EX-10.1






Exhibit 10.1




FIRSTMERIT CORPORATION

2008 EXCESS BENEFIT PLAN




     Effective as of January 1, 2008 (the “Effective Date”), the Company adopts this Plan for the
benefit of a select group of management or highly compensated employees. The primary purpose of
the Plan is to provide supplemental retirement benefits to certain employees that are not able to
be provided under the Qualified Plan as a result of limitations imposed by Section 401(a)(17) of
the Code. The Plan is an unfunded arrangement and is intended to be exempt from the participation,
vesting, funding and fiduciary requirements set forth in Title I of ERISA.



Article 1 — Definitions




     When used in this Plan, the following words, terms and phrases have the meanings given to them
in this Article unless another meaning is expressly provided elsewhere in this document. When
applying these definitions and any other word, term or phrase used in this Plan, the form of any
word, term or phrase will include any and all of its other forms.


1.01 “Account” means the bookkeeping account established for each Participant as provided in
Section 5.01 hereof.



1.02 “Affiliate” means any person that, along with the Company, would be considered a single
employer under Sections 414(b) and 414(c) of the Code.



1.03 “Aggregated Plan” means any arrangement that, along with this Plan, would be treated as a
single nonqualified deferred compensation plan under Treasury Regulation Section 1.409A-1(c)(2).



1.04 “Board” means the Board of Directors of the Company.



1.05 “Cause” means “cause” as defined in any written agreement between the Participant and the
Company or any Affiliate or, if there is no written agreement or such term is not defined therein,
“Cause” means one or more of the following acts of the Participant:




     (a) Any act of fraud, intentional misrepresentation, embezzlement, misappropriation or
conversion by the Participant of the assets or business opportunities of the Company or any of its
Affiliates;



     (b) Conviction of the Participant of (or plea by the Participant of guilty to) a felony (or a
misdemeanor that originally was charged as a felony but was reduced to a misdemeanor as part of a
plea bargain) or intentional and repeated violations by the Participant of the written policies or
procedures of the Company or any Affiliate, as the case may be;



     (c) Disclosure, other than through mere inadvertence, to unauthorized persons of any
Confidential Information (as defined in Section 1.11);



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     (d) Intentional breach of any contract with or violation of any legal obligation owed to the
Company or any of its Affiliates;



     (e) The Participant’s (i) willful and continued refusal to substantially perform assigned
duties (other than any refusal resulting from sickness or illness or while suffering from an
incapacity due to physical or mental illness, including a condition that does or may result in a
Disability), (ii) willful engagement in gross misconduct materially and demonstrably injurious to
the Company or any of its Affiliates or (iii) breach of any term of this Plan; or



     (f) Any intentional cooperation with any party attempting to effect a Change in Control unless
(i) the Board has approved or ratified that action before the Change in Control or (ii) that
cooperation is required by law.


Notwithstanding the foregoing, “Cause” will not arise solely because the Participant is absent from
active employment during periods of paid time off, consistent with the applicable paid time off
policy of the Company or any Affiliate, as the case may be, sickness or illness or while suffering
from an incapacity due to physical or mental illness, including a condition that does or may result
in a Disability or other period of absence initiated by the Participant and approved by the Company
or an Affiliate, as the case may be.



1.06 “Change in Control” means “change in control” as defined in any written agreement between the
Participant and the Company or any Affiliate or, if there is no such written agreement or such term
is not defined therein, then “change in control” as defined in the FirstMerit Corporation Amended
and Restated 2006 Equity Plan, as amended from time to time.



1.07 “Code” means the Internal Revenue Code of 1986, as amended.



1.08 “Committee” means the Compensation Committee of the Board.



1.09 “Company” means FirstMerit Corporation, an Ohio corporation.



1.10 “Company Contributions” means any Discretionary Contributions and/or any Supplemental Matching
Contributions.



1.11 “Confidential Information” means any and all information (other than information in the public
domain) related to the Company’s or any Affiliate’s business, including all processes, inventions,
trade secrets, computer programs, technical data, drawings or designs, information concerning
pricing and pricing policies, marketing techniques, plans and forecasts, new product information,
information concerning methods and manner of operations and information relating to the identity
and location of all past, present and prospective customers and suppliers.



1.12 “Disabled” means:




     (a) the Participant is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than twelve (12) months; or



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     (b) the Participant is, by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a continuous period of not
less than twelve (12) months, receiving income replacement benefits for a period of not less than
three (3) months under an accident and health plan covering employees of the Participant’s
employer; or



     (c) the Participant is determined to be totally disabled by the Social Security Administration
or Railroad Retirement Board.


1.13 “Discretionary Contribution” means a contribution made by the Company or an Affiliate that is
credited to a Participant’s Account in accordance with Sections 3.02 and 3.03 of this Plan.



1.14 “Distribution Election Form” means the form prescribed by the Committee that each Eligible
Employee or Participant, as the case may be, may complete to designate the form of distribution of
his or her Account.



1.15 “Eligible Employee” means any person employed by the Company or an Affiliate who is a member
of a select group of management or a highly compensated employee (both within the meaning of Title
I of ERISA), as determined by the Committee in its sole and absolute discretion.



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



1.17 “Good Reason” means “good reason” as defined in any written Change in Control Termination
Agreement or Displacement Agreement between the Participant and the Company or any Affiliate or, if
there is no such written agreement or such term is not defined therein, “Good Reason” means any of
the following to which the Participant has not specifically consented in writing:




     (a) at any time on or after a Change in Control, any breach of this Plan by or on behalf of
the Company or any Affiliate;



     (b) at any time on or after a Change in Control, a reduction in the Participant’s title,
duties, responsibilities or status, as compared to either (i) the Participant’s title, duties,
responsibilities or status immediately before the Change in Control or (ii) any enhanced or
increased title, duties, responsibilities or status assigned to the Participant on or after the
Change in Control;



     (c) at any time on or after a Change in Control, the permanent assignment to the Participant
of duties that are inconsistent with (i) the Participant’s office immediately before the Change in
Control or (ii) any more senior office to which the Participant is promoted on or after the Change
in Control;



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     (d) during any calendar year ending on or after a Change in Control (or any fractional
calendar year ending on or after a Change in Control), a fifteen percent (15%) or larger reduction
(other than a reduction that is attributable to any Separation from Service due to death, after
reaching age sixty-five (65) (but only if the Participant is then entitled to an immediate,
unreduced benefit under a deferred compensation plan described in Section 401(a) of the Code),
Disability or Cause, voluntary Separation from Service by the Participant other than for Good
Reason or for any period of temporary absence protected by law or initiated by the Participant and
approved by the entity with which the Participant has a direct employment relationship (the
“Employer”)) in the aggregate value of the highest of the Participant’s total compensation for the
calendar year ending before the date of Separation from Service (including base salary, cash bonus
potential, the value of employee benefits, other than value associated solely with the performance
of investments the Participant controls, and fringe benefits but excluding compensation
attributable to the exercise or liquidation of stock options) or, if higher, the Participant’s
total compensation for the last calendar year ending before the Change in Control (including base
salary, cash bonus potential, the value of employee benefits, other than value associated solely
with the performance of investments the Participant controls, and fringe benefits);



     (e) at any time on or after a Change in Control, a requirement that the Participant relocate
to a principal office or worksite (or accept indefinite assignment) to a location more than fifty
(50) miles distant from (i) the principal office or worksite to which the Participant was assigned
immediately before the Change in Control or (ii) any location to which the Participant agreed, in
writing, to be assigned after a Change in Control;



     (f) at any time on or after a Change in Control, the imposition on the Participant of business
travel obligations substantially greater than the Participant’s business travel obligations during
the twelve (12) consecutive-calendar-month period ending immediately before the Change in Control
but determined without regard to any special business travel obligations associated with activities
relating to the Change in Control;



     (g) at any time on or after a Change in Control, the Employer’s (i) failure to continue in
effect any material fringe benefit or compensation plan, retirement or deferred compensation plan,
life insurance plan, health and accident plan, sick pay plan or disability plan in which the
Participant is participating (or was eligible to participate) immediately before the Change in
Control, (ii) modification of any of the plans or programs just described that adversely affects
the potential value of the Participant’s benefits under those plans (other than value associated
solely with the performance of investments the Participant controls) or (iii) failure to provide
the Participant, after a Change in Control, with the same number of paid vacation days to which the
Participant is or becomes entitled at or anytime after the Change in Control under the terms of the
Employer’s vacation policy or program. However, Good Reason will not arise under this subsection
solely because (x) the Company or any Affiliate terminates or modifies any such program on or after
a Change in Control solely to comply with applicable law but only to the extent required to meet
applicable legal standards, (y) a plan or benefit program expires under self-executing terms
contained in that plan or benefit program before the Change in Control or
(z) the Company or any Affiliate replaces a plan or program with a successor plan or program
of equal or equivalent value to the Participant;



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     (h) for the duration of any period of any absence from active employment that begins or
continues at any time on or after a Change in Control, failure to provide or continue for the
Participant any benefits (including disability benefits) available to employees who are absent from
active employment (including because of Disability) under programs maintained by the Company or any
Affiliate on the date the absence (including Disability) begins;



     (i) on or after a Change in Control, the Participant is unable to perform normally assigned
duties because of a physical or mental condition and, before the Participant’s Disability is
established for purposes of this Plan, the Participant incurs a Separation from Service by the
Company or any Affiliate before the end of the Disability determination period;



     (j) on or after a Change in Control, the Company or any Affiliate unsuccessfully attempts to
cause the Participant to incur a Separation from Service for Cause;



     (k) on or after a Change in Control, the Company attempts to amend or terminate this Plan
without regard to the procedures described in Section 12.07; or



     (l) failure at any time to obtain an assumption of the Company’s or any Affiliate’s
obligations under this Plan by any successor to any of them, regardless of whether such entity
becomes a successor to the Company or any Affiliate as a result of a merger, consolidation, sale of
assets or any other form of reorganization.


Notwithstanding the foregoing, if, within thirty (30) days after the date the Participant gives the
Company written notice of a Separation from Service for Good Reason, the Company or its Affiliates,
as the case may be, corrects to reasonable satisfaction of the Participant the condition specified
in such notice as the basis for the Separation from Service, such notice shall be deemed to have
been withdrawn and will be of no effect.



1.18 “Investment Fund” means each deemed investment vehicle which serves as a means to measure
value, increases or decreases with respect to a Participant’s Account.



1.19 “Participant” means an Eligible Employee who becomes a participant as described in Article 2.



1.20 “Plan” means the FirstMerit Corporation 2008 Excess Benefit Plan, as amended from time to
time.



1.21 “Plan Year” means each calendar year during which the Plan is in effect.



1.22 “Qualified Plan” means The FirstMerit Corporation and Affiliates Employees’ Salary Savings
Retirement Plan, as amended from time to time.



1.23 “Retirement” means the date a Participant Separates from Service and would qualify for
retirement eligibility under the Pension Plan for Employees of FirstMerit Corporation & Affiliates
if the Participant were eligible to participate in such plan.




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1.24 “Separation from Service” means a “separation from service” with the Company and its
Affiliates within the meaning of Section 409A of the Code and Treasury Regulation Section
1.409A-1(h).



1.25 “Specified Employee” means a Participant who is a “specified employee” as defined in Section
409A of the Code and Treasury Regulation Section 1.409A-1(i) and as determined under the Company’s
policy for determining specified employees.



1.26 “Supplemental Matching Contribution” means the excess, if any, of (a) the maximum matching
contribution which could have been credited to an account for the Participant’s benefit for the
Plan Year under the Qualified Plan if the limitations under Section 401(a)(17) of the Code were not
applied, minus (b) the actual matching contribution which was credited to an account for the
Participant’s benefit for such Plan Year under the Qualified Plan.



1.27 “Trust Fund” means the trust established under the Trust Agreement, if any.



1.28 “Trust Agreement” means an agreement, if any, between the Company and a trustee under which
the assets intended to pay benefits under the Plan may be held, administered and managed, which
shall be substantially in the form provided under Revenue Procedure 92-64.



1.29 “Valuation Date” means the last day of each calendar month or any other more frequent date or
dates fixed by the Committee from time to time for the valuation and adjustments of Accounts.




Article 2 — Participation



2.01 Commencement of Participation. Each Eligible Employee shall become a Participant in the first
Plan Year during which the Eligible Employee is a participant in the Qualified Plan and the
Eligible Employee’s benefits under the Qualified Plan are affected by the limitations under Section
401(a)(17) of the Code.



2.02 Loss of Eligible Employee Status. Except as provided in Section 3.03, a Participant who is no
longer an Eligible Employee or who no longer meets the requirements set forth in Section 2.01 of
this Plan shall not be eligible to receive Company Contributions. Amounts credited to the Account
of a Participant who is no longer an Eligible Employee shall continue to be held pursuant to the
terms of the Plan and shall be distributed as provided in Article 6.




Article 3 — Company Contributions



3.01 Supplemental Matching Contributions. With respect to each Plan Year, the Company will make a
deemed contribution to each Participant’s Account in an amount equal to the Supplemental Matching
Contribution for such Plan Year.




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3.02 Discretionary Contributions. The Company and its Affiliates reserve the right to make
Discretionary Contributions to the Account of one or more Participants in such amount and in such
manner as may be determined by the Board.



3.03 Crediting of Company Contributions. Company Contributions for a Plan Year shall be credited
to a Participant’s Account only if the Participant has not Separated from Service prior to the end
of the Plan Year, unless such Separation from Service is due to the Participant’s death, Disability
or Retirement or as otherwise determined by the Committee in its sole discretion. A Company
Contribution shall be credited to a Participant’s Account as soon as administratively practicable
following the earlier of (a) the end of the applicable Plan Year or (b) to the extent applicable,
the Participant’s Separation from Service.




Article 4 — Vesting




4.01 Vesting of Company Contributions — In General.




     (a) Vesting of Supplemental Matching Contributions. Subject to Section 4.02 and provided that
the Participant has not Separated from Service, a Participant shall be vested in the Participant’s
Supplemental Matching Contributions in the same percentage that the Participant is vested in
matching contributions under the Qualified Plan.



     (b) Vesting of Discretionary Contributions. Subject to Section 4.02, each Participant shall
have a vested right to the portion of his or her Account attributable to any Discretionary
Contribution and any deemed earnings and losses on the investment of such Discretionary
Contribution in accordance with the vesting schedule determined by the Board at the time the
Discretionary Contribution is made.


4.02 Accelerated Vesting Events. A Participant shall become one hundred percent (100%) vested in
the Participant’s Account upon the earliest to occur of: (a) a determination that the Participant
is Disabled prior to the Participant’s Separation from Service; (b) the Participant’s Separation
from Service due to his or her death or (c) the Participant’s Separation from Service by the
Company or any of its Affiliates without Cause or by the Participant for Good Reason, in each case,
within two (2) years following a Change in Control.



4.03 Amounts Not Vested. Subject to the foregoing, any amounts credited to a Participant’s Account
that are not vested at the time of the Participant’s Separation from Service shall be forfeited.




Article 5 — Accounts



5.01 Accounts. The Company shall establish and maintain an Account for each Participant. The
Company shall (a) credit all Company Contributions for any Plan Year to the Participant’s Account,
(b) as of each Valuation Date, adjust the Account to reflect any deemed earnings or losses on the
foregoing, investment experience and, in the Company’s sole discretion, any other appropriate
adjustments and (c) reduce the Account by any distributions made from such Account.




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5.02 Investments.




     (a) A Participant may direct that the Participant’s Account be valued as if it is invested in
one or more Investment Funds as selected by the Committee from time to time and in accordance with
procedures established by the Committee from time to time. The Committee may, from time to time,
approve changes to the Investment Funds for purposes of this Plan.



     (b) A Participant may change the Participant’s selection of Investment Funds as permitted by
the Committee with respect to the Participant’s Account by filing a new election in accordance with
procedures established by the Committee from time to time.



     (c) Notwithstanding a Participant’s ability to designate the Investment Funds in which the
Participant’s Account shall be deemed to be invested, neither the Company nor any Affiliate shall
have any obligation to invest any funds in accordance with the Participant’s election.
Participants’ Accounts shall merely be bookkeeping entries on the books of the Company and its
Affiliates, as applicable, and no Participant shall obtain any property right or interest in any
Investment Fund or any other particular assets of the Company or any of its Affiliates.



Article 6 — Distributions and Distribution Elections




6.01 In General.




     (a) Except as otherwise provided in this Article 6, a Participant will receive or begin to
receive a distribution in cash equal to the value of the vested portion of the Participant’s
Account within ninety (90) days (determined in the sole discretion of the Company) following the
Participant’s Separation from Service.



     (b) A Participant may elect in accordance with Section 6.01(c) to receive the distribution
described in Section 6.01(a) in a lump sum or in up to ten (10) substantially equal annual
installments. If a Participant elects to receive substantially equal annual installments, the
amount of each installment shall be determined by multiplying the vested portion of the
Participant’s Account by a fraction, the denominator of which in the first year of payment equals
the number of years (not to exceed ten (10)) over which the Participant has elected benefits to be
paid, and the numerator of which is one (1). The amount of the installments for each succeeding
year shall be determined by multiplying the Participant’s Account as of the applicable
anniversary of the distribution by a fraction, the denominator of which equals the number of
remaining years over which benefits are to be paid, and the numerator of which is one (1). Each
annual installment following the first installment shall be paid on the anniversary of the
distribution of such first installment. If a Participant does not make a valid election under this
Section 6.01(b) and Section 6.01(c), the vested portion of the Participant’s Account shall be
distributed in a lump sum within ninety (90) days (determined in the sole discretion of the
Company) following the Participant’s Separation from Service.



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     (c) An election under this Section 6.01 must be made on a Distribution Election Form and must
meet the following requirements:




     (i) The Distribution Election Form must be submitted to the Company by December 31 of
the Plan Year preceding the Plan Year during which the Participant will perform services
relating to the Participant’s first Company Contribution under this Plan. Notwithstanding
the foregoing, for any Plan Year in which a Participant is first eligible to participate in
this Plan, the Distribution Election Form may be submitted to the Company within thirty (30)
days after the date on which the Participant first becomes eligible to participate in this
Plan, with respect to any Company Contribution to be credited for services performed after
such election is made. For these purposes, a Participant shall be first eligible to
participate in this Plan only if the Participant is not eligible to participate in any
Aggregated Plan.




     (ii) The election shall be subject to the terms and conditions specified in this Plan
and in such Distribution Election Form and, except as provided in Section 6.04, is
irrevocable once it is made.


6.02 Effect of Death or Disability. Notwithstanding anything in this Plan to the contrary, if the
Participant dies or becomes Disabled, all amounts credited to the Participant’s Account shall be
distributed in cash to the Participant or the Participant’s beneficiary (in accordance with Article
9), as applicable, in a lump sum within ninety (90) days following the Participant’s death or
Disability, as applicable. Such lump sum distribution shall be made regardless of whether or not
the distribution of any of the Participant’s Account has been made or begun.



6.03 Separation from Service for Cause. Notwithstanding anything in this Plan to the contrary, if
a Participant incurs a Separation from Service by the Company for Cause, all amounts credited to
the Participant’s Account (whether or not vested) shall be forfeited as of the date of such
Separation from Service.



6.04 Changes to Distribution Elections. A Participant shall be permitted to elect to change the
form of distribution of the Participant’s Account if such change meets the following requirements:




     (a) On or before December 31, 2008, the Participant may elect to change the form of
distribution (based on the alternatives described in Section 6.01(b)) by filing a new Distribution
Election Form with the Company on or before December 31, 2008; provided, however, that (i)
such election may not apply to any amount otherwise payable in 2008 and (ii) such election may
not cause an amount to be paid in 2008 that would not otherwise be payable in 2008. After December
31, 2008, this subsequent distribution election may be changed or revoked only as provided in
Section 6.04(b).



     (b) After December 31, 2008, the Participant may elect to change the form of distribution
(based on the alternatives described in Section 6.01(b)) by filing a new Distribution Election Form
with the Company; provided, however, that: (i) such change may not take effect until at least
twelve (12) months after the date on which such election is made; (ii) the payment



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with respect to
which such change is made must be deferred (other than a distribution upon death or Disability) for
a period of not less than five (5) years from the date such payment would otherwise have been paid
(or, in the case of installment payments treated as a single payment, from the date the first
amount was scheduled to be paid); and (iii) any change affecting a distribution to be made at a
specified time or pursuant to a fixed schedule must be made not less than twelve (12) months before
the date the amount was scheduled to be paid (or, in the case of installment payments treated as a
single payment, before the date the first amount was scheduled to be paid). Such election may not
be changed after the last permissible date for making such election as described in this Section
6.04(b).


Once a Participant’s Account begins distribution, no changes to the distribution of such Account
shall be permitted. For purposes of this Section 6.04, if the right to any payments would
constitute the right to a “series of installment payments” within the meaning of Section 409A of
the Code, then such payments shall be treated as a single payment within the meaning of Section
409A of the Code.



6.05 Limited Cash-Out. Notwithstanding anything in this Plan to the contrary, the Company, in its
sole discretion, may require a lump sum distribution of a Participant’s Account under the Plan if:
(a) the distribution results in the termination and liquidation of the entirety of the
Participant’s interest under the Plan and all Aggregated Plans; and (b) the aggregate distribution
under the arrangements is not greater than the applicable dollar amount under Section 402(g)(1)(B)
of the Code.



6.06 Distributions to Specified Employees. Notwithstanding anything in this Plan to the contrary,
if a Participant is a Specified Employee at the time of the Participant’s Separation from Service,
then no distribution to such Participant in connection with such Separation from Service shall be
made (or commence) until the first day of the seventh (7th) month following the date of the
Participant’s Separation from Service or, if earlier, the date of the Participant’s death. The
first distribution that can be made under this Section 6.06 shall include the cumulative amount of
any amounts that could not be distributed during such postponement period.




Article 7 — Post-Separation from Service Obligations



7.01 Clawback. If a Participant competes against the Company within three (3) years following the
Participant’s Separation from Service, the Company may, in the sole discretion of the Committee,
(a) require that the Participant pay to the Company an amount equal to all
distributions that the Participant has received pursuant to the Plan and (b) forfeit the
Participant’s rights to any remaining amounts credited to the Participant’s Account.



7.02 Non-Competition. For purposes of this Article 7:




     (a) A Participant will be deemed to be competing with the Company if the Participant engages
or becomes interested in or connected with any business or venture that is competitive with the
business of the Company or any of its Affiliates.



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     (b) A business or venture will be considered competitive with the business of the Company or
any of its Affiliates:




     (i) If it is conducted in whole or in part within a radius of one hundred (100) miles
of the office to which the Participant is assigned on the date of the Participant’s
Separation from Service; and




     (ii) If it involves the conduct of any business or the furnishing of any financial or
banking services that a national banking association, bank holding company, state bank,
savings and loan association or other regulated financial institution is permitted by law to
conduct or furnish on the date of the Participant’s Separation from Service.



     (c) A Participant will be deemed to be directly or indirectly engaged, interested or connected
with a business or venture if the Participant is a stockholder, partner, proprietor, officer,
director, consultant, agent or employee of such business or venture or an investor who, directly or
indirectly, has advanced on loan, contributed to capital or expended for the purchase of stock an
amount or amounts constituting five percent (5%) or more of the capital or assets of such business
or venture.



Article 8 — Tax Withholding




     The Company or any Affiliate, as applicable, will withhold from other amounts owed to a
Participant or require the Participant to remit to the Company or the Affiliate, as applicable, an
amount sufficient to satisfy federal, state and local tax withholding requirements with respect to
any Plan benefit or the vesting, payment or cancellation of any Plan benefit.



Article 9 — Beneficiaries



9.01 Beneficiaries. Each Participant may from time to time designate one or more persons (who may
be any one or more members of such person’s family or other persons, administrators, trusts,
foundations or other entities) as his or her beneficiary under the Plan. Such designation shall be
made in a form prescribed by the Committee. Each Participant may at any time and from time to
time, change any previous beneficiary designation, without notice to or consent of any previously
designated beneficiary, by amending the Participant’s previous designation in a form prescribed by
the Committee. If the beneficiary does not survive the Participant (or is otherwise unavailable to
receive payment) or if no beneficiary is validly designated, then the amounts payable under this
Plan shall be paid to the Participant’s surviving spouse or, if there is no
surviving spouse, the Participant’s estate. If more than one person is the beneficiary of a
deceased Participant, each such person shall receive a pro rata share of any death benefit payable
unless otherwise designated in the applicable form. If a beneficiary who is receiving benefits
dies, all benefits that were payable to such beneficiary shall then be payable to the estate of
that beneficiary.



9.02 Lost Participant and/or Beneficiary. All Participants and beneficiaries shall have the
obligation to keep the Committee informed of their current address until such time as all benefits


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due have been paid. Under no circumstances shall any amount under this Plan escheat to any
governmental authority.




Article 10 — Prohibition Against Funding




     If any investment is acquired in connection with the liabilities assumed under this Plan, it
is expressly understood and agreed that the Participants and beneficiaries shall not have any right
with respect to, or claim against, such assets nor shall any such purchase be construed to create a
trust of any kind or a fiduciary relationship between the Company or any of its Affiliates and the
Participants, their beneficiaries or any other person. Any such assets shall be and remain a part
of the general, unpledged, unrestricted assets of the Company or its Affiliates, subject to the
claims of their general creditors. Neither the Company nor its Affiliates are required to
segregate any assets into a fund established exclusively to pay benefits under this Plan. It is
the express intention of the parties hereto that this arrangement shall be unfunded for tax
purposes and for purposes of Title I of ERISA. Each Participant and his or her beneficiaries shall
be required to look to the provisions of this Plan and to the Company or its Affiliates for
enforcement of any and all benefits due under this Plan, and to the extent any such person acquires
a right to receive payment under this Plan, such right shall be no greater than the right of any
unsecured general creditor of the Company and its Affiliates. The Company or any of its Affiliates
shall be designated the owner and beneficiary of any investment acquired in connection with their
obligations under this Plan.



Article 11 — Claims Procedure




     (a) Any Participant or beneficiary or estate of a Participant (the “claimant”) who believes
that he, she, or it is entitled to an unpaid Plan benefit or that wishes to resolve a dispute or
disagreement which arises under, or in any way relates to, the interpretation or construction of
the Plan may file a claim with the Committee.



     (b) If the claim is wholly or partially denied, the Committee will, within a reasonable period
of time, and within ninety (90) days of the receipt of such claim, or if the claim is a claim on
account of Disability, within forty-five (45) days of the receipt of such claim, provide the
claimant with written notice of the denial setting forth in a manner calculated to be understood by
the claimant:




	 	(i)	 	The specific reason or reasons for which the claim was denied;
	 
	 	(ii)	 	Specific reference to pertinent Plan provisions, rules,
procedures or protocols upon which the Committee relied to deny the claim;
	 
	 	(iii)	 	A description of any additional material or information that
the claimant may file to perfect the claim and an explanation of why this
material or information is necessary;
	 
	 	(iv)	 	An explanation of the Plan’s claims review procedure and the
time limits applicable to such procedure and a statement of the claimant’s
right to




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	 	 	 	bring a civil action under Section 502(a) of ERISA following an
adverse determination upon review; and
	 
	 	(v)	 	In the case of an adverse determination of a claim on account
of Disability, the information to the claimant shall include, to the extent
necessary, the information set forth in Department of Labor Regulation Section
2560.503-1(g)(1)(v).




If special circumstances require the extension of the forty-five (45) day or ninety (90) day period
described above, the claimant will be notified before the end of the initial period of the
circumstances requiring the extension and the date by which the Committee expects to reach a
decision. Any extension for deciding a claim will not be for more than an additional ninety (90)
day period, or if the claim is on account of Disability, for not more than two additional thirty
(30) day periods.




     (c) If a claim has been wholly or partially denied, the affected claimant, or such claimant’s
authorized representative, may:




	 	(i)	 	Request that the Committee reconsider its initial denial by
filing a written appeal within sixty (60) days after receiving written notice
that all or part of the initial claim was denied (one hundred eighty (180) days
in the case of a denial of a claim on account of Disability);
	 
	 	(ii)	 	Review pertinent documents and other material upon which the
Committee relied when denying the initial claim; and
	 
	 	(iii)	 	Submit a written description of the reasons for which the
claimant disagrees with the Committee’s initial adverse decision.




An appeal of an initial denial of benefits and all supporting material must be made in writing
within the time periods described above and directed to the Committee. The Committee is solely
responsible for reviewing all benefit claims and appeals and taking all appropriate steps to
implement its decision.



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 Section
502(a) of ERISA.



The Committee’s decision on review will be made not later than sixty (60) days (forty-five (45)
days in the case of a claim on account of Disability) after his or her receipt of the request for
review, unless special circumstances require an extension of time for processing, in which case a
decision will be rendered as soon as possible, but not later than one hundred and twenty (120)


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days
(ninety (90) days in the case of a claim on account of Disability) after receipt of the request for
review. 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.



Notwithstanding the foregoing, in the case of a claim on account of Disability: (x) 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 (y) 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 claims official (if no review is properly
requested) 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 under the Plan will be brought unless and
until the claimant has exhausted such claimant’s remedies under this Article 11.




Article 12 — General Provisions




12.01 Administration.




     (a) The Committee is expressly empowered to deposit amounts into the Trust Fund; to interpret
the Plan, and to determine all questions arising in the administration, interpretation and
application of the Plan; to employ actuaries, accountants, counsel and other persons it deems
necessary in connection with the administration of the Plan; to request any information from the
Company or any of its Affiliates it deems necessary to determine whether the Company or any
Affiliate would be considered insolvent or subject to a proceeding in bankruptcy; and to take all
other necessary and proper actions to fulfill its duties under the Plan.



     (b) The Committee shall not be liable for any actions by it hereunder, unless due to its own
[gross] negligence, willful misconduct or lack of good faith.



     (c) The Committee shall be indemnified and saved harmless by the Company from and against all
liability to which it may be subject by reason of any act done or omitted to be
done in its official capacity as administrator in good faith in the administration of the Plan
and, if applicable, the Trust Fund, including all expenses reasonably incurred in its defense in
the event the Company fails to provide such defense upon the request of the Committee.



     (d) In exercising its authority under this Plan, the Committee may allocate all or any part of
its responsibilities and powers to any one or more of its members and may delegate all or any part
of its responsibilities and powers to any person or persons selected by it. Any such allocation or
delegation may be revoked at any time.


12.02 No Assignment. Benefits or payments under this Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or


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garnishment by creditors of the Participant or the Participant’s beneficiary, whether voluntary or
involuntary, and any attempt to so anticipate, alienate, sell, transfer, assign, pledge, encumber,
attach or garnish the same shall not be valid, nor shall any such benefit or payment be in any way
liable for or subject to the debts, contracts, liabilities, engagement or torts of any Participant
or beneficiary, or any other person entitled to such benefit or payment pursuant to the terms of
this Plan, except to such extent as may be required by law. If any Participant or beneficiary or
any other person entitled to a benefit or payment pursuant to the terms of this Plan attempts to
anticipate, alienate, sell, transfer, assign, pledge, encumber, attach or garnish any benefit or
payment under this Plan, in whole or in part, or if any attempt is made to subject any such benefit
or payment, in whole or in part, to the debts, contracts, liabilities, engagements or torts of the
Participant or beneficiary or any other person entitled to any such benefit or payment pursuant to
the terms of this Plan, then such attempt shall be invalid and such benefit or payment, in the
discretion of the Committee, shall cease and terminate with respect to such Participant or
beneficiary, or any other such person.



12.03 No Employment Rights. Participation in this Plan shall not be construed to confer upon any
Participant the legal right to be retained in the employ of the Company or any of its Affiliates,
or give a Participant or beneficiary, or any other person, any right to any payment whatsoever,
except to the extent of the benefits provided for hereunder. Each Participant shall remain subject
to discharge to the same extent as if this Plan had never been adopted.



12.04 Other Benefits. The benefits of each Participant or beneficiary hereunder shall be in
addition to any benefits paid or payable to or on account of the Participant or beneficiary under
any other pension, disability, annuity or retirement plan or policy whatsoever.



12.05 Satisfaction of Participant Debt. The Company may, in accordance with Section 409A of the
Code and Treasury Regulation Section 1.409A-3(j)(4)(xiii), accelerate the time or schedule of a
payment, or a payment may be made under the Plan, as satisfaction of a debt of a Participant to the
Company or any Affiliate, where such debt is incurred in the ordinary course of the service
relationship between the Company or an Affiliate and the Participant, the entire amount of
reduction in any of the Company’s taxable years does not exceed five thousand dollars ($5,000) and
the reduction is made at the same time and in the same amount as the debt otherwise would have been
due and collected from the Participant. Notwithstanding the foregoing, the Participant shall
remain liable for any part of the Participant’s payment obligation not satisfied by payments
made under this Section 12.05. By participating in the Plan, the Participant agrees to any
deduction or payments under this Section 12.05.



12.06 Expenses. All expenses incurred in the administration of the Plan, whether incurred by the
Company, an Affiliate or the Plan, shall be paid by the Company and its Affiliates.



12.07 Amendment, Modification, Suspension or Termination. The Company may, at any time, in its
sole discretion, amend, modify, suspend or terminate the Plan in whole or in part, except that no
such amendment, modification, suspension or termination shall have any retroactive effect to reduce
any amounts allocated to a Participant’s Account. Except as otherwise provided in this Section
12.07, in the event that this Plan is terminated, the distribution of the amounts credited to a
Participant’s Account shall not be accelerated but shall be paid at


15









 






 such time and in such manner as
determined under the terms of the Plan immediately prior to termination as if the Plan had not been
terminated. Notwithstanding anything in the Plan to the contrary, the Company, in its sole
discretion, may distribute a Participant’s Account in accordance with Treasury Regulation Section
1.409A-3(j)(4)(ix).



12.08 Construction. All questions of interpretation, construction or application arising under or
concerning the terms of this Plan shall be decided by the Committee, in its sole and final
discretion, whose decision shall be final, binding and conclusive upon all persons.



12.09 Governing Law. This Plan shall be governed by, construed and administered under the laws of
Ohio, other than its laws respecting choice of law. Except as set forth in Article 11, any action
or claim arising out of this Plan must be brought in the United States District Court for the
Northern District of Ohio.



12.10 Severability. If any provision of this Plan is held invalid or unenforceable, its invalidity
or unenforceability shall not affect any other provision of this Plan and this Plan shall be
construed and enforced as if such provision had not been included herein. If the inclusion of any
employee (or employees) as a Participant under this Plan would cause the Plan to fail to comply
with the requirements of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA or Section 409A of the
Code, then the Plan shall be severed with respect to such employee or employees, who shall be
considered to be participating in a separate arrangement.



12.11 Headings. The Article headings contained herein are inserted only as a matter of convenience
and for reference and in no way define, limit, enlarge or describe the scope or intent of this Plan
nor in any way shall they affect this Plan or the construction of any provision thereof.



12.12 Section 409A Compliance. It is intended that this Plan comply with Section 409A of the Code
and the Treasury Regulations promulgated thereunder and, to the maximum extent permitted by law,
this Plan shall be interpreted, administered and operated accordingly. Nothing herein shall be
construed as an entitlement to or guarantee of any particular tax treatment to a Participant, and
none of the Company, its Affiliates, the Board or the Committee shall have liability to any
Participant for a failure to comply with the requirements of Section 409A of the Code.



12.13 Payments Upon Income Inclusion Under Section 409A of the Code. Notwithstanding anything in
this Plan to the contrary, the Company may accelerate the time or schedule of a payment to a
Participant at any time the Plan fails to meet the requirements of Section 409A of the Code and the
Treasury Regulations promulgated thereunder. Such payment may not exceed the amount required to be
included in income as a result of the failure to comply with the requirements of Section 409A of
the Code and the Treasury Regulations promulgated thereunder.




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     IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly
authorized officer as of this 10th day of December, 2008.



	 	 	 	 	 	 	 
	 	 	FIRSTMERIT CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Christopher J. Maurer	 	 
	 

	 	Title:
	 	 

Executive Vice President
	 	 







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