<PAGE> 1
As filed with the Securities and Exchange Commission on May 20, 1999
===============================================================================
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FIRSTMERIT CORPORATION
(Exact name of registrant as specified in its charter)
OHIO 34-1339938
(State of incorporation) (I.R.S. Employer Identification No.)
III CASCADE PLAZA, AKRON OHIO 44308
(Address of Principal Executive Offices) (Zip Code)
FIRSTMERIT CORPORATION 1999 STOCK PLAN
FIRSTMERIT CORPORATION 1997 STOCK PLAN
AMENDED AND RESTATED FIRSTMERIT CORPORATION EXECUTIVE DEFERRED COMPENSATION PLAN
AMENDED AND RESTATED FIRSTMERIT CORPORATION DIRECTOR DEFERRED COMPENSATION PLAN
(Full Title of the Plans)
TERRY E. PATTON
SENIOR VICE PRESIDENT AND SECRETARY, FIRSTMERIT CORPORATION
III CASCADE PLAZA, AKRON, OHIO 44308
(330) 996-6300
(Name, address, including zip code, and telephone number, including area code
of agent for service)
CORRESPONDENCE TO:
KEVIN C. O'NEIL
BROUSE MCDOWELL, A LEGAL PROFESSIONAL ASSOCIATION
500 FIRST NATIONAL TOWER
AKRON, OHIO 44308
(330) 434-5207
Calculation of Registration Fee
<TABLE>
<CAPTION>
======================================================================================================================
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per aggregate offering registration fee
share price
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 6,600,000 Shares $27.125(2) $179,025,000 $49,769
no par value(1)
======================================================================================================================
</TABLE>
<PAGE> 2
(1) Includes associated rights (the "Rights") to purchase the FirstMerit Common
Stock. Until the occurrence of certain prescribed events, the rights are not
exercisable, are evidenced by the certificates representing the FirstMerit
Common Stock, and trade with the FirstMerit Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933 on the
basis of the average of the high and low prices reported in the consolidated
reporting system for the Common Stock of FirstMerit Corporation on May 17, 1999.
===============================================================================
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required in Part I of the
Registration Statement will be provided to each participant in the FirstMerit
Corporation 1999 Stock Plan; the FirstMerit Corporation 1997 Stock Plan; the
Amended and Restated FirstMerit Corporation Executive Deferred Compensation Plan
and the Amended and Restated FirstMerit Corporation Director Deferred
Compensation Plan (the "Plans") as required by Rule 428(b)(1). Such documents
are not being filed with the Securities and Exchange Commission (the
"Commission") in accordance with the instructions to Form S-8, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission under the Exchange
Act by the Company (File No. 0-10161) are hereby incorporated by reference into
this Registration Statement:
(a) The Company's Annual Report on Forms 10-K (including Exhibit
99 thereto) and 10- K/A for the year ended December 31, 1998
filed with the Commission on March 22, 1999 and April 29,
1999, respectively;
(b) The portions of the Company's Proxy Statement for the Annual
Meeting of Shareholders held April 21, 1999 that have been
incorporated by reference in the Company's Annual Report on
Form 10-K for the year ended December 31, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(d) The Company's Current Reports on Form 8-K filed with the
Commission on March 5, 1999, April 20, 1999 and April 21,
1999; and
(e) (i) The description of the Company's Common Stock contained in
the Company's Current Report on Form 8-K filed with the
Commission on September 10, 1998, and (ii) the description of
the rights issued pursuant to the FirstMerit Shareholders
Rights Agreement, dated as of October 23, 1993, by and between
the Company and FirstMerit Bank, N.A., as rights agent, as
amended and restated May 20, 1998, contained in Amendment No.
2 to the Company's Registration Statement on Form 8-A with
respect thereto filed with the Commission on June 22, 1998;
and any further amendment or report filed for the purpose of
updating the description.
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<PAGE> 4
All documents hereafter filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of the Company's Common Stock to be issued
by the Company under the Plans has been passed upon for the Company by its
counsel, Brouse McDowell, a Legal Professional Association ("Brouse McDowell").
Philip A. Lloyd II, a director and shareholder of the Company, is a shareholder
of Brouse McDowell. Kevin C. O'Neil is a shareholder of Brouse McDowell, and the
Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Article Sixth of the Amended and Restated Articles of
Incorporation of the Company, the Company may indemnify any director or officer,
any former director or officer of the Company and any person who is or has
served at the request of the Company as a director, officer or trustee of
another corporation, partnership, joint venture, trust or other enterprise (and
his heirs, executors and administrators) against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him by reason of the fact that he is or was such director, officer
or trustee in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, to the
full extent permitted by applicable law, as the same may be in effect from time
to time. The indemnification provided for therein is not deemed to restrict the
right of the Company to (i) indemnify employees, agents and others as permitted
by such law, (ii) purchase and maintain insurance or provide similar protection
on behalf of directors, officers or such other persons against liabilities
asserted against them or expenses incurred by them arising out of their service
to the Company, and (iii) enter into agreements with such directors, officers,
employees, agents or others indemnifying them against any and all liabilities
(or such lesser indemnification as may be provided in such agreements) asserted
against them or incurred by them arising out of their service to the Company.
The rights provided in Article Sixth are in addition to any rights
provided by contract or as a matter of law. Ohio Revised Code Section 1701.13(E)
includes indemnification provisions similar to Article Sixth. Section 1701.13(E)
of the Ohio Revised Code provides that a corporation may indemnify or agree to
indemnify any person who was or is a party, or is threatened to be made a party,
to any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, other than an action by or in
the right of the corporation, by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or is or was
II-3
<PAGE> 5
serving at the request of the corporation as a director, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership, joint
venture, trust, or other enterprise, against expenses, including attorney's
fees, judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding, if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, if he had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
Section 1701.13(E)(2) further specifies that a corporation may
indemnify or agree to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending, or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor, by reason of the fact that he is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of (a) any claim, issue, or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the corporation unless, and only to the extent, that the court of
common pleas or the court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability, but in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses as the court of common pleas or such other court
shall deem proper, and (b) any action or suit in which the only liability
asserted against a director is pursuant to Section 1701.95 of the Ohio Revised
Code concerning unlawful loans, dividends and distribution of assets.
In addition, Section 1701.13(E) requires a corporation to pay any
expenses, including attorney's fees, of a director in defending an action, suit,
or proceeding referred to above as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, upon receipt of an undertaking
by or on behalf of the director in which he agrees to both (i) repay such amount
if it is proved by clear and convincing evidence that his action or failure to
act involved an act or omission undertaken with deliberate intent to cause
injury to the corporation or undertaken with reckless disregard for the best
interests of the corporation and (ii) reasonably cooperate with the corporation
concerning the action, suit, or proceeding. Section 1701.13(E) further
authorizes a corporation to enter into contracts regarding indemnification and
to purchase and maintain insurance on behalf of any director, trustee, officer,
employee or agent for any liability asserted against him or arising out of his
status as such. The Company presently has contracts with each of its directors
and key officers and maintains insurance for the benefit of persons entitled to
indemnification.
II-4
<PAGE> 6
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the "Exhibit Index."
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) The Company undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement; and
II-5
<PAGE> 7
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i) and (ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Company pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
II-6
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, there unto duly
authorized, in the City of Akron, State of Ohio, on May 20, 1999.
FirstMerit Corporation
By: /s/ John R. Cochran
----------------------------
John R. Cochran, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 20, 1999.
SIGNATURE TITLE
/s/ John R. Cochran Chairman and Chief Executive Officer
- ------------------------- (Principal Executive Officer) and Director
John R. Cochran
/s/ Austin J. Mulhern Senior Vice President, Finance and
- ------------------------- Administration (Chief Financial Officer
Austin J. Mulhern and Chief Accounting Officer)
Karen S. Belden* Director
- -------------------------
Karen S. Belden
R. Cary Blair* Director
- -------------------------
R. Cary Blair
John C. Blickle* Director
- -------------------------
John C. Blickle
Sid A. Bostic* Director
- -------------------------
Sid A. Bostic
Gary G. Clark* Director
- -------------------------
Gary G. Clark
Robert W. Briggs* Director
- -------------------------
Robert W. Briggs
II-7
<PAGE> 9
Philip A. Lloyd, II* Director
- ------------------------------
Philip A. Lloyd, II
Richard Colella* Director
- ------------------------------
Richard Colella
Terry L. Haines* Director
- ------------------------------
Terry L. Haines
Clifford J. Isroff* Director
- ------------------------------
Clifford J. Isroff
Robert G. Merzweiler* Director
- ------------------------------
Robert G. Merzweiler
Roger T. Read* Director
- ------------------------------
Roger T. Read
Justin T. Rogers, Jr.* Director
- ------------------------------
Justin T. Rogers, Jr.
Richard N. Seaman* Director
- ------------------------------
Richard N. Seaman
Jerry M. Wolf* Director
- ------------------------------
Jerry M. Wolf
Charles F. Valentine* Director
- ------------------------------
Charles F. Valentine
*The undersigned, by signing his name hereto, does sign and execute
this Registration Statement on behalf of each of the indicated officers and
directors of FirstMerit Corporation pursuant to a Power of Attorney executed by
each such officer and director and filed with this registration statement.
Dated: May 20, 1999 /s/ Kevin C. O'Neil
-------------------
Kevin C. O'Neil
Attorney-in-Fact
II-8
<PAGE> 10
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
FIRSTMERIT CORPORATION
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
---------------
EXHIBITS
---------------
II-9
<PAGE> 11
EXHIBIT INDEX
3.1 Amended and Restated Articles of Incorporation of FirstMerit
Corporation, as amended (incorporated by reference from Exhibit 3.1 to
the Form 10-K/A filed by the registrant on April 29, 1999)
3.2 Amended and Restated Code of Regulations of FirstMerit Corporation
(incorporated by reference from Exhibit 3(b) to the Form 10-K filed by
the registrant on April 9, 1998)
4.1 Shareholders Rights Agreement dated October 21, 1993, between
FirstMerit Corporation and FirstMerit Bank, N.A., as amended and
restated May 20, 1998 (incorporated by reference from Exhibit 4 to the
Form 8-A/A filed by the registrant on June 22, 1998)
4.2 Instrument of Assumption of Indenture between FirstMerit Corporation
and NBD Bank, as Trustee, dated October 23, 1998 regarding FirstMerit
Corporation's 6 1/4% Convertible Subordinated Debentures, due May 1,
2008 (incorporated by reference from Exhibit 4(b) to the Form 10-Q
filed by the registrant on November 13, 1998)
4.3 Supplemental Indenture, dated as of February 12, 1999, between
FirstMerit and Firstar Bank Milwaukee, National Association, as Trustee
relating to the obligations of the FirstMerit Capital Trust I, fka
Signal Capital Trust I (incorporated by reference from Exhibit 4.3 to
the Form 10-K filed by the registrant on March 22,1999)
4.4 Indenture dated as of February 13, 1998 between Firstar Bank Milwaukee
National Association, as trustee and Signal Corp (incorporated by
reference from Exhibit 4.1 to the Form S-4, No. 333-52581-01, filed by
FirstMerit Capital Trust I, fka Signal Capital Trust I, on May 13,
1998)
4.5 Amended and Restated Declaration of Trust of FirstMerit Capital Trust
I, fka Signal Capital Trust I, dated as of February 13, 1998
(incorporated by reference from Exhibit 4.5 to the Form S-4 No.
333-52581-01, filed by FirstMerit Capital Trust I, fka Signal Capital
Trust I, on May 13, 1998)
4.6 Form Capital Security Certificate (incorporated by reference from
Exhibit 4.6 to the Form S-4 No. 333-52581-01, filed by FirstMerit
Capital Trust I, fka Signal Capital Trust I, on May 13, 1998)
4.7 Series B Capital Securities Guarantee Agreement (incorporated by
reference from Exhibit 4.7 to the Form S-4 No. 333-52581-01, filed by
FirstMerit Capital Trust I, fka Signal Capital Trust I, on May 13,
1998)
4.8 Form of 8.67% Junior Subordinated Deferrable Interest Debenture, Series
B (incorporated by reference from Exhibit 4.7 to the Form S- 4 No.
333-52581-01, filed by FirstMerit Capital Trust I, fka Signal Capital
Trust I, on May 13, 1998)
5 Opinion of Brouse McDowell, A Legal Professional Association
10.1 1982 Incentive Stock Option Plan of FirstMerit Corporation
(incorporated by reference from Exhibit 4.2 to the Form S-8 (No.
33-7266) filed by the registrant on July 15, 1986)
II-10
<PAGE> 12
10.2 Amended and Restated 1992 Stock Option Program of FirstMerit
Corporation (incorporated by reference from Exhibit 10.2 to the Form
10-K filed by the registrant on February 24, 1998)
10.3 1992 Directors Stock Option Program (incorporated by reference from
Exhibit 10.2 to the Form 10-K filed by the registrant on February 24,
1998)
10.4 FirstMerit Corporation 1995 Restricted Stock Plan (incorporated by
reference from Exhibit (10)(d) to the Form 10-Q for the fiscal quarter
ended March 31, 1995, filed by the registrant on May 15, 1995)
10.5 1997 Stock Option Program of FirstMerit Corporation (incorporated by
reference from Exhibit 10.5 to the Form 10-K filed by the registrant on
February 24, 1998)
10.6 1985 FirstMerit Corporation Stock Plan (CV) (incorporated by reference
from Exhibit (10)(a) to the Form S-8 (No. 33-57557) filed by the
registrant on February 1, 1995)
10.7 1993 FirstMerit Corporation Stock Plan (CV) (incorporated by reference
from Exhibit (10)(b) to the Form S-8 (No. 33-57557) filed by the
registrant on February 1, 1995)
10.8 Amended and Restated FirstMerit Corporation Executive Deferred
Compensation Plan (incorporated by reference from Exhibit 10(h) to the
Form 10-K filed by the registrant on February 25, 1997)
10.9 Amended and Restated FirstMerit Corporation Director Deferred
Compensation Plan (incorporated by reference from Exhibit 10(i) to the
Form 10-K filed by the registrant on February 25, 1997)
10.10 FirstMerit Corporation Executive Supplemental Retirement Plan
(incorporated by reference from Exhibit 10(d) to the Form 10-K filed by
the registrant on March 15, 1996)
10.10.1 Amended and Restated Membership Agreement with respect to the
FirstMerit Corporation Executive Supplemental Retirement Plan
(incorporated by reference from Exhibit 10.39 to the Form 10-K filed by
the registrant on March 22,1999)
10.11 FirstMerit Corporation Unfunded Supplemental Benefit Plan (incorporated
by reference from Exhibit 10.11 to the Form 10-K filed by the
registrant on February 24, 1998)
10.12 First Amendment to the FirstMerit Corporation Unfunded Supplemental
Benefit Plan (incorporated by reference from Exhibit 10(v) to the Form
10-K filed by the registrant on March 2, 1995)
10.13 Supplemental Pension Agreement of John R. Macso (incorporated by
reference from Exhibit 10.13 to the Form 10-K filed by the registrant
on February 24, 1998)
10.14 FirstMerit Corporation Executive Committee Life Insurance Program
Summary (incorporated by reference from Exhibit 10(w) to the Form 10-K
filed by the registrant on March 2, 1995)
10.15 Long Term Disability Plan (incorporated by reference from Exhibit 10(x)
to the Form 10-K filed by the registrant on March 2, 1995)
10.16 Employment Agreement dated October 23, 1998 for Charles F. Valentine
(incorporated by reference from Exhibit 10(a) to the Form 10-Q filed by
the registrant on November 13, 1998)
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<PAGE> 13
10.17 SERP Agreement dated October 23, 1998 for Charles F. Valentine
(incorporated by reference from Exhibit 10(b) to the Form 10-Q filed by
the registrant on November 13, 1998)
10.18 Employment Agreement dated October 23, 1998 for Austin J. Mulhern
(incorporated by reference from Exhibit 10(c) to the Form 10-Q filed by
the registrant on November 13, 1998)
10.19 SERP Agreement dated October 23, 1998 for Austin J. Mulhern
(incorporated by reference from Exhibit 10(d) to the Form 10-Q filed by
the registrant on November 13, 1998)
10.20 Employment Agreement of John R. Cochran, dated December 1, 1998
(incorporated by reference from Exhibit 10.20 to the Form 10-K filed by
the registrant on March 22,1999)
10.21 Restricted Stock Award Agreement of John R. Cochran dated March 1, 1995
(incorporated by reference from Exhibit 10(e) to the Form 10-Q filed by
the registrant on May 15, 1995)
10.22 Restricted Stock Award Agreement of John R. Cochran dated April 9, 1997
(incorporated by reference from Exhibit 10.18 to the Form 10-K filed by
the registrant on February 24, 1998)
10.21.1 First Amendment to Restricted Stock Award Agreement for John R. Cochran
(incorporated by reference from Exhibit 10.38 the Form 10-K filed by
the registrant on March 22,1999)
10.23 Employment Agreement of Sid A. Bostic dated February 1, 1998
(incorporated by reference from Exhibit 10.19 to the Form 10-K filed by
the registrant on February 24, 1998)
10.23.1 First Amendment to Employment Agreement of Sid A. Bostic dated April
20, 1999 (incorporated by reference from Exhibit 10.23.1 to the Form
10-Q filed by the Registrant on May 14, 1999)
10.24 Restricted Stock Award Agreement of Sid A. Bostic dated February 1,
1998 (incorporated by reference from Exhibit 10.20 to the Form 10-K
filed by the registrant on February 24, 1998)
10.24.1 First Amendment to Restricted Stock Award Agreement of Sid A. Bostic
dated April 20, 1999 (incorporated by reference from Exhibit 10.24.1 to
the Form 10-Q filed by the Registrant on May 14, 1999)
10.25 Form of FirstMerit Corporation Termination Agreement (incorporated by
reference from Exhibit 10.25 to the Form 10-K filed by the registrant
on March 22,1999)
10.25.1 First Amendment to FirstMerit Corporation Change of Control Termination
Agreement of Sid A. Bostic dated April 20, 1999 (incorporated by
reference from Exhibit 10.25.1 to the Form 10-Q filed by the Registrant
on May 14, 1999)
10.26 Form of Director and Officer Indemnification Agreement and Undertaking
(incorporated by reference from Exhibit 10(s) to the Form 8-K/A filed
by the registrant on April 27, 1995)
10.27 Distribution Agreement, by and among FirstMerit Corporation, FirstMerit
Bank, N.A. and the Agents (incorporated by reference from Exhibit
(10)(ii) to the Form 8-K/A filed by the registrant on April 27, 1995)
II-12
<PAGE> 14
10.28 Form of FirstMerit Bank, N.A. Global Bank Note (Fixed Rate)
(incorporated by reference from Exhibit (10)(iii) to the Form 8-K/A
filed by the registrant on April 27, 1995)
10.29 Form of FirstMerit Bank, N.A. Global Bank Note (Floating Rate)
(incorporated by reference from Exhibit (10)(iv) to the Form 8-K/A
filed by the registrant on April 27, 1995)
10.30 FirstMerit 1987 Stock Option and Incentive Plan (SF) (incorporated by
reference from Exhibit 4.2 to the Form S-8/A (No. 333-57439) filed by
the registrant on October 26, 1998)
10.31 FirstMerit 1996 Stock Option and Incentive Plan (SF) (incorporated by
reference from Exhibit 4.3 to the Form S-8/A (No. 333-57439) filed by
the registrant on October 26, 1998)
10.32 FirstMerit 1994 Stock Option Plan (SF) (incorporated by reference from
Exhibit 4.4 to the Form S-8/A (No. 333-57439) filed by the registrant
on October 26, 1998)
10.33 FirstMerit 1989 Stock Incentive Plan (SB)(incorporated by reference
from Exhibit 4.6 to the Form S-8/A (No. 333-63797) filed by the
registrant on February 12, 1999)
10.34 FirstMerit Amended and Restated Stock Option and Incentive Plan (SG)
(incorporated by reference from Exhibit 4.2 to the Form S- 8/A (No.
333-63797) filed by the registrant on February 12, 1999)
10.35 FirstMerit Non-Employee Director Stock Option Plan (SG) (incorporated
by reference from Exhibit 4.3 to the Form S-8/A (No. 333-63797) filed
by the registrant on February 12, 1999)
10.36 FirstMerit 1997 Omnibus Incentive Plan (SG) (incorporated by reference
from Exhibit 4.4 to the Form S-8/A (No. 333-63797) filed by the
registrant on February 12, 1999)
10.37 FirstMerit 1993 Stock Option Plan (FSB) (incorporated by reference from
Exhibit 4.5 to the Form S-8/A (No. 333-63797) filed by the registrant
on February 12, 1999)
10.38 Independent Contractor Agreement with Gary G. Clark dated February 12,
1999 (incorporated by reference from Exhibit 10.38 to the Form 10-Q
filed by the Registrant on May 14, 1999)
10.39 FirstMerit Corporation 1999 Stock Option Plan
23.1 Consent of Brouse McDowell, A Legal Professional Association (included
in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Limited Power of Attorney
II-13
<PAGE> 1
EXHIBIT 5
Brouse McDowell
A Legal Professional Association
500 First National Tower
Akron, Ohio 44308
(330) 535-5711
May 19, 1999
FirstMerit Corporation
III Cascade Plaza, 7th Floor
Akron, Ohio 44308
Re: Registration on Form S-8 of 6,600,000 Shares of
Common Stock of FirstMerit Corporation
Gentlemen:
We are acting as counsel to FirstMerit Corporation (the "Company") in
connection with the issuance and sale by the Company of up to 6,600,000 shares
of its Common Stock (the "Shares") pursuant to the FirstMerit Corporation 1999
Stock Plan; the FirstMerit Corporation 1997 Stock Plan; the Amended and Restated
FirstMerit Corporation Executive Deferred Compensation Plan and the Amended and
Restated FirstMerit Corporation Director Deferred Compensation Plan (the "Plans"
and each a "Plan").
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion, and based thereon we are of the
opinion that the Shares which may be issued and sold pursuant to the Plans have
been duly authorized and, when issued and sold in accordance with the provisions
of the applicable Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 being filed by the Company with the
Securities and Exchange Commission to effect registration of the Shares under
the Securities Act of 1933.
Very truly yours,
Brouse McDowell, A Legal Professional Association
/s/ Brouse McDowell, A Legal Professional Association
II-14
<PAGE> 1
EXHIBIT 10.39
FIRSTMERIT CORPORATION
1999 STOCK PLAN
FIRSTMERIT CORPORATION (the "Company") adopted the 1999 Stock Plan
("Plan"), effective as of January 1, 1999, which Plan received shareholder
approval at the 1999 Annual Shareholders Meeting. The number of shares of Common
Stock approved and reserved under the Plan, subject to the actual shares
available for grant under the Plan, is 3,800,000 for the Employees Stock Option
Program and the Restricted Stock Program, and 200,000 for the Directors Stock
Option Program. The maximum number of shares of Common Stock which can be
granted as part of the 3,800,000 shares under the Restricted Stock Program is
500,000.
I. INTRODUCTION
A. PURPOSE OF THE PLAN
FirstMerit Corporation has established the Plan to further its
long-term financial success by creating the opportunity to employees and
non-employee Directors of the Company and its Subsidiaries to receive stock and
stock-based compensation whereby they can share in achieving and sustaining such
success. The Plan also provides a means to attract and retain the executive
talent needed to achieve the Company's long-term growth and profitability
objectives.
B. DEFINITIONS
When used in the Plan, the following terms shall have the meanings set
forth below:
"Award(s)" shall mean Incentive Stock Options, Non-Qualified Stock
Options, Reload Stock Options, Restricted Stock Awards or Dividend Units granted
under the Plan.
"Award Agreement" shall mean an agreement which shall evidence the
particular terms, conditions, rights and duties of the Company and the
Participant with respect to an Award.
"Board" shall mean the Board of Directors of the Company.
"Change of Control" means a change in control of a nature that would be
required to be reported by persons or entities subject to the reporting
requirements of Section 14(a) of the Securities Exchange Act of 1934 in response
to item 5(f) of Schedule 14A of Regulation 14(A) as in effect on the date
hereof, or successor provisions thereto, provided that, without limitation, such
a change in control shall be deemed to have occurred if (A) any unaffiliated
"person," "entity," or "group" (as defined in Rule 13(d)-3 issued under the
Securities Exchange Act of 1934) directly or indirectly becomes the owner of
securities of the Company representing 30% or more of the combined voting power
of the Company's then outstanding securities or (B) at any time during any
period of two (2) consecutive calendar years, individuals, who at the beginning
of
II-1
<PAGE> 2
such period constitute the Board of Directors of the Company, cease for any
reason to constitute at least the majority of such Board unless the election, or
the nomination for election, by the Company's shareholders of each new director
was approved by a vote of at least two-thirds of the directors still in office
who were directors of the Company at the beginning of such two-year period.
For purposes of determining a Change of Control under the Plan, the
following definitions shall be applicable:
1. The term "Person" shall mean any individual, corporation or
other entity.
2. Any Person shall be deemed to be the beneficial owner of any
shares of capital stock of the Company:
a. which that Person owns directly, whether or not of
record,
b. which that Person has the right to acquire pursuant
to any agreement or understanding or upon exercise of
conversion rights, warrants or options, or otherwise,
c. which are beneficially owned, directly or indirectly
(including shares deemed owned through application of
Paragraph 2.b. above), by an "affiliate" or
"associate" (as defined in the rules of the
Securities and Exchange Commission) of that Person,
or
d. which are beneficially owned, directly or indirectly
(including shares deemed owned through application of
Paragraph 2.b. above), by any other Person with which
that Person or his "affiliate" or "associate" has any
agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of
capital stock of the Company.
3. For purposes of determining whether a Person has acquired beneficial
ownership of 30 percent or more of the Company, the outstanding shares of
capital stock of the Company shall include shares deemed owned by such Person
through application of Paragraphs 2.b., 2.c. and 2.d. above, but shall not
include any other shares which may be issuable pursuant to any agreement or upon
exercise of conversion rights, warrants or options, or otherwise, but which are
not actually outstanding.
"Committee" shall mean the Compensation Committee of the Board, or such
other Committee of the Board which shall be designated by the Board to
administer the Plan. If the Board does not designate the Compensation Committee
as the Committee, the Committee will be composed of two (2) or more persons who
are from time to time appointed to serve by the Board. Each member of the
Committee will be a "non-employee director" within the meaning of Rule 16b-3 of
the Securities Exchange Act or any successor rule, as any such rule may be
amended from time to time and will qualify as an "outside director" within the
meaning of Code Section 162(m) ("Qualified Director"). A person may be appointed
to the Committee who does not
<PAGE> 3
qualify as a "non-employee director" if the Committee adopts and follows a
recusal procedure which qualifies under the Section 16 Rules.
"Company" shall mean FirstMerit Corporation and any successor in a
reorganization or similar transaction.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" shall mean the common stock of the Company, no par value
per share, and may be either stock previously authorized but unissued, or stock
reacquired by the Company.
"Director" shall mean a duly elected member of the Board.
"Directors Stock Option Program" shall mean the stock option program
delineated in Article III of this Plan.
"Director-Participant" shall mean a Director who is not also a
full-time employee of the Company or any of its Subsidiaries.
"Disability" shall mean the inability of an Employee-Participant to
perform the services normally rendered due to any physical or mental impairment
that can be expected to be of either permanent or indefinite duration, as
determined by the Committee on the basis of appropriate medical evidence, and
that results in the Employee-Participant's Termination of Employment; provided,
however, that with respect to any Employee-Participant who has entered into an
employment agreement with the Company or any of its Subsidiaries, the term of
which has not expired at the time a determination concerning Disability is to be
made, Disability shall have the meaning attributed to "permanent disability" in
such employment agreement.
"Employees Stock Option Program" shall mean the stock option program,
as delineated in Article II of this Plan.
"Employee-Participant" shall mean an employee (including a Director who
is also a full-time employee) of the Company or any of its Subsidiaries.
"Fair Market Value" shall mean with respect to a given day, the closing
sales price of a share of Common Stock, as reported by such responsible
reporting service as the Committee may select, or if there were no transactions
in the Common Stock on such day, then the last preceding day on which
transactions took place. The foregoing notwithstanding, the Committee may
determine the Fair Market Value in such other manner as it may deem more
appropriate for Plan purposes or as is required by applicable laws or
regulations.
<PAGE> 4
"Incentive Stock Option" or "ISO" shall mean a right to purchase the
Company's Common Stock which is intended to comply with the terms and conditions
for an incentive stock option as set forth in Section 422 of the Code, or such
other sections of the Code as may be in effect from time to time.
"Non-Qualified Stock Option" or "NQSO" shall mean a right to purchase
the Company's Common Stock which is not intended to comply with the terms and
conditions for a tax-qualified stock option, as set forth in Section 422 of the
Code, or such other sections of the Code as may be in effect from time to time.
"Participant" shall mean an Employee-Participant or a
Director-Participant.
"Plan" shall mean the Company's 1999 Stock Plan, as set forth herein.
"Reload Stock Option" shall mean an option granted to an
Employee-Participant who has paid for shares subject to option through the
delivery of shares of Common Stock having an aggregate Fair Market Value as
determined on the date of exercise equal to the option price.
"Restricted Shares" shall mean those shares of Common Stock reserved
for issuance as Awards under the Restricted Stock Program, as further provided
in Article IV(D).
"Restricted Stock Program" shall mean the restricted stock program, as
delineated in Article IV of this Plan.
"Retirement" shall mean an Employee-Participant's Termination of
Employment by reason of retirement at his normal retirement date, pursuant to
and in accordance with a pension, retirement or similar plan or other regular
retirement practice of the Company or any of its Subsidiaries, or in accordance
with the early retirement provision(s) thereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Subsidiaries" shall mean the majority-owned subsidiaries of the
Company.
"Termination of Employment" shall mean a cessation of the
employee-employer relationship between an Employee-Participant and the Company
or its Subsidiaries for any reason.
"Termination of Service" shall mean a cessation of the Director's
relationship with the Company for any reason.
<PAGE> 5
II. EMPLOYEES STOCK OPTION PROGRAM
A. ADMINISTRATION
The Employees Stock Option Program shall be administered by the
Committee, which, subject to the express provisions of the Employees Stock
Option Program, shall have full and exclusive authority to interpret the
Employees Stock Option Program, to prescribe, amend and rescind rules and
regulations relating to the Employees Stock Option Program and to make all other
determinations deemed necessary or advisable in the implementation and
administration of the Employees Stock Option Program; provided, however, that
subject to the express provisions hereof or unless required by applicable law or
regulation, no action of the Committee shall adversely affect the terms and
conditions of any Award made to, or any rights hereunder or under any Award
Agreement of, any Employee-Participant, without such Employee-Participant's
consent. The Committee's interpretation and construction of the Employees Stock
Option Program shall be conclusive and binding on all persons, including the
Company and all Employee-Participants.
B. PARTICIPATION
The Committee shall, from time to time, make recommendations to the
Board with respect to the selection of Employee-Participants and the Award or
Awards to be granted to each Employee-Participant, and thereafter grant such
Award or Awards upon the approval of a majority of the members of the Board
present and voting upon such approval, who are Qualified Directors. In making
its recommendations, the Committee may take into account the nature of the
services rendered or expected to be rendered by the respective
Employee-Participants, their present and potential contributions to the
Company's success, and such other factors as the Committee in its discretion
shall deem relevant.
C. MAXIMUM NUMBER OF SHARES AVAILABLE
The maximum number of shares which may be granted under the Employees
Stock Option Program is three million eight hundred thousand (3,800,000) shares,
less shares granted under the Restricted Stock Program.
No Incentive Stock Options shall be granted after January 1, 2009, or
such other period required under the Code.
D. ADJUSTMENTS
In the event of stock dividends, stock splits, recapitalizations,
mergers, consolidations, combinations, exchanges of shares, spin-offs,
liquidations, reclassifications or other similar changes in the capitalization
of the Company, the number of shares of Common Stock available for grant under
this Employees Stock Option Program shall be adjusted proportionately or
otherwise by the Board and, where deemed appropriate, the number of shares
covered by outstanding stock options and the option price of outstanding stock
options shall be similarly adjusted. Also, in instances where another
corporation or other business entity is acquired by the
<PAGE> 6
Company, and the Company has assumed outstanding employee option grants under a
prior existing plan of the acquired entity, similar adjustments are permitted at
the discretion of the Committee. In the event of any other change affecting the
Common Stock reserved under the Employees Stock Option Program, such adjustment,
if any, as may be deemed equitable by the Board, shall be made to give proper
effect to such event.
E. REGISTRATION CONDITIONS
Unless issued pursuant to a registration statement under the Securities
Act, no shares shall be issued to an Employee-Participant under the Employees
Stock Option Program unless the Employee-Participant represents to and agrees
with the Company that such shares are being acquired for investment and not with
a view to the resale or distribution thereof, or such other documentation as may
be required by the Company unless, in the opinion of counsel to the Company,
such representation, agreement or documentation is not necessary to comply with
the Securities Act.
Any restriction on the resale of shares shall be evidenced by an
appropriate legend on the stock certificate.
The Company shall not be obligated to deliver any Common Stock until it
has been listed on each securities exchange on which the Common Stock may then
be listed or until there has been qualification under or compliance with such
federal or state laws, rules or regulations as the Company may deem applicable.
The Company shall use reasonable efforts to obtain such listing, qualification
and compliance.
F. COMMITTEE ACTION
The Committee may, through Award Agreements, limit its discretion under
this Employees Stock Option Program. To the extent such discretion is not
specifically waived in an Award Agreement, the Committee shall retain such
discretion.
G. STOCK OPTIONS
All stock options granted to Employee-Participants under the Employees
Stock Option Program shall be evidenced by Award Agreements which shall be
subject to applicable provisions of the Employees Stock Option Program, and such
other provisions as the Committee may adopt, including the following provisions:
1. PRICE. The option price per share of Non-Qualified Stock
Options ("NQSOs") shall be set by the Committee at the time of
grant. The option price per share of Incentive Stock Options
("ISOs") shall not be less than 100 percent of the Fair Market
Value of a share of Common Stock on the date of grant. If a
NQSO is to meet the requirements of Section 162(m) of the
Code, it shall be issued at Fair Market Value.
<PAGE> 7
2. PERIOD. An ISO shall not be exercisable for a term longer than
ten (10) years from date of grant. NQSOs shall have a term as
established by the Committee.
3. TIME OF EXERCISE. The Committee may prescribe the timing of
the exercise of the stock option and any minimums and
installment provisions and may accelerate the time at which a
stock option becomes exercisable, provided that with respect
to ISOs, no such acceleration shall result in a violation of
Section 6 of this Paragraph G.
4. EXERCISE PROCEDURES. A stock option, or portion thereof, shall
be exercised by delivery of a written notice of exercise to
the Company and payment of the full price of the shares being
purchased.
5. PAYMENT. The price of an exercised stock option, or portion
thereof, may be paid pursuant to Paragraph V.C.11.
6. SPECIAL RULE FOR INCENTIVE STOCK OPTIONS. If the aggregate
Fair Market Value of Common Stock with respect to which ISOs
are exercisable for the first time by an Employee-Participant
during any calendar year (under this Employees Stock Option
Program and all other plans of the Company and its
Subsidiaries) exceeds One Hundred Thousand Dollars ($100,000),
such ISOs shall be treated as NQSOs to the extent of the
excess. In applying the foregoing limitation, ISOs shall be
taken into account in the order in which they were granted,
and the Fair Market Value of Common Stock subject to such ISOs
shall be determined as of the date of grant. If such limit is
exceeded in any calendar year, the Company shall have the
right to designate which shares of Common Stock purchased
pursuant to such ISOs shall be treated as having been acquired
by the Employee-Participant pursuant to an ISO.
7. RELOAD STOCK OPTIONS. A Reload Stock Option may be granted by
the Committee in an Award Agreement. If a reload option is
granted and a stock option is exercised while the
Employee-Participant is employed by the Company and the
Employee-Participant pays for the shares subject to an option
through the delivery of Common Stock having an aggregate Fair
Market Value as determined on the date of exercise equal to
the option price, the Employee-Participant will be granted a
Reload Stock Option on the date of such exercise. The Award
shall equal the number of whole shares of Common Stock used to
pay the purchase price, and the exercise price of the Reload
Stock Option shall equal the Fair Market Value of the Common
Stock on the date of grant. If the Company withholds shares of
Common Stock to cover applicable income and employment taxes
related to the exercise of an option, then the Award shall
equal the number of whole shares of Common Stock used to pay
the purchase price less the number of shares withheld.
Subject to the provisions of the Employees Stock Option
Program, the Reload Stock Option may be exercised between its
date of grant and the date of expiration
<PAGE> 8
of an option. Shares of stock acquired upon the exercise of a
Reload Stock Option are restricted from sale for two years. A
Reload Stock Option shall be evidenced by an Award Agreement
containing such other terms and conditions as the Committee
approves. No Reload Stock Option shall be granted with respect
to a stock option exercised after the Employee-Participant's
Retirement, Disability, death or other Termination of
Employment. No Dividend Units shall be granted in connection
with a Reload Stock Option.
8. EFFECT OF LEAVES OF ABSENCE. It shall not be considered a
Termination of Employment when an Employee-Participant is
placed by the Company or any of its Subsidiaries on military
leave, sick leave or other bona fide leave of absence. In case
of such leave of absence, the employment relationship for
Employees Stock Option Program purposes shall be continued
until the later of the date when such leave of absence equals
ninety (90) days or when the Employee-Participant's right to
reemployment with the Company or any of its Subsidiaries shall
no longer be guaranteed either by statute or contract.
9. TERMINATION OF EMPLOYMENT. In the event of Termination of
Employment, the following provisions shall apply with respect
to ISOs and NQSOs unless waived by the Committee, or as
otherwise specifically provided in the Award Agreement.
a. TERMINATION DUE TO DEATH, DISABILITY OR RETIREMENT.
NQSOs and ISOs shall be exercisable for a period
equal to the lesser of five (5) years or the
remaining option term; provided, however, that if the
Employee- Participant elects to exercise his ISOs (I)
later than three (3) months after the date of his
Termination of Employment due to Retirement or (ii)
twelve (12) months after the date of his Termination
of Employment due to Disability, such ISOs shall be
treated as NQSOs under the Code for purposes of
calculating the federal income tax applicable as a
result of the exercise of such ISOs and the
subsequent disposition of the acquired shares.
b. OTHER TERMINATION. If an Employee-Participant's
employment with the Company or any of its
Subsidiaries is terminated for any reason other than
death, Disability or Retirement, all Awards under
this Employees Stock Option Program shall be
immediately canceled, except that if the termination
is by the Company or any of its Subsidiaries or for
any reason other than misconduct or misfeasance, the
Employee-Participant shall have thirty (30) days
thereafter within which to exercise his options to
the extent that the options are otherwise exercisable
immediately prior to such termination; and further,
if such termination is attributable to a Change of
Control, such Award shall not be canceled but shall
continue as though the Employee-Participant remained
in the employ of the Company or any of its
Subsidiaries during the remaining option term of the
Award and shall vest immediately.
<PAGE> 9
c. LIMITATIONS ON EXERCISE. Notwithstanding the
foregoing, the Committee may rescind the right to
exercise stock options following Termination of
Employment if the Employee-Participant has been found
to be directly or indirectly engaged in any activity
which is in competition with the Company or any of
its Subsidiaries or is otherwise adverse to, or not
in the best interest of, the Company or any of its
Subsidiaries. Further, no option agreement for ISOs
may extend their exercise period beyond the time
allowed by the Code.
H. DIVIDEND UNITS
1. AWARDS OF DIVIDEND UNITS
a. The Committee may, at its discretion, award to an
Employee-Participant one (1) Dividend Unit with
respect to each share of Common Stock for which an
option has been granted under the Employees Stock
Option Program. No Dividend Units shall be awarded in
connection with a Reload Stock Option.
b. An Award of a Dividend Unit by the Committee may be
made only in conjunction with a stock option for
Common Stock granted to the Employee-Participant
under the Employees Stock Option Program.
2. VALUATION
a. The amount payable to an Employee-Participant in
respect of each Dividend Unit awarded to such
Employee-Participant shall be equal to the aggregate
dividends actually paid on one (1) share of Common
Stock to the extent that such Employee-Participant
held such Dividend Unit on the record date
established by the Board for payment of each such
dividend. An Employee-Participant shall be deemed to
have held a Dividend Unit from the date on which the
Award of such Dividend Unit was made (or such later
date as may be specified in the related Award
Agreement) to and including the date on which the
term of the Dividend Unit expires.
b. The Committee shall, at the time it awards a Dividend
Unit to an Employee-Participant, specify the term of
the Dividend Unit (which term shall not be longer
than the term of the stock option to which it is
attached) and the period of time during the term over
which the Dividend Unit will accrue dividends.
<PAGE> 10
3. PAYMENT
a. The amount payable to an Employee-Participant in
respect of a Dividend Unit shall be paid out by the
Company to such Employee-Participant only at the date
of exercise of the stock option to which the Dividend
Unit is attached. The Dividend Unit shall expire upon
the expiration of any stock option which has not been
exercised.
b. Upon payment to an Employee-Participant in respect of
a Dividend Unit, such Dividend Unit shall be of no
further force or effect.
4. TERMINATION OF EMPLOYMENT. In the event of Termination of
Employment, any Dividend Unit shall remain outstanding for the
duration of the stock option to which it is attached until
paid upon exercise or until termination or expiration of such
stock option.
5. ACCELERATION OF PAYMENTS. Unless the Committee determines
otherwise, in the event of a Change of Control, the Company
shall, promptly after such Change of Control, make payment to
each Employee-Participant in an amount equal to the aggregate
amount accrued on the Dividend Units held by such Employee-
Participant on the date of such Change of Control.
Notwithstanding anything to the contrary or any Award
Agreement, after such Change of Control and for so long as an
Employee-Participant holds any Dividend Unit and dividends
are accrued thereon, the Company shall make payment to the
Employee-Participant in respect of any such Dividend Unit at
the same time as payment of dividends on Common Stock is
made.
I. AMENDMENT AND TERMINATION
The Board may, at any time and from time to time, suspend or terminate
the Employees Stock Option Program in whole or amend it from time to time in
such respects as the Board may deem appropriate, subject, however, to the
regulatory requirements of Section 16(b) of the Securities Exchange Act and the
requirements of the Code.
III. DIRECTORS STOCK OPTION PROGRAM
A. ADMINISTRATION
The Directors Stock Option Program is a self-executing grant program
which shall be administered by the Secretary of the Company. Subject to the
express provisions of the Directors Stock Option Program, the Secretary shall
have full and exclusive authority to interpret the Directors Stock Option
Program, and to make such determinations deemed necessary or advisable in the
implementation and administration of the Directors Stock Option Program;
provided, however, that subject to the express provisions hereof or unless
required by applicable law or regulation, no action of the Secretary shall
adversely affect the terms and conditions of any Award
<PAGE> 11
made to, or any rights hereunder or under any Award Agreement of, any Director-
Participant without such Director-Participant's consent.
B. PARTICIPATION
All Directors who are not also full-time employees of the Company or a
Subsidiary shall be Director-Participants in the Directors Stock Option Program
and shall be awarded options to purchase two thousand four hundred (2,400)
shares each year on the date following the annual shareholders meeting.
C. MAXIMUM NUMBER OF SHARES AVAILABLE
The maximum number of shares which may be granted under this Directors
Stock Option Program is two hundred thousand (200,000) shares.
D. ADJUSTMENTS
In the event of stock dividends, stock splits, recapitalizations,
mergers, consolidations, combinations, exchanges of shares, spin-offs,
liquidations, reclassifications or other similar changes in the capitalization
of the Company, the number of shares of Common Stock available for grant under
this Directors Stock Option Program shall be adjusted proportionately.
E. REGISTRATION CONDITIONS
Unless issued pursuant to a registration statement under the Securities
Act, no shares shall be issued to a Director-Participant under the Directors
Stock Option Program unless the Director- Participant represents to and agrees
with the Company that such shares are being acquired for investment and not with
a view to the resale or distribution thereof, or such other documentation as may
be required by the Company unless, in the opinion of counsel to the Company,
such representation, agreement or documentation is not necessary to comply with
the Securities Act.
Any restriction on the resale of shares shall be evidenced by an
appropriate legend on the stock certificate.
The Company shall not be obligated to deliver any Common Stock until it
has been listed on each securities exchange on which the Common Stock may then
be listed or until there has been qualification under or compliance with such
federal or state laws, rules or regulations as the Company may deem applicable.
The Company shall use reasonable efforts to obtain such listing, qualification
and compliance.
<PAGE> 12
F. STOCK OPTIONS
All stock options granted to Director-Participants under the Directors
Stock Option Program shall be evidenced by Award Agreements which shall be
subject to applicable provisions of the Directors Stock Option Program,
including the following provisions:
1. PRICE. The option price per share shall be 100 percent of the
Fair Market Value of a share of Common Stock on the date of
grant.
2. PERIOD. Any option granted under the Directors Stock Option
Program shall be exercisable for a term of ten (10) years from
the date of grant.
3. TIME OF EXERCISE. Will be established by the Committee.
4. EXERCISE PROCEDURES. A stock option, or portion thereof, shall
be exercised by delivery of a written notice of exercise to
the Company and payment of the full price of the shares being
purchased.
5. PAYMENT. The price of an exercised stock option, or portion
thereof, may be paid pursuant to Paragraph V.C.11.
6. TERMINATION OF SERVICE. In the event of Termination of
Service, the following provisions shall apply:
a. DISCHARGE FOR CAUSE. All outstanding options shall be
canceled at termination.
b. TERMINATION OTHER THAN FOR CAUSE. Options shall be
exercisable for a period equal to the lesser of five
(5) years or the remaining option term.
G. DIVIDEND UNITS
1. AWARDS OF DIVIDEND UNITS
a. One (1) Dividend Unit shall be awarded to a
Director-Participant with respect to each share of
Common Stock for which an option has been granted
under the Directors Stock Option Program. When a
Director- Participant receives an Award of Dividend
Units, the Secretary shall cause to be issued to such
Director-Participant an Award Agreement specifying
the number of Dividend Units granted and the
applicable terms and conditions of the Award.
b. An Award of a Dividend Unit shall be made only in
conjunction with a stock option for Common Stock
granted to the Director-Participant under this
Directors Stock Option Program.
<PAGE> 13
2. VALUATION
a. The amount payable to a Director-Participant in
respect of each Dividend Unit awarded to such
Director-Participant shall be equal to the aggregate
dividends actually paid on one share of Common Stock
to the extent that such Director-Participant held
such Dividend Unit on the record date established by
the Board for payment of each such dividend. A
Director- Participant shall be deemed to have held a
Dividend Unit from the date on which the Award of
such Dividend Unit was made (or such later date as
may be specified in the related grant letter) to and
including the date on which the term of the Dividend
Unit expires.
b. The term of a Dividend Unit shall be the term of the
stock option to which it is attached. However,
Dividend Units will accrue dividends only for the
first five (5) years following grant.
3. PAYMENT
a. The amount payable to a Director-Participant in
respect of a Dividend Unit shall be paid out by the
Company to such Director-Participant only upon the
exercise of the option to which it is attached.
b. Upon payment to a Director-Participant in respect of
a Dividend Unit, such Dividend Unit shall be of no
further force or effect.
4. TERMINATION OF SERVICE. In the event of Termination of
Service, any Dividend Unit shall remain outstanding for the
duration of the stock option to which it is attached until
paid upon exercise, but it shall terminate upon termination,
cancellation or expiration of such stock option.
5. ACCELERATION OF PAYMENTS. Unless the Committee derermines
otherwise, in the event of a Change of Control, the Company
shall, promptly after such Change of Control, make payment
to each Director- Participant in an amount equal to the
aggregate amount accrued on the Dividend Units held by such
Director-Participant on the date of such Change of Control.
Notwithstanding anything to the contrary or any Award
Agreement, after such Change of Control and for so long as a
Director-Participant holds any Dividend Unit and dividends
are accrued thereon, the Company shall make payment to the
Director-Participant in respect of any such Dividend Unit at
the same time as payment of dividends on Common Stock is
made.
<PAGE> 14
H. AMENDMENT AND TERMINATION
The Board may, at any time and from time to time, amend, suspend or
terminate the Directors Stock Option Program, subject to the applicable
requirements and restrictions of the Code and securities laws. The Directors
Stock Option Program may not be materially amended without shareholder approval.
IV. RESTRICTED STOCK PROGRAM
A. ADMINISTRATION
The Restricted Stock Program shall be administered by the Committee. A
majority of members of the Committee shall constitute a quorum, and all
determinations of the Committee shall be made by a majority of its members. Any
determination of the Committee under the Restricted Stock Program may be made
without notice or meeting, by a writing signed by a majority of the Committee
members.
In accordance with and subject to the provisions of the Restricted
Stock Program, the Committee shall, from time to time, recommend to the Board:
1. the Employee-Participants from those employees meeting the
eligibility criteria described in Paragraph B,
2. the number of shares to be subject to each Award,
3. the time at which Awards are made,
4. the duration and nature of Award restrictions,
5. fix such other provisions of the Awards as may be deemed
necessary or desirable, consistent with the terms of the
Restricted Stock Program, and
6. the form or forms of the Award Agreements with
Employee-Participants.
The Committee shall have the authority, subject to the provisions of
the Restricted Stock Program, to establish, adopt and revise such rules and
regulations relating to the Restricted Stock Program as it may deem necessary or
desirable for the administration of the Restricted Stock Program. Each
determination, interpretation or other action made or taken by the Committee
pursuant to the provisions of the Restricted Stock Program shall be conclusive
and binding for all purposes and on all persons, including without limitation
the Company, the stockholders of the Company, the Committee and each of the
members thereof, the Board, officers and employees of the Company and the
Employee-Participants and their respective successors in interest.
<PAGE> 15
B. PARTICIPATION
Employee-Participants shall be such key employees (including officers)
of the Company and any present or future Subsidiary as the Committee, in its
sole discretion, determines to be mainly responsible for the success and future
growth and profitability of the Company and value to its stockholders and whom
the Committee may designate from time to time to receive Awards under the
Restricted Stock Program. Awards may be granted under this Restricted Stock
Program to persons who have previously received Awards or other benefits under
this or other plans of the Company.
The Committee shall, from time to time, make recommendations to the
Board with respect to the selection of Employee-Participants and the Award or
Awards to be granted to each Employee-Participant, and thereafter grant such
Award or Awards upon the approval of a majority of the members of the Board
present and voting upon such approval, who are Qualified Directors. In making
its recommendations, the Committee may take into account the nature of the
services rendered or expected to be rendered by the respective
Employee-Participants, their present and potential contributions to the
Company's success, and such other factors as the Committee in its discretion
shall deem relevant.
C. MAXIMUM NUMBER OF SHARES AVAILABLE
The maximum number of shares which may be granted under the Restricted
Stock Program is five hundred thousand (500,000) shares, which may be authorized
but unissued or treasury shares.
Any shares subject to Awards may thereafter be subject to new Awards
under this Restricted Stock Program if shares of Common Stock are issued under
such Awards and are thereafter reacquired by the Company pursuant to rights
reserved by the Company upon issuance thereof, including, without limitation,
the forfeiture of shares subject to an Award prior to the lapse of restrictions.
If the Company shall at any time change the number of issued shares of
Common Stock without new considerations to the Company (by stock dividends,
stock splits or similar transactions), the total number of shares reserved for
issuance under the Restricted Stock Program shall be adjusted proportionately.
Awards may also contain provisions for their continuation or for other equitable
adjustments after changes in the Common Stock resulting from reorganization,
sale, merger, consolidation or similar circumstances.
D. AWARDS
Awards may consist of grants of Restricted Shares to
Employee-Participants as a bonus for service rendered to the Company without
other payment therefor or for payment at less than Fair Market Value. In
addition to the restrictions described in Paragraph E, any Award under the
Restricted Stock Program may be subject to such other provisions (whether or not
applicable to an Award to any other Employee-Participant) as the Committee deems
appropriate, including, without limitation, provisions for the forfeiture of and
restrictions on the sale, resale or other
<PAGE> 16
disposition of shares acquired under any Award, provisions giving the Company
the right to repurchase shares acquired under any Award, provisions to comply
with federal and state securities laws, or understandings or conditions as to
the Employee-Participant's employment in addition to those specifically provided
for under the Restricted Stock Program.
E. RESTRICTIONS
An Employee-Participant shall not have a right to retain any Restricted
Shares granted under an Award unless and until such restrictions have by their
terms lapsed. The lapsing of such restrictions is referred to herein as vesting,
and the shares after Vesting has occurred are referred to herein as vested
shares. The restrictions which the Committee may place on the Awards include,
without limitation, the Employee-Participant's continued employment with the
Company for certain periods of time as determined by the Committee and the
attainment of various performance goals by the Employee-Participant and/or the
Company as specified by the Committee with respect to such Award. The Committee
may, in its sole discretion, require different periods of employment or
different performance goals with respect to different Employee-Participants,
with respect to different Awards or with respect to separate, designated
portions of an Award. The Committee may, in its sole discretion, terminate
restrictions on shares issued pursuant to an Award prior to the time such
restrictions otherwise would have lapsed. Any Restricted Shares granted under an
Award which have not become Vested Shares on or before the termination date, if
any, set forth in the Award Agreement shall permanently be forfeited, and shall
thereafter become available for reissuance under the Plan.
F. ENFORCEMENT OF RESTRICTIONS
The Committee, in its sole discretion, may employ one or more methods
of enforcing the restrictions referred to in Paragraphs E, G, H and J including,
without limitation, the following:
1. placing a legend on the stock certificates referring to the
restrictions,
2. requiring the Employee-Participant to keep stock certificates,
duly endorsed, in the custody of the Company or its designated
agent while the restrictions remain in effect,
3. not issuing certificates for Restricted Shares until the
shares become Vested Shares, or
4. retaining a possessory lien in the Award Shares as provided in
Paragraph J below.
G. PRIVILEGES OF EMPLOYEE-PARTICIPANT
Restricted Shares shall constitute issued and outstanding shares of the
Company for all corporate purposes, and the Employee-Participant shall have all
voting and (subject to any Award restrictions) all dividend, liquidation and
other rights with respect to Restricted Shares while the corresponding Award
remains in effect, as if such Employee-Participant were a holder of record
<PAGE> 17
of unrestricted shares of Common Stock. Notwithstanding the foregoing, prior to
the time at which a Restricted Share becomes a Vested Share, the
Employee-Participant's right to assign or transfer such Restricted Share shall
be subject to the limitations of Paragraph H. Certificates representing
Restricted Shares shall bear a restrictive legend disclosing the restrictions,
the existence of the Restricted Stock Program and the existence of the
applicable Award.
H. NON-TRANSFERABILITY
No right or interest of any Employee-Participant in any Award made
pursuant to the Restricted Stock Program shall, prior to the satisfaction of all
restrictions applicable thereto, be assignable or transferable, in whole or in
part, during the lifetime of the Employee-Participant, either voluntarily or
involuntarily, or be made subject to any lien (except as provided in Paragraphs
F and J), directly or indirectly, by operation of law or otherwise, including
execution, levy, garnishment, attachment, pledge or bankruptcy. In the event of
an Employee-Participant's death, his right and interest in any Award shall, to
the extent provided in the Award, be transferable by testamentary will or the
laws of descent and distribution, and the issuance of any shares subject to an
Award shall be made to the Employee-Participant's legal representatives, heirs
or legatees upon furnishing the Committee with evidence satisfactory to the
Committee of such status.
I. WITHHOLDING TAXES
The Company is entitled to withhold and deduct or take such other
action as delineated in Section V.C.4.
J. LIEN ON SHARES
The Company may, in its sole discretion, require that an
Employee-Participant, as a condition to the receipt of an Award, grant to the
Company a possessory lien on the Restricted Shares in order to secure retransfer
of the shares into the name of the Company, and ensure adequate provision for
any tax withholding obligations arising with respect to such Award, and to that
end, may require that certificates evidencing Restricted Shares be deposited by
the Employee-Participant with the Company, together with stock powers or other
instruments of assignment, each endorsed in blank, which will permit the
transfer to the Company of all or any portion of the Restricted Shares which are
forfeited or required to be retained to satisfy the Employee-Participant's
withholding obligations to the Company.
K. SHARE ISSUANCE AND TRANSFER RESTRICTIONS
1. SHARE ISSUANCE. Notwithstanding any other provision of the
Restricted Stock Program or any Award Agreement entered into
pursuant hereto, the Company shall not be required to issue or
deliver any certificate for shares under this Restricted Stock
Program unless and until both of the following are satisfied:
a. either:
<PAGE> 18
I. there shall be in effect with respect to
such shares a registration statement under
the Securities Act and any applicable state
securities laws, if the Committee, in its
sole discretion, shall have determined to
file, cause to become effective and maintain
the effectiveness of such registration
statement, or
ii. if the Committee has determined not to so
register the shares, exemptions from
registration under the Securities Act and
applicable state securities laws shall be
available for such issuance as determined by
counsel for the Company, and there shall
have been received from the
Employee-Participant (or in the event of
death or Disability, the
Employee-Participant's heir(s) or legal
representative(s)) any representations or
agreements requested by the Company in order
to permit such issuance to be made pursuant
to such exemptions, and
b. there shall have been obtained any other consent,
approval or permit from any state or federal
government agency which the Committee shall, in its
sole discretion and upon the advice of counsel, deem
necessary or advisable.
2. TRANSFERS OF VESTED SHARES. Vested Shares may not be sold,
assigned, transferred, pledged, encumbered or otherwise
disposed of (whether voluntarily or involuntarily) except
pursuant to registration under the Securities Act and
applicable state securities laws or pursuant to exemptions
from such registrations. The Company may condition the sale,
assignment, transfer, pledge, encumbrance or other disposition
of such shares not issued pursuant to an effective and current
registration statement under the Securities Act and all
applicable state securities laws, on the receipt from the
party to whom the shares are to be so transferred of any
representations or agreements requested by the Company in
order to permit such transfer to be made.
3. LEGENDS. Unless a registration under the Securities Act is in
effect with respect to the issuance or transfer of Vested
Shares, each certificate representing such shares will be
endorsed with a legend in the form determined necessary by the
Committee or its counsel.
L. ACCELERATION ON CHANGE OF CONTROL
The Committee may provide, in its sole discretion, in one or more
Awards, that notwithstanding the provisions of each Award which would result in
a forfeiture as a result of the Employee-Participant's termination of employment
with the Company prior to the Vesting of Restricted Shares, the Restricted
Shares subject to such Award shall immediately become Vested Shares as a result
of a Change of Control. Notwithstanding anything to the contrary in the
Restricted Stock Program, unless expressly provided to the contrary in the Award
Agreement or the Employee- Participant's employment agreement, if Restricted
Shares experience an
<PAGE> 19
acceleration in Vesting on a Change of Control as permitted by the preceding
sentence, the portion of the Restricted Shares which experience such
acceleration will be limited to that number which will not cause or contribute
to an "excess parachute payment" with respect to the Employee-Participant, as
reasonably determined by the Committee in accordance with Section 280G of the
Code.
M. EFFECTIVE DATE AND DURATION
The Restricted Stock Program shall continue in effect until it is
terminated by action of the Board, but such termination shall not affect the
then outstanding terms of any Award. No Award shall be granted more than ten
(10) years after the date of adoption of the Restricted Stock Option Program;
provided, however, that the terms and conditions applicable to any Award granted
within such period may thereafter be amended or modified by mutual agreement
between the Company and the Employee-Participant or such other persons as may
then have an interest therein. Also, by mutual agreement between the Company and
an Employee-Participant, or under any future plan of the Company, Awards may be
granted to such Employee-Participant in substitution and exchange for, and in
cancellation of, any Awards previously granted such Employee-Participant under
this Restricted Stock Program, or any benefit previously or thereafter granted
to him under any future plan of the Company.
N. EXCLUSIVITY
Nothing contained in this Restricted Stock Program is intended to
amend, modify or rescind any previously approved compensation plans or programs
adopted by the Company. The Restricted Stock Program will be construed to be in
addition to any and all such other plans or programs.
O. AMENDMENT AND TERMINATION
The Board may amend the Restricted Stock Program from time to time or
terminate the Restricted Stock Program at any time. In addition, the Company may
amend the terms of any Award previously granted under this Restricted Stock
Program, prospectively or retroactively, however, no action authorized by this
Paragraph O shall impair the rights of any Employee- Participant without his
consent.
V. GENERAL PROVISIONS
A. GOVERNMENT AND OTHER REGULATIONS
The obligation of the Company to issue Awards under the Plan shall be
subject to all applicable laws, rules and regulations, and to such approvals by
any government agencies as may be required.
<PAGE> 20
B. OTHER COMPENSATION PLANS AND PROGRAMS
The Plan shall not be deemed to preclude the implementation by the
Company and its Subsidiaries of other compensation plans or programs which may
be in effect from time to time.
C. MISCELLANEOUS PROVISIONS
1. NO RIGHT TO CONTINUE EMPLOYMENT. Nothing in the Plan or in any Award
or Award Agreement confers upon any Employee-Participant the right to continue
in the employ of the Company or its Subsidiaries or interferes with or restricts
in any way the rights of the Company or its Subsidiaries to discharge any
Employee-Participant at any time for any reason whatsoever, with or without
cause.
2. NON-TRANSFERABILITY. Except as provided herein, no right or interest
of any Participant in any Award under the Plan shall be (a) assignable or
transferable, except by will or the laws of descent and distribution, a valid
beneficiary designation made in accordance with procedures established by the
Committee, or as expressly stated herein, or (b) liable for, or subject to, any
lien, obligation or liability. An ISO may be exercised only by the Participant
during his lifetime, by his estate or by the person who acquires the right to
exercise such option by bequest or inheritance.
The Board may, in its discretion, authorize all or a portion of the
options to be granted to a Participant, and may also amend outstanding options
to provide, that they be on terms which permit transfer by such Participant to
(I) the spouse, children or grandchildren of the Participant (the "Immediate
Family Members"), (ii) a trust or trusts for the exclusive benefit of such
Immediate Family Members, (iii) a partnership in which such Immediate Family
Members are the only partners, (iv) a limited liability company in which such
Immediate Family Members are the only members; provided that (x) there may be no
consideration for any such transfer, (y) the stock option agreement pursuant to
which such options are granted must be approved by the Board, and must expressly
provide for transferability in a manner consistent with this Section, and (z)
subsequent transfers of transferred options shall be prohibited except those in
accordance with the section(s) herein dealing with transfers by will or the laws
of descent and distribution, or pursuant to qualified domestic relations order.
Following transfer, any such options shall continue to be subject to the same
terms and conditions as were applicable immediately prior to transfer, provided
that for all purposes hereof, the term "Participant" shall be deemed to refer to
the "Transferee." The events of termination of any option will continue to be
applied with respect to the original Participant, following which the options
shall be exercisable by the transferee only to the extent (if at all), and for
the periods specified in the Program or option agreement. The Participant in all
such cases will remain subject to and liable for the withholding taxes due or
payable upon exercise by the Transferee.
<PAGE> 21
The Board may also, in its discretion, pursuant to the requirements and
restrictions listed above except as listed in this paragraph, authorize all or a
portion of the options to be granted to a Participant, to permit a
non-conforming transfer, such as a sale to a family member or family corporation
for estate planning purposes. Nothing herein or in any action by the Board shall
be construed as an amendment to any option other than those expressly indicated
by the action of the Board.
The Company shall not have any obligation to provide notice to the
Transferee of the termination or acceleration of an option for any reason.
3. DESIGNATION OF BENEFICIARY. A Participant, in accordance with
procedures established by the Committee, may designate a person or persons to
receive, in the event of the Participant's death, (a) any payments with respect
to which the Participant would then be entitled, and (b) the right to continue
to participate in the Plan to the extent of such Participant's outstanding
Awards. Such designation shall be made upon forms supplied by and delivered to
the Company and may be revoked in writing.
4. WITHHOLDING TAXES.
The Company's obligation to deliver shares of Common Stock or cash upon
the exercise of stock options granted will be subject to the satisfaction of all
applicable federal, state and local income tax and employment tax withholding
requirements. The Committee (or plan administrator) may, in its discretion and
in accordance with any applicable tax or securities laws (including the
applicable safe-harbor provisions of Securities and Exchange Commission Rule
16b-3), provide any or all holders of a NQSOs (other than the automatic grants
made pursuant to Directors Stock Option Program) or unvested shares under the
Plan, with the right to use shares of the Company's Common Stock in satisfaction
of all or part of the federal, state and local income tax and employment tax
liabilities incurred by such holders in connection with the exercise of their
options or the vesting of their shares (the "Taxes"). Such right may be provided
to any such option holder in either or both of the following formats:
(a) Stock Withholding: The holder of the NQSO or unvested
shares may be provided with the election to have the Company withhold,
from the shares of Common Stock otherwise issuable upon the exercise of
such NQSO or the vesting of such shares, a portion of those shares with
an aggregate fair market value not to exceed one hundred percent (100%)
of the applicable Taxes.
(b) Stock Delivery: Provide the holder of the NQSO or the
unvested shares with the election to deliver to the Company, at the
time the NQSO is exercised or the shares vest, one or more shares of
Common Stock previously acquired by such individual (other than in
connection with the option exercise or share vesting triggering the
Taxes) with an aggregate fair market value equal to the designated
percentage (up to 100% as specified by the option holder) of the Taxes
incurred in connection with such option exercise or share vesting.
<PAGE> 22
5. PLAN EXPENSES. Any expenses of administering the Plan shall be borne
by the Company.
6. CONSTRUCTION OF PLAN. The interpretation of the Plan and the
application of any rules implemented hereunder shall be determined solely in
accordance with the laws of the State of Ohio.
7. UNFUNDED PLAN. The Plan shall be unfunded, and the Company shall not
be required to segregate any assets which may at any time be represented by
Awards. Any liability of the Company to any person with respect to an Award
under this Plan shall be based solely upon any obligations which may be created
by this Plan; no such obligation of the Company shall be deemed to be secured by
any pledge or other encumbrance on any property of the Company.
8. BENEFIT PLAN COMPUTATIONS. Any benefits received or amounts paid to
a Participant with respect to any Award granted under the Plan shall not have
any effect on the level of benefits provided to or received by any Participant,
or the Participant's estate or beneficiary, as part of any employee benefit plan
(other than the Plan) of the Company.
9. PRONOUNS, SINGULAR AND PLURAL. The masculine may be read as
feminine, the singular as plural and the plural as singular as necessary to give
effect to the Plan.
10. MAXIMUM ANNUAL GRANT. In no event shall any one individual
participating in the 1999 Stock Plan, be granted stock options and/or restricted
shares for more than one and one-half percent (1.5%) of the total outstanding
shares of Common Stock of the Company, in the aggregate, per calendar year.
11. PAYMENT. The exercise price will be payable in one of the
alternative forms specified below:
(a) full payment in cash or check made payable to the
Company's order; or
(b) full payment in shares of Common Stock held for the
requisite period necessary to avoid a charge to the Company's reported
earnings and valued at fair market value on the Exercise Date (as such
term is defined below); or
(c) full payment in a combination of shares of Common Stock
held for the requisite period necessary to avoid a charge to the
Company's reported earnings and valued at fair market value on the
Exercise Date and cash or check payable to the Company's order; or
(d) full payment through a sale and remittance procedure
pursuant to which the Participant will provide irrevocable written
directives to a designated brokerage firm to effect the immediate sale
of the purchased shares and remit to the Company, out of the sale
proceeds available on the settlement date, sufficient funds to cover
the aggregate exercise price payable for the purchased shares and shall
concurrently provide written instructions to the Company to deliver the
certificates for the purchased shares directly to such brokerage firm
in order to complete the sale transaction.
<PAGE> 23
For purposes of this subparagraph, the "exercise date" will be the date
on which written notice of the option exercise is delivered to the Company, and
the fair market value per share of Common Stock on any relevant date shall be
determined in accordance with the provisions of the Plan. Except to the extent
the sale and remittance procedure specified above is utilized for the exercise
of the option, payment of the option price for the purchased shares must
accompany the exercise notice.
D. EFFECTIVE DATE
The Plan became effective on approval by shareholders of the Company.
The Plan and all outstanding Awards shall remain in effect until all outstanding
Awards have been exercised, expired or canceled.
<PAGE> 1
Exhibit 23.2
PricewaterhouseCoopers [Logo]
Consent of PricewaterhouseCoopers LLP
We consent to incorporation by reference in the Registration Statement
(Form S-8), of our report dated March 11, 1999, relating to the supplemental
consolidated balance sheets of FirstMerit Corporation and subsidiaries as of
December 31, 1998 and 1997, and the related supplemental consolidated statements
of income, shareholders' equity, and cash flows for each of the years in the
three year period ended December 31, 1998, which report appears in Exhibit 99 to
the 1998 Annual Report on Form 10-K of FirstMerit Corporation filed on March 22,
1999, as amended by Form 10-K/A filed on April 29, 1999.
/s/ PricewaterhouseCoopers LLP
May 19, 1999
II-15
<PAGE> 1
EXHIBIT 24
FIRSTMERIT CORPORATION
LIMITED POWER OF ATTORNEY
REGISTRATION STATEMENTS ON FORM S-8
The undersigned directors and officers of FirstMerit Corporation (the
"Company") hereby constitute and appoint Terry E. Patton, and/or Kevin C.
O'Neil, and each of them, with full power of substitution and resubstitution, as
attorneys or attorney of the undersigned, to execute and file under the
Securities Act of 1933 a Registration Statement on Form S-8 and any and all
amendments and exhibits to the foregoing Registration Statement together with
any and all applications or other documents to be filed with the Securities and
Exchange Commission, the Nasdaq Stock Market National Market System and any
state securities agencies pertaining to such Registration Statement, with full
power and authority to do and perform any and all acts and things whatsoever
necessary, appropriate or desirable to be done in the premises, or in the name,
place and stead of the said directors and officers, hereby ratifying and
approving the acts of said attorneys and any of them and any such substitute.
Effective the 20th day of May, 1999, unless otherwise indicated below.
<TABLE>
<S> <C>
/s/ John R. Cochran /s/ Austin J. Mulhern
- --------------------------------------- ------------------------------------------
John R. Cochran Austin J. Mulhern
Director, Chairman and Chief Executive Officer Senior Vice President, Finance and Administration
(Chief Financial Officer and Chief Accounting
Officer)
/s/ Karen S. Belden /s/ R. Cary Blair
- --------------------------------------- ------------------------------------------
Karen S. Belden, Director R. Cary Blair, Director
/s/ John C. Blickle /s/ Sid A. Bostic
- --------------------------------------- ------------------------------------------
John C. Blickle, Director Sid A. Bostic, Director
/s/ Robert W. Briggs /s/ Gary G. Clark
- --------------------------------------- ------------------------------------------
Robert W. Briggs, Director Gary G. Clark, Director
/s/ Richard Colella /s/ Terry L. Haines
- --------------------------------------- ------------------------------------------
Richard Colella, Director Terry L. Haines, Director
/s/ Clifford J. Isroff /s/ Philip A. Lloyd, II
- --------------------------------------- ------------------------------------------
Clifford J. Isroff, Director Philip A. Lloyd, II, Director
/s/ Robert G. Merzweiler /s/ Roger T. Read
- --------------------------------------- ------------------------------------------
Robert G. Merzweiler, Director Roger T. Read, Director
/s/ Justin T. Rogers /s/ Richard N. Seaman
- --------------------------------------- ------------------------------------------
Justin T. Rogers, Director Richard N. Seaman, Director
/s/ Jerry M. Wolf /s/ Charles F. Valentine
- --------------------------------------- ------------------------------------------
Jerry M. Wolf, Director Charles F. Valentine, Director
</TABLE>
II-16
