Exhibit 10.69
RELEASE AND
NON-COMPETITION AGREEMENT
In consideration of their mutual promises and agreements, and subject
to the terms and conditions set forth below in this agreement, National City
Corporation, a Delaware corporation ("National City"), and Xxxx Xxxxxxx Xxxxxxx
("Executive") hereby agree as follows:
1. Executive agrees that his last day of active work will be November 1,
2005 (the "Separation Date"). In order to avoid unfavorable
consequences of Code Section 409A, Executive will be placed on an
unpaid leave of absence from the Separation Date until May 1, 2006.
National City agrees to pay Executive bi-monthly salary continuation
payments of $18,055, subject to the limitations contained in paragraphs
22 and 31 herein, during the period beginning on May 1, 2006 and ending
October 31, 2007 (or such earlier time as set forth in paragraph 22
herein) (the "Salary Continuation Period," the last day of such period
being the "Final Service Date"), in the same manner as Executive's base
salary was paid prior to the Separation Date.
2. During the Executive's unpaid leave of absence and Salary Continuation
Period, National City will provide Executive those benefits and
perquisites that are provided to employees generally without regard to
officer title, salary grade, level or status, to the extent that those
benefits and perquisites were provided to Executive prior to the
Separation Date, except that Executive's coverage under the Long Term
Disability Option under the National City Corporation Welfare Benefits
Plan, the National City Executive Long-Term Disability Plan (the
"Disability Plan"), the National City Corporation Short Term Disability
Payment Policy, National City's vacation policy and the National City
Corporation Severance Benefits Plan shall end on the Separation Date.
In the event that the Executive becomes employed by a new employer and
is eligible to receive health insurance and/or other welfare benefits
("New Coverage") the welfare benefits coverage provided under this
paragraph shall be secondary to such New Coverage.
3. For purposes of all deferred compensation plans, Executive will be
deemed to be an active employee through the Salary Continuation Period.
Executive's balances in the deferred compensation plans ("Deferred
Plans") will be paid to Executive in accordance with the Deferred Plans
and Executive's then current election(s).
4. Executive hereby agrees to have his participation and any rights,
benefits or claims he has in the National City Corporation Management
Incentive Plan for Senior Officers ("Short Term Plan") terminated as
the date hereof. National City will pay Executive a single, lump-sum
gross amount of $ 385,000.00 in lieu of any payments pursuant to the
Short Term Plan. This payment shall be made within 2 pay periods of the
date on which this agreement is fully executed (the "Effective Date").
5. For purposes of vesting any awards that have been made pursuant to the
National City Corporation Retention Plan for Executive Officers (the
"Retention Plan"), Executive will be treated as being an employee
through the Salary Continuation Period and that his employment was
terminated by reason of action initiated by National City other than
for termination for cause, and pursuant to the terms of the Retention
Plan any such awards which are not vested as of the Final Service Date
shall vest as of such date.
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6. Executive hereby agrees to have his participation and any rights,
benefits or claims he has in the National City Corporation Amended and
Restated Long-Term Incentive Compensation Plan for Senior Officers (the
"Long-Term Plan") and any plan cycle awards granted pursuant to the
National City Corporation Long-Term Cash and Equity Incentive Plan (the
"New Long-Term Plan") terminated as of the Effective Date. National
City will pay Executive a single, lump-sum gross amount of $115,000.00
in lieu of any payments pursuant to the Long-Term Plan and any and all
plan cycle awards under the New Long-Term Plan. Executive will not be
recommended to participate in any future plan cycles of the New
Long-Term Plan. This payment shall be made within 2 pay periods of the
Effective Date.
7. For purposes of vesting and exercising any stock options granted to
Executive pursuant to the New Long-Term Plan, National City Corporation
2001 Stock Option Plan, as amended and restated, the National City
Corporation 1997 Stock Option Plan, as amended and restated, and the
National City Corporation 1993 Stock Option Plan, as amended and
restated, (collectively the "Stock Option Plans") Executive will be
treated as being in the continuous employ of National City during his
unpaid leave of absence and through the Salary Continuation Period,
subject to approval by the Compensation and Organization Committee of
the Board of Directors of National City Corporation of the unpaid leave
of absence. Further, for purposes of vesting and exercising any stock
options granted to Executive pursuant to the plans identified in this
paragraph, Executive's separation of employment will be treated as a
"negotiated termination", as that term is used in the stock option
award agreements by and between Executive and National City and any
unvested stock option awards held by Executive as of the Final Service
Date pursuant to the subject Stock Option Plans shall fully vest and
become exercisable as of such date.
8. For purposes of vesting of restricted stock granted to Executive
pursuant to the New Long-Term Plan and the National City Corporation
1997 Restricted Stock Plan, as amended and restated, Executive will be
treated as being an employee through the Salary Continuation Period.
9. National City shall continue to provide life insurance pursuant to the
split dollar agreement, as amended, on the same terms as provided to
similarly situated executives through the Separation Date. Executive's
rights, if any, to policy conversion and the Corporation's right to
premium recovery shall be resolved according to the terms of the split
dollar life insurance agreement, as amended.
10. Subject to paragraph 31 herein, National City will pay for tax return
preparation services provided to Executive by National City Private
Client Group ("PCG") in connection with tax years 2005, 2006 and 2007.
National City will pay for financial planning services provided to
Executive by PCG in 2005 and 2006.
11. As of the Effective Date, Executive hereby agrees to the termination of
the Severance Agreement, entered into by and between National City
Corporation and Executive, dated December 18, 1995, as amended on
November 24, 1997 and December 18, 2000.
12. All payments of base salary, other compensation, benefits and
perquisites shall be made less withholding for all amounts that
National City and/or its Affiliates (as hereinafter defined) are
required to withhold and all amounts that Executive has authorized
National City and/or its Affiliates to withhold.
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13. Executive waives any and all rights and/or claims to any payment,
benefit, program, perquisite, award or compensation that he is or may
be entitled except as provided in paragraphs 2 through 10 and 15 of
this agreement.
14. A. Executive hereby releases and waives any and all rights and claims
that he may have against National City and/or its Affiliates arising
out of his employment with National City and/or its Affiliates, the
cessation of his active work hereunder, the termination of his
employment hereunder, or any circumstances surrounding or statements
made in connection with the cessation of his active work, or the
termination of his employment. This agreement includes, but is not
limited to, rights, benefits or claims under any federal, state, or
local law concerning employment relationships or employment
discrimination including rights under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. Section 621, et seq., as amended.
B. National City and/or its Affiliates hereby releases and waives any
and all rights and claims that they may have against Executive arising
out of and within the course and scope of his employment with National
City and/or its Affiliates, the cessation of his active work hereunder,
the termination of his employment hereunder, or any circumstances
surrounding or statements made in connection with the cessation of his
active work, or the termination of his employment. This agreement
includes, but is not limited to, rights, benefits or claims under any
federal, state, or local law.
15. This agreement does not include, and Executive does not waive any
rights, benefits or claims that Executive may have a) under workers'
compensation laws, b) pursuant to the indemnification provisions
contained in the by-laws of National City and/or its Affiliates or c)
as an additional insured under any director and officer policy that
National City and/or its Affiliates maintain or have maintained.
16 Executive acknowledges and agrees that in the performance of his duties
of employment Executive has acquired knowledge of National City's
and/or its Affiliates' strategic plans, objectives and policies.
Executive also acknowledges and agrees that trade secrets and
Confidential Information of National City and/or its Affiliates, as
defined in paragraph 18 of this agreement, gained by Executive during
his employment with National City and/or its Affiliates, have been
developed by National City and/or its Affiliates through substantial
expenditures of time, effort and financial resources and constitute
valuable and unique property of National City and/or its Affiliates.
Executive further understands, acknowledges and agrees that the
foregoing makes it necessary for the protection of National City and/or
its Affiliates' businesses that Executive not divert business or
customers from National City and/or its Affiliates and that the
Executive maintain the confidentiality and integrity of the
Confidential Information. Executive agrees that he will not, from the
date of this agreement through the Final Service Date (the "Business
Protection Period"):
(a) directly or indirectly solicit, divert, entice or
take away any customers, clients, businesses, patronage or
orders from any customers, clients or businesses with whom the
Executive has had contact, involvement or responsibility
during Executive's employment with National City and/or its
Affiliates, or attempt to do so, on behalf of any person
(including Executive), firm, association, or corporation for
the sale of any product or service that is the same, similar
to, or a substitute for, any product or service offered by
National
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City and/or its Affiliates; provided, however, that the
foregoing is not intended to apply to the relationships that
Executive has developed and maintained with respect to
investment banking institutions and other relationships with
other institutions in the context of strategic transactions in
the financial services market,
(b) directly or indirectly solicit, divert, entice or
take away any potential customer identified, selected or
targeted by National City and/or its Affiliates with whom the
Executive has had contact, involvement or responsibility
during Executive's employment with National City and/or its
Affiliates, or attempt to do so, for the sale of any product
or service that is the same, similar to, or a substitute for,
any product or service offered by National City and/or its
Affiliates, or
(c) accept or provide assistance in the accepting of
(including, but not limited to, providing any service,
information, assistance or other facilitation or other
involvement) business, patronage or orders from customers or
any potential customers of National City and/or its Affiliates
with whom Executive has had contact, involvement or
responsibility on behalf of any person (including Executive),
firm, association, or corporation, any third party or
otherwise for Executive's benefit.
Nothing contained in this paragraph 16 shall preclude Executive from
accepting employment with a company, firm, or business that competes
with National City and/or its Affiliates so long as the Executive's
activities do not violate the provisions of this paragraph or any of
the provisions of paragraphs 17 and 18 below.
17. Executive agrees that during the Business Protection Period he will not
directly or indirectly solicit, induce, confer or discuss with any
employee of National City and/or its Affiliates or attempt to solicit,
induce confer or discuss with any employee of National City and/or its
Affiliates the prospect of leaving the employ of National City and/or
its Affiliates, termination of his or her employment with National City
and/or its Affiliates, or the subject of employment by some other
person or organization. Executive further agrees that during the
Business Protection Period he will not directly or indirectly attempt
to hire any employee of National City and/or its Affiliates. It is the
intention of the parties that the foregoing is not intended to prevent
the Executive's future employer from hiring any person who responds to
generally advertised positions or to prevent a future employer from
soliciting employees in any manner when such position would be
unrelated to the function which Executive performs for such future
employer, provided that Executive is not involved in such solicitation
or hiring.
18. Executive will keep in strict confidence, and will not, directly or
indirectly, at any time during or after the term of this agreement,
disclose, furnish, disseminate, make available or use (except in the
course of performing his duties of employment with National City and/or
its Affiliates) any trade secrets or confidential business or technical
information of National City and/or its Affiliates or their customers
(the "Confidential Information"), without limitation as to when or how
Executive may have acquired such information. The Confidential
Information shall include the whole or any portion or phase of any
scientific or technical information, design, process, procedure,
formula, pattern, compilation, program, device, method, technique or
improvement, or any business information or plans, financial
information, or listing of names, addresses or telephone numbers,
including without limitation, information relating to National City's
customers or prospective customers, National City's and/or its
Affiliates' customer list, contract
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information including terms, pricing and services provided, information
received as a result of customer contacts, National City's and/or its
Affiliates' products and processing capabilities, methods of operation,
business plans, financials or strategy, and agreements to which
National City and/or its Affiliates may be a party. The Confidential
Information shall not include information that is or becomes publicly
available other than as a result of disclosure by the Executive in
violation of this provision. Executive specifically acknowledges that
the Confidential Information, whether reduced to writing or maintained
in the mind or memory of Executive and whether compiled by the National
City and/or its Affiliates and/or Executive, derives independent
economic value from not being readily known to or ascertainable by
proper means by others who can obtain economic value from its
disclosure or use, that reasonable efforts have been put forth by
National City and/or its Affiliates to maintain the secrecy of such
information, that such information is the sole property of National
City and/or its Affiliates and that any retention and use of such
information during or after the Executive's employment with National
City and/or its Affiliates (except in the course of performing his
duties of employment with National City and/or its Affiliates) shall
constitute a misappropriation of National City's and/or its Affiliates'
trade secrets; provided, however, that National City hereby waives any
right to claim or allege a violation of this provision based on the
theory of "inevitable disclosure" of Confidential Information where
there has been no actual disclosure. Executive further agrees that, on
or before the Separation Date he will return to National City and/or
its Affiliates, in good condition, all property of National City and/or
its Affiliates, including, without limitation, the Confidential
Information other than as it relates to the personnel information of
the Executive. In the event that said items are not so returned,
National City and/or its Affiliates shall have the right to charge
Executive for all reasonable damages, costs, attorney's fees and other
expenses incurred in searching for, taking, removing, and/or recovering
such property. If the Executive is requested or required (either
verbally or in writing) to disclose any Confidential Information, he
shall promptly notify National City and/or its Affiliates of this
request and he shall promptly provide National City with a copy of the
written request or a description of any verbal request so that National
City and/or its Affiliates may seek a protective order or other
appropriate remedy. If a protective order or other appropriate remedy
is not obtained in a reasonable period of time, the Executive may
furnish only that portion of the Confidential Information that he is
legally required to disclose.
19. While the restrictions set forth herein are considered by the parties
to be reasonable in all circumstances, it is recognized that
restrictions may fail for reasons unforeseen, and accordingly it is
hereby agreed and declared that if any restrictions shall be adjudged
to be void as going beyond what is reasonable in all the circumstances,
but would be valid if the geographical area or temporal extent were
reduced in part, or the range of activities or area dealt with thereby
reduced in scope, such restriction shall apply with such modification
as may be necessary to make it valid.
20. Executive acknowledges that Executive's obligations under this
agreement are reasonable in the context of the nature of National City
and/or its Affiliates' businesses and that competitive injuries likely
to be sustained by National City and/or its Affiliates if Executive
violated such obligations. Executive further acknowledges that this
agreement is made in consideration of, and is adequately supported by
the payments made hereunder, which Executive acknowledges constitutes
new and good, valuable and sufficient consideration.
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21. During the Business Protection Period Executive agrees to communicate
the contents of this agreement to any person, firm, association, or
corporation that Executive intends to be employed by, associated with,
or represent.
22. Executive acknowledges and agrees that any remedy at law available to
National City and/or its Affiliates for breach of any of his
obligations under this agreement would be inadequate, and therefore
agrees and consents that, in addition to any other rights or remedies
that National City and/or its Affiliates may have at law or in equity,
temporary, preliminary and permanent injunctive relief may be granted
in any proceeding that may be brought to enforce any provision
contained in paragraphs 16 through 18 of this agreement, without the
necessity of proof of irreparable harm.
23. Executive agrees that both (i) the continued pay and benefits to be
provided to Executive pursuant to this agreement and (ii) the Salary
Continuation Period shall terminate immediately upon his breach of this
agreement.
24. Executive acknowledges that he has been advised to consult an attorney
and represents that he has consulted an attorney prior to executing
this agreement. Executive acknowledges that he has been given a period
of twenty-one (21) days, commencing October 7, 2005, to consider this
agreement and the benefits he will be receiving prior to signing it.
25. Executive understands that he has seven (7) days after he signs this
agreement to revoke it, and that National City and/or its Affiliates
cannot enforce this agreement until the seven (7) days have passed and
Executive has not revoked it. Executive's pay and benefits under this
agreement may be delayed until the seven (7) days have passed and
Executive has not revoked this agreement.
26. Executive and National City and/or its Affiliates agree to make no
statements, whether written or oral, nor take any action that would
result in the injury or impairment of the reputation or goodwill of the
other party.
27. As of the Effective Date, the Executive hereby resigns all officer
titles, positions and director positions he may hold with National City
and/or its Affiliates.
28. For purposes of this agreement, the term "National City and/or its
Affiliates" means National City, its subsidiaries and affiliates, and
their current and former officers, directors, and employees.
29. The release and waiver of all rights, benefits and claims covered by
this agreement applies to Executive and his estate.
30. Executive acknowledges that he has completely read, fully understands,
and voluntarily signed this agreement.
31. Executive agrees that National City shall have the right to delay the
payment, or limit the form of payment, of any amount under this
agreement, or any plan referenced herein, to the extent that National
City, in good faith, determines that such delay or limitation is
necessary to avoid adverse tax consequences under Section 409A of the
Internal Revenue Code and regulations promulgated hereunder. Further,
Executive understands that any participation in any qualified
retirement plan maintained by National City, including but not limited
to the Savings and Investment Plan, is
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subject to the limitation and restrictions set forth in the Internal
Revenue Code of 1986, as amended, and regulations promulgated
thereunder.
32. This agreement shall be governed by, and construed in accordance with,
the laws of the State of Ohio. Executive agrees that any action, claim,
counterclaim, cross claim, proceeding, or suit, whether at law or in
equity, whether sounding in tort, contract, or otherwise at any time
arising out of or relating to this agreement including, but not limited
to, the administration, enforcement, or negotiation of this agreement,
or the performance of any obligations in respect of this agreement
(each such action, claim, counterclaim, cross claim, proceeding, or
suit, an "Action") shall be brought exclusively in a federal court or
state court located in the city of Cleveland, Ohio. Each of the parties
hereby unconditionally hereby: (i) submits to the personal jurisdiction
of such courts; (ii) consents to service of process in connection with
any action, suit or proceeding against Executive; and (iii) waives any
other requirement (whether imposed by statute, rule of court or
otherwise) with respect to personal jurisdiction, venue or service of
process.
33. This agreement contains the entire understanding of the parties with
respect to the subject matter of this agreement. There are no
restrictions, agreements, promises, warranties, covenants or
undertakings between the parties with respect to the subject matter
herein other than those expressly set forth herein. This agreement
binds and benefits the parties and their successors, heirs,
beneficiaries and assigns. This agreement may not be altered, modified,
or amended except by written instrument signed by each party.
IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement on this 31st day of October, 2005.
National City Corporation
("National City")
By: /s/ Xxx X. Xxxxxxx /s/ J. Xxxxxxx Xxxxxxx
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Xxx X. Xxxxxxx J. Xxxxxxx Xxxxxxx
Senior Vice President ("Executive")
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