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EXHIBIT 10.13.2
REASSIGNMENT AGREEMENT AND RELEASE
THIS Reassignment Agreement and Release (the "Agreement") dated August
3, 1999, is hereby made by and between John R. Macso ("Mr. Macso"), and
FirstMerit Corporation, its subsidiaries and affiliates ("FirstMerit" or
"Employer").
WITNESSETH:
WHEREAS, Mr. Macso is now and has been employed by FirstMerit
Corporation as the President, Services Division and Chief Technology Officer,
and is a director of FirstMerit Bank, N.A.; and
WHEREAS, FirstMerit Corporation is an Ohio Corporation and registered
as a bank holding company under the Bank Holding Company Act of 1956, as
amended; and
WHEREAS, Mr. Macso has agreed to voluntarily relinquish his current
position and become reassigned as Chairman of Mobile Consultants Inc. ("MCI"),
effective February 1, 2000; and
WHEREAS, Mr. Macso acknowledges that he has been paid all wages,
incentives, bonuses, vacation pay, and other benefits owed to him in
consideration of and as compensation for his services as an employee earned
prior to the Effective Date of this Agreement; and
WHEREAS, Mr. Macso has various rights pursuant to federal, state and
local laws including, but not limited to, rights and claims he may have under
the Age Discrimination in Employment Act, 29 U.S.C. Section 621, ET SEQ.; and
WHEREAS, the Employer denies any and all liability whatsoever to Mr.
Macso and make no concessions as to the validity of any claims or disputes which
Mr. Macso may claim to have; and
WHEREAS, Mr. Macso and the Employer desire to resolve fully and finally
any and all claims and/or disputes arising from or relating to Mr. Macso's
employment by the Employer and the modifications to Mr. Macso's employment
relationship with the Employer, the reassignment, and Mr. Macso's relationship
with the Employer in an amicable manner without the difficulties and expenses
involved in litigation.
NOW, THEREFORE, in consideration of the premises and promises contained
herein, Mr. Macso and the Employer agree as follows:
1. CONSIDERATION: In consideration of the promises contained
in this Agreement, Employer and Mr. Macso agree to the
following:
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(a) FirstMerit and Mr. Macso agree to enter into an
Employment Agreement ("Employment Agreement") as
attached hereto as Exhibit "A."
(b) The Employer will pay Mr. Macso the sum of One
Thousand Dollars ($1,000.00)(less legal deductions)
upon the Effective Date.
(c) Mr. Macso acknowledges that, except as expressly set
forth herein and in the Employment Agreement, he is
not otherwise entitled to the payment set forth in
subsection (b) above (the "Payment") pursuant to the
employment relationship, policies, or practices, and
the Payment is being provided solely in exchange for
his promises contained in this Agreement. Mr. Macso
further acknowledges that he is not entitled to any
additional severance pay under the terms of any
FirstMerit agreement, policy, practice or plan.
2. RELEASE: In consideration of receipt of the benefits set forth
above, Mr. Macso does hereby fully and forever surrender, release,
acquit and discharge the Employer, and its principals, stockholders,
directors, officers, agents, administrators, insurers, subsidiaries,
affiliates, employees, successors, assigns, related entities, and legal
representatives, personally and in their representative capacities, and
each of them, of and from any and all claims, charges, actions, causes
of action, demands, rights, damages, debts, contracts, claims for costs
or attorneys' fees, expenses, compensation, and all losses, demands and
damage of whatsoever nature or kind in law or in equity, whether known
or unknown, including without limitation those claims arising out of,
under, or by reason of Mr. Macso's employment with the Employer, Mr.
Macso's relationship with the Employer and/or the modification of Mr.
Macso's employment relationship and any and all claims which were or
could have been asserted in any Charge, Complaint, or related lawsuit.
Without limiting the generality of the foregoing, Mr. Macso
specifically releases and discharges, but not by way of limitation, any
obligation, claim, demand or cause of action based on, or arising out
of, any alleged wrongful termination, breach of employment contract,
breach of implied covenants of good faith and fair dealing, defamation,
fraud, promissory estoppel, intentional or negligent infliction of
emotional distress, discrimination based on age, pain and suffering,
personal injury, punitive damages, and any and all claims arising from
any alleged violation by the Employer of any federal, state, or local
statutes, ordinances or common laws, including but not limited to the
Ohio Civil Rights Act, including all provisions of the Ohio Revised
Code concerning discrimination on the basis of age, the Age
Discrimination in Employment Act of 1967, Title VII of the Civil Rights
of 1964, the Americans With Disabilities Act or the Employee Retirement
Income Security Act of 1974. This release of rights is knowing and
voluntary. The Employer acknowledges that Mr. Macso does not release
herein any rights or claims which may arise after the Effective Date of
this Agreement nor any rights he may have regarding the enforcement of
this Agreement.
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3. WAIVER OF RIGHT TO SUE. Mr. Macso further agrees, promises and
covenants that neither he, nor any person, organization, or any other
entity acting on his behalf will file, charge, claim, sue or cause or
permit to be filed, charged or claimed, any action for damages or other
relief (including injunctive, declaratory, monetary relief or other)
against the Employer, involving any matter occurring in the past up to
the date of this Agreement or involving any continuing effects of
actions or practices which arose prior to the date of this Agreement,
or involving and based upon any claims, demands, causes of action,
obligations, damages or liabilities which are the subject of this
Agreement.
4. NO ASSIGNMENT OF CLAIMS. As further consideration for the Payment
and release, Mr. Macso represents and warrants that he has not assigned
or sold, or in any way disposed of his claims hereby released, or any
part thereof, to anyone and that he will save and hold harmless the
Employer of and from any claims, actions, causes of action, demands,
rights, damages, costs and expenses, including reasonable attorneys'
fees, arising from a complete or partial assignment of the claims
hereby released.
5. REASSIGNMENT AND RETIREMENT. Mr. Macso shall be reassigned from his
position as President, Services Division and Chief Technology Officer,
effective February 1, 2000, and FirstMerit and Mr. Macso have mutually
agreed that Mr. Macso's retirement will be effective on February 1,
2002. Mr. Macso shall execute an Employment Agreement in a form
substantially similar to that attached as Exhibit "A." Further, on or
before January 31, 2000, Mr. Macso shall voluntarily resign his
position as a director of FirstMerit Bank, N.A.
6. WAIVER OF REINSTATEMENT. As further consideration for this Agreement
and the Payment subsequent to retirement Mr. Macso forever waives any
claim of reinstatement of future employment with the Employer or any of
its subsidiaries or affiliates, and agrees that he will not seek
employment with the Employer or any subsidiaries or affiliates.
7. PAST COMPENSATION - FUTURE BENEFITS. Except as specifically set
forth below, Mr. Macso represents and covenants that he has received
all compensation, wages, incentives, and benefits earned by him prior
to the Effective Date in consideration of and as compensation for his
services as an employee including but not limited to any and all
vacation pay, bonuses, and severance pay. Notwithstanding the
foregoing, Mr. Macso is eligible to participate in the 1999 Individual
Incentive Plan which will be paid, if earned, during the first quarter
of the year 2000. Further, the parties agree that Mr. Macso is entitled
to certain retirement benefits. The actual retirement benefits are
governed by plan documents and a Supplemental Pension Agreement dated
June 10, 1991 ("SERP Agreement"). Additionally, the parties agree that
such benefits shall be provided to Mr. Macso in accordance with plan
provisions, as may be amended from time to time.
8. STOCK OPTIONS. Mr. Macso has been granted certain unvested stock
options ("Unvested Options") pursuant to the Stock Option Agreement
dated August 3, 1999. (Exhibit "B") Mr. Macso and FirstMerit agree that
of the Unvested Options granted on
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February 18, 1999, 16,000 shares will vest on February 18, 2000, and
16,000 shares will vest on February 18, 2001. An additional 16,000
shares of Unvested Options (the "Final Third") will vest on February
18, 2002 if, and only if, MCI achieves a target net operating income
("NOI") as determined by FirstMerit in each of the years 2000 and 2001.
In the event that MCI attains the target NOI for either 2000 or 2001,
but not both, then only 5,000 of the Final Third will vest. If MCI does
not attain the target NOI in either year 2000 or 2001, then none of the
Final Third will vest and the stock options, with respect to the Final
Third, will be forfeited. In the event that MCI fails to achieve the
NOI in any given year due solely to extraordinary events, then the
Chairman and CEO of FirstMerit may, in his sole discretion, vest any or
all of the Unvested Options. Further, Mr. Macso forfeits, surrenders,
and forever waives all rights to any of the 24,000 Performance Vested
Stock Options which he was previously granted on February 18, 1999.
9. OLDER WORKERS' BENEFIT PROTECTION ACT WAIVER. In connection with the
waivers in Paragraph 2 of any and all claims or disputes that Mr. Macso
has or may have on the date hereof, Mr. Macso makes the following
acknowledgments:
(a) By signing this Agreement, Mr. Macso waives all claims
against the Employer, and its principals, stockholders,
directors, officers, agents, administrators, insurers,
subsidiaries, affiliates, employees, successors, assigns,
related entities, and legal representatives, personally and in
their representative capacities, and each of them, for
discrimination based on age, including without limitation, any
claim which arises under or by reason of a violation of the
Age Discrimination in Employment Act, as amended, 29 U.S.C.
621 ET SEQ.
(b) In consideration of the waivers and covenants made by Mr.
Macso under this Agreement, Mr. Macso will be receiving the
settlement payments in the amounts and manner described in
Paragraph 1 of this Agreement.
(c) Mr. Macso has consulted with an attorney prior to
executing this Agreement and Mr. Macso has been given a period
of at least twenty-one (21) days within which to consider
whether or not to enter into the Agreement.
10. NO ADMISSION OF LIABILITY OF EMPLOYER. Mr. Macso and the Employer
understand and agree that this Agreement and Release is the compromise
of a disputed claim, and that the settlement is not to be construed as
an admission of liability on the part of the Employer and the Employer
denies liability and intends merely to avoid costs and litigation. It
is further understood that Mr. Macso shall not in any legal sense be
considered a "prevailing party" in connection with the allegation which
could have been raised.
11. NO OTHER AGREEMENTS. Except for the Employment, Confidentiality,
Non-solicitation and Non-competition Agreement, dated August 3, 1999,
SERP Agreement, any stock option plans (as amended herein), life
insurance benefit plans, medical insurance plans, and the
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Indemnification Agreement dated April 28, 1995 (collectively the
"Continued Agreements"), Mr. Macso and the Employer agree that there
are no other agreements, promises or undertakings on the part of Mr.
Macso or the Employer. This Agreement supercedes all agreements other
than the Continued Agreements including, but not limited to, The
FirstMerit Termination Agreement dated September 1, 1998, rendering all
agreements other than the Continued Agreements null and void. This
Agreement shall not be modified except in writing signed by all parties
hereto.
12. REPRESENTATIONS. The parties represent and acknowledge that in
executing this Agreement they do not rely, and have not relied, upon
any representation or statement made by either party or by any of their
agents, representatives or attorneys with regard to the subject matter,
basis or effect of this Agreement or otherwise. Notwithstanding the
foregoing, Macso acknowledges that he has received a copy of the April
6, 1999, Hewit correspondence ("Hewit Correspondence", attached as
Exhibit C.) However, the parties agree that any pension plans will be
govrened by the plan documents only and not by the Hewitt
Correspondence.
13. CONFIDENTIALITY. Mr. Macso covenants and agrees that he will keep
the terms and amount of the agreement set forth in this Agreement
completely confidential, and that Mr. Macso will not hereafter disclose
any information concerning this Agreement to any person other than his
attorney or accountant provided, however, that he first obtains
reliable assurance that confidential treatment will be accorded by such
individuals.
14. BINDING AGREEMENT. This Agreement shall be binding upon Mr. Macso
and his heirs, administrators, executors, successors and assigns, and
shall inure to the benefit of the Employer and its principals,
stockholders, directors, officers, agents, administrators, insurers,
subsidiaries, affiliates, employees, successors, assigns, related
entities, and legal representatives, personally and in their
representative capacities, and each of them.
15. CHOICE OF LAW AND JURISDICTION. This Agreement is made and entered
into in the state of Ohio, and shall in all respects be interpreted,
enforced and governed under the laws of said state notwithstanding its
conflict of laws rules. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties consent
to the jurisdiction of the Common Pleas Court of the State of Ohio
(Summit County) or The United States District Court for the Northern
District of Ohio, Eastern Division.
16. VALIDITY OF AGREEMENT. Should any provision of this Agreement be
declared or be determined by any court to be illegal or invalid, the
validity of the remaining parts, terms or provisions shall not be
affected thereby and said illegal or invalid part, term or provision
shall be deemed not to be a part of this Agreement.
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17. BREACH AND CURE PERIOD. Should Mr. Macso violate any provision of
this Agreement or fail to fulfill any of the covenants contained
herein, Employer shall provide Mr. Macso with written notice of such
breach. Mr. Macso shall then have fourteen (14) calendar days to
provide the Employer with written notice with an explanation that the
breach has been cured ("Cure Period"). If the breach is not cured to
the Employer's satisfaction, after the expiration of fourteen (14)
calendar days, after receipt of written notice by any person listed in
Section 19 of this Agreement, the Employer may exercise any and all of
its rights at law and equity to enforce this Agreement. Further, in the
event that either party files a lawsuit to enforce the terms of this
Agreement, the successful party shall, in addition to the other
remedies, be entitled to all costs of litigation, including reasonable
attorneys' fees.
18. EFFECTIVE DATE. This Agreement shall become effective on January
31, 2000, provided that the Agreement is executed by FirstMerit and Mr.
Macso at least seven (7) days prior to January 31, 2000("Effective
Date"). Prior to January 31, 2000, Mr. Macso has the right to revoke
and/or cancel this Agreement by the delivery of notice in writing of
revocation and/or cancellation to the Employer. In the event that Mr.
Macso does not revoke and/or cancel this Agreement before January 31,
2000, this Agreement shall become effective on that date. In the event
that Mr. Macso revokes this Agreement, continued employment and current
compensation will not be guaranteed.
19. NOTICE AND COMMUNICATION. All communications or notices required or
permitted by this Agreement shall be in writing and shall be deemed to
have been given at the earlier of the date when actual delivery to a
party by personal delivery or when deposited in the United States mail,
postage prepaid, to the following addressees at the following
addresses, unless and until any such party notifies the other of a
change of addressee and address:
To: Terry E. Patton, Esq.
Executive Vice President, Corporate Secretary and
Chief Legal Counsel
FirstMerit Corporation
III Cascade Plaza
Akron, Ohio 44308
To: John R. Macso
At: 970 Robinwood Hills Drive
Akron, Ohio 44333
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PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE BY MR. MACSO
OF ALL KNOWN AND UNKNOWN CLAIMS.
August 5, 1999 /s/ John R. Macso
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Date John R. Macso
FIRSTMERIT CORPORATION
August 5, 1999 By: /s/ Christopher J. Maurer
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Date Its: Executive Vice President of Human
Resources
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WAIVER OF TWENTY-ONE DAYS TO CONSIDER AGREEMENT
RELATING TO REASSIGNMENT OF EMPLOYMENT
AND RELEASE OF CLAIMS
On August 3, 1999, I received a Reassignment Agreement and Release (the
"Agreement") dated August 3, 1999.
I understand and acknowledge, and as listed in Section 9 of the
Agreement, that I have the legal entitlement for twenty-one (21) days of whether
or not I want to sign the Agreement and that I have also been advised to seek
the advice of an attorney before signing the Agreement and have obtained the
advice of an attorney. Understanding those rights, I have determined to sign the
Agreement and have done so effective this 5th day of August, 1999.
I recognize that only two (2) days have transpired since I received the
Agreement, but I have determined, with the assistance of my legal counsel, that
since I have made the decision to sign the Agreement, it is not necessary to
wait the entire twenty-one (21) day period to which I am entitled, and I hereby
freely and knowingly waive that statutory right.
I understand that the parties to the Agreement are relying upon my
representations in this Agreement and I agree that they have a right to so rely.
I understand that those parties have agreed to pay me the amount stated in the
Agreement on January 31, 2000, instead of a later date which would be after the
twenty-one (21) day period, based on my representations contained herein.
Dated: August 5, 1999 /s/ John R. Macso
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John R. Macso
/s/ Christopher J. Maurer
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Witness