NATIONAL CITY CORPORATION
2004 DEFERRED COMPENSATION PLAN
Non-Elective Deferred Compensation Award
Statement
WHEREAS, National
City Corporation (“Corporation”) has adopted the
National City Corporation 2004 Deferred Compensation Plan (the
“Plan”); and
WHEREAS,
Article IV of the Plan provides for the granting of
Non-Elective Deferred Compensation to Eligible Employees as
selected from time to time by the Committee; and
WHEREAS, any such
award of Non-Elective Deferred Compensation shall be subject to
such vesting requirements and other restrictions as the Committee
shall determine appropriate; and
WHEREAS, the
individual identified as Participant on the Cover Sheet that is
attached hereto and hereby made a part hereof (“Cover
Sheet”) has been awarded Non-Electived Deferred Compensation
in the amount set forth on the Cover Sheet, subject to the terms
set forth in this Non-Elective Deferred Compensation Award
Statement (this “Agreement”); and
WHEREAS,
Corporation desires reasonable protection for its confidential
business information and from competitive activity by Participant;
and
WHEREAS,
Participant agrees to receive an award of Non-Elective Deferred
Compensation under the Plan subject to the terms of this
Agreement;
NOW, THEREFORE,
pursuant to the Plan and the terms and conditions of this
Agreement, Corporation hereby awards to Participant on the date
listed on the Cover Sheet as the “Award Date” the
amount of Non-Elective Deferred Compensation as is stated on the
Cover Sheet as the “Amount of Award” (the
“Award”), subject to the terms and conditions of the
Plan and to the following terms, conditions, limitations and
restrictions and the Corporation and Participant hereby agree as
follows:
1. The Award
represents the right to receive the stated amount of deferred
compensation, subject to the terms and conditions set forth in the
Plan and this Agreement. The non-elective deferred compensation
will be credited to Participant in an unfunded bookkeeping account
maintained in accordance with Article V of the Plan (the
“Account”).
2. The Award
shall vest on the earliest of: (a) the “Vesting
Date” set forth in the Cover Sheet, (b) a Change in
Control (as hereinafter defined), (c) the Participant’s
death, or (d) the Participant’s Disability (as
hereinafter defined), provided such event occurs prior to
termination of employment (“Vesting Event”). Upon the
occurence of any such Vesting Event, the Award (as adjusted for any
gains and/or losses under the terms of the Plan) shall be
non-forfeitable and shall be distributed to Participant at such
time as is determined under the Plan except as set forth otherwise
in the Cover Sheet; provided however, that upon the occurrence of a
Vesting Event described in Section 2(b) or 2(d) above, distribution
of the Award shall occur in accordance with the terms of the Plan
or as set forth otherwise in the Cover Sheet following the of the
earliest of (i) the “Vesting Date” set forth on
the Cover Sheet, (ii) the Participant’s Death, or
(iii) the Participant’s “separation from
service” as defined by the Regulations promulgated under
Section 409A of the Internal Revenue Code (“409A”);
provided further, that if Partiicpant is a “specified
employee” within the meaning of Section 409A, any such
distribution under (iii) above shall be delayed until the
seventh calendar month following such separation from service. The
Award or any portion of the Award that has not vested as of the
latest “Vesting Date” set forth on the Cover Sheet
shall be forfeited and such forfeited Award (or portion thereof),
as adjusted for any earnings (losses) on such Award (or
portion thereof), shall be debited from the Participant’s
unfunded bookkeeping account.
3. Participant
acknowledges and agrees that in the performance of his duties of
employment with Employer he may be in contact with customers,
potential customers and/or information about customers or potential
customers of Employer either in person, through the mails, by
telephone or by other electronic means. Participant also
acknowledges and agrees that trade secrets and Confidential
Information of Employer, as defined in Section 3(c) of this
Agreement, gained by Participant during his employment with
Employer, have been developed by Employer through substantial
expenditures of time, effort and financial resources and constitute
valuable and unique property of Employer. Participant further
understands, acknowledges and agrees that the foregoing makes it
necessary for the protection of Employer’s businesses that
Participant not divert business or customers from Employer and that
Participant maintain the confidentiality and integrity of the
Confidential Information as hereinafter defined:
(a) Participant
agrees that he will not, during his employment by Employer and for
a
NATIONAL CITY CORPORATION
2004 DEFERRED COMPENSATION PLAN
Non-Elective Deferred Compensation Award
Statement
period of one
(1) year after the later of Termination Date, no matter how
terminated or the Salary Continuation Period, as defined in
Section 18:
(i) directly or
indirectly solicit, divert, entice or take away any customers,
business, patronage or orders from any customers, clients or
businesses with whom Participant has had contact, involvement or
responsibility during Participant’s employment with the
Employer , or attempt to do so, on behalf of any person
(including Participant), 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
Employer,
(ii) directly or
indirectly solicit, divert, entice or take away any potential
customer identified, selected or targeted by Employer with whom
Participant has had contact, involvement or responsibility during
his or her employment with Employer, 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 Employer,
or
(iii) 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 Employer with whom
Participant has had contact, involvement or responsibility on
behalf of any person (including Participant), firm, association or
corporation.
Nothing
contained in this Section 3(a) shall preclude Participant from
accepting employment with a company, firm, or business that
competes with Employer so long as Participant’s activities do
not violate the provisions of Sections 3(a)(i), 3(a)(ii) or
3(a)(iii) above or any of the provisions of Sections 3(b) and 3(c)
below.
(b) Participant
agrees that he will not directly or indirectly at any time during
his employment and for a period of three (3) years following
the later of his Termination Date, no matter how terminated, and
the Salary Continuation Period, as defined in Section 18 (the
“Business Protection Period”) solicit, induce, confer
or discuss with any employee of the Employer or attempt to solicit,
induce, confer or discuss with any employee of the Employer the
prospect of leaving the employ of the Employer, termination of his
or her employment with the Employer, or the subject of employment
by some other person or organization. Participant further agrees
that he will not directly or indirectly at any time during the
Business Protection Period hire or attempt to hire any employee of
the Employer.
(c) Participant
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 the
Employer) any trade secrets or confidential business or technical
information of the Employer or Employer’s customers (the
“Confidential Information”), without limitation as to
when or how Participant 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
Employer’s customers or prospective customers,
Employer’s customer lists, contract information including
terms, pricing and services provided, information received as a
result of customer contacts, Employer’s products and
processing capabilities, methods of operation, business plans,
financials or strategy, and agreements to which Employer 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 Participant. Participant specifically acknowledges
that the Confidential Information, whether reduced to writing or
maintained in the mind or memory of Participant and whether
compiled by Employer and/or Participant, 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
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NATIONAL CITY CORPORATION
2004 DEFERRED COMPENSATION PLAN
Non-Elective Deferred Compensation Award
Statement
Employer to
maintain the secrecy of such information, that such information is
the sole property of Employer and that any retention and use of
such in
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