Exhibit 10(o)
CONSULTING AGREEMENT
THIS AGREEMENT, made by and between Integra Financial Corporation, a
Pennsylvania corporation (the "Corporation"), and Xxxxxxx X. Xxxxxx (the
"Executive") dated the ____ day of August, 1995.
WHEREAS, the Corporation has entered into an Agreement and Plan of
Merger (the "Merger Agreement") with National City Corporation, a Delaware
corporation of even date herewith;
WHEREAS, the Executive has served as Chairman and Chief Executive
Officer of the Corporation, and has gained significant and valuable
knowledge and experience with respect to the Corporation in such
capacities; and
WHEREAS, the Executive and the Corporation have entered into an
Employment Agreement dated as of the 25th day of January, 1995 (the "Prior
Agreement"); and
WHEREAS, the Corporation wishes to provide for the continued
involvement of the Executive in the business of the Corporation following
the consummation of the Merger (as such term is defined in the Merger
Agreement) and the Executive desires to perform such services;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
provisions herein contained, the Executive and the Corporation agree with
each other as follows:
(i) Consulting Period. The Corporation hereby retains the Executive
as a consultant for the period commencing on the Effective Date (as such
term is defined in the Merger Agreement) and ending on the date on which
the Executive attains the age of 65 (the "Consulting Period") during which
time the Executive shall be available to aid the Corporation in the
transition period following the acquisition of the Corporation with respect
to (a) general corporate and personnel organizational matters; (b) the
retention of employees and employee relations; (c) the retention of
customers; and (d) cost reduction and organizational efficiencies. For
purposes of the Prior Agreement, the Executive shall be deemed to have
terminated his employment with the Corporation immediately after the Merger
in a manner qualifying him for the benefits set forth in Section 6(d) of
the Prior Agreement. Except as specifically provided herein, this
Agreement shall not affect the Executive's rights under the Prior
Agreement.
(ii) Consulting Fee and Office Space. In consideration of the
services and duties agreed to be rendered and performed by the Executive
hereunder, the Corporation hereby covenants and agrees to pay the Executive
a monthly consulting fee at the rate of one-twelfth of two hundred twenty-
five thousand dollars ($225,000). The Corporation shall provide the
Executive with office space and secretarial assistance in Pittsburgh,
Pennsylvania reasonably acceptable to the Executive for the duration of the
Consulting Period. Further, the Executive shall be entitled to post-
retirement welfare benefits no less favorable than those in effect, in his
capacity as Chief Executive Officer of the Corporation, as of the date
hereof.
(iii) Change in Control Payment. Upon consummation of the Merger,
the Corporation shall immediately pay to the Executive the termination
benefits, including the continuation of the benefits described in Section
6(a)(3), provided by the Prior Agreement as if the Executive had been
terminated by the Corporation as a result of a Change in Control pursuant
to Section 6(d) and Section 8 thereof whether or not the Executive is then
employed by the Corporation and regardless of the reason for any such
cessation of employment.
(iv) Termination.
* Subject to Section 4(b), during the Consulting Period the
Corporation may not terminate the Executive's consulting services other
than for "Cause." For purposes of this Agreement, Cause means either:
* Conviction of a felony involving moral turpitude; or
* Conduct willfully injurious to the Corporation.
* In addition to the foregoing, in the event that, during the
Consulting Period, the Corporation shall terminate the Executive's
consulting services (other than for Cause) without the Executive's written
consent, the Executive shall be entitled to receive a termination payment
equal to the balance of his consulting fees that would be payable if his
services had continued through the end of the Consulting Period.
(v) Full Settlement. The Corporation's obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Corporation
may have against the Executive or others. In no event shall the Executive
be obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement, and such amounts shall not be reduced whether
or not the Executive obtains other employment. The Corporation agrees to
pay as incurred, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Corporation, the
Executive or others of the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive about the
amount of any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal rate provided for
in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended
(the "Code").
(vi) Certain Additional Payments. In the event it shall be
determined that any payment (within the meaning of Section 280G of the
Code) or distribution to or for the benefit of the Executive (determined
without regard to any additional payments required under this Section 6) (a
"Payment") would be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive from the
Corporation an additional payment (a "Gross-Up Payment") in an amount such
that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. All determinations under this Section 6 shall
be made by a nationally recognized accounting firm selected by the
Executive.
(vii) Non-exclusivity of Rights. Nothing in this Agreement shall
limit or otherwise affect such rights as the Executive may have under any
other agreements with, or plans or programs of, the Corporation or any of
its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or program of the
Corporation or any of their affiliated companies at or subsequent to the
Effective Date, including, but not limited to, the Executive's entitlement
to severance under the Prior Agreement shall by payable in accordance with
such plan or program, except as otherwise expressly provided herein.
(viii) Successors.
* This Agreement is personal to the Executive and without the
prior written consent of the Corporation shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
* This Agreement shall inure to the benefit of and be binding
upon the Corporation and its successors.
* The Corporation will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation to
expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Corporation would be required to perform it if
no such succession had taken place. As used in this Agreement,
"Corporation" shall mean the Corporation as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
(ix) Miscellaneous.
* This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to the principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may
not be amended or modified otherwise than by a written agreement executed
by the parties hereto or their respective successors and legal
representatives.
* All notices and other communications hereunder shall be in
writing and shall be given by hand-delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
If to the Corporation:
Chief Executive Officer
Integra Financial Corporation
Four PPG Place
Pittsburgh, Pennsylvania 15222
with a copy to: General Counsel
or to such other address as either party shall have furnished to the other
in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
* The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
* The Corporation may withhold from any amounts payable under
this Agreement such amounts as shall be required to be withheld pursuant to
any applicable law or regulation.
* The Executive's failure to insist upon strict compliance with
any provision hereof shall not be deemed to be a waiver of such provision
or any other provision thereof.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Corporation
has caused these presents to be executed in its name on its behalf, all as
of the day and year first above written.
Xxxxxxx X. Xxxxxx
INTEGRA FINANCIAL CORPORATION
By:
