EXHIBIT 10.37
AMENDMENT
This Amendment ("this Amendment") is entered into by and between National
City Corporation ("National City") and ________________ (the "Participant")
effective January 1, 2003, and amends that certain Split Dollar Agreement dated
as of January 1, ____, by and between the Participant and National City.
WITNESSETH:
WHEREAS, National City and Participant entered into a Split Dollar Agreement
("the Agreement") as of January 1, _____ regarding insurance purchased on
the life of _________ ("Employee"); and
WHEREAS, since the effective date of the Agreement the Internal Revenue Service
has issued regulatory interpretations and the Congress has passed laws
that change assumptions that underlay the purposes of the Agreement; and
WHEREAS, National City and the Participant desire to amend the Agreement to
better reflect the current legal and regulatory environment;
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises
contained in this Amendment, National City and the Participant agree as
follows:
1. Each term used in this Amendment that is defined in the Agreement and that
is not otherwise defined shall have the meaning ascribed thereto in the
Agreement.
2. Section 3(a) of the Agreement is amended to read in its entirety as
follows:
"(a) Each premium on the Policy shall be paid in full by the Employer as
it becomes due."
3. Section 4 of the Agreement shall be amended to add thereto a new final
sentence, as follows:
"Notwithstanding any provision in this Agreement or in the Collateral
Assignment to the contrary, the Employer shall have a security interest in
the Policy only to the extent of the Employer's Policy interest as
described in Section 5(a)."
4. Section 5(a) of the Agreement is amended to read in its entirety as
follows:
"(a) Employer's Policy Interest. The Policy interests described in this
Subsection 5(a) shall be referred to as the "Employer's Policy Interest."
(1) In the event of the surrender or cancellation of the Policy
during the term of this Agreement, the Employer's Policy Interest is
limited to its right to recover a portion of the cash value equal to the
lesser of (i) the cumulative amount of premiums on the Policy paid by the
Employer prior to January 1, 2003, reduced by premiums reimbursed to it by
the Participant or (ii) the entire Policy cash value.
(2) Upon termination of the Plan prior to the third Policy
anniversary, the Employer shall have the sole right at its election
pursuant to the terms of the Policy to change the Policy to a term policy
and receive a refund of premiums it paid prior to January 1, 2003, less
the cost of the change.
(3) Upon the Employee's death during the term of this Agreement, the
Employer's Policy Interest is the greater of (i) the entire death benefit
payable under the Policy reduced by the death benefit payable to the
Participant's beneficiary as provided in either Subsection 5(b)(2) or
Subsection 5(b)(3) or (ii) an amount equal to the cumulative amount of
premiums on the Policy paid by the Employer prior to January 1, 2003,
reduced by premiums reimbursed to it by the Participant."
5. Section 5(b)(2) of the Agreement is amended to read in its entirety as
follows:
"(2) Upon the Employee's death during the term of this Agreement, the
Participant's Policy Interest payable to the Participant's beneficiary is
the lesser of (i) the Participant's Death Benefit specified in Schedule A
payable in the policy year of the Employee's death or (ii) the entire
death benefit payable under the Policy reduced by the excess of the
cumulative amount of premiums on the Policy paid by the Employer prior to
January 1, 2003, over premiums reimbursed to it by the Participant."
6. Section 6(a) is amended to add thereto a final sentence, as follows:
"Notwithstanding any other provision in this Agreement, this Agreement
shall terminate automatically and immediately effective upon the date that
it becomes illegal for either party to perform its duties under this
Agreement."
7. Subsection 6(b)(1) is amended such that the first sentence thereof reads
as follows:
"(1) Except as provided in Subsections 6(b)(2) or (3), upon occurrence of
any of the events described in Subsections 6(a)(1) through (4) above or
upon termination of this Agreement pursuant to the last sentence of
Section 6(a) above
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or upon termination for Cause, the Participant shall have the right to pay
the Employer within sixty (60) days following the date of such occurrence
an amount equal to the Employer's Policy Interest."
8. Section 8 of the Agreement shall be amended to read in its entirety as
follows:
"8. ERISA. The following provisions are part of this Agreement and
are intended to meet the requirements of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). This Plan is a "welfare plan"
under ERISA. This Agreement (including the Schedules) constitutes a
summary plan description under ERISA.
(a) Plan Name: National City Corporation Split Dollar Life Insurance
Plan
(b) Type of Plan: Welfare Benefit plan providing life insurance
(c) Plan Number: 550
(d) Plan Year: January 1 - December 31
(e) Employer: National City Corporation, Attention Corporate Human
Resources, X.X. Xxx 0000, Xxxxxxxxx, Xxxx 00000, telephone (000) 000-0000,
Federal Tax ID #00-0000000.
(f) Plan Administrator: National City Corporation, X.X. Xxx 0000,
Xxxxxxxxx, Xxxx 00000, telephone (000) 000-0000. The Plan is
self-administered by National City Corporation. Benefits are payable
solely from the Policy which is the subject of this Agreement.
(g) Agent for Service of Legal Process: National City Corporation,
Attention Law Department Receptionist, 0000 X. 0xx Xxxxxx, Xxxxxxxxx, Xxxx
00000 (Service of process may also be made on the Plan Administrator).
(h) Eligibility Requirements: You may obtain a list of Employers
from the Plan Administrator. You are eligible to participate in the Plan
if you are an employee of an Employer and are designated as eligible to
participate by the Incentive Compensation Committee or such other
committee as may be designated by the Employer from time to time.
(i) Claims: (a) For purposes of the determination of the amount of
and entitlement to life insurance benefits under the Policy, the insurer
is the named fiduciary under the Plan with the full power to interpret and
apply the terms of the Plan as they relate to the benefits provided under
the Policy.
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(b) For claims procedure purposes, the "Claims Manager" shall
be the Executive Vice President and Department Manager of Corporate Human
Resources of the Employer and such other persons as he or she may
designate from time to time.
(1) If for any reason a claim for benefits under this
Agreement is denied, in whole or in part, the Claims Manager shall deliver
to the claimant a written explanation setting forth the specific reasons
for the denial, pertinent references to the section of the Agreement, the
Policy, the Collateral Assignment, or the Plan on which the denial is
based, such other data or information as may be pertinent for the claimant
to perfect his claim and information on the procedures to be followed by
the claimant in obtaining a review of the claim, all written in a manner
calculated to be understood by the claimant. For this purpose:
(i) The claimant's claim shall be deemed filed when
presented in writing to the Claims Manager. The claimant may designate an
authorized representative to handle the claim by filing an authorization
with the Plan Administrator on a form to be supplied by the Plan
Administrator.
(ii) The Claims Manager's explanation shall be in
writing delivered to the claimant within a reasonable time not longer than
ninety (90) days after the date the claim is filed. If a claimant does not
receive a decision within such 30-day or 45-day period, as the case may
be, the claim shall be deemed to have been denied in full. The Claims
Manager's notice of the denial will set forth the specific reason or
reasons for the denial, reference to the plan provision on which the
denial is based, a description of any additional material or information
necessary to complete the claim, and an explanation of why the information
is necessary, and appropriate information as to the steps to be taken to
appeal the determination, including the right to submit written comments
and have them considered, the right to review (on request at no charge)
relevant documents and other information, and the right to file suit under
ERISA with respect to any adverse determinations after appeal of the
claim.
(2) The claimant shall have sixty (60) days following receipt
of the denial of the claim to file with the Claims Manager a written
request for review of the denial. For such review, the claimant or the
claimant's representative may submit pertinent documents and written
issues and comments.
(3) The Claims Manager shall decide the issue on review and
furnish the claimant with a copy of the decision within a reasonable time
but not longer than sixty (60) days after receipt of the claimant's
request for review of the claim. The person or people who decide the claim
on review will not be the same as those who made the initial decision or
that person's subordinate. The decision on review shall be in writing and
shall 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 provisions of the Agreement, the Policy, the
Collateral Assignment, or the Plan on which the decision
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is based, a statement of the claimant's right to review (on request and at
no charge) relevant documents and other information, and if the claim was
decided in reliance on an internal rule or similar criterion, then a
description of the rule, and a statement of the claimant's right to bring
suit under ERISA Section 502(a). If a copy of the decision is not
furnished to the claimant within sixty (60) days, the claim shall be
deemed denied on review. To the extent permitted by applicable law, the
Claims Manager's decision shall be final and binding upon all parties.
(j) ERISA Rights: The Employee is entitled to certain rights and
protections under ERISA. ERISA provides that all participants shall be
entitled to:
Examine, without charge, at the Plan Administrator's
office and at other specified locations, such as worksites,
all documents governing the plan, including insurance
contracts, and a copy of the latest annual report (Form 5500
series) filed by the plan with the U.S. Department of Labor,
and available at the Public Disclosure Room of the Pension and
Welfare Benefit Administration.
Obtain upon written request to the plan administrator,
copies of documents governing the operation of the plan,
including insurance contracts and copies of the latest annual
report (Form 5500 Series).
In addition to creating rights for plan participants,
ERISA imposes duties upon the people who are responsible for
the operation of the employee benefit plan. The people who
operate your plan, called "fiduciaries" of the plan, have a
duty to do so prudently and in the interest of you and other
plan participants and beneficiaries. No one, including your
employer or any other person, may fire you or otherwise
discriminate against you in any way to prevent you from
obtaining a benefit or exercising your rights under ERISA.
If your claim for a benefit is denied or ignored, in
whole or in part, you have a right to know why this was done,
to obtain copies of documents relating to the decision without
charge and to appeal any denial, all within certain time
schedules.
Under ERISA, there are steps you can take to enforce the
above rights. For instance, if you request a copy of the plan
documents or the latest annual report and do not receive them
within 30 days, you may file suit in a Federal court. In such
a case, the court may require the Plan Administrator to
provide the materials and pay you up to $110 a day until you
receive the materials, unless the materials were not sent
because of reasons beyond the control of the administrator. If
you have a claim for benefits which is denied or ignored, in
whole or in part, you may file suit
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in a state or Federal court. In addition, if you disagree with
the plan's decision or lack thereof concerning the qualified
status of a domestic relations order, you may file suit in a
Federal court.
If it should happen that plan fiduciaries misuse the
plan's money, or if you are discriminated against for
asserting your rights, you may seek assistance from the U.S.
Department of Labor, or you may file suit in a Federal Court.
The court will decide who should pay court costs and legal
fees. If you are successful, the court may order the person
you have sued to pay those costs and fees. If you lose, the
court may order you to pay these costs and fees, for example,
if it finds your claim is frivolous.
If you have any questions about your plan, you should
contact the plan administrator. If you have any questions
about this statement or about your rights under ERISA or if
you need assistance in obtaining documents from the Plan
Administrator, you should contact the nearest office of the
Pension and Welfare Benefits Administration, U.S. Department
of Labor listed in your telephone directory or the Division of
Technical Assistance and Inquiries, Pension and Welfare
Benefits Administration, U.S. Department of Labor, 000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000."
9. Section 14 of the Agreement is amended to read in its entirety as follows:
"Neither the Employer nor any of its agents, consultants or advisors
guarantees any particular income tax treatment of this Agreement, the
Collateral Agreement, the Plan and the Policy. The Participant and the
Employee acknowledge that while this Agreement is in effect the Employee
is subject to income taxation and withholding currently on any premiums
paid by the Employer. The Participant also acknowledges that although the
Policy is designed not to be or become a Modified Endowment Contract
("MEC") as defined in Section 7702A of the Internal Revenue Code of 1986,
it may nevertheless be or become a MEC. Under a MEC, cash withdrawals and
Policy loans are taxed to the extent that there are earnings in the
Policy, and may be subject to an additional tax. The Participant
represents that the Participant has consulted with such attorneys and
advisors as the Participant deems necessary and has not relied and does
not rely on the Employer's advice or statements in entering into this
Agreement."
10. The Agreement is amended to add thereto a new Section 17, as follows:
"The Employer shall not arrange for or purchase any additional policies of
insurance under the Agreement notwithstanding that the life insurance
coverage provided under Policies issued to the date of this Amendment does
not exceed twice the Employee's base salary paid by the Employer."
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11. Except as amended by this Amendment, the Agreement shall be unchanged.
National City Corporation
By: By:
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Its
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Witness
Acknowledged:
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Employee
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