance upon any
representation, warranty, or covenant of such party in this Agreement or any
certification, document, or other information furnished or to be furnished by
such party pursuant to this Agreement. From and after Closing Date, this
subsection shall be of no further force or effect.
I. Following the satisfaction of all conditions to closing the Merger, other
than the expiration of any waiting period required by any regulatory agency
after its approval of the Merger is issued before the transaction may be
consummated and conditions which are only capable of being satisfied at closing,
upon the request of Fifth Third and at the sole option of Fifth Third, Emerald
and the Thrift Subsidiary shall execute and deliver to Midwest Payment Systems,
Inc. ("MPS") an agreement to convert all electronic funds transfer ("EFT")
related services to MPS and the Jeanie(R) system. Such Agreement shall provide
that MPS will be the exclusive provider of such services to Emerald and Thrift
Subsidiary for a period of five (5) years from the date such agreements are
executed. Fifth Third agrees that the cost of the conversion of Emerald and
Thrift Subsidiary to EFT provided by MPS and conversion to the Jeanie(R) system
(including, without limitation, the cost of all card reissue, signage and
penalties relating to terminating its current EFT relationships) will be paid by
Fifth Third. Fifth Third further agrees that the costs and fees to Emerald and
the Thrift Subsidiary for the Jeanie(R) service shall not exceed those charged
by the current EFT service provider of Emerald and the Thrift Subsidiary,
subject to any increases in such costs and fees which would otherwise be
permitted under their current EFT processing agreements. In the event this
Agreement is terminated pursuant to Article VIII hereof for any reason except a
material breach or default by Emerald, and if, in such instance, Emerald desires
to convert to another provider of EFT services, Fifth Third shall pay all costs
and expenses associated with such conversion, provided, however, such costs and
expenses are reasonable when compared to costs and expenses ordinarily charged
in the EFT services industry. In no event shall Emerald or the Thrift Subsidiary
be required to take any actions pursuant to this Paragraph I or otherwise under
this Agreement that are contrary to any applicable law, regulation, rule or
order or which constitute a breach of the fiduciary duties of the directors of
Emerald or the Thrift Subsidiary.
J. Fifth Third and Emerald shall agree with each other as to the form and
substance of any press release related to this Agreement or the transactions
contemplated hereby and thereby, and shall consult with each other as to the
form and substance of other public disclosures related thereto, provided,
however, that nothing contained herein shall prohibit either party from making
any disclosure which its counsel deems required by law, and provided, further,
however, that Fifth Third shall not be required to incorporate any comments from
Emerald into such releases or public filings unless determined to be appropriate
by Fifth Third in good faith.
K. Each party hereto shall bear and pay all costs and expenses incurred by it in
connection with the transactions contemplated by this Agreement, including,
without limitation, fees, costs and expenses of its own financial consultants,
investment bankers, accountants and counsel, without reduction or modification
in the number of shares of Fifth Third Common Stock to be issued hereunder. The
expenses of printing and mailing the prospectus/proxy statement shall be paid by
Fifth Third.
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L. 1. Between the date hereof and the Closing Date, Emerald shall promptly
advise Fifth Third in writing of any fact that, if existing or known at the date
hereof, would have been required to be set forth or disclosed in or pursuant to
this Agreement or of any fact that, if existing or known at the date hereof,
would have made any of the representations contained herein untrue to any
material extent, and which in each case, would be likely to have a material
adverse effect on Emerald and its subsidiaries, taken as a whole.
2. Between the date hereof and the Closing Date, Fifth Third shall
promptly advise Emerald in writing of any fact that, if existing or known at the
date hereof, would have been required to be set forth or disclosed in or
pursuant to this Agreement or of any fact that, if existing or known at the date
hereof, would have made any of the representations contained herein untrue to
any material extent, and which in each case, would be likely to have a material
adverse effect on Fifth Third and its subsidiaries, taken as a whole.
M. Each party hereto will promptly notify the other party in writing of the
occurrence of any event which will or may result in the failure to satisfy any
material condition precedent set forth in this Agreement. Between the date of
this Agreement and the Closing Date, each party hereto will notify the other of
the satisfaction of such material conditions precedent as they occur.
VIII. TERMINATION
A. This Agreement may be terminated at any time prior to the Effective Time by
written notice delivered by Fifth Third to Emerald or by Emerald to Fifth Third
in the following instances:
1. By Fifth Third or Emerald, if there has been to the extent
contemplated in Section VI.B.1. and 2. and Section VI.C.1. and 2. herein, a
material misrepresentation, a material breach of warranty or a material failure
to comply with any covenant on the part of the other party with respect to the
representations, warranties, and covenants set forth herein and such
misrepresentations, breach or failure to comply has not been cured (if capable
of cure) within thirty (30) days after receipt of written notice, provided, the
party in default shall have no right to terminate for its own default.
2. By Fifth Third or Emerald, in each case taken as a whole, if the
business or assets or financial condition of the other party shall have
materially and adversely changed from that in existence at December 31, 1998,
other than any such change attributable to or resulting from any change in law,
regulation or generally accepted accounting principles, changes in interest
rates, economic or financial conditions affecting the banking or thrift industry
generally or changes that may occur as a consequence of actions or inactions
that either party hereto is expressly obligated to take under this Agreement.
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3. By Fifth Third or Emerald, if the merger transaction contemplated
herein has not been consummated by October 31, 1999, provided the terminating
party is not in material breach or default of any representations, warranty or
covenant contained herein on the date of such termination.
4. By the mutual written consent of Fifth Third and Emerald.
5. By Fifth Third if any event occurs which renders impossible of
satisfaction in any material respect one or more of the conditions to the
obligations of Fifth Third to effect the Merger set forth in Sections VI.A. and
B. herein and non-compliance is not waived by Fifth Third.
6. By Emerald if any event occurs which renders impossible of
satisfaction in any material respect one or more of the conditions of the
obligations of Emerald to effect the Merger as set forth in Sections VI.A.
and C. herein and non-compliance is not waived by Emerald.
7. By Emerald if the average of the closing price of Fifth Third Common
Stock for the thirty (30) trading days ending five (5) trading days before the
Effective Time is less than $45 per share.
8. By Fifth Third if the average of the closing price of Fifth Third
Common Stock for the thirty (30) trading days ending five (5) trading days
before the Effective Time is greater than $85 per share.
B. If Emerald shareholders, acting at a meeting held for the purpose of voting
upon this Agreement, fail to approve such agreement in the manner required by
law, then this Agreement shall be deemed to be automatically terminated.
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C. Upon termination as provided in this Section, this Agreement, except for the
provisions of Paragraphs D, H, J and K of Section VII hereof shall be void and
of no further force or effect, and, except as provided in Paragraph H of Section
VII hereof, neither party hereto not in material breach or default of its
representations, warranties and covenants hereunder shall have any liability of
any kind to the other party including but not limited to liability for expenses
incurred by the other party in connection with this transaction; provided that
no such termination shall relieve a breaching party from liability for any
uncured willful breach of a covenant, undertaking, representation or warranty
giving rise to such termination.
IX. CLOSING AND EFFECTIVE TIME
The consummation of the transactions contemplated by this Agreement shall take
place at a closing to be held at the offices of Fifth Third in Cincinnati, Ohio
on a Friday which is as soon as is reasonably possible following the date that
all of the conditions precedent to closing set forth in Section VI hereof,
including the waiting period required by any banking or bank holding company
regulatory agency after its approval of the Merger is issued before the
transaction may be consummated, have been fully met or effectively waived (the
"Closing Date"). Pursuant to the filing of articles or a certificate of merger
(which shall be acceptable to Emerald and Fifth Third) with the Secretary of the
State of Ohio in accordance with law and this Agreement, the Merger provided for
herein shall become effective at the close of business on said day (the
"Effective Time"). By mutual agreement of the parties, the closing may be held
at any other time or place or on any other date and the effectiveness of the
Merger (and the Effective Time) may be changed by such mutual agreement. None of
the representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time, except for agreements of the parties which by their terms are intended to
be performed after the Effective Time.
X. AMENDMENT
This Agreement may be amended, modified or supplemented by the written agreement
of Emerald and Fifth Third upon the authorization of each company's respective
Board of Directors at any time before or after approval of the Merger and this
Agreement by the shareholders of Emerald, but after any such approval by the
shareholders of Emerald no amendment shall be made (without further shareholder
approval) which changes in any manner adverse to such shareholders the
consideration to be provided to such shareholders pursuant to this Agreement.
XI. GENERAL
This Agreement was made in the State of Ohio and shall be interpreted under the
laws of the United States and the State of Ohio. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns but except as
specifically set forth herein none of the provisions hereof shall be binding
upon and inure to the benefit of any other person, firm or corporation
whomsoever. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned or transferred by operation of law or
otherwise by any party hereto without the prior written consent of the other
party hereto; provided, however, that the merger or consolidation of Fifth Third
shall not be deemed an assignment hereunder if Fifth Third is the surviving
corporation in such merger or consolidation and its Common Stock shall
thereafter continue to be publicly traded and issuable to Emerald shareholders
pursuant to the terms of this Agreement.
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XII. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original for all purposes but such counterparts taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Affiliation Agreement
as of the date hereinabove set forth.
FIFTH THIRD BANCORP
(SEAL) By: /s/ P. Michael Brumm
---------------------------
P. Michael Brumm
Executive Vice President
Attest: /s/ Paul L. Reynolds
---------------------------
Paul L. Reynolds
Assistant Secretary
EMERALD FINANCIAL CORP.
(SEAL) By: /s/ Thomas P. Perciak
---------------------------
Thomas P. Perciak
President
Attest: /s/ Paula M. Deway
---------------------------
Paula M. Deway
Secretary
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APPENDIX A
[Substantive Provisions of Legal Opinion to be provided by
______________________ may be issued in ABA Opinion Accord format]
, 1999
--------------
Fifth Third Bancorp
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Gentlemen:
[Introductory Paragraph to be included]
We are of the opinion that:
1. Emerald Financial Corp. ("Emerald") is duly incorporated, validly
existing and in good standing as a corporation under the corporate laws
of the State of Ohio and has all the requisite corporate power and
authority to consummate the Merger.
2. Emerald is a registered savings and loan holding company under the Home
Owners' Loan Act, 12 U.S.C. Sections 1467a et seq., as amended, and has
all requisite corporate power and authority to conduct the business in
which it is engaged as such business is described in Emerald's Annual
Report on Form 10-K for the year ended December 31, 1998.
3. The Strongsville Savings Bank ("Thrift Subsidiary") is duly
incorporated and validly existing as a savings association organized
and existing under the laws of the State of Ohio and has all the
requisite corporate power and authority to conduct the savings
association business in which it is engaged as such business is
described in Emerald's Annual Report on Form 10-K for the year ended
December 31, 1998.
4. The Affiliation Agreement and the Merger have been duly approved and
adopted by the Board of Directors and shareholders of Emerald as
required by law and by the Articles of Incorporation and Code of
Regulations of Emerald.
5. The Affiliation Agreement has been duly executed and delivered by
Emerald and (assuming due approval and execution thereof by Fifth
Third) constitutes the valid and binding obligation of Emerald
enforceable against Emerald in accordance with its terms, except to the
extent that (i) enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance of other
laws relating to or from time to time affecting the enforcement of
creditors' rights generally or the rights of creditors of savings and
loan holding companies, the accounts of whose subsidiaries are insured
by the Federal Deposit Insurance Corporation and (ii) the availability
of certain remedies may be precluded by general principles of equity.
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6. The execution, delivery and performance of the Affiliation Agreement
does not violate (i) the Articles of Incorporation or Code of
Regulations of Emerald, or (ii) the Articles of Incorporation,
Constitution or Code of Regulations of Thrift Subsidiary.
7. All issued and outstanding shares of the capital stock of Emerald have
been duly authorized and validly issued (assuming the receipt of proper
consideration therefor) and are nonassessable. To our actual knowledge,
Emerald owns of record all of the ______________ , outstanding shares
of the capital stock of Thrift Subsidiary.
8. To our actual knowledge, all approvals required to be obtained by
Emerald or Thrift Subsidiary in connection with the Merger provided for
in the Affiliation Agreement have been obtained from the appropriate
regulatory authorities.
Very truly yours,
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APPENDIX B
Paul L. Reynolds
Counsel
, 1999
-----------
Emerald Financial Corp.
14092 Pearl Road
Strongsville, Ohio 44136
Gentlemen:
The undersigned has acted as counsel to Fifth Third Bancorp in connection with
the transactions provided for in the Affiliation Agreement dated as of February
, 1999, ("Affiliation Agreement") by and between Fifth Third Bancorp ("Fifth
Third") and Emerald Financial Corp. ("Emerald"). This opinion is rendered to you
pursuant to paragraph 3 of Section VI.C. of the Affiliation Agreement.
I have examined and are familiar with originals or copies, certified or
otherwise, identified to our satisfaction, of such statutes, regulations,
documents, corporate records, and certificates of public officials and corporate
officers as we have deemed necessary for the purposes of this opinion, including
but not limited to the following: (a) the Second Amended Articles of
Incorporation of Fifth Third, as amended; (b) the Code of Regulations, as
amended, of Fifth Third; and, (c) the record of all actions taken by the Board
of Directors and Executive Committee of the Board of Directors of Fifth Third in
connection with any matters covered by this opinion.
I have made such examination of Ohio and Federal law as I deem relevant for the
purposes of this opinion, but I have not made any review of the laws of any
state other than Ohio. Accordingly, I express no opinion as to the laws of any
state or jurisdiction other than the United States of America and the State of
Ohio.
Based upon and subject to the foregoing, I am of the opinion that:
1. Fifth Third is duly incorporated, validly existing and in good standing
as a corporation under the laws of Ohio, and has all the requisite
power and authority to consummate the transactions provided for in the
Affiliation Agreement. Fifth Third is a registered bank holding company
under the Bank Holding
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Company Act of 1956, as amended, 12 U.S.C. Section 1841 et seq., and
has all requisite corporate power and authority to conduct the business
in which it is engaged and as now conducted by it.
2. The Affiliation Agreement and the transactions provided for therein
have been duly approved by the Directors of Fifth Third, and no action
is required to be taken by the shareholders of Fifth Third to
authorize, approve or adopt the Affiliation Agreement or the
transactions provided for therein.
3. The Affiliation Agreement has been duly executed and delivered by Fifth
Third and constitutes the valid and binding obligation of Fifth Third
enforceable against Fifth Third in accordance with its respective
terms, except to the extent that (i) enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or
other laws relating to or from time to time affecting the enforcement
of creditors' rights generally or the rights of creditors of bank
holding companies, the accounts of whose subsidiaries are insured by
the Federal Deposit Insurance Corporation and (ii) the availability of
certain remedies may be precluded by general principles of equity.
4. Fifth Third has taken all necessary and required corporate action to
authorize the issuance or transfer of the shares of its Common Stock to
be received by holders of the Common Stock of Emerald as a result of
the merger of Emerald with and into Fifth Third and, when so issued or
transferred, such shares will be legally and validly issued and
outstanding, fully paid and nonassessable and will not upon such
transfer or issuance be subject to the preemptive rights of any
shareholder of Fifth Third, and such shares have been registered under
the Securities Act of 1933, as amended.
5. The registration statement filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, Registration
No. ________ (the "Registration Statement"), by Fifth Third to register
the shares of Common Stock of Fifth Third being offered to the
shareholders of Emerald in the merger provided for in the Affiliation
Agreement has been declared effective and no stop order has been issued
and no proceeding for the purpose has been initiated or, to my best
knowledge, contemplated or threatened by the Securities and Exchange
Commission.
6. The Registration Statement and the Proxy Statement/Prospectus included
therein at the time it became effective complied as to form with the
Securities Act of 1993, as amended, and the rules and regulations
thereunder.
7. All necessary approvals for the transactions provided for in the
Affiliation Agreement have been obtained from the appropriate
regulatory authorities.
Very truly yours,
FIFTH THIRD BANCORP
Paul L. Reynolds
Counsel
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APPENDIX C
SEPARATION AGREEMENT AND
GENERAL RELEASE OF ALL CLAIMS
[Form for Employees 40 and over]
In consideration of the mutual covenants contained herein, the sufficiency of
which are hereby acknowledged, ______________, ("you") and Fifth Third Bank,
Northwestern Ohio, N.A., including its officers, directors and predecessor,
Emerald Financial Corp., and its subsidiaries and affiliates (collectively,
"Fifth Third") agree as follows:
Your job assignments are eliminated as of ________, 199__. As a severance
package, you are being offered an amount based on the Emerald Financial Corp.,
Severance Pay Plan which is incorporated herein by reference.
If you choose this, your written acceptance of this Agreement must be returned
to _____________ no later than 8:00 a.m. on ,199__. If you observe these
conditions and sign this Agreement, the terms and conditions hereof and of the
Emerald Financial Corp. Severance Pay Plan become effective seven days after you
sign this Agreement because you have a right to revoke your consent during the
seven day period after signing. You are advised to consult with personal counsel
of your choice before acting on this Agreement.
If you choose this, you also agree to fully cooperate with Fifth Third and its
customers through the date that your job will be eliminated as described above.
If you fail to cooperate to Fifth Third's satisfaction as reasonably determined
by Fifth Third, you will be deemed to have voluntarily resigned your position,
and the waiver and releases in favor of Fifth Third in this Agreement shall
remain in full force and effect.
As additional consideration for receipt of the severance package, you, on your
behalf and on behalf of your heirs, executors, successors, and assigns hereby
release Fifth Third, as well as all of its officers, directors, executives,
managers and employees, from any and all debts, claims, demands, rights,
actions, causes of action, suits, or damages, whatsoever and of every kind of
nature, whether known or unknown (collectively the "Claims"), against Fifth
Third and the others released herein, which relate to or arose from your
separation from Fifth Third as contemplated herein except to the extent such
Claims cannot under applicable law be released. You also covenant not to sue or
file or cause to be filed in any complaint with any federal, state or local
agency or in any court against Fifth Third, or the others released herein,
regarding any matter related to your separation from employment with Fifth
Third, including but not limited to any Claims which you may have under Federal
Law or any similar Ohio law, with respect to such separation, except to the
extent such Claims cannot under applicable law be released.
You agree that apart from your discussions with your personal counsel and your
immediate family, whom you will ask not to divulge the terms of this Agreement,
you will not disclose, publicize or discuss either the terms of this Agreement
or your employment with and termination from Fifth Third with anyone within or
outside of Fifth Third unless required by subpoena or any other legal
compulsion, and you will give immediate notice to Fifth Third of the receipt of
any subpoena or other legal document which might call upon you to disclose
either any of the contents of this Agreement or your employment with and
termination from Fifth Third.
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You represent and warrant that you have returned to Fifth Third the original and
any copies of all keys, Fifth Third identification cards, charge cards,
equipment, papers, reports, memorandum or other items of Fifth Third property on
__________, 199__. You acknowledge that Fifth Third has returned to you all
items of your personal property.
You and Fifth Third recognize and agree that nothing in this Agreement
constitutes an admission of liability or wrongdoing by you or by Fifth Third or
any of the others released herein.
Signed this ___ day of ____________, 199___.
Witnessed and accepted:
ACCEPTED AND AGREED TO: FIFTH THIRD BANK,
NORTHWESTERN OHIO, N.A.
- ------------------------------
(NAME) BY:
-------------------------------
DATE:
-----------------------------
Effective Date: , 199 Effective Date: , 199
---------- - ------------ -
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APPENDIX C
SEPARATION AGREEMENT AND
GENERAL RELEASE OF ALL CLAIMS
[Form for Employees under 40]
In consideration of the mutual covenants contained herein, the sufficiency of
which are hereby acknowledged, _________________, ("you") and Fifth Third Bank,
Northwestern Ohio, N.A., including its officers, directors and predecessor,
Emerald Financial Corp. and its subsidiaries and affiliates, (collectively,
"Fifth Third") agree as follows:
Your job assignments are eliminated as of ________, 199__. As a severance
package, you are being offered an amount based on the Emerald Financial Corp.
Severance Pay Plan which is incorporated herein by reference.
If you choose this, your written acceptance of this Agreement must be returned
to _____________ no later than 8:00 a.m. on ________________,199__.
If you choose this, you also agree to fully cooperate with Fifth Third and its
customers through the date that your job will be eliminated as described above.
If you fail to cooperate to Fifth Third's satisfaction as reasonably determined
by Fifth Third, you will be deemed to have voluntarily resigned your position,
and the waiver and releases in favor of Fifth Third in this Agreement shall
remain in full force and effect.
As additional consideration for receipt of the severance package, you, on your
behalf and on behalf of your heirs, executors, successors, and assigns hereby
release Fifth Third, as well as all of its officers, directors, executives,
managers and employees, from any and all debts, claims, demands, rights,
actions, causes of action, suits, or damages, whatsoever and of every kind of
nature, whether known or unknown (collectively the "Claims"), against Fifth
Third and the others released herein, which relate to or arose from your
separation from Fifth Third as contemplated herein except to the extent such
Claims cannot under applicable law be released. You also covenant not to sue or
file or cause to be filed in any complaint with any federal, state or local
agency or in any court against Fifth Third, or the others released herein,
regarding any matter related to your separation from employment with Fifth
Third, including but not limited to any Claims which you may have under Federal
Law or any similar Ohio law, with respect to such separation, except to the
extent such Claims cannot under applicable law be released.
You agree that apart from your discussions with your personal counsel and your
immediate family, whom you will ask not to divulge the terms of this Agreement,
you will not disclose, publicize or discuss either the terms of this Agreement
or your employment with and termination from Fifth Third with anyone within or
outside of Fifth Third unless required by subpoena or any other legal
compulsion, and you will give immediate notice to Fifth Third of the receipt of
any subpoena or other legal document which might call upon you to disclose
either any of the contents of this Agreement or your employment with and
termination from Fifth Third.
You represent and warrant that you have returned to Fifth Third the original and
any copies of all keys, Fifth Third identification cards, charge cards,
equipment, papers, reports, memorandum or other items of Fifth Third property on
__________, 199__. You acknowledge that Fifth Third has returned to you all
items of your personal property.
You and Fifth Third recognize and agree that nothing in this Agreement
constitutes an admission of liability or wrongdoing by you or by Fifth Third or
any of the others released herein.
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Signed this ___ day of ____________, 199___.
Witnessed and accepted:
ACCEPTED AND AGREED TO:
FIFTH THIRD BANK,
NORTHWESTERN OHIO, N.A.
- ------------------------------
(NAME) BY:
-------------------------------
DATE:
-----------------------------
Effective Date: , 199 Effective Date: , 199
------------- - -------------- -
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APPENDIX D
, 1998
-----------------
Fifth Third Bancorp
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Ladies and Gentlemen:
I have been advised that I may be deemed to be, but do not admit that I
am, an "affiliate" of Emerald Financial Corp., an Ohio corporation ("Emerald")
as that term is defined in Rule 145 promulgated by the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the
"Securities Act"), and/or in SEC Accounting Series Releases 130 and 135. I
understand that pursuant to the terms of the Affiliation Agreement dated as of
February ___, 1998 (the "Affiliation Agreement"), by and between Emerald and
Fifth Third Bancorp, an Ohio corporation ("Fifth Third"), Emerald plans to merge
with and into Fifth Third (the "Merger").
I further understand that as a result of the Merger, I may receive
shares of common stock, no par value per share, of Fifth Third ("Fifth Third
Stock") (i) in exchange for shares of common stock, no par value per share, of
Emerald ("Emerald Stock") or (ii) as a result of the exercise of options or
other securities or obligations convertible into or exercisable or exchangeable
for, or giving me the right to subscribe for or acquire, capital stock of Fifth
Third or Emerald.
I have carefully read this letter and reviewed the Affiliation
Agreement and discussed their requirements and other applicable limitations upon
my ability to sell, transfer, or otherwise dispose of Fifth Third Stock and
Emerald Stock, to the extent I felt necessary, with my counsel or counsel for
Emerald.
I represent, warrant and covenant with and to Fifth Third that in the
event I receive any Fifth Third Stock as a result of the Merger:
1. I shall not make any sale, transfer, or other disposition of such Fifth
Third Stock unless (a) such sale, transfer or other disposition has
been registered under the Securities Act, (b) such sale, transfer or
other disposition is made in conformity with the provisions of Rule 145
under the Securities Act (as such rule may be amended from time to
time), or (c) in the opinion of counsel in form and substance
reasonably satisfactory to Fifth Third, or under a "no-action" letter
obtained by me from the staff of the SEC, such sale, transfer or other
disposition will not violate or is otherwise exempt from registration
under the Securities Act.
2. I understand that Fifth Third is under no obligation to register the
sale, transfer or other disposition of shares of Fifth Third Stock by
me or on my behalf under the Securities Act or to take any other action
necessary in order to make compliance with an exemption from such
registration available.
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3. I understand that stop transfer instructions will be given to Fifth
Third's transfer agent with respect to the shares of Fifth Third Stock
issued to me as a result of the Merger and that there will be placed on
the certificates for such shares, or any substitutions therefor, a
legend stating in substance:
"The shares represented by this certificate were issued in a
transaction to which Rule 145 promulgated under the Securities
Act applies. The shares represented by this certificate may be
transferred only in accordance with the terms of a letter
agreement between the registered holder hereof and Fifth
Third, a copy of which agreement is on file at the principal
offices of Fifth Third."
4. I understand that, unless transfer by me of the Fifth Third Stock
issued to me as a result of the Merger has been registered under the
Securities Act or such transfer is made in conformity with the
provisions of Rule 145(d) under the Securities Act, Fifth Third
reserves the right, in its sole discretion, to place the following
legend on the certificates issued to my transferee:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and were acquired
from a person who received such shares in a transaction to
which Rule 145 under the Securities Act of 1933 applies. The
shares have been acquired by the holder not with a view to, or
for resale in connection with, any distribution thereof within
the meaning of the Securities Act of 1933 and may not be
offered, sold, pledged or otherwise transferred except in
accordance with an exemption from the registration
requirements of the Securities Act of 1933."
It is understood and agreed that the legends set forth in paragraphs
(3) and (4) above shall be removed by delivery of substitute certificates
without such legend if I shall have delivered to Fifth Third (a) a copy of a "no
action" letter from the staff of the SEC, or an opinion of counsel in form and
substance reasonably satisfactory to Fifth Third, to the effect that such legend
is not required for purposes of the Act, or (b) evidence or representations
satisfactory to Fifth Third that the Fifth Third Stock represented by such
certificates is being or has been sold in conformity with the provisions of Rule
145(d).
I further represent, warrant and covenant with and to Fifth Third that
I will not sell, transfer or otherwise dispose of, or reduce my risk relative
to, any shares of Emerald Stock or Fifth Third Stock (whether or not acquired by
me in the Merger) during the period commencing 30 days prior to the effective
date of the Merger and ending at such time as Fifth Third notifies me that
results covering at least 30 days of combined operations of Emerald and Fifth
Third after the Merger have been published by Fifth Third. I understand that
Fifth Third is not obligated to publish such combined financial results except
in accordance with its normal financial reporting practice.
I further understand and agree that this letter agreement shall apply
to all shares of Emerald Stock and Fifth Third Stock that I am deemed to
beneficially own pursuant to applicable federal securities laws.
I also understand that the Merger is intended to be treated as a
"pooling of interests" for accounting purposes, and I agree that if Emerald or
Fifth Third advises me in writing that additional restrictions apply to my
ability to sell, transfer, or otherwise dispose of Emerald Stock or Fifth Third
Stock in order for Fifth Third to be entitled to use the pooling of interests
accounting method, I will abide by such restrictions.
Very truly yours,
By
----------------------------
Name
--------------------------
Accepted this ____ day of _______________, 1999
FIFTH THIRD BANCORP
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
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APPENDIX E
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
_____________, 1999, by and between FIFTH THIRD BANK, NORTHWESTERN OHIO, N.A., a
national banking association (the "Company") and THOMAS P. PERCIAK (the
"Employee").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of an Affiliation Agreement, dated as of
___________, 1999 (the "Affiliation Agreement"), The Strongsville Savings Bank
("Strongsville") will merge with and into the Company with the Company as the
surviving corporation; and,
WHEREAS, the services of the Employee are of a special, unique and unusual
character which gives them distinctive value and the Company desires that the
Employee continue after the merger to render services to the Company, in
accordance with the terms and conditions set forth herein; and,
WHEREAS, the Employee desires to be employed by the Company pursuant to the
terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual benefits and
covenants contained herein, it is hereby agreed as follows:
1. EMPLOYMENT. The Company hereby employs the Employee and the Employee
hereby accepts employment with the Company, all in accordance with the
terms and conditions hereof on the date hereof (the "Effective Date")
and expiring on the date three (3) years from the Effective Date (the
"Expiration Date") or the Employee's employment with the Company is
terminated as hereinafter provided. The term of the Employee's
employment as set forth above is referred to herein as the "Employment
Period".
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2. DUTIES.
2.1 During the Employment Period, the Employee shall be employed by the
Company in the position of Executive Vice President of the Company, and
shall be subject to the general supervision, direction and control of
the President and CEO of the Company. The Employee shall perform such
duties as are customary and appropriate in such capacities or offices.
2.2 It is understood and agreed that, without prior written approval
from the Board (which approval shall not be unreasonably withheld), the
Employee may not engage in any other business activities during the
period of Employee's employment by the Company, whether or not for
profit or other pecuniary advantage. Notwithstanding the foregoing, (a)
nothing contained in this Section 2.2 shall preclude the Employee from
any investment or activity that existed at the time of this Agreement
and which was disclosed by the Employee to the Company; (b) the
Employee may make personal financial investments after the date of this
Agreement which do not involve any active participation on Employee's
part if such investments are made in compliance with Section 5.2 below,
and (c) the Employee may engage in charitable, educational, religious,
civic, trade associations and similar types of activities, and (d) the
Employee may serve on the board of directors of such other entities as
may be approved by the Board; provided, however, that any such
activities described in item (c) above must be reported promptly to the
Board, and any such activities described in items (c) and (d) above (i)
must not interfere with the business of the Company or any Affiliate
(as defined in Section 2.3 below) or the performance of the Employee's
duties under this Agreement, and (ii) must not conflict with the
Company's or any Affiliate's policies concerning conflicts of interest.
Any director's or other fees received by the Employee related to
activities described in (a) and (d) above may be retained by such
Employee.
2.3 For purposes of this Agreement, an "Affiliate" of any person shall
mean any other person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified
person. For the purposes of this definition, "control" when used with
respect to any specified person means the power to direct the
management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing. The term "person", for purposes of this definition,
shall include any corporation, partnership, limited liability company,
trust or other entity but shall not include any individual. The
Employee acknowledges that all references to an "Affiliate" of the
Company shall include, without limitation, any of its direct or
indirect wholly owned or majority-owned subsidiaries of Fifth Third
Bancorp ("Fifth Third Bancorp").
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3. COMPENSATION.
3.1 As consideration for the services that the Employee shall render
hereunder, the Employee shall be entitled to the following, subject to
the provisions of Section 4:
(a) Annual Salary - During the Employment Period Employee
will receive an annual salary of $366,700 for the
first twelve (12) months hereof; $383,800 for the
second twelve (12) months hereof; and $401,500 for
the final twelve (12) months hereof ("Annual Base
Salary"). The Annual Base Salary will be payable in
accordance with the standard payroll practices of the
Company.
(b) Annual Bonus - During the Employment Period Employee
will be eligible to receive an annual bonus equal to
the following amounts: $238,355 with respect to the
first twelve (12) months hereof; $249,470 with
respect to the second twelve (12) months hereof; and
$260,975 with respect to the final twelve (12) months
hereof.
(c) The Employee shall be entitled to participate on a
non-discriminatory basis with all other similarly
situated employees of the Company, in any employee
voluntary 401(k), insurance or medical insurance
plan, or other benefit plan adopted by Fifth Third
Bancorp, or an Affiliate of Fifth Third Bancorp and
in effect from time to time, to the extent that such
plan is made available to similarly situated
employees of the Company and the Employee is eligible
to participate in such plan under the applicable
provisions thereof. Employee however, shall not
participate in the Profit Sharing or Variable
Compensation Plans. Employee may participate in the
Fifth Third Bancorp Stock Option Plan at the
discretion of the Company.
(d) Notwithstanding any provision contained herein or in
the Affiliation Agreement, except for benefits under
any severance plan and/or change-in-control
agreement, the Employee shall retain any benefit that
he had accrued under any employee benefit plan
sponsored by Strongsville Savings Bank or any of its
affiliates as of the day preceding the Effective Time
(as defined in the Affiliation Agreement). By way of
example, and not by way of limitation, the Employee
shall be entitled to all pension, retirement and/or
deferred compensation accrued under such plans or as
of such date. Employee shall also continue vesting
under the Executive Supplemental Benefit Agreement
between Strongsville and Employee dated July 15, 1997
and the Executive Supplemental Benefit Agreement
between Strongsville and Employee dated January 1,
1995 as amended pursuant to an amendment dated July
15, 1997. The vesting schedule which is part of those
agreements is attached as Exhibit 1 hereto.
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3.2 The Employee shall be entitled to reimbursement privileges with
respect to reasonable business expenses in accordance with the
Company's standard reimbursement policy for employees of the Company.
3.3 The Employee agrees that, unless otherwise approved in writing by
the Board, the Employee shall not receive any additional compensation
for serving as an officer or director of the Company.
4. TERMINATION. Employment under this Agreement shall terminate prior to
the Expiration Date upon the occurrence of any of the following events:
4.1 Mutual Agreement. In the event of the mutual agreement of the
parties to the termination of the Employee's employment with the
Company under this Agreement (other than pursuant to the sole decision
of Employee to resign other than a Resignation for Good Reason pursuant
to Section 4.4) the parties shall mutually agree as to the treatment of
compensation and benefits to be paid hereunder.
4.2 Death or Total Disability.
(a) The Employee's employment with the Company under this
Agreement shall terminate in the event of the death
or Total Disability (as defined below) of the
Employee.
(b) In the event of Death or Total Disability, Employee
(or Employee's estate in the event of death) shall be
entitled to receive Annual Base Salary, as described
in Section 3.1(a) for the remaining term of this
Agreement; and the Annual Bonus payable with respect
to the year during which the Agreement was terminated
prorated for the number of months during that year of
the Agreement that this Agreement remained in effect
(for example if the Employee's employment is
terminated pursuant to this Section after six months
of any year that this Agreement is in effect,
Employee will be entitled to one-half of his Annual
Bonus for that year).
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(c) For the purposes of this Agreement, "Total
Disability" shall be deemed to have the meaning set
forth in any long term disability insurance plans in
which Employee participates, or, if no such plan is
in place, when the Employee shall have been unable to
perform the duties of the Employee's employment by
reason of illness or incapacity for a period of
ninety (90) consecutive days or for a period of one
hundred twenty (120) days in any period of fifty-two
(52) consecutive weeks, all as determined in good
faith by the Board.
4.3 Termination for Cause.
(a) The Employee's employment with the Company under this
Agreement may be terminated by the Company for Cause,
at any time upon written notice from the Company to
the Employee. For purposes of this Agreement, the
term "Cause" shall be defined as: (i) personal
dishonesty; (ii) incompetence; (iii) material breach
of any provision of this Agreement; (iv) breach of
fiduciary duty involving personal profit; (v)
intentional failure to perform stated duties; (vi) a
material breach of the reasonable policies and
procedures for the operation of the Company provided
to the Employee by formal action of the Board; (vii)
willful violation of any law, rule, regulation (other
than a law, rule or regulation relating to a traffic
violation or similar offense) or final
cease-and-desist order; or (viii) willful misconduct.
(b) Upon any termination pursuant to Section 4.3(a) the
Employee (i) shall be entitled to all accrued but
unpaid Annual Base Salary under Section 3.1(a)
through the date of termination, and (ii) shall
forfeit all entitlements to unpaid Annual Base Salary
and Annual Bonus and all related benefits and all
benefits vested in the Employee prior to termination
(unless the applicable benefits plan provides for
loss of vested benefits in the event of a termination
for Cause).
(c) (i) For the purposes of Paragraph 4.3(a)(i),
"incompetence" shall mean the Employee's inability to
perform his duties hereunder due to insufficient
knowledge or skills; when determining incompetence,
the Board shall measure the Employee's acts and
omissions against standards then prevailing in the
banking industry. (ii) For purposes of Paragraph
4.3(a)(vii) and 4.3(a)(viii), no act, or failure to
act, on the Executive's part shall be considered
"willful" unless he has acted, or failed to act, with
an absence of good faith and without a reasonable
belief that his action or failure to act was in the
best interest of the Company. (iii) For purposes of
Paragraph 4.3(a)(vii), a cease-and-desist order shall
not become final until exhaustion or lapse of all
(administrative and judicial) appeal rights in
relation thereto.
(d) The Employee shall not be deemed to have been
terminated for cause unless there shall have been
delivered to the Employee a copy of a resolution duly
adopted by the affirmative vote of not less than a
majority of the entire membership of the Board at a
meeting of the Board called and held for the purpose
(after reasonable notice to the Employee and an
opportunity for the Employee, together with his
counsel, to be heard before the Board) , finding that
in the good faith opinion of the Board, the Employee
was guilty of conduct set forth above in the second
sentence of this Paragraph 4.3(a) and specifying the
particulars thereof in detail. In no event will the
Employee be subject to termination for cause pursuant
to Paragraph 4.3(a)(iii) above unless the Employee
shall have failed to cure, correct or prevent the
alleged breach within thirty (30) days after such
resolution has been delivered to the Employee.
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4.4 Termination Other Than for Cause; Resignation by the Employee for
Good Reason. If the Company terminates the Employee's employment for
any reason other than Cause (as defined in Section 4.3) or in the event
of the Employee's Resignation for Good Reason, the Employee shall be
entitled to receive Annual Base Salary, as described in Section 3.1(a)
for the remaining term of this Agreement; and the Annual Bonus payable
with respect to the year during which the Agreement was terminated
prorated for the number of months during that year of the Agreement
that this Agreement remained in effect (for example if the Employee's
employment is terminated pursuant to this Section after six months of
any year that this Agreement is in effect, Employee will be entitled to
one-half of his Annual Bonus for that year). "Resignation for Good
Reason" shall mean the termination of this Agreement by the Employee in
the event that there is: (a) A change in the Employee's status, title,
position or responsibilities (including reporting responsibilities)
which, in the Employee's reasonable judgment, does not represent a
promotion from his status, title, position or responsibilities as in
effect immediately prior thereto; the assignment to the Employee of any
duties or responsibilities which, in the Employee's reasonable
judgment, are inconsistent with such status, title, position or
responsibilities; or any removal of the Employee from or failure to
reappoint him to any of such positions, except in connection with the
termination of his employment for (i) disability, (ii) Cause, (iii) as
a result of his death or (iv) by the Employee other than for Good
Reason; (b) A reduction by the Company in the Employee's Annual Base
Salary or Annual Bonus; (c) Requiring the Employee to be based at any
place other than Strongsville, Ohio, except for reasonably required
travel on the Company's business which is not materially greater than
such travel requirements prior to the date of this Agreement; (d) The
adverse and substantial alteration in the nature and quality of the
office space within which the Employee performs his duties, including
the size and location thereof, as well as the secretarial and
administrative support provided to the Employee; (e) The failure by the
Company to continue to provide the Employee with compensation and
benefits provided for under this Agreement or benefits substantially
similar to those provided to him under any of the employee benefit
plans in which the Employee becomes a participant, or the taking of any
action by the Company which would directly or indirectly materially
reduce any of such benefits or deprive the Employee of any material
fringe benefit enjoyed by him prior to the Effective Time and continued
by the terms of this Agreement; (f) Any material breach by the Company
of any provision of this Agreement; and (g) Removal of Employee as a
member of the Board of the Company.
5. RESTRICTED ACTIVITIES. In consideration of the benefits to be derived
by the Employee under this Agreement, and to preserve the goodwill
associated with the business of the Company, the Employee hereby agrees
to the following restrictions on the Employee's business activities:
5.1 (a) As a separate and independent covenant, the Employee
agrees that, during the Restricted Period (as defined
below), the Employee shall not directly or
indirectly, whether for his own account or for the
account of any other person, firm, corporation, or
other business organization, (i) in the states of
Ohio, Kentucky, Indiana, Florida or Arizona, engage
in providing Banking Services (as defined below) on
behalf of any other business organization who is a
competitor of the Company, (ii) provide Banking
Services to any Client (as defined below), (iii) make
any statement or take any actions that may interfere
with the Company's or any Affiliate's business
relationships with any Client, (iv) contact either
directly or indirectly any Client or otherwise induce
or attempt to induce any Client to enter into any
business relationship with any person or firm other
than the Company or an Affiliate relating to Banking
Business of any type, (v) endeavor or entice away
from the Company any person who the Employee has
actual knowledge that such person is, or was at any
time during the period the Employee was employed by
the Company or during the Restricted Period, employed
by or associated with the Company as an executive,
officer, employee, manager, salesperson, consultant,
independent contractor, representative or other
agent, or (vi) take any actions that may interfere
with the Company's property rights in lists of
Clients or otherwise diminish the value of such lists
to the Company. Notwithstanding any provision
contained in this Section 5.1(a), the restrictions
contained herein shall not be applicable to any
activity of the Employee's spouse or any of his
children or other family members and shall not be
applicable to any activity of the Employee which
existed at the time of this Agreement and which was
disclosed by the Employee to the Company.
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(b) The term "Restricted Period" shall mean the period
beginning on the Effective Date and ending the
earlier of: (i) two years after termination of
Employee's employment; or (ii) three years from the
Effective Date.
(c) The term "Banking Services" shall mean retail or
commercial deposit or lending business, asset
management and all other services which are
customarily provided by banks or which are otherwise
provided by the Company or its affiliates.
(d) For all purposes of this Agreement, the term "Client"
shall mean all persons or entities who are or were
clients of the Company at the date of termination of
employment or at any time during the two year period
prior to the date of termination of Employee's
employment, any potential clients who to Employee's
actual knowledge, have been identified and contacted
by a representative of the Company. The term "Client"
shall not include any member of the Employee's
immediate family, as defined under Rule 16a-1 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act") or any trust of which the Employee or
any member of his immediate family (as defined in
Rule 16a-1 of the Exchange Act) is a trustee or
beneficiary.
5.2 As a separate and independent covenant, the Employee agrees that,
during the Restricted Period (as defined above), the Employee shall
not, either for the Employee's own account or on behalf of any person
or entity with which the Employee is associated or affiliated, without
prior written approval from the Board, directly or indirectly, own,
share in earnings of, or interest in the capital stock of any person,
firm or business organization which shall do or attempt to do any of
the activities described in Section 5.1, except in accordance with the
Employee Investment Criteria set forth below. For purposes hereof,
Employee Investment Criteria shall mean an investment in capital stock
which meets all of the following criteria: (a) such capital stock is
listed on any national or regional securities exchange or has been
registered under Section 12(g) of the Exchange Act or constitutes
securities of open end investment companies; (b) such investment does
not exceed, in the case of any class of the capital stock of any one
issuer, five percent (5%) of the issued and outstanding shares; and (c)
such investment is in compliance with the Company's code of ethics.
Notwithstanding any provisions contained in this Section 5.2, the
restrictions contained herein shall not be applicable to any investment
of the Employee or any investment of any person or entity with which
the Employee is associated or affiliated which existed at the time of
this Agreement and which was disclosed by the Employee to the Company.
5.3 The Employee agrees that, if Employee should breach any of the
covenants of Section 5.1 or 5.2 above, the Restricted Periods for all
such sections shall be extended by the length of time during which the
Employee is in breach of any such covenant.
5.4 The Employee and the Company agree that the periods of time and the
scope applicable to the covenants of Sections 5.1 and 5.2 are
reasonable and necessary to protect the legitimate business interests
of the Company without unduly limiting the Employee's ability to obtain
employment or otherwise earn a living at the same general level of
economic benefit as anticipated by this Agreement. However, if such
period or scope should be adjudged unreasonable in any judicial or
other dispute resolution proceeding, then the period of time or scope
shall be reduced by the extent deemed unreasonable, so that these
covenants may be enforced during such period and for such scope as are
adjudged to be reasonable.
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5.5 It is understood by and between the parties hereto that the
covenants by the Employee set forth in this Section 5 are an essential
element of this Agreement and that, but for the agreement of the
Employee to comply with such covenants, the Company would not have
entered into this Agreement and would not have entered into the
Affiliation Agreement. The Company and the Employee have independently
consulted with their respective counsel and have been advised in all
respects concerning the reasonableness and propriety of such covenants,
with specific regard to the nature of the business conducted by the
Company and its Affiliates.
6. CONFIDENTIALITY. The Employee agrees that the Employee will not,
directly or indirectly, either during the period of the Employee's
employment with the Company or any time thereafter, divulge or use any
information regarding the business of the Company or any of its
Affiliates (including, without limitation, confidential records, Client
and customer lists, computer software, data, documents, operational
methods, pricing and investment policies and trade know-how and
secrets) compiled by, created by, obtained by, or furnished to, the
Employee while the Employee is employed by or associated with the
Company; provided, however, that this obligation to maintain
confidentiality shall not apply to any such information which (a) was
already in the Employee's possession prior to his employment with the
Company or its predecessor, (b) is or become generally available to the
public other than as a result of disclosure by the Employee in
violation of this Agreement, or (c) is disclosed to the Employee on a
nonconfidential basis from a source other than the Company and not
known by the Employee to be subject to a confidentiality agreement
between such source and the Company. All materials, records and
documents (whether in writing or other tangible form, including
electronic media) made by the Employee or coming into the Employee's
possession concerning the business or affairs of the Company or any of
its Affiliates shall be the sole property of the Company and its
Affiliates. Upon the termination of the Employee's employment hereunder
for any reason or upon the request of the Company during the Employment
Period, the Employee shall promptly deliver such materials, records and
documents, and all copies thereof, to the Company or to any Affiliate
designated by the Company. The Employee's covenants contained in this
Section 6 shall survive any termination of the Employee's employment
with the Company hereunder for any reason, and shall be enforceable as
provided in Section 7 following such termination.
7. SPECIFIC PERFORMANCE. The Employee's covenants contained in Sections 5
and 6 shall survive any termination of the Employee's employment with
the Company hereunder for any reason, and shall be enforceable
following such termination. Without intending to limit the remedies
available to the Company, the Employee agrees that damages at law will
be an insufficient remedy to the Company in the event that Employee
violates any of the terms of Sections 5 and 6 and that the Company may
apply for and is entitled to injunctive relief in any court of
competent jurisdiction to restrain the breach or threatened breach of,
or otherwise to specifically enforce, any of the covenants of such
Sections, in each case without proof of actual damages. Notwithstanding
any provision contained herein, in the event that the Employee violates
any of the terms of Sections 5 or 6, he shall not (except if such
violation constitutes grounds for Termination for Cause and results in
reduction of benefits in the event of termination prior to the
Expiration Date as set forth in such sections) forfeit any portion of
either his Retirement Benefit, as described in Section 3.1(d); or his
Incentive Award, as described in Section 3.1(c).
8. COMPLIANCE WITH OTHER AGREEMENTS. The Employee represents and warrants
to the Company that the execution of this Agreement by the Employee and
the Employee's performance of the Employee's obligations hereunder will
not, with or without the giving of notice and/or the passage of time,
conflict with, result in the breach of any provision of or the
termination of, or constitute a default under, any agreement to which
the Employee is a party or by which the Employee is or may be bound.
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9. ASSIGNMENT. Neither party shall have the right to assign this Agreement
or any rights or obligations hereunder without the prior written
consent of the other party. Any merger or consolidation of the Company
(or any direct or indirect parent thereof) or any sale or transfer of
all or substantially all of the stock or assets of the Company (or any
direct or indirect parent thereof) shall be deemed an assignment in
violation of the terms of this Section 9. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
heirs, personal representatives, successors and permitted assigns.
10. SEVERABILITY. The provisions of this Agreement are severable, and if
any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any
partially unenforceable provisions to the extent enforceable, shall
nevertheless be binding and enforceable.
11. WAIVERS. Neither this Agreement nor any term or condition hereof or
right hereunder may be waived or shall be deemed to have been waived or
modified in whole or in party by any party or by the forbearance of any
party to exercise any of its rights hereunder, except by written
instrument executed by or on behalf of that party. The waiver by either
party of a breach by the other party of any of the provisions of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach by the other party.
12. NOTICES. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing
and shall be deemed effective (a) when delivered personally, (b) when
sent by confirmed facsimile, (c) one (1) day after deposit with a
commercial overnight courier with written verification of receipt, or
(d) three (3) days after deposit in the United States mail by certified
mail postage prepaid. All communications will be sent to the party to
whom they are directed at the addresses set forth below:
(a) If to Employee:
(b) If to the Company:
Fifth Third
Bancorp 38
Fountain Square
Plaza Cincinnati,
Ohio 45263
Attention:
President & CEO
With Copies to:
Fifth Third Bancorp
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attention: General Counsel
Any party may change the address to which such notices are to be sent
by giving the other parties notice thereof in the manner set forth.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties and supersedes all prior agreements and understandings,
oral or written, between the parties hereto with respect to the subject
matter hereof. Without limitation, nothing in this Agreement shall be
construed as giving Employee any right to be retained in the employ of
the Company beyond the expiration of the Employment Period, and
Employee specifically acknowledges that if Employee continues to be
employed by the Company thereafter, Employee shall be an
employee-at-will of the Company.
14. EFFECTIVENESS OF AGREEMENT. Although this Agreement has been executed
by the parties as of the date written above, this Agreement shall
become effective only and immediately upon consummation of the merger
described in the Affiliation Agreement.
15. NO AMENDMENTS. This Agreement may not be modified or amended except by
an instrument or instruments in writing signed by the party against
whom enforcement of any such modification or amendment is sought.
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16. SECTION AND OTHER HEADINGS. The section and other headings contained in
this Agreement are for reference purposes only and shall not be deemed
to be a part of this Agreement or to affect the meaning or
interpretation of this Agreement.
17. GENDER. Any masculine personal pronoun shall be considered to mean the
corresponding feminine personal pronoun, as the context requires.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without giving effect to
the conflicts of law principles hereof.
20. ARBITRATION. Except for the determination of disability provided for in
Section 4.2, any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then
in effect. Judgement may be entered on the arbitrator's award in any
court having jurisdiction.
21. PAYMENT OF LEGAL FEES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel)
incurred by the Employee as a result of (i) Employee's termination of
employment including all such fees and expenses, if any, incurred in
contesting or disputing any such termination of employment or (ii) the
Employee seeking to obtain or enforce any right or benefit provided by
this Agreement or by any other plan or arrangement maintained by the
Company under which the Employee is or may be entitled to receive
benefits.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
FIFTH THIRD BANK,
NORTHWESTERN OHIO, N.A.
By:
-----------------------------
Its:
----------------------------
EMPLOYEE
Thomas P. Perciak
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APPENDIX F
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
_____________, 1999, by and between FIFTH THIRD BANK, NORTHWESTERN OHIO, N.A., a
national banking association (the "Company") and JOHN F. ZIEGLER (the
"Employee").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of an Affiliation Agreement, dated as of
___________, 1999 (the "Affiliation Agreement"), The Strongsville Savings Bank
("Strongsville") will merge with and into the Company with the Company as the
surviving corporation; and,
WHEREAS, the services of the Employee are of a special, unique and unusual
character which gives them distinctive value and the Company desires that the
Employee continue after the merger to render services to the Company, in
accordance with the terms and conditions set forth herein; and,
WHEREAS, the Employee desires to be employed by the Company pursuant to the
terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual benefits and
covenants contained herein, it is hereby agreed as follows:
1. EMPLOYMENT. The Company hereby employs the Employee and the Employee
hereby accepts employment with the Company, all in accordance with the
terms and conditions hereof on the date hereof (the "Effective Date")
and expiring on the date three (3) years from the Effective Date (the
"Expiration Date") or the Employee's employment with the Company is
terminated as hereinafter provided. The term of the Employee's
employment as set forth above is referred to herein as the "Employment
Period".
2. DUTIES.
2.1 During the Employment Period, the Employee shall be employed by the
Company in the position of Vice President of the Company, and shall be
subject to the general supervision, direction and control of the
President and CEO of the Company. The Employee shall perform such
duties as are customary and appropriate in such capacities or offices.
2.2 It is understood and agreed that, without prior written approval
from the Board (which approval shall not be unreasonably withheld), the
Employee may not engage in any other business activities during the
period of Employee's employment by the Company, whether or not for
profit or other pecuniary advantage. Notwithstanding the foregoing, (a)
nothing contained in this Section 2.2 shall preclude the Employee from
any investment or activity that existed at the time of this Agreement
and which was disclosed by the Employee to the Company; (b) the
Employee may make personal financial investments after the date of this
Agreement which do not involve any active participation on Employee's
part if such investments are made in compliance with Section 5.2 below,
and (c) the Employee may engage in charitable, educational, religious,
civic, trade associations and similar types of activities, and (d) the
Employee may serve on the board of directors of such other entities as
may be approved by the Board; provided, however, that any such
activities described in item (c) above must be reported promptly to the
Board, and any such activities described in items (c) and (d) above (i)
must not interfere with the business of the Company or any Affiliate
(as defined in Section 2.3 below) or the performance of the Employee's
duties under this Agreement, and (ii) must not conflict with the
Company's or any Affiliate's policies concerning conflicts of interest.
Any director's or other fees received by the Employee related to
activities described in (a) and (d) above may be retained by such
Employee.
2.3 For purposes of this Agreement, an "Affiliate" of any person shall
mean any other person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified
person. For the purposes of this definition, "control" when used with
respect to any specified person means the power to direct the
management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing. The term "person", for purposes of this definition,
shall include any corporation, partnership, limited liability company,
trust or other entity but shall not include any individual. The
Employee acknowledges that all references to an "Affiliate" of the
Company shall include, without limitation, any of its direct or
indirect wholly owned or majority-owned subsidiaries of Fifth Third
Bancorp ("Fifth Third Bancorp").
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3. COMPENSATION.
3.1 As consideration for the services that the Employee shall render
hereunder, the Employee shall be entitled to the following, subject to
the provisions of Section 4:
(a) Annual Salary - During the Employment Period Employee
will receive an annual salary of $213,800 for the
first twelve (12) months hereof; $224,200 for the
second twelve (12) months hereof; and $237,500 for
the final twelve (12) months hereof ("Annual Base
Salary"). The Annual Base Salary will be payable in
accordance with the standard payroll practices of the
Company.
(b) Annual Bonus - During the Employment Period Employee
will be eligible to receive an annual bonus equal to
the following amounts: $138,970 with respect to the
first twelve (12) months hereof; $145,730 with
respect to the second twelve (12) months hereof; and
$154,375 with respect to the final twelve (12) months
hereof.
(c) The Employee shall be entitled to participate on a
non-discriminatory basis with all other similarly
situated employees of the Company, in any employee
voluntary 401(k), insurance or medical insurance
plan, or other benefit plan adopted by Fifth Third
Bancorp, or an Affiliate of Fifth Third Bancorp and
in effect from time to time, to the extent that such
plan is made available to similarly situated
employees of the Company and the Employee is eligible
to participate in such plan under the applicable
provisions thereof. Employee however, shall not
participate in the Profit Sharing or Variable
Compensation Plans. Employee may participate in the
Fifth Third Bancorp Stock Option Plan at the
discretion of the Company.
(d) Notwithstanding any provision contained herein or in
the Affiliation Agreement, except for benefits under
any severance plan and/or change-in-control
agreement, the Employee shall retain any benefit that
he had accrued under any employee benefit plan
sponsored by Strongsville Savings Bank or any of its
affiliates as of the day preceding the Effective Time
(as defined in the Affiliation Agreement). By way of
example, and not by way of limitation, the Employee
shall be entitled to all pension, retirement and/or
deferred compensation accrued under such plans or as
of such date. Employee shall also continue vesting
under the Executive Supplemental Benefit Agreement
between Strongsville and Employee dated July 15, 1997
and the Executive Supplemental Benefit Agreement
between Strongsville and Employee dated January 1,
1995 as amended pursuant to an amendment dated July
15, 1997. The vesting schedule which is part of those
agreements is attached as Exhibit 1 hereto.
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3.2 The Employee shall be entitled to reimbursement privileges with
respect to reasonable business expenses in accordance with the
Company's standard reimbursement policy for employees of the Company.
3.3 The Employee agrees that, unless otherwise approved in writing by
the Board, the Employee shall not receive any additional compensation
for serving as an officer or director of the Company.
4. TERMINATION. Employment under this Agreement shall terminate prior to
the Expiration Date upon the occurrence of any of the following events:
4.1 Mutual Agreement. In the event of the mutual agreement of the
parties to the termination of the Employee's employment with the
Company under this Agreement (other than pursuant to the sole decision
of Employee to resign other than a Resignation for Good Reason pursuant
to Section 4.4) the parties shall mutually agree as to the treatment of
compensation and benefits to be paid hereunder.
4.2 Death or Total Disability.
(a) The Employee's employment with the Company under this
Agreement shall terminate in the event of the death
or Total Disability (as defined below) of the
Employee.
(b) In the event of Death or Total Disability, Employee
(or Employee's estate in the event of death) shall be
entitled to receive two-thirds (2/3) of Annual Base
Salary, as described in Section 3.1(a) for the
remaining term of this Agreement; and the Annual
Bonus payable with respect to the year during which
the Agreement was terminated prorated for the number
of months during that year of the Agreement that this
Agreement remained in effect (for example if the
Employee's employment is terminated pursuant to this
Section after six months of any year that this
Agreement is in effect, Employee will be entitled to
one-half of his Annual Bonus for that year).
(c) For the purposes of this Agreement, "Total
Disability" shall be deemed to have the meaning set
forth in any long term disability insurance plans in
which Employee participates, or, if no such plan is
in place, when the Employee shall have been unable to
perform the duties of the Employee's employment by
reason of illness or incapacity for a period of
ninety (90) consecutive days or for a period of one
hundred twenty (120) days in any period of fifty-two
(52) consecutive weeks, all as determined in good
faith by the Board.
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4.3 Termination for Cause.
(a) The Employee's employment with the Company under this
Agreement may be terminated by the Company for Cause,
at any time upon written notice from the Company to
the Employee. For purposes of this Agreement, the
term "Cause" shall be defined as: (i) personal
dishonesty; (ii) incompetence; (iii) material breach
of any provision of this Agreement; (iv) breach of
fiduciary duty involving personal profit; (v)
intentional failure to perform stated duties; (vi) a
material breach of the reasonable policies and
procedures for the operation of the Company provided
to the Employee by formal action of the Board; (vii)
willful violation of any law, rule, regulation (other
than a law, rule or regulation relating to a traffic
violation or similar offense) or final
cease-and-desist order; or (viii) willful misconduct.
(b) Upon any termintion pursuant to Section 4.3(a) the
Employee (i) shall be entitled to all accrued but
unpaid Annual Base Salary under Section 3.1(a)
through the date of termination, and (ii) shall
forfeit all entitlements to unpaid Annual Base Salary
and Annual Bonus and all related benefits and all
benefits vested in the Employee prior to termination
(unless the applicable benefits plan provides for
loss of vested benefits in the event of a termination
for Cause).
(c) (i) For the purposes of Paragraph 4.3(a)(i),
"incompetence" shall mean the Employee's inability to
perform his duties hereunder due to insufficient
knowledge or skills; when determining incompetence,
the Board shall measure the Employee's acts and
omissions against standards then prevailing in the
banking industry. (ii) For purposes of Paragraph
4.3(a)(vii) and 4.3(a)(viii), no act, or failure to
act, on the Executive's part shall be considered
"willful" unless he has acted, or failed to act, with
an absence of good faith and without a reasonable
belief that his action or failure to act was in the
best interest of the Company. (iii) For purposes of
Paragraph 4.3(a)(vii), a cease-and-desist order shall
not become final until exhaustion or lapse of all
(administrative and judicial) appeal rights in
relation thereto.
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(d) The Employee shall not be deemed to have been
terminated for cause unless there shall have been
delivered to the Employee a copy of a resolution duly
adopted by the affirmative vote of not less than a
majority of the entire membership of the Board at a
meeting of the Board called and held for the purpose
(after reasonable notice to the Employee and an
opportunity for the Employee, together with his
counsel, to be heard before the Board) , finding that
in the good faith opinion of the Board, the Employee
was guilty of conduct set forth above in the second
sentence of this Paragraph 4.3(a) and specifying the
particulars thereof in detail. In no event will the
Employee be subject to termination for cause pursuant
to Paragraph 4.3(a)(iii) above unless the Employee
shall have failed to cure, correct or prevent the
alleged breach within thirty (30) days after such
resolution has been delivered to the Employee.
4.4 Termination Other Than for Cause; Resignation by the Employee for
Good Reason. If the Company terminates the Employee's employment for
any reason other than Cause (as defined in Section 4.3) or in the event
of the Employee's Resignation for Good Reason, the Employee shall be
entitled to receive two-thirds (2/3) of Annual Base Salary, as
described in Section 3.1(a) for the remaining term of this Agreement;
and the Annual Bonus payable with respect to the year during which the
Agreement was terminated prorated for the number of months during that
year of the Agreement that this Agreement remained in effect (for
example if the Employee's employment is terminated pursuant to this
Section after six months of any year that this Agreement is in effect,
Employee will be entitled to one-half of his Annual Bonus for that
year). "Resignation for Good Reason" shall mean the termination of this
Agreement by the Employee in the event that there is: (a) A change in
the Employee's status, title, position or responsibilities (including
reporting responsibilities) which, in the Employee's reasonable
judgment, does not represent a promotion from his status, title,
position or responsibilities as in effect immediately prior thereto;
the assignment to the Employee of any duties or responsibilities which,
in the Employee's reasonable judgment, are inconsistent with such
status, title, position or responsibilities; or any removal of the
Employee from or failure to reappoint him to any of such positions,
except in connection with the termination of his employment for (i)
disability, (ii) Cause, (iii) as a result of his death or (iv) by the
Employee other than for Good Reason; (b) A reduction by the Company in
the Employee's Annual Base Salary or Annual Bonus; (c) Requiring the
Employee to be based at any place other than Strongsville, Ohio, except
for reasonably required travel on the Company's business which is not
materially greater than such travel requirements prior to the date of
this Agreement; (d) The adverse and substantial alteration in the
nature and quality of the office space within which the Employee
performs his duties, including the size and location thereof, as well
as the secretarial and administrative support provided to the Employee;
(e) The failure by the Company to continue to provide the Employee with
compensation and benefits provided for under this Agreement or benefits
substantially similar to those provided to him under any of the
employee benefit plans in which the Employee becomes a participant, or
the taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits or deprive the
Employee of any material fringe benefit enjoyed by him prior to the
Effective Time and continued by the terms of this Agreement; and (f)
Any material breach by the Company of any provision of this Agreement.
5. RESTRICTED ACTIVITIES. In consideration of the benefits to be derived
by the Employee under this Agreement, and to preserve the goodwill
associated with the business of the Company, the Employee hereby agrees
to the following restrictions on the Employee's business activities:
5.1 (a) As a separate and independent covenant, the Employee
agrees that, during the Restricted Period (as defined
below), the Employee shall not directly or
indirectly, whether for his own account or for the
account of any other person, firm, corporation, or
other business organization, (i) in the states of
Ohio, Kentucky, Indiana, Florida or Arizona, engage
in providing Banking Services (as defined below) on
behalf of any other business organization who is a
competitor of the Company, (ii) provide Banking
Services to any Client (as defined below), (iii) make
any statement or take any actions that may interfere
with the Company's or any Affiliate's business
relationships with any Client, (iv) contact either
directly or indirectly any Client or otherwise induce
or attempt to induce any Client to enter into any
business relationship with any person or firm other
than the Company or an Affiliate relating to Banking
Business of any type, (v) endeavor or entice away
from the Company any person who the Employee has
actual knowledge that such person is, or was at any
time during the period the Employee was employed by
the Company or during the Restricted Period, employed
by or associated with the Company as an executive,
officer, employee, manager, salesperson, consultant,
independent contractor, representative or other
agent, or (vi) take any actions that may interfere
with the Company's property rights in lists of
Clients or otherwise diminish the value of such lists
to the Company. Notwithstanding any provision
contained in this Section 5.1(a), the restrictions
contained herein shall not be applicable to any
activity of the Employee's spouse or any of his
children or other family members and shall not be
applicable to any activity of the Employee which
existed at the time of this Agreement and which was
disclosed by the Employee to the Company.
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(b) The term "Restricted Period" shall mean the period
beginning on the Effective Date and ending the
earlier of: (i) two years after termination of
Employee's employment; or (ii) three years from the
Effective Date.
(c) The term "Banking Services" shall mean retail or
commercial deposit or lending business, asset
management and all other services which are
customarily provided by banks or which are otherwise
provided by the Company or its affiliates.
(d) For all purposes of this Agreement, the term "Client"
shall mean all persons or entities who are or were
clients of the Company at the date of termination of
employment or at any time during the two year period
prior to the date of termination of Employee's
employment, any potential clients who to Employee's
actual knowledge, have been identified and contacted
by a representative of the Company. The term "Client"
shall not include any member of the Employee's
immediate family, as defined under Rule 16a-1 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act") or any trust of which the Employee or
any member of his immediate family (as defined in
Rule 16a-1 of the Exchange Act) is a trustee or
beneficiary.
5.2 As a separate and independent covenant, the Employee agrees that,
during the Restricted Period (as defined above), the Employee shall
not, either for the Employee's own account or on behalf of any person
or entity with which the Employee is associated or affiliated, without
prior written approval from the Board, directly or indirectly, own,
share in earnings of, or interest in the capital stock of any person,
firm or business organization which shall do or attempt to do any of
the activities described in Section 5.1, except in accordance with the
Employee Investment Criteria set forth below. For purposes hereof,
Employee Investment Criteria shall mean an investment in capital stock
which meets all of the following criteria: (a) such capital stock is
listed on any national or regional securities exchange or has been
registered under Section 12(g) of the Exchange Act or constitutes
securities of open end investment companies; (b) such investment does
not exceed, in the case of any class of the capital stock of any one
issuer, five percent (5%) of the issued and outstanding shares; and (c)
such investment is in compliance with the Company's code of ethics.
Notwithstanding any provisions contained in this Section 5.2, the
restrictions contained herein shall not be applicable to any investment
of the Employee or any investment of any person or entity with which
the Employee is associated or affiliated which existed at the time of
this Agreement and which was disclosed by the Employee to the Company.
5.3 The Employee agrees that, if Employee should breach any of the
covenants of Section 5.1 or 5.2 above, the Restricted Periods for all
such sections shall be extended by the length of time during which the
Employee is in breach of any such covenant.
5.4 The Employee and the Company agree that the periods of time and the
scope applicable to the covenants of Sections 5.1 and 5.2 are
reasonable and necessary to protect the legitimate business interests
of the Company without unduly limiting the Employee's ability to obtain
employment or otherwise earn a living at the same general level of
economic benefit as anticipated by this Agreement. However, if such
period or scope should be adjudged unreasonable in any judicial or
other dispute resolution proceeding, then the period of time or scope
shall be reduced by the extent deemed unreasonable, so that these
covenants may be enforced during such period and for such scope as are
adjudged to be reasonable.
5.5 It is understood by and between the parties hereto that the
covenants by the Employee set forth in this Section 5 are an essential
element of this Agreement and that, but for the agreement of the
Employee to comply with such covenants, the Company would not have
entered into this Agreement and would not have entered into the
Affiliation Agreement. The Company and the Employee have independently
consulted with their respective counsel and have been advised in all
respects concerning the reasonableness and propriety of such covenants,
with specific regard to the nature of the business conducted by the
Company and its Affiliates.
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6. CONFIDENTIALITY. The Employee agrees that the Employee will not,
directly or indirectly, either during the period of the Employee's
employment with the Company or any time thereafter, divulge or use any
information regarding the business of the Company or any of its
Affiliates (including, without limitation, confidential records, Client
and customer lists, computer software, data, documents, operational
methods, pricing and investment policies and trade know-how and
secrets) compiled by, created by, obtained by, or furnished to, the
Employee while the Employee is employed by or associated with the
Company; provided, however, that this obligation to maintain
confidentiality shall not apply to any such information which (a) was
already in the Employee's possession prior to his employment with the
Company or its predecessor, (b) is or become generally available to the
public other than as a result of disclosure by the Employee in
violation of this Agreement, or (c) is disclosed to the Employee on a
nonconfidential basis from a source other than the Company and not
known by the Employee to be subject to a confidentiality agreement
between such source and the Company. All materials, records and
documents (whether in writing or other tangible form, including
electronic media) made by the Employee or coming into the Employee's
possession concerning the business or affairs of the Company or any of
its Affiliates shall be the sole property of the Company and its
Affiliates. Upon the termination of the Employee's employment hereunder
for any reason or upon the request of the Company during the Employment
Period, the Employee shall promptly deliver such materials, records and
documents, and all copies thereof, to the Company or to any Affiliate
designated by the Company. The Employee's covenants contained in this
Section 6 shall survive any termination of the Employee's employment
with the Company hereunder for any reason, and shall be enforceable as
provided in Section 7 following such termination.
7. SPECIFIC PERFORMANCE. The Employee's covenants contained in Sections 5
and 6 shall survive any termination of the Employee's employment with
the Company hereunder for any reason, and shall be enforceable
following such termination. Without intending to limit the remedies
available to the Company, the Employee agrees that damages at law will
be an insufficient remedy to the Company in the event that Employee
violates any of the terms of Sections 5 and 6 and that the Company may
apply for and is entitled to injunctive relief in any court of
competent jurisdiction to restrain the breach or threatened breach of,
or otherwise to specifically enforce, any of the covenants of such
Sections, in each case without proof of actual damages. Notwithstanding
any provision contained herein, in the event that the Employee violates
any of the terms of Sections 5 or 6, he shall not (except if such
violation constitutes grounds for Termination for Cause and results in
reduction of benefits in the event of termination prior to the
Expiration Date as set forth in such sections) forfeit any portion of
either his Retirement Benefit, as described in Section 3.1(d); or his
Incentive Award, as described in Section 3.1(c).
8. COMPLIANCE WITH OTHER AGREEMENTS. The Employee represents and warrants
to the Company that the execution of this Agreement by the Employee and
the Employee's performance of the Employee's obligations hereunder will
not, with or without the giving of notice and/or the passage of time,
conflict with, result in the breach of any provision of or the
termination of, or constitute a default under, any agreement to which
the Employee is a party or by which the Employee is or may be bound.
9. ASSIGNMENT. Neither party shall have the right to assign this Agreement
or any rights or obligations hereunder without the prior written
consent of the other party. Any merger or consolidation of the Company
(or any direct or indirect parent thereof) or any sale or transfer of
all or substantially all of the stock or assets of the Company (or any
direct or indirect parent thereof) shall be deemed an assignment in
violation of the terms of this Section 9. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
heirs, personal representatives, successors and permitted assigns.
10. SEVERABILITY. The provisions of this Agreement are severable, and if
any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any
partially unenforceable provisions to the extent enforceable, shall
nevertheless be binding and enforceable.
11. WAIVERS. Neither this Agreement nor any term or condition hereof or
right hereunder may be waived or shall be deemed to have been waived or
modified in whole or in party by any party or by the forbearance of any
party to exercise any of its rights hereunder, except by written
instrument executed by or on behalf of that party. The waiver by either
party of a breach by the other party of any of the provisions of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach by the other party.
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12. NOTICES. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing
and shall be deemed effective (a) when delivered personally, (b) when
sent by confirmed facsimile, (c) one (1) day after deposit with a
commercial overnight courier with written verification of receipt, or
(d) three (3) days after deposit in the United States mail by certified
mail postage prepaid. All communications will be sent to the party to
whom they are directed at the addresses set forth below:
(a) If to Employee:
(b) If to the Company:
Fifth Third
Bancorp 38
Fountain Square
Plaza Cincinnati,
Ohio 45263
Attention:
President & CEO
With Copies to:
Fifth Third Bancorp
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attention: General Counsel
Any party may change the address to which such notices are to be sent
by giving the other parties notice thereof in the manner set forth.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties and supersedes all prior agreements and understandings,
oral or written, between the parties hereto with respect to the subject
matter hereof. Without limitation, nothing in this Agreement shall be
construed as giving Employee any right to be retained in the employ of
the Company beyond the expiration of the Employment Period, and
Employee specifically acknowledges that if Employee continues to be
employed by the Company thereafter, Employee shall be an
employee-at-will of the Company.
14. EFFECTIVENESS OF AGREEMENT. Although this Agreement has been executed
by the parties as of the date written above, this Agreement shall
become effective only and immediately upon consummation of the merger
described in the Affiliation Agreement.
15. NO AMENDMENTS. This Agreement may not be modified or amended except by
an instrument or instruments in writing signed by the party against
whom enforcement of any such modification or amendment is sought.
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16. SECTION AND OTHER HEADINGS. The section and other headings contained in
this Agreement are for reference purposes only and shall not be deemed
to be a part of this Agreement or to affect the meaning or
interpretation of this Agreement.
17. GENDER. Any masculine personal pronoun shall be considered to mean the
corresponding feminine personal pronoun, as the context requires.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without giving effect to
the conflicts of law principles hereof.
20. ARBITRATION. Except for the determination of disability provided for in
Section 4.2, any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then
in effect. Judgement may be entered on the arbitrator's award in any
court having jurisdiction.
21. PAYMENT OF LEGAL FEES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel)
incurred by the Employee as a result of (i) Employee's termination of
employment including all such fees and expenses, if any, incurred in
contesting or disputing any such termination of employment or (ii) the
Employee seeking to obtain or enforce any right or benefit provided by
this Agreement or by any other plan or arrangement maintained by the
Company under which the Employee is or may be entitled to receive
benefits.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
FIFTH THIRD BANK,
NORTHWESTERN OHIO, N.A.
By:
-----------------------------
Its:
----------------------------
EMPLOYEE
John F. Ziegler
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APPENDIX G
SHAREHOLDER SUPPORT AGREEMENT
FIFTH THIRD BANCORP
38 Fountain Square Plaza
Cincinnati, Ohio 45263
February 27, 1999
Mrs. Joan M. Dzurilla
c/o Emerald Financial Corp.
14902 Pearl Road
Strongsville, Ohio 44136
Dear Mrs. Dzurilla:
As you know, Fifth Third Bancorp, an Ohio corporation ("Fifth
Third"), and Emerald Financial Corp., an Ohio corporation ("Emerald."), are
concurrently entering into an Affiliation Agreement (the "Affiliation
Agreement") pursuant to which Emerald, will merge (the "Merger") with and into
Fifth Third with Fifth Third as the surviving corporation in the Merger.
As a shareholder, you believe it is in the best interests of Emerald
and all Emerald shareholders for the Merger to be consummated on the terms set
forth in the Affiliation Agreement. As a condition and inducement to Fifth
Third's willingness to enter in the Affiliation Agreement:
1. You represent that you have sole voting and dispositive power over
2,477,340 shares of common stock, no par value per share, of Emerald.
(the "Emerald Common Stock"), including 176,400 shares which are owned
by the Joan M. Dzurilla Charitable Remainder Trust of which you are the
Trustee.
2. You agree that any additional shares of Emerald Common Stock
acquired by you shall be subject to the provisions of this Agreement.
3. At such time as Emerald conducts a meeting of or otherwise seeks a
vote of its shareholders for the purpose of approving and adopting the
Affiliation Agreement and the Merger (the "Emerald Meeting"), you agree
to vote all Emerald Common Stock then held or controlled by you in
favor of the Affiliation Agreement and the Merger.
4. You will use all reasonable efforts to cooperate with Fifth Third in
connection with the Merger, promptly take such actions as are necessary
or appropriate to consummate the Merger, and provide any information
reasonably requested by Fifth Third for any registration of the shares
of Fifth Third issued in the Merger, any regulatory application or
filing made or approval sought for the transactions contemplated by the
Affiliation Agreement.
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5. You hereby waive all rights available to you under the General
Corporation Law as contained in the Ohio Revised Code to demand
appraisal with respect to your Emerald Common Stock.
6. From the date hereof until the Effective Time or earlier termination
of this Agreement as provided in Paragraph 10 (the "Voting Term") you
agree not to sell your Emerald Common Stock or otherwise transfer your
voting rights with respect thereto (exclusive of your right to
designate a proxy to vote your shares).
7. You agree that during the Voting Term, you will not, and you will
not permit affiliates (as that term is defined in Rule 405 of the
Securities Act of 1933 (the "Securities Act")), to:
(i) acquire, offer to acquire or agree to acquire
(directly or indirectly, beneficially or of record,
by purchase or otherwise, alone or in concert with
others) a majority of Emerald outstanding common
stock;
(ii) undertake any merger, consolidation, asset
acquisition or disposition or tender offer or other
takeover action involving Emerald or any of its
affiliates or any of its assets, except as expressly
permitted by the Affiliation Agreement;
(iii) other than as a director of Emerald make, or in any
way participate, directly or indirectly, in any
"solicitation" of "proxies" (as a such terms are used
in the proxy rules of the Securities and Exchange
Commission) or seek to advise or influence any person
or entity with respect to the voting or acquisition
of any securities of Emerald;
(iv) other than as a director of Emerald, directly or
indirectly, whether through any employees, agents,
affiliates or otherwise, encourage, initiate, solicit
or participate in, any inquiries or proposals or
engage in any discussions or negotiations, concerning
any of the foregoing; or
(v) agree to do any of the foregoing.
8. The voting obligations set forth in this Agreement only extend to
the matters set forth herein and do not extend to the voting on other
matters and questions on which you have the right to vote under the
articles of incorporation of Emerald, its regulations, or the Ohio
Revised Code.
9. You are an "accredited investor" as such term is defined in Rule 501
under the Securities Act. You are purchasing the shares of Fifth Third
Common Stock for investment for your own account and not with any
present view toward resale or other distribution thereof. You have such
knowledge and experience in factual and business matters that you are
capable of evaluating the merits and risks of the investment in the
shares of Fifth Third Common Stock and are able to bear the economic
risk of investment in the shares of Fifth Third Common Stock. You
acknowledge that Fifth Third has made available to you prior to the
date hereof and prior to the purchase of any of the shares of Fifth
Third Common Stock, the opportunity to ask questions of, and receive
answers from, the representatives of Fifth Third concerning Fifth Third
and the terms and conditions of the Merger.
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10. This Agreement shall terminate upon the termination of the
Affiliation Agreement in accordance with its terms.
11. This Agreement shall not affect your obligations, to the extent you
serve in such capacity, as a director of Emerald.
12. This Agreement shall bind and benefit the successors, assigns,
executors, trustees and heirs of the parties hereto. You agree that
damages are inadequate for breach by you of any term of this Agreement
and that Fifth Third shall be entitled to preliminary and permanent
injunctive relief and specific performance to enforce this Agreement.
This Agreement shall be governed by and construed under the laws of the
State of Ohio (without giving effect to the choice of law provisions
thereof). Any term hereof which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without affecting the
remaining terms or their validity or enforceability in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad
as is enforceable.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of such counterparts together shall
constitute one and the same instrument.
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to Fifth Third a counterpart hereof.
Very truly yours,
FIFTH THIRD BANCORP
By: /s/ P. Michael Brumm
-------------------------------
Accepted and agreed as of the date first above written:
Joan M. Dzurilla
/s/ Joan M. Dzurilla
--------------------------------
(signature)
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