EX-10.3






Exhibit 10.3




FIRSTMERIT CORPORATION




EXECUTIVE DEFERRED COMPENSATION PLAN




Amended and Restated as of December 15, 2008





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE
	ARTICLE 1—PURPOSES
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II—DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	2.1 Account
	 	 	1	 
	2.2 Affiliates
	 	 	1	 
	2.3 Aggregated Plan
	 	 	1	 
	2.4 Asset Account
	 	 	1	 
	2.5 Beneficiary
	 	 	2	 
	2.6 Base Compensation
	 	 	2	 
	2.7 Board
	 	 	2	 
	2.8 Business Day
	 	 	2	 
	2.9 Change in Control
	 	 	2	 
	2.10 Closing Price
	 	 	4	 
	2.11 Code
	 	 	4	 
	2.12 Committee
	 	 	4	 
	2.13 Common Stock
	 	 	4	 
	2.14 Compensation
	 	 	4	 
	2.15 Corporation
	 	 	4	 
	2.16 Deferral Election
	 	 	4	 
	2.17 Deferred Compensation
	 	 	4	 
	2.18 Eligible Employee
	 	 	4	 
	2.19 ERISA
	 	 	4	 
	2.20 Exchange Act
	 	 	5	 
	2.21 Incentive Compensation
	 	 	5	 
	2.22 Investment Fund
	 	 	5	 
	2.23 Participant
	 	 	5	 
	2.24 Participation Agreement
	 	 	5	 
	2.25 Plan
	 	 	5	 
	2.26 Plan Year
	 	 	5	 
	2.27 Retirement
	 	 	5	 
	2.28 Separation from Service
	 	 	6	 
	2.29 Stock Account
	 	 	6	 
	2.30 Stock Credit
	 	 	6	 
	2.31 Valuation Date
	 	 	6	 
	 
	 	 	 	 
	ARTICLE III—PARTICIPATION
	 	 	6	 
	 
	 	 	 	 
	3.1 Eligibility
	 	 	6	 
	3.2 Participation
	 	 	6	 
	3.3 Initial Year of Eligibility
	 	 	6	 
	3.4 Deferral Elections
	 	 	7	 
	 
	 	 	 	 
	ARTICLE IV—ACCOUNTS
	 	 	7	 
	 
	 	 	 	 
	4.1 Accounts
	 	 	7	 






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TABLE OF CONTENTS





	 	 	 	 	 
	 	 	PAGE
	4.2 Stock Accounts
	 	 	7	 
	4.3 Asset Accounts
	 	 	8	 
	4.4 Investment Funds
	 	 	8	 
	4.5 Transfers Among Investment Funds and Between Accounts
	 	 	8	 
	 
	 	 	 	 
	ARTICLE V—DISTRIBUTIONS
	 	 	8	 
	 
	 	 	 	 
	5.1 Distributions upon Retirement
	 	 	9	 
	5.2 Distributions upon Separation from Service (Other than Death) Prior to Retirement
	 	 	10	 
	5.3 Small Accounts
	 	 	10	 
	5.4 Time of Payment
	 	 	10	 
	5.5 In-Service Distributions
	 	 	10	 
	5.6 Accelerated Distribution
	 	 	11	 
	5.7 Distribution upon Death
	 	 	12	 
	5.8 Change in Control
	 	 	12	 
	5.9 Withholding Taxes
	 	 	12	 
	5.10 Disability
	 	 	12	 
	 
	 	 	 	 
	ARTICLE VI—BENEFICIARY DESIGNATIONS
	 	 	13	 
	 
	 	 	 	 
	6.1 Beneficiary Designation
	 	 	13	 
	6.2 Amendments
	 	 	13	 
	6.3 No Beneficiary Designation or Death of Beneficiary
	 	 	13	 
	6.4 Effect of Payment
	 	 	13	 
	 
	 	 	 	 
	ARTICLE VII—THE COMMITTEE
	 	 	13	 
	 
	 	 	 	 
	7.1 Authority
	 	 	13	 
	7.2 Elections, Notices
	 	 	14	 
	7.3 Agents
	 	 	14	 
	7.4 Binding Effect of Decisions
	 	 	14	 
	7.5 Indemnity of Committee
	 	 	14	 
	 
	 	 	 	 
	ARTICLE VIII—CLAIMS PROCEDURES
	 	 	14	 
	 
	 	 	 	 
	8.1 Claim
	 	 	14	 
	8.2 Denial of Claim
	 	 	14	 
	8.3 Review of Claim
	 	 	15	 
	8.4 Final Decision
	 	 	15	 
	 
	 	 	 	 
	ARTICLE IX—SHARES AVAILABLE
	 	 	16	 
	 
	 	 	 	 
	9.1 Number
	 	 	16	 
	9.2 Adjustments
	 	 	16	 
	 
	 	 	 	 
	ARTICLE X—MISCELLANEOUS
	 	 	16	 
	 
	 	 	 	 
	10.1 Unfunded Plan
	 	 	16	 






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TABLE OF CONTENTS





	 	 	 	 	 
	 	 	PAGE
	10.2 Non-alienation of Benefits
	 	 	17	 
	10.3 Invalidity
	 	 	17	 
	10.4 Governing Law
	 	 	17	 
	10.5 Amendment, Modification and Termination of the Plan
	 	 	17	 
	10.6 Successors and Heirs
	 	 	18	 
	10.7 Status as Shareholders
	 	 	18	 
	10.8 Rights
	 	 	18	 
	10.9 Use of Terms
	 	 	18	 
	10.10 Statement of Accounts
	 	 	18	 
	10.11 Compliance with Laws
	 	 	18	 
	10.12 Plan Construction
	 	 	18	 
	10.13 Headings Not Part of Plan
	 	 	19	 
	10.14 Extension of Plan to Affiliates.
	 	 	19	 
	 
	 	 	 	 
	ARTICLE XI—CODE SECTION 409A
	 	 	19	 
	 
	 	 	 	 
	11.1 Compliance with Code Section 409A
	 	 	19	 
	11.2 Payments Upon Income Inclusion Under Code Section 409A
	 	 	19	 







(iii)      









 








FIRSTMERIT CORPORATION




EXECUTIVE DEFERRED COMPENSATION PLAN

AMENDED AND RESTATED AS OF DECEMBER 15, 2008




     This Plan became effective as of January 1, 1996, and was amended and restated in November
1996 and July 1997 and as of October 21, 2000 and January 1, 2001. The Plan is hereby amended and
restated as of December 15, 2008 in order to comply with the requirements of Code Section 409A and
to increase the number of shares of Common Stock available for issuance under the Plan.



ARTICLE 1—PURPOSES




     The purposes of the Plan are (i) to provide executives with flexibility with respect to the
form and timing of the payment of Compensation, (ii) to more closely align the interests of
executives with the interests of the Corporation’s shareholders and (iii) to assist the Corporation
and its Affiliates in attracting and retaining qualified executives.



ARTICLE II—DEFINITIONS




     Whenever used in the Plan, the following terms shall have the meaning set forth or referenced
below:



2.1 Account




     “Account” means the bookkeeping accounts maintained on behalf of each Participant by the
Corporation or a participating Affiliate. For purposes of this Plan, references to a Participant’s
Account shall include the Participant’s Stock Account(s) and Asset Account(s).



2.2 Affiliates




     “Affiliates” means affiliated or subsidiary entities of the Corporation as defined in Code
Sections 414(b) and (c). An Affiliate may elect to participate in the Plan and the Board may
approve such election in its sole discretion.



2.3 Aggregated Plan




     “Aggregated Plan” means any agreement, method, program or other arrangement that, along with
the Plan, would be treated as a single nonqualified deferred compensation plan under Code Section
409A.



2.4 Asset Account



     “Asset Account” means the sub-account(s) established pursuant to Section 4.3 of the Plan.



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2.5 Beneficiary




     “Beneficiary” means the person, persons or entity (including without limitation any trustee)
last designated by the Participant to receive benefits specified hereunder in the event of the
Participant’s death.



2.6 Base Compensation




     “Base Compensation” means the base salary of a Participant for services as an employee of the
Corporation or an Affiliate, as indicated by the records of the Corporation or such Affiliate, as
the case may be.



2.7 Board




     “Board” means the Board of Directors of the Corporation.



2.8 Business Day




     “Business Day” means a day, except for a Saturday, Sunday, a legal holiday or a day when the
primary stock exchange on which the Common Stock is traded is not open.



2.9 Change in Control




     “Change in Control” means the occurrence of any one of the following events:




     (a) Individuals who, on April 19, 2000, constitute the Board (the “Incumbent
Directors”) cease for any reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to April 19, 2000 whose election or
nomination for election was approved by a vote of at least two thirds (2/3rds) of the
Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy
statement of the Corporation in which such person is named as a nominee for director,
without written objection to such nomination) shall be an Incumbent Director; provided,
however, that no director of the Corporation initially as a result of an actual or
threatened election contest with respect to directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of any person other than the Board shall
be deemed to be an Incumbent Director;




     (b) Any “person” (as such term is defined in Section 3(a)(9) of the Exchange Act and as
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing twenty-five percent (25%) or more of the combined
voting power of the Corporation’s then outstanding securities eligible to vote for the
election of the Board (the “Company Voting Securities”); provided, however, that the event
described in this paragraph (b) shall not be deemed to be a Change in Control by virtue of
any of the following acquisitions:




     (i) By the Corporation or any Affiliate;




     (ii) By any employee benefit plan sponsored or maintained by the Corporation or
any Affiliate;



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     (iii) By any underwriter temporarily holding securities pursuant to an offering of
such securities;




     (iv) Pursuant to a Non-Control Transaction (as defined in paragraph (c)); or




     (v) A transaction (other than one described in (c) below) in which Company Voting
Securities are acquired from the Corporation, if a majority of the Incumbent Directors
then on the Board approve a resolution providing expressly that the acquisition
pursuant to this clause (v) does not constitute a Change in Control under this
paragraph (b);




     (c) The consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Corporation or any of its Affiliates that
requires the approval of the Corporation’s shareholders, whether for such transaction or the
issuance of securities in the transaction (a “Business Combination”), unless immediately
following such Business Combination:




     (i) More than fifty percent (50%) of the total voting power of (A) the corporation
resulting from such Business Combination (the “Surviving Entity”), or (B) if
applicable, the ultimate parent corporation that directly or indirectly has beneficial
ownership of one hundred percent (100%) of the voting securities eligible to elect
directors (“Total Voting Power”) of the Surviving Entity (the “Parent Entity”), is
represented by Company Voting Securities that were outstanding immediately prior to
such Business Combination (or, if applicable, shares into which such Company Voting
Securities were converted pursuant to such Business Combination), and such voting power
among the holders thereof is in substantially the same proportion as the voting power
of such Company Voting Securities among the holders thereof immediately prior to the
Business Combination;




     (ii) No person (other than any employee benefit plan (or related trusts) sponsored
or maintained by the Surviving Entity or the Parent Entity), is or becomes the
beneficial owner, directly or indirectly, of twenty-five percent (25%) or more of the
Total Voting Power of the outstanding voting securities eligible to elect directors of
the Parent Entity (or, if there is no Parent Entity, the Surviving Entity); and




     (iii) At least a majority of the members of the board of directors of the Parent
Entity (or, if there is no Parent Entity, the Surviving Entity) following the
consummation of the Business Combination were Incumbent Directors at the time of the
Board’s approval of the execution of the initial agreement providing for such Business
Combination (any Business Combination which satisfies all of the criteria specified in
(i), (ii) and (iii) above shall be deemed to be a “Non-Control Transaction”); or




     (d) The shareholders of the Corporation approve a plan of complete liquidation or
dissolution of the Corporation.



     Notwithstanding the foregoing, a Change in Control of the Corporation shall not be deemed to
occur solely because any person acquires beneficial ownership of more than twenty-five percent
(25%) of the Company Voting Securities as a result of the acquisition of Company Voting Securities
by the Corporation which reduces the number of Company Voting Securities outstanding; provided,
that if after such acquisition by the Corporation such person becomes the beneficial owner of
additional Company Voting Securities that increases the percentage of outstanding Company Voting
Securities beneficially



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owned by such person by more than one percent (1%), a Change in Control of the Corporation shall
then occur.



2.10 Closing Price




     “Closing Price” means the closing price of the Common Stock as reported on the National
Association of Securities Dealers Automated Quotation System.



2.11 Code




     “Code” means the Internal Revenue Code of 1986, as amended, and including any rules or
regulations promulgated thereunder.



2.12 Committee




     “Committee” means the Compensation Committee of the Board.



2.13 Common Stock




     “Common Stock” means the common shares, no par value, of the Corporation.



2.14 Compensation




     “Compensation” means Base Compensation and Incentive Compensation earned by and payable to a
Participant for services to the Corporation or an Affiliate.



2.15 Corporation




     “Corporation” means FirstMerit Corporation, and any successor corporation.



2.16 Deferral Election




     “Deferral Election” means an irrevocable annual election to defer Compensation and the
corresponding distribution elections, made by an Eligible Employee and for which a Participation
Agreement has been submitted to the Committee.



2.17 Deferred Compensation




     “Deferred Compensation” means Compensation earned in a Plan Year for services performed as an
employee and deferred pursuant to a Deferral Election.



2.18 Eligible Employee




     “Eligible Employee” means an Eligible Employee as defined in Section 3.1.



2.19 ERISA




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



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2.20 Exchange Act




     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



2.21 Incentive Compensation




     “Incentive Compensation” means the annual cash incentive award, if any, payable to a
Participant under the Corporation’s or an Affiliate’s annual incentive plan.



2.22 Investment Fund




     “Investment Fund” means an investment fund in which Accounts may be deemed to be invested. An
Investment Fund may be any open-ended fund, closed-end fund, a fund which is deemed to be invested
in a particular stock or other investment except Common Stock, or a fund which credits a fixed or
variable interest rate determined by the Committee.



2.23 Participant




     “Participant” means an Eligible Employee who has made a Deferral Election under the Plan or a
former Eligible Employee who has an Account.



2.24 Participation Agreement




     “Participation Agreement” means the agreement, whether written or provided through electronic
means, to make a Deferral Election, which, except as provided in Section 3.3, must be submitted by
an Eligible Employee to the Committee or its delegates prior to the Plan Year in which Compensation
is earned.



2.25 Plan




     “Plan” means the FirstMerit Corporation Executive Deferred Compensation Plan, as amended from
time to time.



2.26 Plan Year




     “Plan Year” means the calendar year.



2.27 Retirement




     “Retirement” means:




     (a) With respect to Deferred Compensation prior to January 1, 2005 and deemed earnings,
gains and losses credited thereon, retirement at or after age sixty-five (65) or, with the
consent of the Committee, termination prior to age sixty-five (65) but at or after age
fifty-five (55); and



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     (b) With respect to Deferred Compensation after December 31, 2004 and deemed earnings,
gains and losses credited thereon after such date, “Retirement” means Separation from
Service on or after attaining age fifty-five (55).



2.28 Separation from Service




     “Separation from Service” means the Participant’s “separation from service” (as defined in
Code Section 409A) with the Corporation and all Affiliates.



2.29 Stock Account




     “Stock Account” means the sub-account(s) established pursuant to Section 4.2 of the Plan.



2.30 Stock Credit




     “Stock Credit” means a credit to a Participant’s Stock Account, calculated pursuant to Section
4.2(b) of this Plan.



2.31 Valuation Date




     “Valuation Date” means the last day of the month in which the Participant has a Separation
from Service or dies.



ARTICLE III—PARTICIPATION




3.1 Eligibility




     The Committee shall, from time to time, designate one or more key employees of the Corporation
and participating Affiliates as eligible to participate in the Plan (an “Eligible Employee”).



3.2 Participation




     An Eligible Employee may elect to participate in the Plan each year by making a Deferral
Election prior to January 1 of the Plan Year in which Deferred Compensation is earned for services
performed during such Plan Year, except as set forth in Section 3.3 herein. Such election shall be
irrevocable as of December 31 prior to the Plan Year to which the Deferral Election applies.



3.3 Initial Year of Eligibility




     In the case of the first Plan Year in which a key employee is designated as an Eligible
Employee, if such employee becomes eligible after January 1 but prior to July 1, such Eligible
Employee may elect to participate in the Plan as of the next following July 1 by making a Deferral
Election with respect to Base Compensation no later than thirty (30) days after the date on which
the employee is designated as an Eligible Employee. Such Deferral Election shall be applicable only
with respect to Base Compensation for services performed after the later of July 1 or the date such
election is made, and shall become irrevocable thirty (30) days after the date on which the
employee is designated as an Eligible Employee. Notwithstanding the foregoing, this Section 3.3
shall not apply if, at the time the employee is designated as an Eligible Employee, the employee
also is eligible to participate in any Aggregated Plan.



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3.4 Deferral Elections





     (a) Incentive Compensation. An Eligible Employee may elect, as provided in Section
3.2, to defer receipt of any Incentive Compensation in increments of one percent (1%).
Absent such a timely election, an Eligible Employee shall be deemed to have elected not to
defer receipt of any such Incentive Compensation.




     (b) Base Compensation. An Eligible Employee may elect, as provided in Sections 3.2 and
3.3 herein, to defer receipt of all or any portion of such Eligible Employee’s Base
Compensation in increments of one percent (1%) up to a maximum of ninety percent (90%) of
Base Compensation.



ARTICLE IV—ACCOUNTS




4.1 Accounts




     The Corporation and each Affiliate that has elected to participate in this Plan and has been
approved to participate by the Board shall establish on its books a separate Account for each
Eligible Employee who makes a Deferral Election, and shall credit to the Account of each
Participant such Deferred Compensation. The credit shall be entered on the Corporation’s or
Affiliate’s books of account at the time that the Compensation, absent the Deferral Election,
otherwise would be paid to the Participant.



4.2 Stock Accounts





     (a) Establishing a Stock Account. A Participant may elect to establish an annual Stock
Account which shall be maintained solely for recordkeeping purposes. With respect to each
Plan Year commencing on and after January 1, 2009, each Participant shall elect prior to the
applicable Plan Year to allocate all or a portion of his Deferred Compensation to the Stock
Account for such Plan Year; the balance shall be allocated to the Asset Account for such
Plan Year. A Participant shall be one hundred percent (100%) vested in his Stock Account at
all times.




     (b) Stock Credits. Each Participant’s Stock Account shall be credited with Stock
Credits equal to the number of shares of Common Stock (including fractions of a share) that
could have been purchased with the amount of such Deferred Compensation at the Closing Price
of a share of Common Stock on the day as of which such Stock Account is so credited.




     (c) Dividends. As of the date any cash dividend is paid to holders of shares of Common
Stock, a Participant’s Stock Account shall be credited with additional Stock Credits equal
to the number of shares of Common Stock (including fractions of a share) that could have
been purchased, at the Closing Price of a share of Common Stock on such date, with the
amount that would have been paid as dividends on that number of shares of Common Stock
(including fractions of a share) which is equal to the number of Stock Credits attributable
to the Participant’s Stock Account as of the record date of such dividend. In the case of
dividends paid in shares of Common Stock, the Participant’s Account shall be credited with
additional Stock Credits equal to the number of dividend shares that would have been
received with respect to that number of



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shares of Common Stock (including fractions of a share) which is equal to the
number of Stock Credits attributable to the Participant’s Account as of the record date of
such dividend.



4.3 Asset Accounts




     With respect to each Plan Year commencing on or after January 1, 2009, a Participant may elect
to establish an annual Asset Account which shall be maintained solely for recordkeeping purposes by
making a Deferral Election allocation to one (1) or more Investment Funds. A Participant shall be
one hundred percent (100%) vested in his Asset Account at all times.



4.4 Investment Funds





     (a) Selection of Investment Funds. The Committee shall have sole discretion in the
selection, number and types of Investment Funds for this Plan and may change or eliminate
Investment Funds from time to time in its sole discretion.




     (b) Investment Fund Performance. The deemed earnings, gains and losses of each
Investment Fund shall be determined by the Committee, in its reasonable discretion, based on
the performance of the Investment Funds themselves. The balance of a Participant’s Asset
Accounts shall be credited or debited on a daily basis based on the performance of each
Investment Fund in which a Participant’s Asset Accounts are deemed to be invested, such
performance and the crediting of such performance being determined by the Committee in its
sole discretion.



4.5 Transfers Among Investment Funds and Between Accounts





     (a) Stock Account. No amount credited to any Stock Account may be transferred and
credited to any Investment Fund, and no amount credited to an Investment Fund may be
transferred and credited to any Stock Account.




     (b) Investment Funds. Any amount credited to an Investment Fund may be transferred and
credited to any other Investment Fund at the direction of the Participant. Any such
direction from a Participant will become effective as of the first day of the next month
following the Participant’s request for a change.




     (c) Committee Procedures. The Committee may establish such rules and procedures as it
determines to be appropriate for the crediting of deferrals and transfers to Investment
Funds, for transfers among Investment Funds and for crediting deemed earnings, gains and
losses of an Investment Fund.



ARTICLE V—DISTRIBUTIONS




     All distributions under this Plan from Stock Accounts shall be made in shares of Common Stock
and all distributions from Asset Accounts shall be made in cash, in each case, in accordance with
the following provisions.



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5.1 Distributions upon Retirement





     (a) Pre-2005 Deferred Compensation. Solely with respect to Deferred Compensation prior
to January 1, 2005 and deemed earnings, gains and losses credited thereon, a Participant who
has a Separation from Service due to Retirement, may elect to receive his Stock Account in
monthly installments not to exceed one hundred twenty (120) separate installments or in a
single, lump sum distribution. Such installments or such single, lump sum distribution shall
be paid in whole shares of Common Stock. If the Participant’s Stock Account includes a
fractional Stock Credit, the number of Stock Credits in the Participant’s Stock Account
shall be increased to the next highest whole number. If no election is made by the
Participant, the Committee shall distribute the Participant’s Stock Account, after any
adjustment for any fractional Stock Credit as provided above, in a single, lump sum
distribution.




     (b) Post-2004 Deferred Compensation. Solely with respect to Deferred Compensation
after December 31, 2004 and deemed earnings, gains and losses credited thereon after that
date, a Participant shall make a Deferral Election to receive benefits under this Plan as
follows:




     (i) With respect to Deferred Compensation in the 2005 Plan Year, a Participant may
elect in the applicable Participation Agreement to receive benefits in a single, lump
sum distribution or in substantially equal monthly installments not to exceed one
hundred twenty (120). In the absence of an election for such Plan Year, the applicable
Account shall be paid in a single, lump sum distribution.




     (ii) With respect to Deferred Compensation after the 2005 Plan Year that is
allocated to a Stock Account, a Participant may elect in the applicable Participation
Agreement to receive benefits in a single, lump sum distribution or in up to ten (10)
substantially equal annual installments. In the absence of an election for any Plan
Year, the applicable Stock Account shall be distributed in a single, lump sum
distribution.




     (iii) With respect to Asset Account balances, a Participant may elect in the
applicable Participation Agreement to receive benefits in a single, lump sum
distribution or in substantially equal monthly installments not to exceed one hundred
twenty (120). In the absence of an election for any Plan Year, the applicable Asset
Account shall be paid in a single, lump sum distribution.




     (c) Stock Account Installment Payments. The number of Stock Credits attributable to an
installment payment from a Stock Account shall be determined by calculating the product of
the current number of Stock Credits allocated to such Stock Account of a Participant,
increased to the next highest whole number, and a fraction, the numerator of which is one
(1) and the denominator of which is the total number of installments elected minus the
number of installments previously paid, and then rounding such product to the next lowest
whole number of Stock Credits. The final installment shall be equal to the balance of the
undistributed Stock Credits in the Participant’s Stock Account.




     (d) Changing Form of Payment. Solely with respect to Deferred Compensation prior to
January 1, 2005 and deemed earnings, gains and losses credited thereon, a Participant may at
any time not less than one year prior to the date as of which the distribution of such
Participant’s Account is made or commences, change such election pursuant to an election in
writing delivered to the Committee, which election shall be irrevocable during such one-year
period.



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5.2 Distributions upon Separation from Service (Other than Death) Prior to Retirement




     In the event a Participant has a Separation from Service prior to Retirement or death, such
Participant shall receive a single, lump sum distribution of the Stock Credits allocated to such
Participant’s Stock Accounts and a single, lump sum distribution of all amounts credited to his
Asset Accounts. If the number of Stock Credits to be distributed includes a fractional share, the
number of Stock Credits to be distributed shall be increased to the next highest whole number.



5.3 Small Accounts





     (a) Solely with respect to Deferred Compensation prior to January 1, 2005 and deemed
earnings, gains and losses credited thereon and notwithstanding any other provision of this
Plan, if the value of the Participant’s Stock Accounts is five thousand dollars ($5,000) or
less on the Valuation Date, or when the Stock Account balance is reduced to five thousand
dollars ($5,000) as a result of payout, the benefit, or the remaining account balance, shall
be paid in a single, lump sum distribution.




     (b) Solely with respect to Deferred Compensation after December 31, 2004 and deemed
earnings, gains and losses credited thereon after that date, and notwithstanding any other
provision of the Plan, if the aggregate combined value of the Participant’s Accounts and
amounts under any Aggregated Plan is not greater than the Code Section 402(g)(1)(B) limit on
elective deferrals on the Valuation Date, such Account balance shall be paid in a single
lump sum.




     (c) Any payment under Section 5.3(b) must result in the termination and liquidation of
the entirety of the Participant’s interest under the Plan and all Aggregated Plans.



5.4 Time of Payment





     (a) Pre-2005 Deferred Compensation. Solely with respect to Deferred Compensation prior
to January 1, 2005 and deemed earnings, gains and losses thereon distributions shall be made
or commence within thirty (30) days after the earlier of the Valuation Date or the date
specified by the Participant pursuant to Section 5.5(a).




     (b) Post-2004 Deferred Compensation. Solely with respect to Deferred Compensation
after December 31, 2004 and deemed earnings, gains and losses credited thereon after that
date and notwithstanding anything herein to the contrary, payments to a Participant under
Section 5.1, 5.2, and 5.3 herein shall be made or commence on the first Business Day of the
seventh (7th) month following the Valuation Date or, if earlier, within thirty
(30) days after the date specified by the Participant pursuant to Section 5.5(b). Deemed
earnings, gains, losses and dividends shall continue to be credited to all Accounts until
the date the distribution is to be made.



5.5 In-Service Distributions





     (a) Pre-2005 Deferred Compensation. Solely with respect to Deferred Compensation prior
to January 1, 2005 and deemed earnings, gains and losses credited thereon, a Participant may
elect to withdraw all or a portion of his Stock Accounts in substantially equal annual
installments amortized over a period of up to five (5) years or, if approved by the
Committee in its sole discretion, in a single, lump sum distribution. If a Participant
elects to withdraw all of



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such Stock Accounts, the amount to be distributed in installment payments shall be
determined in the same manner as that set forth in Section 5.1(c) as of January 1 of each
year in which an installment is to be received, based on the remaining Stock Account
balances as adjusted for gains or losses and the remaining number of installment payments.
Any such election must be in writing and delivered to the Committee not less than one (1)
year in advance of the payment date; provided, however, that if the Participant has a
Separation from Service or dies prior to the payment date, such election shall be deemed
automatically revoked.




     (b) Post-2004 Deferred Compensation. Solely with respect to Deferred Compensation
after December 31, 2004 and deemed earnings, gains and losses credited thereon after that
date, a Participant may elect in a Participation Agreement to receive a distribution of such
Participant’s annual Account, including amounts allocated to both the Stock Account and
Asset Account, on a specified date that is not less than three (3) years following the Plan
Year to which such Participation Agreement pertains. A Participant may change the specified
date of distribution to a date that is not less than five (5) years later than the current
specified date; provided that (i) such election is made in writing and delivered to the
Committee not less than twelve (12) months in advance of the current specified date of
distribution and (ii) such election may not take effect until at least twelve (12) months
after the date on which it is made. Notwithstanding the foregoing, if the Participant has a
Separation from Service or dies prior to the specified date of distribution, all such
in-service distribution elections shall be deemed null and void and the Participant’s
Accounts shall be distributed in accordance with either Section 5.1, 5.2, 5.3 or 5.7.



5.6 Accelerated Distribution




     Solely with respect to Deferred Compensation prior to January 1, 2005 and deemed earnings,
gains and losses credited thereon, a Participant may elect to receive, upon written request to the
Committee, a single, lump sum distribution of more than ten thousand dollars ($10,000), or if less,
the entire balance held in his pre-2005 Stock Accounts, from the Participant’s pre-2005 Stock
Accounts as of the end of the calendar month prior to the month in which the Committee receives the
written request. The amount requested by the Participant under this Section shall be paid in a
single, lump sum distribution within thirty (30) days following the receipt of the notice by the
Committee from the Participant. The Participant shall permanently forfeit ten percent (10%) of the
amount requested and the Participant shall not be eligible to participate in the Plan in the next
Plan Year or to receive another accelerated distribution under this Section 5.6 for a period of one
(1) year from the date of distribution. The Corporation shall have no obligation to the Participant
or his Beneficiary with respect to such forfeited amount.



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5.7 Distribution upon Death




     Notwithstanding any other provision of this Plan, upon the death of a Participant, the
Beneficiary shall be entitled to receive an amount equal to the Participant’s Account balance plus
deemed earnings, gains, losses and dividends on such Account until all benefits have been paid.
Payments shall commence within thirty (30) days after the date of Participant’s death and shall be
made as of the first day of a month.



     Each Participant may make a Deferral Election in a Participation Agreement to have death
benefits covered by such Participation Agreement paid in any manner described in Section 5.1
herein. If the Participant dies after installment payments have commenced, the Participant’s
Beneficiary shall receive any remaining installments that would have been paid had the Participant
survived, subject to Section 6.3.



5.8 Change in Control




     Solely with respect to Deferred Compensation prior to January 1, 2005 and deemed earnings,
gains and losses credited thereon and notwithstanding any other provision of this Plan, in the
event of a Change in Control, each Participant’s pre-2005 Stock Account shall, within five (5)
Business Days thereafter, be distributed in a single lump sum equal to the value of his pre-2005
Stock Account as of the last Business Day immediately preceding the Change in Control.



5.9 Withholding Taxes




     Any withholding of taxes or other amounts required by federal, state, or local law shall be
withheld from Compensation other than Deferred Compensation. If necessary, the Corporation may
reduce the amount of Deferred Compensation then payable by an amount equal to any required
withholding. Each Participant shall be entitled to irrevocably elect, at least six months prior to
the date shares of Common Stock would otherwise be delivered hereunder, to have the Corporation
withhold shares of Common Stock having an aggregate value equal to the amount required to be
withheld. Shares so withheld shall be valued at the Closing Price on the Business Day immediately
preceding the date such shares would otherwise be transferred hereunder.



5.10 Disability





(a) Solely with respect to Deferred Compensation prior to January 1, 2005 and deemed
earnings, gains and losses credited thereon, if a Participant suffers a disability, as
defined in the Corporation’s long term disability plan, and such disability continues for a
period of twenty-four (24) months, the Participant shall be considered to have terminated
employment and his pre-2005 Stock Account balance will be paid out under Section 5.2.




(b) If a Participant incurs a “Section 409A disability” (as defined below), any Deferral
Election then in effect under the Plan for such Participant shall be cancelled by no later
than the later of (i) the end of the taxable year of the Participant or (ii) the fifteenth
(15th) day of the third (3rd) month following the date the Participant
incurs the disability. For purposes of this Section 5.10(b), “Section 409A disability”
means any medically determinable physical or mental impairment resulting in the
Participant’s inability to perform the duties of his position or any substantially similar
position, where such impairment can be expected to result in death or can be expected to
last for a continuous period of not less than six (6) months.



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ARTICLE VI—BENEFICIARY DESIGNATIONS




6.1 Beneficiary Designation




     Each Participant shall have the right, at any time, to designate one (1) or more persons as
the primary or contingent Beneficiary(ies) to whom benefits under this Plan shall be paid in the
event of the Participant’s death prior to complete distribution to the Participant of the benefits
due under the Plan. Unless stated otherwise in writing in the form provided by the Committee,
payments hereunder shall be paid in equal shares to surviving Beneficiaries if more than one (1)
Beneficiary has been chosen. Each Beneficiary designation shall be in a written form prescribed by
the Committee and shall be effective only when filed with the Committee during the Participant’s
lifetime. If a Participant’s Compensation is community property, any Beneficiary designation shall
be valid or effective only as permitted under applicable law.



6.2 Amendments




     Any Beneficiary designation may be changed by a Participant without the consent of any
Beneficiary by the filing of a new Beneficiary designation with the Committee.



6.3 No Beneficiary Designation or Death of Beneficiary




     In the absence of an effective Beneficiary designation, or if all designated Beneficiaries
predecease the Participant, the Participant’s Beneficiary shall be the person in the first of the
following classes in which there is a survivor:




     (a) The surviving spouse; and




     (b) The Participant’s estate.



     In the event of the death of a Beneficiary after payments commence but prior to the
Beneficiary receiving all benefit payments hereunder, the remaining balance shall be paid in a lump
sum to the estate of the Beneficiary.



6.4 Effect of Payment




     Payment to the Beneficiary (or to the Beneficiary’s estate) shall completely discharge the
Corporation’s obligations under this Plan.



ARTICLE VII—THE COMMITTEE




7.1 Authority




     The Committee shall have full power and authority to administer the Plan, including the power
to (i) promulgate forms to be used with respect to the Plan, (ii) promulgate rules of Plan
administration, (iii) subject to Article VIII, settle any disputes as to rights or benefits arising
from the Plan, (iv) interpret the terms of the Plan and (v) make such decisions or take such action
as the Committee, in its sole discretion, deems necessary or advisable to aid in the proper
administration of the Plan.



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7.2 Elections, Notices




     All elections and notices required to be provided to the Committee under the Plan must be on
such forms, contain such information, and be made or given at such times as the Committee may
require.



7.3 Agents




     The Committee may appoint an individual or individuals to be the Committee’s agent with
respect to the day-to-day administration of the Plan. In addition, the Committee may, from time to
time, employ other agents and delegate to them such administrative duties as it sees fit, and may
from time to time consult with counsel who may be counsel to the Corporation.



7.4 Binding Effect of Decisions




     The decision or action of the Committee with respect to any question arising out of or in
connection with the administration, interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final and binding upon all persons having any interest
in the Plan.



7.5 Indemnity of Committee




     The Corporation has entered into Indemnification Agreements with each of the members of the
Committee protecting them against such claims, losses, damages, expenses or liabilities arising
from any action or failure to act with respect to this Plan, except as otherwise indicated in such
Indemnification Agreement.



ARTICLE VIII—CLAIMS PROCEDURES




8.1 Claim




     In general, neither Participants nor their Beneficiaries need to present a formal claim for
benefits under the Plan in order to qualify for rights or benefits under the Plan. Any person
claiming an amount under the Plan, requesting an interpretation or ruling under the Plan, or
requesting information under the Plan (the “claimant”) shall present the request in writing to the
Committee, which shall respond in writing within ninety (90) days following receipt of the request
(or forty-five (45) days if the request is on account of disability). If special circumstances
require the extension of the period described in the preceding sentence, the claimant will be
notified before the end of such period of the circumstances requiring the extension and the date by
which the Committee expects to render a decision. Any such extension shall not be for more than an
additional ninety (90) day period or, if the claim is on account of a disability, for more than two
(2) additional thirty (30) day periods.



8.2 Denial of Claim




     If the claim or request is wholly or partially denied, the written notice of denial shall state:




     (a) The specific reasons for denial;



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     (b) The specific reference to the pertinent Plan provisions, rules, procedures or
protocols upon which the denial is based;




     (c) A description of any additional material or information required and an explanation
of why it is necessary; and




     (d) An explanation of the Plan’s claim review procedure and the time limits applicable
to such procedure and a statement of the claimant’s right to bring a civil action under
ERISA Section 502(a) following an adverse determination upon review. In addition, if the
claim is on account of disability, the written notice of denial shall include, to the extent
necessary, the information set forth in Department of Labor Regulation Section
2560.503-1(g)(1)(v).



8.3 Review of Claim




     Any person whose claim or request is denied may request review by notice given in writing to
the Committee. Such notice must be received by the Committee within sixty (60) days of receipt of
the denial of the claim (or one hundred and eighty (180) days in the case of a denial on account of
disability). In addition, the claimant may review pertinent documents and other material upon
which the Committee relied when denying the initial claim; and submit a written description of the
reasons for which the claimant disagrees with the Committee’s initial adverse decision. The claim
or request shall be reviewed further by the Committee, and the Committee may, but shall not be
required to, grant the claimant a hearing.



8.4 Final Decision




     A decision on such second request shall be made within sixty (60) days after the date of the
second request (forty-five days in the case of request on account of disability). If an extension
of time is required for a hearing or other special circumstances, the claimant shall be notified
and the time limit shall be one hundred twenty (120) days from the date of the second request
(ninety (90) days in the case of a request on account of disability). This notice to the claimant
will indicate the special circumstances requiring the extension and the date by which the review
official expects to render a decision and will be provided to the claimant prior to the expiration
of the initial forty-five (45) day or sixty (60) day period.



     The Committee’s decision on review will be sent to the claimant in writing and will include
specific reasons for the decision, written in a manner calculated to be understood by the claimant,
as well as specific references to the pertinent Plan provisions, rules, procedures or protocols
upon which the Committee relied to deny the appeal. The Committee will consider all information
submitted by the claimant, regardless of whether the information was part of the original claim.
The decision will also include a statement of the claimant’s right to bring an action under ERISA
Section 502(a).



     Notwithstanding the foregoing, in the case of a claim on account of disability: (i) the
review of the denied claim shall be conducted by a review official who is neither the individual
who made the benefit determination nor a subordinate of such person; and (ii) no deference shall be
given to the initial benefit determination. For issues involving medical judgment, the review
official must consult with an independent health care professional who may not be the health care
professional who decided the initial claim.



     To the extent permitted by law, the decision of the Committee or the decision of the review
official on review, as the case may be, will be final and binding on all parties. No legal action
for benefits



PAGE 15 - EXECUTIVE DEFERRED COMPENSATION PLAN









 







under the Plan will be brought unless and until the claimant has exhausted such claimant’s
remedies under this Article VIII.



ARTICLE IX—SHARES AVAILABLE




9.1 Number




     Seven hundred fifty thousand (750,000) shares of Common Stock are available for issuance under
the Plan in accordance with the provisions hereof and such other provisions as the Committee may
from time to time deem necessary. This authorization may be increased from time to time by approval
of the Board and by the shareholders of the Corporation if, in the opinion of counsel for the
Corporation, such shareholder approval is required. Stock Credits allocated to a Participant’s
Account shall be applied to reduce the maximum number of shares of Common Stock remaining available
under the Plan. Shares of Common Stock issuable under the Plan may be taken either from authorized
but unissued or treasury shares, as determined by the Corporation.



9.2 Adjustments





     (a) If at any time the number of outstanding shares of Common Stock shall be increased
as the result of any stock dividend, stock split, subdivision or reclassification of shares,
the number of shares of Common Stock available under Section 9.1 and the number of Stock
Credits with which each Participant’s Account is credited shall be increased in the same
proportion as the outstanding number of shares of Common Stock is increased. If the number
of outstanding shares of Common Stock shall at any time be decreased as the result of any
combination, reverse stock split or reclassification of shares, the number of shares of
Common Stock available under Section 9.1 and the number of Stock Credits with which each
Participant’s Account is credited shall be decreased in the same proportion as the
outstanding number of shares of Common Stock is decreased.




     (b) In the event the Corporation shall at any time be consolidated with or merged into
any other corporation and holders of shares of Common Stock receive shares of the capital
stock of the resulting or surviving corporation, there shall be credited to each
Participant’s Stock Account, in place of the Stock Credits then credited thereto, new Stock
Credits in an amount equal to the product of the number of shares of capital stock exchanged
for one (1) share of Common Stock upon such consolidation or merger and the number of Stock
Credits with which the Participant’s Account then is credited, and the number of shares of
Common Stock available under Section 9.1 shall be similarly adjusted. If in such a
consolidation or merger, holders of shares of Common Stock shall receive any consideration
other than shares of the capital stock of the resulting or surviving corporation or its
parent corporation, the Committee, in its sole discretion, shall determine the appropriate
change in Participants’ Accounts.



ARTICLE X—MISCELLANEOUS




10.1 Unfunded Plan




     No promise hereunder shall be secured by any specific assets of the Corporation or any
Affiliate, nor shall any assets of the Corporation or its Affiliates be designated as attributable
or allocated to the



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satisfaction of such promises. Participants shall have no rights under the Plan other than as
unsecured general creditors of the Corporation and its Affiliates. Notwithstanding the foregoing,
the Corporation may, but is not obligated to, establish a grantor trust (the “Trust”) for purposes
of segregating assets necessary to satisfy the Corporation’s obligations under this Plan. All
amounts contributed to the Trust shall remain subject to the claims of the Corporation’s creditors
in the event of the Corporation’s insolvency (as defined in the Trust document) until paid to the
Participant or his Beneficiaries in such manner and at such times as specified in this Plan. It is
the intention of the Corporation that the Trust shall constitute an unfunded arrangement and shall
not affect the status of this Plan as an unfunded plan maintained for the purpose of providing
deferred compensation for a select group of highly compensated employees for purposes of Title I of
ERISA and for tax purposes. Participants shall have no control or incidence of ownership with
respect to the assets contributed to the Trust by the Corporation.




10.2 Non-alienation of Benefits




     No benefit under the Plan shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, or charge, and any attempt to do so shall be void. No
such benefit, prior to receipt thereof pursuant to the provisions of the Plan, shall be in any
manner liable for or subject to the debts, contracts, liabilities, engagements or torts of the
Participant.



10.3 Invalidity




     If any term or provision contained herein is to any extent invalid or unenforceable, such term
or provision will be reformed so that it is valid, and such invalidity or unenforceability will not
affect any other provision or part hereof.



10.4 Governing Law




     This Plan shall be governed by the laws of the State of Ohio, without regard to the conflict
of law provisions thereof.



10.5 Amendment, Modification and Termination of the Plan




     The Board at any time may terminate and in any respect amend or modify the Plan; provided,
however, that no such termination, amendment or modification shall adversely affect the rights of
any Participant or Beneficiary, including his rights with respect to Stock Credits credited prior
to such termination, amendment or modification, without his consent. Notwithstanding the foregoing,
the provisions of this Plan that determine the amount, price or timing of benefits related to Stock
Credits shall not be amended more than once every six (6) months (other that as may be necessary to
conform to any applicable changes in the Code), unless such amendment would be consistent with the
provisions of Rule 16b-3 (or any successor provisions) promulgated under the Exchange Act.
Following termination of the Plan, the Committee may distribute Participants’ Account balances
attributable to Deferred Compensation after December 31, 2004 and deemed earnings, gains and losses
credited thereon after that date if such distribution is permissible under and would not result in
any Participant being subject to tax penalties pursuant to Code Section 409A.



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10.6 Successors and Heirs




     The Plan and any properly executed elections hereunder shall be binding upon the Corporation,
its Affiliates and Participants, and upon any assignee or successor in interest to the Corporation
or any Affiliate and upon the heirs, legal representatives and Beneficiaries of any Participant.



10.7 Status as Shareholders




     Stock Credits are not, and do not constitute, shares of Common Stock, and no right as a holder
of shares of Common Stock shall devolve upon a Participant unless and until such shares are issued
to the Participant.



10.8 Rights




     This Plan shall not give any person the right to continue as an employee of the Corporation or
any Affiliate or any rights or interests other than as herein provided.



10.9 Use of Terms




     The masculine includes the feminine and the plural includes the singular, unless the context
clearly indicates otherwise.



10.10 Statement of Accounts




     Each Participant in the Plan during the immediately preceding Plan Year shall receive a
statement of his Account under the Plan as of December 31 of such preceding Plan Year. Such
statement shall be in a form and contain such information as is deemed appropriate by the
Committee.



10.11 Compliance with Laws




     This Plan and the offer, issuance and delivery of shares of Common Stock and/or the payment
and deferral of Compensation under this Plan are subject to compliance with all applicable federal
and state laws, rules and regulations (including but not limited to state and federal reporting,
registration, insider trading and other securities laws) and to such approvals by any listing
agency or any regulatory or governmental authority as may, in the opinion of counsel for the
Corporation, be necessary or advisable in connection therewith. Any securities delivered under this
Plan shall be subject to such restrictions, and the person acquiring the securities shall, if
requested by the Corporation, provide such assurances and representations to the Corporation as the
Corporation may deem necessary or desirable to assure compliance with all applicable legal
requirements.



10.12 Plan Construction




     Anything in this Plan to the contrary notwithstanding, it is the intent of the Corporation
that transactions under the Plan satisfy the applicable requirements of Rule 16b-3 promulgated
under Section 16 of the Exchange Act so that persons who are or become subject to Section 16 of the
Exchange Act will be entitled to the benefits of such Rule 16b-3 or other exemptive rules under
Section 16 of the Exchange Act and will not be subjected to avoidable liability thereunder. It is
further the intent of the Corporation that the terms and operation of the Plan satisfy the
requirements of Code Section 409A. To the extent any



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provision of the Plan, action by the Committee or election by a Participant or
Eligible Employee fails to so comply, it shall be deemed null and void to the extent permitted by
law.



10.13 Headings Not Part of Plan




     Headings and subheadings in the Plan are inserted for reference only and are not to be
considered in the construction of the Plan.



10.14 Extension of Plan to Affiliates.



     By action of its Board, the Corporation may terminate an Affiliate’s eligibility to
participate in the Plan; provided, however, that such termination shall not be effective until the
last day of the calendar year in which such action was taken. Upon termination of an Affiliate’s
eligibility, the Affiliate shall remain obligated to pay such deferred compensation in accordance
with the provisions of the Plan in effect immediately prior to the date of such termination.



ARTICLE XI—CODE SECTION 409A




11.1 Compliance with Code Section 409A




     Notwithstanding anything herein to the contrary, all provisions in this document shall be
interpreted, to the extent possible, to be in compliance with Code Section 409A. However, in the
event any provision of this Plan is determined to not be in compliance with Code Section 409A and
any guidance promulgated thereunder, such provision shall be null and void to the extent of such
noncompliance. Nothing in this Plan shall be construed as an entitlement to or guarantee of any
particular tax treatment for any Participant, and none of the Corporation, any of its Affiliates,
the Board or the Committee shall have any liability with respect to any failure to comply with the
requirements of Code Section 409A.



11.2 Payments upon Income Inclusion under Code Section 409A




     Notwithstanding anything to the contrary contained herein, the Corporation may accelerate the
time or schedule of a distribution to a Participant at any time the Plan fails to meet the
requirements of Code Section 409A. Such distribution may not exceed the amount required to be
included in income as a result of the failure to comply with the requirements of Code Section 409A.



	 	 	 
	 

	 	FIRSTMERIT CORPORATION
	 
	 	 
	By:

	 	Christopher J. Maurer
	 

	 	 
	 
	 	 
	Title:

	 	Executive Vice President
	 
	 	 
	Dated:

	 	12/16/2008







PAGE 19 - EXECUTIVE DEFERRED COMPENSATION PLAN