EXHIBIT 10.38
The Company has the following Form of Severance Agreement with the individuals
listed below:
Xxxx X. Xxxx
Xxxxxx Xxxxxx
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT (this "Agreement"), dated as of ______, 19___,
by and between National Processing, Inc., an Ohio corporation (the "Company"),
and ___________________ (the "Executive"). This Agreement supersedes any other
Severance Agreement between the Company and the Executive.
WITNESSETH:
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WHEREAS, the Executive is a senior executive of the Company and/or a
Subsidiary (as defined below) and has made and is expected to continue to make
major contributions to the profitability, growth and financial strength of the
Company;
WHEREAS, the Company recognizes that, as is the case of most
companies, the possibility of a Change in Control exists;
WHEREAS, the Company desires to assure itself of both present and
future continuity of management and desires to establish certain minimum
severance benefits for certain of its senior executive officers and other key
employees, including the Executive, applicable in the event of a Change in
Control;
WHEREAS, the Company wishes to ensure that its senior executives and
other key employees are not practically disabled from discharging their duties
in respect of a proposed or actual transaction involving a Change in Control;
and
WHEREAS, the Company desires to provide additional inducement for the
Executive to continue to remain in the ongoing employ of the Company.
NOW, THEREFORE, the Company and the Executive agree as follows:
1. CERTAIN DEFINED TERMS: In addition to terms defined elsewhere
herein, the following terms have the following meanings when used in this
Agreement with initial capital letters:
(a) "Base Pay" means the Executive's annual base salary at a
rate not less than the Executive's annual fixed or base compensation as
in effect for Executive immediately prior to the occurrence of a Change
in Control or such higher rate as may be in effect from time to time.
(b) "Cause" means that, prior to any termination pursuant to
Section 3(a) hereof, the Executive shall have committed:
(i) an intentional act of fraud, embezzlement or theft in
connection with his/her duties or in the course of his/her employment
with the Company or any Subsidiary;
(ii) intentional wrongful damage to property of the Company or
any Subsidiary;
(iii) intentional wrongful disclosure of secret processes or
confidential information of the Company or any Subsidiary; or
(iv) intentional wrongful engagement in any Competitive
Activity;
and any such act shall have been harmful to the Company. For purposes
of this Agreement, no act or failure to act on the part of the
Executive shall be deemed "intentional" if it was due primarily to an
error in judgment or negligence, but shall be deemed "intentional" only
if done or omitted to be done by the Executive not in good faith and
without reasonable belief that his/her action or omission was in the
best interest of the Company. Nothing herein will limit the right of
the Executive or his/her beneficiaries to contest the validity or
propriety of any such determination.
(c) "Change in Control" means the occurrence during the Term of
either of the following events:
(i) The Company is merged, consolidated or
reorganized into or with another corporation or other legal person
other than NCC, a successor of NCC (direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise) ("Successor"), or
an affiliate of NCC or of a Successor and as a result of such merger,
consolidation or reorganization less than fifty percent of the combined
voting power of the then outstanding securities of such resulting
corporation or person immediately after such transaction are held by
NCC, a Successor or an affiliate of NCC or of a Successor; or
(ii) The Company sells or otherwise transfers all or
substantially all of its assets or the Company causes or permits the
sale or transfer of all or substantially all of the assets of any
Subsidiary that has assets equal to or greater than eighty percent of
the total assets of the Company, as reported on a consolidated basis,
to another corporation or other legal person, and as a result of such
sale or transfer less than fifty percent of the combined voting power
of the then outstanding Voting Stock of such corporation or person
immediately after such sale or transfer is held by NCC, a Successor or
an affiliate of NCC or of a Successor, provided, however, that a Change
in Control of NCC determined by the standards set forth herein or
otherwise shall not constitute a Change in Control of the Company.
(d) "Competitive Activity" means the Executive's
participation, without the written consent of an officer of the
Company, in the management of any business enterprise if such
enterprise engages in competition with the Company. "Competitive
Activity" will not include (i) the mere ownership of securities in any
such enterprise and the exercise of rights appurtenant thereto, (ii)
participation in the management of any
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such enterprise other than in connection with the competitive
operations of such enterprise or (iii) participation in the management
of any such enterprise which has been authorized by the Board of
Directors of the Company.
(e) "Employee Benefits" means the perquisites, benefits and
service credit for benefits as provided under any and all employee
retirement income and welfare benefit policies, plans, programs or
arrangements in which Executive is entitled to participate, including
without limitation any stock option, stock purchase, stock appreciation
savings, pension, supplemental executive retirement, or other
retirement income or welfare benefit, deferred compensation, incentive
compensation, group or other life, health medical/hospital or other
insurance (whether funded by actual insurance or self-insured by the
Company), disability, salary continuation, expense reimbursement and
other employee benefit policies, plans, programs or arrangements that
may now exist or any equivalent successor policies, plans, programs or
arrangements that may be adopted hereafter, providing perquisites,
benefits and service credit for benefits at least as great in the
aggregate as are payable thereunder prior to a Change in Control.
(f) "Incentive Pay" means an annual amount equal to not less
than the highest aggregate annual bonus, incentive or other payments of
cash compensation (including, without limitation, payments made
pursuant to Company's long-term incentive plan and short-term incentive
plan, if any), in addition to Base Pay, made or to be made in regard to
services rendered in any calendar year during the three calendar years
immediately preceding the year in which the Change in Control occurred
pursuant to any bonus, incentive, profit-sharing, performance,
discretionary pay or similar agreement, policy, plan, program or
arrangement (whether or not funded), or any successor thereto providing
benefits at least as great as the benefits payable thereunder prior to
a Change in Control.
(g) "NCC" means National City Corporation, a Delaware
corporation that as of the date of this Agreement owns ____% of the
Voting Stock.
(h) "Severance Period" means the period of time commencing on
the date of an occurrence of a Change in Control and continuing until
the earliest of (i) the third anniversary of the occurrence of the
Change in Control (ii) the Executive's death, or (iii) the Executive's
attainment of age 65;
(i) "Subsidiary" means an entity in which Company directly or
indirectly beneficially owns 50% or more of the outstanding Voting
Stock.
(j) "Term" means the period commencing as of the date hereof
and expiring as of the later of (i) the close of business on ______,
19__, or (ii) the expiration of the Severance Period; PROVIDED,
HOWEVER, that (A) commencing on _________, 19__ and each _________
thereafter, the Term of this Agreement will automatically be extended
for an additional year unless, not later than ____________ of the
immediately preceding year, the Company or the Executive shall have
given notice that it or the Executive, as the case
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may be, does not wish to have the Term extended and (B) except as
otherwise provided in the last sentence of Section 7, if, prior to a
Change in Control, the Executive ceases for any reason to be an
employee of the Company or any Subsidiary, thereupon without further
action the Term shall be deemed to have expired and this Agreement will
immediately terminate and be of no further effect. For purposes of this
Section 1(j), the Executive shall not be deemed to have ceased to be an
employee of the Company or any Subsidiary by reason of the transfer of
Executive's employment between the Company and any Subsidiary, or among
any Subsidiaries.
(k) "Voting Stock" means the then outstanding securities
entitled to vote generally in the election of directors of the
Company.
2. OPERATION OF AGREEMENT: This Agreement will be effective and binding
immediately upon its execution, but, anything in this Agreement to the contrary
notwithstanding, this Agreement will not be operative unless and until a Change
in Control occurs, whereupon without further action this Agreement shall become
immediately operative.
3. TERMINATION FOLLOWING A CHANGE IN CONTROL: (a) In the event the
Company, a Subsidiary or a successor of the Company (direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) terminates the
Executive's employment during the Severance Period, the Executive will be
entitled to the severance compensation provided by Section 4; PROVIDED, HOWEVER,
that the Executive shall not be entitled to the severance compensation provided
by Section 4 hereof only upon the occurrence of one or more of the following
events:
(i) The Executive's death occurring prior to
termination of his/her employment;
(ii) Prior to the termination of his/her employment,
the Executive becomes permanently disabled within the meaning of, and
begins actually to receive disability benefits pursuant to, the
long-term disability plan in effect for, or applicable to, Executive
immediately prior to the Change in Control; or
(iii) Cause.
(b) In the event of the occurrence of a Change in Control, the
Executive may terminate employment with the Company and any Subsidiary
during the Severance Period with the right to severance compensation as
provided in Section 4 upon the occurrence of one or more of the
following events (regardless of whether any other reason for such
termination exists or has occurred, including without limitation other
employment):
(i) Failure to elect or reelect or otherwise to
maintain the Executive in the office or the position, or a
substantially equivalent or higher level office or position, of or with
the Company and/or a Subsidiary, as the case may be, which the
Executive
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held immediately prior to a Change in Control, or the removal of the
Executive as a Director of the Company (or any successor thereto) if
the Executive shall have been a Director of the Company immediately
prior to the Change in Control;
(ii) (I) A significant adverse change in the nature
or scope of the authorities, powers, functions, responsibilities or
duties attached to the position with the Company and any Subsidiary
which the Executive held immediately prior to the Change in Control;
(II) a reduction in the aggregate of the Executive's Base Pay and the
formula for determining Incentive Pay received from the Company and any
Subsidiary; or (III) the termination or denial of the Executive's
rights to Employee Benefits or a reduction in the scope or value
thereof, which situation is not remedied within 10 calendar days after
written notice to the Company from the Executive;
(iii) A determination by the Executive (which
determination will be conclusive and binding upon the parties hereto
provided it has been made in good faith and in all events will be
presumed to have been made in good faith unless otherwise shown by the
Company by clear and convincing evidence) that a change in
circumstances has occurred following a Change in Control, including,
without limitation, a change in the scope of the business or other
activities for which the Executive was responsible immediately prior to
the Change in Control, which has rendered the Executive substantially
unable to carry out, has substantially hindered Executive's performance
of, or has caused Executive to suffer a substantial reduction in, any
of the authorities, powers, functions, responsibilities or duties
attached to the position held by the Executive immediately prior to the
Change in Control, which situation is not remedied within 10 calendar
days after written notice to the Company from the Executive of such
determination;
(iv) The liquidation, dissolution, merger,
consolidation or reorganization of the Company or any Subsidiary by
which Executive is employed or transfer of all or substantially all of
its business and/or assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or
otherwise) to which all or substantially all of its business and/or
assets have been transferred (directly or by operation of law) assumed
all duties and obligations of the Company under this Agreement pursuant
to Section 9(a);
(v) The Company or any Subsidiary by which Executive
is employed relocates its principal executive offices, or requires the
Executive to have his/her principal location of work changed, to any
location which is in excess of 25 miles from the location thereof
immediately prior to the Change of Control, or requires the Executive
to travel away from his/her office in the course of discharging his/her
responsibilities or duties hereunder at least 20% more (in terms of
aggregate days in any calendar year or in any calendar quarter when
annualized for purposes of comparison to any prior year) than was
required of Executive in any of the three full years immediately prior
to the Change in Control without, in either case, his/her prior written
consent; or
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(vi) Without limiting the generality or effect of the
foregoing, any material breach of this Agreement by the Company or any
successor thereto.
(c) A termination by the Company pursuant to Section 3(a) or
by the Executive pursuant to Section 3(b) will not affect any rights
which the Executive may have pursuant to any agreement, policy, plan,
program or arrangement of the Company providing Employee Benefits,
which rights shall be governed by the terms thereof.
4. SEVERANCE COMPENSATION: (a) If, following the occurrence of a Change
in Control, the Company or any Subsidiary by which Executive is employed
terminates the Executive's employment during the Severance Period other than
pursuant to Section 3(a)(i), 3(a)(ii) or 3(a)(iii), or if the Executive
terminates his/her employment pursuant to Section 3(b), the Company will pay to
the Executive the following amounts within five business days after the date
(the "Termination Date") that the Executive's employment is terminated (the
effective date of which shall be the date of termination, or such other date
that may be specified by the Executive if the termination is pursuant to Section
3(b)) and continue to provide to the Executive the following benefits:
(i) A lump sum payment (the "Severance Payment") in
an amount equal to three (3) times the sum of (A) Base Pay (at the
highest rate in effect for any period prior to the Termination Date),
plus (B) Incentive Pay (determined in accordance with the standards set
forth in Section 1(f)) less the sum of (A) any and all payments
received by the Executive from the Company, any Subsidiary, NCC, a
Successor or an affiliate of NCC or a Successor following the
occurrence of a Change in Control plus (B) any future payments to be
made to the Executive in accordance with any employment agreements or
contracts between the Company, a Subsidiary, NCC or its affiliates, or
a Successor and the Executive (specifically excluding payments from any
deferred compensation plan).
(ii) (A) For thirty-six (36) months (the
"Continuation Period") following the occurrence of a Change in Control,
the Company will arrange to provide the Executive with Employee
Benefits that are welfare benefits (but not stock option, stock
purchase, stock appreciation or similar compensatory benefits)
substantially similar to those which the Executive was receiving or
entitled to receive immediately prior to the occurrence of a Change in
Control Date, and (B) such continuation Period will be considered
service with the Company, assuming the amount of Base Pay and Incentive
Pay payable to the Executive during the calendar year immediately
preceding the year in which the Termination Date occurs, for the
purpose of determining service credits and benefits due and payable to
the Executive under the Company's retirement, supplemental executive
retirement and other benefit plans of the Company applicable to the
Executive, his/her dependents or his/her beneficiaries immediately
prior to the Termination Date. If beneficiaries and to the extent that
any benefit described in subsections (A) and (B) of this Section
4(a)(ii) is not or cannot be paid or provided under any policy, plan,
program or arrangement of the Company or any Subsidiary, as the case
may be, then the Company
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will itself pay or provide for the payment to the Executive, his/her
dependents and beneficiaries, of such Employee Benefits. Without
otherwise limiting the purposes or effect of Section 5, Employee
Benefits otherwise receivable by the Executive pursuant to the
subsection (A) of this Section 4(a)(ii) will be reduced to the extent
comparable welfare benefits are actually received by the Executive from
another employer during the Continuation Period, and any such benefits
received by the Executive shall be reported by the Executive to the
Company.
(b) There will be no right of set-off or counterclaim in
respect of any claim, debt or obligation against any payment to or
benefit for the Executive provided for in this Agreement, except as
expressly provided in the last sentence of Section 4(a)(ii).
(c) Without limiting the rights of the Executive at law or in
equity, if the Company fails to make any payment or provide any benefit
required to be made or provided hereunder on a timely basis, the
Company will pay interest on the amount or value thereof at an
annualized rate of interest equal to the so-called composite "prime
rate" as quoted from time to time during the relevant period in the
Midwest Edition of The WALL STREET JOURNAL. Such interest will be
payable as it accrues on demand. Any change in such prime rate will be
effective on and as of the date of such change.
(d) Notwithstanding any other provision hereof, the parties'
respective rights and obligations under this Section 4 and under
Section 6 will survive any termination or expiration of this Agreement
following a Change in Control or the termination of the Executive's
employment following a Change in Control for any reason whatsoever.
(e) If the Executive shall become entitled to the benefits
provided by Section 4(a)(i) and Section 4(a)(ii), then the Executive
may, by notice to the Company as provided by Section 10 that is
received by the Company within two days after the Termination Date, be
released from any covenant not-to-compete with the Company that the
Executive has theretofore undertaken; provided, however, that if the
Executive gives such notice for relief from a covenant not-to-compete,
then the benefits provided by Section 4(a)(i) shall be reduced by an
amount equal to the sum of (A) Executive's Base Pay (at the highest
rate in effect for any period prior to the Termination Date) plus (B)
Incentive Pay (determined in accordance with the standards set forth in
Section 1(f)) and the benefits provided by Section 4(a)(ii) shall be
reduced by twelve (12) months; and provided further, however, that if
Executive shall have received payment of the benefit provided by
Section 4(a)(i) prior to receipt by the Company of the notice
contemplated by this Section 4(e), then the Executive shall have waived
his/her right to such notice and relief from any covenant
not-to-compete. The waiver of any covenant not-to-compete contemplated
by this Section 4(e) shall not include any covenant by Executive to
maintain and not misapply any of the Company's confidential business
information.
5. NO MITIGATION OBLIGATION: The Company hereby acknowledges that it
will be difficult and may be impossible (a) for the Executive to find
reasonably comparable employment
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following the Termination Date, and (b) to measure the amount of damages which
Executive may suffer as a result of termination of employment hereunder. In
addition, the Company acknowledges that its severance pay plans applicable in
general to its salaried employees do not provide for mitigation, offset or
reduction of any severance payment received thereunder. Accordingly, the payment
of the severance compensation by the Company to the Executive in accordance with
the terms of this Agreement is hereby acknowledged by the Company to be
reasonable and will be liquidated damages, and the Executive will not be
required to mitigate the amount of any payment provided for in this Agreement by
seeking other employment or otherwise, nor will any profits, income, earnings or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of the Executive hereunder or
otherwise, except as expressly provided in the last sentence of Section
4(a)(ii).
6. LEGAL FEES AND EXPENSES. It is the intent of the Company that the
Executive not be required to incur legal fees and the related expenses
associated with the interpretation, enforcement or defense of Executive's rights
under this Agreement by litigation or otherwise because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
the Executive hereunder. Accordingly, if it should appear to the Executive that
the company has failed to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding designed to deny, or to
recover from, the Executive the benefits provided or intended to be provided to
the Executive hereunder, the company irrevocably authorizes the Executive from
time to time to retain counsel of Executive's choice, at the expense of the
company as hereafter provided, to advise and represent the Executive in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation or other legal
action, whether by or against the Company or any Director, officer, stockholder
or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to the Executive's
entering into an attorney-client relationship with such counsel, and in that
connection the Company and the Executive agree that a confidential relationship
shall exist between the Executive and such counsel. Without respect to whether
the Executive prevails, in whole or in part, in connection with any of the
foregoing, the Company will pay and be solely financially responsible for any
and all attorneys' and related fees and expenses incurred by the Executive in
connection with any of the foregoing.
7. EMPLOYMENT RIGHTS; TERMINATION PRIOR TO CHANGE IN CONTROL: Nothing
expressed or implied in this Agreement will create any right or duty on the part
of the Company or the Executive to have the Executive remain in the employment
of the Company or any Subsidiary prior to or following any Change in Control.
Any termination of employment of the executive or the removal of the Executive
from the office or position in the Company following the commencement of any
discussion with a third person that ultimately results in a Change in Control
shall be deemed to be a termination or removal of the Executive after a Change
in Control for purposes of this Agreement.
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8. WITHHOLDING OF TAXES: The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as the
Company is required to withhold pursuant to any law or government regulation or
ruling.
9. SUCCESSORS AND BINDING AGREEMENT: (a) The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business or
assets of the Company, by agreement in form and substance satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent the Company would be required to perform if no
such succession had taken place. This Agreement will be binding upon and inure
to the benefit of the Company and any successor to the Company, including
without limitation any persons acquiring directly or indirectly all or
substantially all of the business or assets of the Company whether by purchase,
merger, consolidation, reorganization or otherwise (and such successor shall
thereafter be deemed the "Company" for the purposes of this Agreement), but will
not otherwise be assignable, transferable or delegable by the Company.
(b) This Agreement will inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees and
legatees.
(c) This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign,
transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Sections 9(a) and 9(b)
hereof. Without limiting the generality or effect of the foregoing, the
Executive's right to receive payments hereunder will not be assignable,
transferable or delegable, whether by pledge, creation of a security
interest, or otherwise, other than by a transfer by Executive's will or
by the last of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this Section 9(c), the
Company shall have no liability to pay an amount so attempted to be
assigned, transferred or delegated.
10. NOTICES: For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests or approvals, required
or permitted to be given hereunder will be in writing and will be deemed to have
been duly given when hand delivered or dispatched by electronic facsimile
transmission (with receipt thereof orally confirmed), or five business days
after having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid, or three business days after having been
sent by a nationally recognized overnight courier service such as Federal
Express, UPS, or Purolator, addressed to the Company (to the attention of the
Secretary of the Company) at its principal executive office and to the Executive
at his/her principal residence, or to such other address as any party may have
furnished to the other in writing and in accordance herewith, except that
notices of changes of address shall be effective only upon receipt.
11. GOVERNING LAW: The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the
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Commonwealth of Kentucky, without giving effect to the principles of conflict of
laws of such Commonwealth.
12. VALIDITY: If any provision of this Agreement or the application of
any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstances will not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid or legal.
13. MISCELLANEOUS: No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and the Company. No waiver by either
party hereto at any time of any breach by the other party hereto or compliance
with any condition or provision of this Agreement to be performed by such other
party will be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior to subsequent time. No agreements or
representations, oral or otherwise, expressed or implied with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. References to sections are to references to
sections of this Agreement.
14. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
NATIONAL PROCESSING, INC.
By: ___________________________
(Signature)
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[Signature]
