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Exhibit 10.39
AMENDED AND RESTATED
MEMBERSHIP AGREEMENT
WITH RESPECT TO THE
FIRSTMERIT CORPORATION
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
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AMENDED AND RESTATED MEMBERSHIP AGREEMENT, effective as of the 1st day
of December, 1998, by and between FirstMerit Corporation, an Ohio corporation
(the "Employer"), and John R. Cochran, an individual, (the "Member").
RECITALS:
A. The Employer maintains the FirstMerit Corporation Supplemental
Retirement Plan (the "Plan"), a copy of which is attached hereto as Exhibit A
and is incorporated herein by reference, and the Member became a participant in
the Plan effective as of March 1, 1995.
B. Section 9.07 of the Plan provides that the Employer and any Member
in the Plan may, by written agreement, amend the provisions of the Plan as to
only such Member.
C. The Employer and the Member entered into a Membership Agreement,
effective March 1, 1995, (the "Old Membership Agreement") concerning the
participation of the Member in the Plan.
D. The Employer and Member desire to amend and restate the Old
Membership Agreement in order to reflect certain changed circumstances and
agreements with respect to the Member's employment with the Employer.
IN CONSIDERATION OF THE FOREGOING, and for good and valuable
consideration, receipt of which is hereby acknowledged, the Employer and Member
agree as follows:
1. Definitions
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Capitalized terms used in this Membership Agreement shall have the same
meanings as those ascribed to them in the Plan unless expressly provided
otherwise herein.
2. Termination of Old Membership Agreement.
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The parties hereto acknowledge and agree that, effective as of December
1, 1998 (the "Effective Date"), the Old Membership Agreement is hereby
terminated and each and every provision thereof shall be rendered void and of
no further force or effect whatsoever.
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3. Participation in the Plan
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The Member became a participant in the Plan effective as of March 1,
1995 and shall continue to participate in the Plan on and after the Effective
Date subject to the terms and conditions of the Plan as modified by this Amended
and Restated Membership Agreement.
4. Form of Distribution of Benefits Under the Plan
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Notwithstanding any of the provisions of the Old Membership Agreement
to contrary, the Member may, subject to the provisions of Section 4.04 the
Plan, elect to receive any Monthly Retirement Income payable to him under the
terms of the Plan in the form of a lump sum distribution.
5. Change of Control
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Notwithstanding anything to the contrary contained in the Plan, if the
Member's employment with the Employer terminates following a Change of Control
(as defined in the Employment Agreement, dated as of December 1, 1998, between
the Employer and the Member (the "Employment Agreement")) and if, as a result
of such termination of employment, the Member is entitled to receive the Change
of Control Benefits described in Section 11.2 of the Employment Agreement, then,
for purposes of calculating the Member's Monthly Retirement income under any
provision of the Plan:
(a) the Member shall be deemed to have attained age 65 on the
effective date of the termination of his employment with the
Employer regardless of his actual Attained Age as of such
date;
(b) the Member shall be deemed to have earned ten (10) Years of
Service on the effective date of the termination of his
employment with the Employer regardless of his actual Years of
Service under the Plan as of such date; and
(c) the Member's Average Monthly Earnings shall be determined by
dividing 12 into the annual base salary applicable to the
Member as of the effective date of the termination of his
employment.
6. Termination Without Cause or Termination For Good Reason
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If the Employer terminates the Member's employment without Cause (as
defined in the Employment Agreement) pursuant to Section 9.1(B) of the
Employment Agreement or if the Member terminates his employment for Good Reason
(as defined in the Employment Agreement) pursuant to Section 9.2 of the
Employment Agreement and the Termination Date (as defined in the Employment
Agreement) is prior to the expiration of the Term (as defined in the Employment
Agreement) the Member will be credited with two (2) additional Years of Service
under the Plan as of the Termination Date.
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7. Except as expressly modified by this Amended and Restated Membership
Agreement, all of the provisions of the Plan shall apply to the Member.
IN WITNESS WHEREOF, the Employer and the Member have duly executed this
Amended and Restated Membership Agreement the 2nd day of December, 1998.
FIRSTMERIT CORPORATION
By: /s/ Clifford J. Isroff
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Its: Director
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(pursuant to special resolution
of Board of Directors)
EMPLOYER
/s/ John R. Cochran
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John R. Cochran
MEMBER
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