EXHIBIT 10.33
RETENTION AGREEMENT
This Retention Agreement (the "Agreement") by and between XXXX X. XXXX
(the "Executive") and NATIONAL PROCESSING, INC., an Ohio corporation (the
"Company"), is hereby entered into as of the 12th day of July, 2004, and is
hereby effective upon the consummation of the transactions (the "Merger")
contemplated by the Agreement and Plan of Merger among Bank of America
Corporation, a Delaware corporation ("BAC"), Monarch Acquisition, Inc., an Ohio
corporation and wholly owned by BAC ("Monarch"), and the Company, dated as of
July 12, 2004 (the "Merger Agreement").
Statement of Purpose
Effective as of the "Effective Time" as defined in the Merger Agreement
(the "Effective Time"), Monarch will be merged with and into the Company, with
the Company being the surviving corporation. As a result of the Merger, the
Company will become a wholly owned subsidiary of BAC.
The Executive and the Company have previously entered into (i) an
Employment Agreement dated March 4, 1996 (the "Employment Agreement") and (ii) a
Severance Agreement dated December 2, 1999 (the "Severance Agreement"). (The
Employment Agreement and Severance Agreement are sometimes referred to
collectively herein as the "Original Agreements.") Each of the Original
Agreements includes provisions that could entitle the Executive to receive
severance payments and benefits in the event of the Executive's termination of
employment with the Company under certain circumstances. The Employment
Agreement also includes certain covenants regarding the Executive's conduct
following his employment with the Company. In connection with the Merger, BAC
has determined that it is in the best interests of the Company that the Company
ensure it will have the continued dedication and services of the Executive
following the consummation of the Merger. In order to provide the Executive with
appropriate incentives to remain with the Company following the Merger, and to
continue to provide the Company with certain covenants regarding the Executive's
conduct following the Executive's employment and to otherwise meet the Company's
needs, the Company and the Executive desire to replace the Original Agreements
in their entirety with this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
representations, warranties and agreements contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree that the Original
Agreements are replaced and superceded in their entirety as hereinafter set
forth, subject to the consummation of the Merger:
1. Effect of this Agreement. This Agreement replaces and supercedes
each of the Original Agreements as of the Effective Time. In the event that the
Merger is not consummated, this Agreement shall be void ab initio and of no
force and effect whatsoever.
2. Certain Defined Terms. In addition to the capitalized terms
otherwise expressly defined herein, the following terms shall have the following
meanings:
"Cause" means that, prior to any termination pursuant to Section 6
hereof, the Executive shall have committed:
(i) an intentional act of fraud, embezzlement or theft in
connection with his duties or in the course of his employment with
the Company or any affiliate;
(ii) intentional wrongful damage to property of the Company
or any affiliate;
(iii) intentional wrongful disclosure of secret processes or
confidential information of the Company or any affiliate; or
(iv) intentional wrongful engagement in any Competitive
Activity;
and any such act shall have been materially 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
it was done or omitted to be done by the Executive not in good faith and
without reasonable belief that his action or omission was in the best
interest of the Company. Nothing herein will limit the right of the
Executive or his beneficiaries to contest the validity or propriety of any
such determination.
"Closing Date" means "Closing Date" as defined in the Merger
Agreement.
"Competitive Activity" means the Executive's participation, without
the consent of the Company, in the management of any business enterprise
within the continental United States that is engaged in the business of
acquiring or processing credit and debit card transactions accepted by
merchants at the point of sale. The parties acknowledge that the Executive
currently serves as a member of the MasterCard International Operations
Committee and as a Board member of EWI Holdings, Inc. and the Electronic
Transaction Association. The parties acknowledge that these activities do
not constitute Competitive Activities, provided that any of these
activities will constitute a Competitive Activity if, during the
Executive's period of employment with the Company, the Company requests
the Executive (by written notice given as required herein) to resign from
such activity and Executive fails to do so within the time reasonably
requested by the Company.
"Date of Termination" means the effective date of the Executive's
termination of employment with the Company as determined in accordance
with the provisions of Section 6 below.
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"Disability" means the Executive becomes permanently disabled within
the meaning of, and begins actually to receive disability benefits
pursuant to, the long-term disability plan of the Company in which the
Executive participates.
"Good Reason" means either (i) a reduction in the Executive's annual
rate of base salary below Four Hundred Thousand Dollars ($400,000) or (ii)
the Company requires the Executive to have his principal location of work
changed to any location which is in excess of 25 miles from the location
thereof immediately prior to the Effective Time.
"Protected Period" means the period of time commencing on the
Closing Date and continuing until the second anniversary of the Closing
Date; provided, however, that for purposes of the continuation of certain
benefits pursuant to Section 5 below, the Protected Period will not extend
beyond the date of the Executive's death.
"Welfare Benefits" means the welfare benefits which the Executive is
eligible to receive from time to time under the applicable plans, policies
and programs of the Company, including, without limitation, medical,
prescription, dental, disability, employee life, group life, accidental
death and travel accident insurance plans and programs. In clarification
but not limitation of the foregoing, Welfare Benefits does not include
retirement or savings plan benefits, cash or equity incentive
compensation, fringe benefits or perquisites.
3. Position and Benefits. During the Executive's period of employment
with the Company following the Effective Time: (i) the Executive shall have the
position of President, Merchant Services, and the Executive shall report to a
direct report of a member of the Bank of America Corporation Risk and Capital
Committee; and (ii) the Executive shall receive such compensation (including,
without limitation, cash and equity incentive compensation opportunities) and
shall participate in such plans, programs and practices of the Company and its
affiliates providing employee benefits (including, without limitation,
retirement benefits, Welfare Benefits and fringe benefits) to the same extent as
similarly situated Band 2 associates of the Company and its affiliates. Nothing
expressed or implied in this Agreement will create any right or duty on the part
of the Company or any affiliate to have the Executive remain in the employment
of the Company or any affiliate prior to or following the Effective Time.
4. Deferred Retention Incentive.
(a) Deferred Amount. At the Effective Time, the Company shall
establish a deferred compensation account in the name of the Executive with an
initial balance equal to One Million Six Hundred Eighty-One Thousand Six Hundred
Twenty Dollars ($1,681,620) (which amount equals three times the Executive's
current annual rate of base salary plus three times the Executive's highest
aggregate annual cash bonus and cash LTIP payout for 2001 through 2003) (the
"Deferred Amount"), which shall earn interest for the duration of the deferral
period at a rate equal to the prior month 1 Year Constant Maturity Treasury Rate
as determined each month by the Federal Reserve, compounded daily.
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(b) Vesting of Deferred Amount. If the Executive remains employed
with the Company for twelve (12) months after the Closing Date, then fifty
percent (50%) of the Deferred Amount shall become vested on the first
anniversary of the Closing Date, and if the Executive remains employed with the
Company for twenty-four (24) months after the Closing Date, then the remaining
fifty-percent (50%) of the Deferred Amount shall become vested on the second
anniversary of the Closing Date. To the extent the Deferred Amount is not vested
as of the Executive's Date of Termination, such unvested portion of the Deferred
Amount shall be forfeited in its entirety, and the Executive (or the Executive's
estate or beneficiaries) shall have no rights or entitlement with respect
thereto. Notwithstanding anything to the contrary contained herein, if during
the Protected Period the Company shall terminate the Executive's employment
other than for Cause or if the Executive shall terminate employment for Good
Reason or if the Executive's employment shall terminate by reason of death or
Disability, then the Deferred Amount shall become one hundred percent (100%)
vested on the Date of Termination.
(c) Release from Post-Termination Covenants. The Executive may, by
notice to the Company that is received by the Company within two days after the
Date of Termination, be released from the post-termination covenants regarding
non-competition and non-solicitation of clients and customers set forth in
Sections 7(b) and (d) below; provided, however, that if the Executive provides
such notice, then as consideration for such release the Executive shall waive
his entitlement to Five Hundred Sixty Thousand Five Hundred Forty Dollars
($560,540) of the vested portion of the Deferred Amount (which is one-third of
the amount set forth in Section 4(a) above), as adjusted for interest from and
after the Effective Time. If the vested balance of the Deferred Amount as of the
Date of Termination is less than the amount set forth in the preceding sentence,
then the Executive may not elect to be released from such post-termination
covenants.
(d) Payment of Deferred Amount. The vested portion of the Deferred
Amount, after any adjustment pursuant to Section 4(c) above, shall be payable to
the Executive (or the Executive's beneficiaries or estate) in a lump sum payment
within 30 days after the Date of Termination.
5. Benefits Continuation.
(a) Welfare Benefits and Matching Contributions. If during the
Protected Period the Company shall terminate the Executive's employment other
than for Cause or if the Executive shall terminate employment for Good Reason,
then
(i) the Company shall arrange to provide the Executive for
the remainder of the Protected Period with Welfare Benefits substantially
similar to those which the Executive was receiving or entitled to receive
immediately prior to the Date of Termination; and
(ii) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination an amount equal to the
employer matching contributions that the Company would have made on the
Executive's behalf to the qualified and non-qualified retirement savings
plans in which the Executive participates as of the Date of Termination
(assuming the
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maximum employee deferral election, and the maximum employer matching
contribution rate, permitted under such plans) if the Executive's
employment continued for the remainder of the Protected Period at the
Executive's compensation level in effect as of the Date of Termination.
If and to the extent that any benefit described in clause (i) above 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 will itself pay
or provide for the payment to the Executive, or his dependents and
beneficiaries, of such benefits. Without otherwise limiting the purposes or
effect of this Section 5, Welfare Benefits otherwise receivable by the Executive
pursuant to clause (i) above shall be reduced to the extent comparable Welfare
Benefits are actually received by the Executive from another employer during the
Protected Period, and any such benefits received by the Executive shall be
reported by the Executive to the Company.
(b) Right to Buy Out of Welfare Benefits. Notwithstanding the
provisions of Section 5(a) above to the contrary, the Company shall have the
right to buy out the Executive's entitlement under Section 5(a) to continuation
of all or any portion of the Welfare Benefits for a lump sum price, payable to
the Executive within 30 days after the Date of Termination, in an amount equal
to the product of (A) the aggregate employer and employee monthly premiums in
effect as of the Date of Termination for the applicable Welfare Benefits being
bought out times (B) the number of whole calendar months remaining in the
Protected Period following the Date of Termination.
6. Date of Termination.
(a) Notice of Termination. Any termination by the Company for
Cause or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated and (iii) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than 30 days after the giving of such notice).
(b) Date of Termination. "Date of Termination" means the date of
receipt of the Notice of Termination or any permitted later date specified
therein, as the case may be; provided, however, that if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the effective date of
the Disability, as the case may be.
7. Confidential Information, Non-Competition, Non-Solicitation and
Non-Disparagement. In consideration for the establishment of the Deferred
Amount, the Executive covenants and agrees as follows:
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(a) Confidential Information. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliates,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliates and
which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement).
After termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it.
(b) Non-Competition. If, prior to the second anniversary of the
Closing Date, the Executive's employment is terminated by the Company with Cause
or by the Executive without Good Reason, then the Executive agrees that, for a
one-year period following the Date of Termination, the Executive will not engage
in any Competitive Activity. The provisions of this Section 7(b) shall not apply
if the Executive's employment is terminated prior to the second anniversary of
the Closing Date by the Company without Cause or by the Executive with Good
Reason, or if the Executive's employment is terminated for any reason on or
after the second anniversary of the Closing Date.
(c) Non-Solicitation of Employees. The Executive agrees that,
during the two-year period following the Date of Termination, the Executive will
not recruit, hire or attempt to recruit or hire, directly or by assisting
others, or otherwise entice or encourage to leave employment any of the
Company's or its affiliates' management level employees who were employed by the
Company or its affiliates (i) as of the Executive's Date of Termination or (ii)
at any time during the six (6) month period prior to the Executive's Date of
Termination.
(d) Non-Solicitation of Clients and Customers. If, prior to the
second anniversary of the Closing Date, the Executive's employment is terminated
by the Company with Cause or by the Executive without Good Reason, then the
Executive will not, for a one-year period following the Date of Termination,
without the written consent of the Company, directly or indirectly, solicit
business of any client or customer of the Company or any of its affiliates or
attempt in any manner to persuade any client or customer of the Company or any
of its affiliates to cease to do business or to reduce the amount of business
which any client or customer has customarily done or contemplates doing with the
Company or any of its affiliates, in each case, where the client or customer was
one with whom the Executive had substantial business contacts during the
Executive's employment with the Company. The provisions of this Section 7(d)
shall not apply if the Executive's employment is terminated prior to the second
anniversary of the Closing Date by the Company without Cause or by the Executive
with Good Reason, or if the Executive's employment is terminated for any reason
on or after the second anniversary of the Closing Date.
(e) Non-Disparagement. The Executive agrees that the Executive
shall refrain from criticizing or making disparaging or derogatory comments
about the Company or any of its affiliates and the current and former officers,
directors, employees, agents, products or services of the Company or any of its
affiliates, and the Company agrees that the officers and directors of
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the Company shall refrain from criticizing or making disparaging or derogatory
comments about the Executive.
(f) Reasonableness of Covenants. The Executive acknowledges that
the Executive's obligations under this Section 7 are (i) reasonable in the
context and nature of the Company's business and the competitive injuries likely
to be sustained by the Company if the Executive violated such obligations and
(ii) a material inducement to the Company, BAC and Monarch entering into the
Merger Agreement and consummating the transactions contemplated therein.
(g) Enforcement. The Executive acknowledges and agrees that the
remedy at law available to the Company for breach of any of the Executive's
obligations under this Section 7 would be inadequate, and agrees and consents
that in addition to any other rights or remedies that the Company may have at
law or in equity, temporary and permanent injunctive relief may be granted in
any proceeding that may be brought to enforce any provision contained in this
Section 7, without the necessity of proof of actual damage.
8. Dispute Resolution; Legal Fees and Expenses. Any controversy or
claim arising out of or relating to this Agreement, other than an action by the
Company to enforce the provisions of Section 7, shall at the request of either
party be determined by arbitration. The arbitration shall be conducted in
accordance with the United States Arbitration Act (Title 9, United States Code),
notwithstanding any choice of law provision in this Agreement, and under the
rules of the American Arbitration Association. The dispute shall be submitted to
a single arbitrator to be mutually agreed upon by the parties. If the parties
cannot agree on a single arbitrator, each party shall appoint one arbitrator who
shall then jointly appoint a single arbitrator. The arbitrator shall give effect
to applicable statues of limitations. Any controversy concerning whether an
issue is arbitrable shall be determined by the arbitrator. Judgement upon the
arbitration award may be entered in any court having a jurisdiction. The
institution and maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the right of
any party, including the plaintiff, to submit the controversy or claim to
arbitration if any other party contests such action for judicial relief. The
Company and the Executive shall each pay fifty percent (50%) of the cost of the
arbitrator and shall each bear their own legal fees and expenses; provided,
however, that the Company agrees to pay the Executive's portion of the costs of
arbitration and to reimburse the Executive for reasonable expenses incurred as a
result of such arbitration, provided the Executive prevails on at least one
material issue in the arbitration.
9. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company 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.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
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(c) The Company 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 Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company 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.
10. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without reference to 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;
provided, however, that this Agreement may not be amended prior to the Effective
Time without BAC's prior written consent.
(b) 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:
Xxxx X. Xxxx
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to the Company:
National Processing, Inc.
x/x Xxxx xx Xxxxxxx Xxxxxxxxxxx
XX0-000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: E. Xxxxxxx Xxxxxx, Xx. VP - Executive Compensation
or 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.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts vested or payable
under this Agreement such Federal, state or local taxes as shall be required to
be withheld pursuant to
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any applicable law or regulation.
(e) There shall 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 5(a).
(f) 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 shall 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
shall be payable as it accrues on demand. Any change in such prime rate shall be
effective on and as of the date of such change.
(g) 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.
(h) This Agreement contains the entire understanding of the
Company and the Executive with respect to the subject matter hereof and, from
and after the date of the Effective Time, this Agreement shall supersede any
other agreement between the parties with respect to the subject matter hereof,
including without limitation the Original Agreements.
(i) Any amount payable at the death of the Executive under this
Agreement shall be payable to any such beneficiary or beneficiaries as the
Executive may designate in accordance with such administrative rules and
procedures as the Company may establish from time to time.
(j) For purposes of this Agreement, "affiliate" means any
corporation, partnership or other business entity that, directly or indirectly,
controls, is controlled by or is under common control with the Company or its
successors or assigns.
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IN WITNESS WHEREOF, the Executive has executed this Agreement and the
Company has caused this Agreement to be executed by its duly authorized officer
as of the day and year first above-written. This Agreement may be executed in
any number of counterparts, all of which constitute one and the same instrument.
________________________________________
Xxxx X. Xxxx
NATIONAL PROCESSING, INC.
By: ____________________________________
Name: ______________________________
Title: _____________________________
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