EXHIBIT 10.37



 




Exhibit 10.37




AMENDMENT TO THE



AMENDED AND RESTATED




EMPLOYMENT AGREEMENT



     
AMENDMENT TO THE AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
(“Amendment”)
entered into effective as of the
1st day of December, 2003, by and between
John R. Cochran (“Executive”) and
FirstMerit Corporation, an Ohio corporation
(“FirstMerit”).




RECITALS:


     
A.  FirstMerit and the Executive
entered into an Amended and Restated Employment Agreement, dated
as of January 1, 2001, (the “Employment
Agreement”).



     
B.  FirstMerit and Executive have
determined to amend the Employment Agreement in order to extend
the terms of the Employment Agreement and to make certain other
changes mandated by the Sarbanes-Oxley Act of 2002.



     
IN CONSIDERATION OF THE
FOREGOING, the mutual covenants
contained herein, and other good and valuable consideration,
receipt of which is hereby acknowledged, the parties agree that
the Employment Agreement shall be, and it hereby is, amended as
follows effective as of December 1, 2003.




1.  Except as expressly set forth in
the Amendment, all capitalized terms shall have the meanings
ascribed to them in the Employment Agreement.



2.  Section 5 of the Employment
Agreement, entitled “Terms of Employment,” is
amended and restated to read as follows:


     
The term of this Agreement (the
“Term”) commenced as of December 1, 1998
and shall continue until February 28, 2008, unless this
Agreement has been earlier terminated in accordance with the
provisions of Section 9 hereof. Following expiration of the
Term, Executive’s employment status will be “at
will.”




3.  Sections 6.1 and 6.2 of the
Employment Agreement entitled “Base Salary” and
“Bonus”, respectively, are amended and restated
to read as follows:


     
6.1  Base
Salary.  While employed under this Agreement,
Executive will receive a base salary of Six Hundred Sixty-Five
Thousand Dollars ($665,000) per year, which will be payable in
semi-monthly installments, and which will be subject to annual
review by the Compensation Committee and adjusted as approved by
the Board of Directors acting through its independent members
(the base salary, as it may be adjusted from time to time is
referred to herein as the “Base Salary”).



     
6.2  Bonus.  In
addition to the Base Salary, Executive will receive with respect
to each calendar year a bonus in accordance with
FirstMerit’s Annual Incentive Compensation Plan
(“ICP”), as it may be amended from time to
time, a copy of which has been delivered to Executive. The
Executive’s target award under the ICP shall be set by the
Compensation Committee for each calendar year prior to the
beginning of such year, provided however that, in the year in
which a Change in Control occurs and all subsequent years the
target award shall be at least eighty-four percent (84%) of his
Base Salary. The Compensation Committee will evaluate the
Executive’s performance based upon performance goals and
criteria established by the Compensation Committee in good
faith. FirstMerit’s corporate goals will be established
annually in accordance with the procedures set forth in the ICP.




4.  Section 7.5 of the Employment
Agreement, entitled “Stock Options and Grants,”
is amended and restated in its entirety to read as
follows:


     
7.5  Stock Options and
Grants.  Executive shall continue to be eligible
to receive awards of stock options and restricted stock in
accordance with the provisions of the FirstMerit Corporation
1997 Stock Plan, the 1999 Stock Plan, the 2002 Stock Plan, and
such other stock option or restricted stock plans as the
shareholders and Board of Directors of FirstMerit may adopt or
approve during the Term, as they may be amended or superseded








 




from time to time. The terms of such awards shall
be determined by the Compensation Committee and shall be subject
to approval by the Board of Directors acting through its
independent members.





5.  Section 11.4(F) of the
Employment Agreement is amended and restated in its entirety to
read as follows:


     
(F)  The Excise Tax Reimbursement (or
portion thereof) provided for in Section 11.4(A) above
shall be paid to the Executive not later than ten (10) business
days following the payment of the Covered Payments. If the
amount of such Excise Tax Reimbursement (or portion thereof)
cannot be finally determined on or before the date on which
payment of the Covered Payments is due, FirstMerit shall pay to
the Executive the Excise Tax Reimbursement within ten (10) days
after the amount of the Excise Tax Reimbursement is finally
determined by the Accountants.




6.  Section 1.4 of the Employment
Agreement, defining the work “Cause” is amended
and restated to read as follows:


     
1.4  “Cause” means the
termination of the Executive’s employment by FirstMerit for
any of the following reasons:




		
	 	     
    (A) Conviction of, or plea of guilty or nolo
    contendere to, a felony, whether or not affecting FirstMerit.
    
	 
	 	     
    (B) Disclosure to unauthorized persons of
    material FirstMerit information which is believed by the Board
    of Directors of the Company, acting in good faith, to be
    confidential; provided, however, that such disclosure
    shall not be considered “Cause” to the extent that
    (i) it is required pursuant to a court order or subpoena
    from an appropriate regulatory agency or otherwise required by
    law or regulation, (ii) it is made by the Executive in the
    ordinary course of business within the scope of his authority,
    or (iii) it is in the context of a dispute between the
    Executive and FirstMerit and limited to the court or arbitrator
    considering the dispute, legal counsel and the other parties to
    the dispute. In addition, for the avoidance of doubt, it shall
    not be “Cause” for the Executive to provide truthful
    testimony regarding FirstMerit to governmental or regulatory
    authorities and any disclosure that does not constitute
    “Cause” will be deemed not to violate
    Section 12.1.
    
	 
	 	     
    (C) Engagement (in connection with the business
    of FirstMerit) in illegal conduct or in gross misconduct, in
    either case, that causes material financial or material
    reputational harm to FirstMerit.
    
	 
	 	     
    (D) Failure to perform substantially
    Executive’s responsibilities as the Chairman and Chief
    Executive Officer of the Company, after demand for substantial
    performance has been given by the Board of Directors of the
    Company that specifically identifies how the Executive has not
    substantially performed his responsibilities. Cause does not,
    however, include any failure after the Company gives a notice of
    a termination without Cause or the Executive gives notice of a
    termination for Good Reason.
    
	 
	 	     
    (E) Material breach of FirstMerit’s written
    code of conduct and business ethics. However, to the extent the
    breach is curable, the Company must give the Executive notice
    and a reasonable opportunity to cure.
    
	 
	 	     
    (F) Attempt to obstruct or willful failure to
    cooperate with any investigation authorized by the Board of
    Directors of the Company or any governmental or regulatory
    agency.
    
	 
	 	     
    (G) Being subject to the prohibitions of
    Section 19(a)(1) of the Federal Deposit Insurance Act.
    





Notwithstanding the foregoing, after a Change in
Control has occurred, the reasons provided in (B), (C), (D), (E)
and (F) above shall only apply if the Executive’s action is
willful. For this definition, (a) no act or omission by the
Executive will be “willful” unless it is made by in
bad faith or without a reasonable belief that the act or
omission was in the best interests of FirstMerit and
(b) any act or omission based on authority given pursuant
to a resolution duly adopted by the Board or on the advice of
counsel of FirstMerit will be deemed made in good faith and in
the best interests of the Company.




7.  The Employment Agreement is
amended to add the following as Sections 12.5 and
12.6:


     
12.5  Cost and Advancement of
Expenses.  From and after any Change in Control,
the Company will pay in advance any reasonable expenses,
including reasonable attorney’s fees, the Executive incurs
as a result of any controversy or claim between the Executive
and FirstMerit arising out of or relating to or concerning this








 




Agreement or any aspect of the Executive’s
employment with FirstMerit or the termination of that employment
(or will promptly reimburse the Executive if incurred before
receipt of payment).




     
12.6  Duplication of Compensation
and Benefits; Good Reason.  For the avoidance of
doubt, the amounts payable and benefits provided under this
paragraph 12 shall (A) be offset and reduced by any
amounts or benefits paid or provided to Executive under
paragraph 10 and (B) not be offset or reduced by any
amounts or benefits paid or provided to Executive under
paragraph 11.




8.  The Employment Agreement is
amended to add the following Section 13.7:


     
13.7  D&O Insurance and
Indemnification.  To the extent permitted by law,
the Company will indemnify the Executive against any actual or
threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative, arising by reason of the
Executive’s status as a director, officer, employee and/or
agent of FirstMerit. In addition, to the extent permitted by
law, the Company will pay in advance any expenses, including
reasonable attorney’s fees, the Executive incurs in
investigating and defending any actual or threatened action,
suit or proceeding for which the Executive may be entitled to
indemnification under this Section 13.7 (or will promptly
reimburse the Executive if incurred before receipt of payment).
However, the Executive agrees to repay any expenses paid or
reimbursed by the Company if it is ultimately determined that
the Executive is not legally entitled to be indemnified by the
Company. In addition, while employed by FirstMerit and for six
years after termination of employment (for any reason), the
Company will cause the Executive to be covered by a
directors’ and officers’ liability insurance policy at
least to the same extent as other persons then serving as
directors or executive officers of FirstMerit. This
Section 13.7 will survive any termination of this Agreement
or of the Executive’s employment.




9.  The Employment Agreement is
amended to add the following as Section 10.7.


     
10.7  Effect on Stock
Plans.  If the Executive is entitled to payments
under Section 10.1, 10.2 or 10.4, the Executive shall also
be entitled to the additional benefit set forth in
Section 11.2(D).




10.  The first paragraph of
Section 12.3(B) of the Employment Agreement is amended and
restated in its entirety to read as follows:


     
(B) In consideration of the Executive’s
covenants as contained in Section 12.3(A), FirstMerit shall
pay or provide the items set forth below in the event of the
Executive’s termination of employment, provided that in the
event that the Executive’s employment is terminated by
FirstMerit for Cause or voluntarily terminated by Executive
(other than a voluntary termination by Executive for Good Cause
after a Change in Control has occurred), FirstMerit may elect to
forego the benefit of the provisions of Section 12.3(A) and
not make any payment under the provisions of this
Section 12.3(B) by written notice delivered to the
Executive at the time notice of termination for Cause is given
or within ten (10) calendar days of the date the
Executive’s voluntary resignation is effective.




11.  Except as expressly modified or
amended by this Amendment, the terms of the Employment Agreement
shall remain in full force and effect.


     
IN WITNESS WHEREOF,
the parties have caused this Amendment to be duly executed the
day and year first written above.




		
	 	
    FIRSTMERIT CORPORATION
    





			
	 	By: 	
    /s/ CLIFFORD J. ISROFF
    



		
	 	
    

	 	
    Its: Lead Director
    
	 
	 	
    /s/ JOHN R. COCHRAN
    
	 	
    

	 	
    John R. Cochran