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Exhibit 10.45
NATIONAL CITY CORPORATION
RESTRICTED STOCK UNIT AWARD AGREEMENT
National City Corporation
WHEREAS, National City Corporation
("Corporation") currently has in effect the National City
Corporation Long-Term Cash and Equity Incentive Plan Effective
April 6, 2004 (the "Plan"); and
WHEREAS, Article 8 of the
Plan provides for the award of restricted stock units
("RSU’s") to employees of the Corporation and Subsidiaries as
selected from time to time by the Corporation’s Compensation
and Organization Committee or another committee appointed by the
board of directors of the Corporation (the "Committee");
WHEREAS, the individual identified
as Grantee ("Grantee") on the cover sheet that is attached hereto
and hereby made a part hereof ("Cover Sheet") is a key employee of
Corporation and/or a Subsidiary (collectively and individually the
"Employers");
WHEREAS, the execution of a RSU
Award Agreement in the form hereof has been duly authorized by the
Committee;
WHEREAS, the Corporation desires
reasonable protection for its confidential business information and
from competitive activity by Grantee; and
WHEREAS, the Grantee agrees to
accept an award of RSU’s under the Plan subject to the terms
of this agreement;
NOW, THEREFORE, pursuant to the
Plan, the Corporation hereby grants to the Grantee subject to the
terms and conditions of this agreement on the date listed on the
Cover Sheet as the "Grant Date" the number of RSU’s as is
stated in the Cover Sheet (the "Award"), subject to the terms and
conditions of the Plan and to the following terms, conditions,
limitations and restrictions, and the Corporation and the Grantee
hereby agree as follows:
1. The Award represents the
right to receive shares of National City Corporation Common Stock
("Common Stock") subject to the terms and conditions set forth in
this agreement. Each RSU represents a hypothetical share of Common
Stock. The RSU’s will be credited to the Grantee in an
unfunded account established on the Corporation’s books for
the Grantee (the "Account").
2. Upon the vesting date and
the lapse of any restrictions on the RSU’s set forth herein
and in the Plan, one share of Common Stock shall be issuable for
each RSU on such date, subject to the terms and provisions of this
agreement and the Plan. Thereafter, the Corporation will transfer
such shares of Common Stock to the Grantee upon satisfaction of any
required Tax Withholding Obligations, as defined herein. The
Grantee’s Account shall be credited with such additional
RSU’s to reflect any additional shares of equity securities
which the Grantee would have been entitled to receive had the
Common Stock represented by RSU’s credited to Grantee’s
Account been issued and outstanding at the time of a share
dividend, a merger or reorganization in which the Corporation is
the surviving corporation or any other change in capital structure,
and such additional RSU’s shall also be a part of and shall
be referred to as RSU’s and shall be subject to the vesting
date restrictions set forth herein and in the Plan. Grantee shall
receive a cash payment equal to the amount of, and distributed at
the same time as, any cash dividend or other items of similar
nature paid on, or issued with respect to, the Corporation’s
Common Stock. No investment credit of any kind with respect to the
RSU’s shall be credited to the Grantee’s Account in any
way or be paid to the Grantee.
3. The RSU’s may not be
sold, exchanged, assigned, transferred, pledged or otherwise
disposed of by the Grantee except to the Corporation, except that
the Grantee’s rights with respect to the RSU’s may be
transferred by will or pursuant to the laws of descent and
distribution. Any attempted transfer in violation of the provisions
of this paragraph shall be void, the purported transferee shall
obtain no rights with respect to such RSU’s and the
RSU’s subject to the attempted transfer shall be
forfeited.
4. The RSU’s described
in paragraph 2 of this agreement shall vest on the earliest of (i)
[insert vesting schedule] (ii) upon a Change in Control
(iii) [(iii) optional] upon the Grantee’s retirement
at or after the age of 55 with 10 or more years of employment
service with the Employers (iv) [(iv) optional] at the time
the Grantee ceases to be an employee of the Employers by reason of
action initiated by the Employers other than a termination for
Cause (as hereinafter defined) and where the Grantee has executed a
release, releasing the employers from any liability associated with
or arising out of Grantee’s employment or termination of
employment ("Negotiated Termination"), or (v) the
Grantee’s death or Disability. The date of any such Change of
Control shall be determined by the Committee. [include following
if include optional (iv) above] For purposes of this RSU
Award Agreement, "Cause" means that prior to any termination, the
Grantee 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 Employers; (ii) an intentional
wrongful damage to property of Employers; or (iii) an
intentional wrongful disclosure of secret processes or confidential
information of any of the Employers. For purposes of this RSU Award
Agreement, no act or failure to act on the part of the Grantee
shall be deemed "intentional" if it was due primarily to an error
in judgement or negligence, but shall be deemed "intentional" only
if done or omitted to be done by the Grantee not in good faith and
without reasonable belief that his action or omission was in the
best interest of the Employers.
5. In addition to any event
resulting in forfeiture provided for in this agreement or the Plan,
all of the RSU’s shall be forfeited upon the occurrence,
prior to the time prescribed in paragraph 4 of this agreement for
the vesting of the RSU’s, of any of the following events:
(i) the Grantee ceases to be an
Employee for any reason other than death or a Disability;
(ii) the Committee finds that the
Grantee has been convicted of a felony or misdemeanor involving
fraud or dishonesty on the part of the Grantee towards the
Employers; or
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NATIONAL CITY CORPORATION
RESTRICTED STOCK UNIT AWARD AGREEMENT
National City Corporation
(iii) the Grantee breaches the
terms of paragraphs 9, 10, 12 or 13, but forfeiture shall not be
the Corporation’s sole remedy for such breach.
In the event of any forfeiture of RSU’s, such RSU’s
shall be canceled and deducted from the Grantee’s
Account.
6. At such time as the
RSU’s vest, or prior to any event in connection with the
Award that the Corporation determines may result in any federal,
state, local or foreign tax withholding obligations of the
Employers for the benefit of the Grantee (the "Tax Withholding
Obligation"), the Employers’ obligation to issue and deliver
to the Grantee Common Stock shall be conditioned upon the Grantee
and the Employers having reached a mutual agreement in accordance
with the Plan as to any Tax Withholding Obligations. To the extent
shares of Common Stock that have become issuable are used to
satisfy any Tax Withholding Obligations through a sale of shares as
described herein, such obligations shall be calculated using the
Employer’s minimum applicable statutory withholding
rates.
(i)
By sale of shares . Unless Grantee chooses to satisfy the
Tax Withholding Obligation by some other means in accordance with
clause (ii) below, Grantee’s acceptance of the Award
constitutes Grantee’s instruction and authorization to the
Corporation, and any brokerage firm determined acceptable to the
Corporation, to sell on Grantee’s behalf a whole number of
shares of Common Stock from those shares of Common Stock issuable
to Grantee as the Corporation determines to be appropriate to
generate cash proceeds sufficient to satisfy the Tax Withholding
Obligation. Such shares of Common Stock will be sold on the day
the Tax Withholding Obligation arises or as soon thereafter as
practicable. Grantee will be responsible for all broker’s
fees and other costs of sale, and Grantee agrees to indemnify and
hold the Corporation harmless from any losses, costs, damages or
expenses relating to any such sale. Grantee acknowledges that the
Corporation or its designee is under no obligation to arrange for
such sale at any particular price, and that the proceeds of any
such sale may not be sufficient to satisfy Grantee’s Tax
Withholding Obligation. Accordingly, Grantee agrees to pay to the
Corporation as soon as practicable, including through additional
payroll withholding, any amount of the Tax Withholding Obligation
that is not satisfied by the sale of shares of Common Stock
described above.
(ii)
By check, wire transfer or other means . At any time not
less than five (5) business days before any Tax Withholding
Obligation arises, Grantee may elect to satisfy Grantee’s Tax
Withholding Obligation by delivering to the Corporation an amount
that the Corporation determines is sufficient to satisfy the Tax
Withholding Obligation by (a) wire transfer to such account as
the Corporation may direct, (b) delivery of a certified check
payable to the Corporation or (c) such other means as the
Corporation may establish or permit.
7. Upon the vesting of the
RSU’s in accordance with paragraph 4 of this agreement, the
Corporation shall issue, subject to paragraph 6 hereof,
certificates of unrestricted Common Stock in the name of the
Grantee at the time and in the manner provided in the Plan.
[optional additional language] Within the time period
prescribed under the Regulations promulgated under
Section 409A of the Internal Revenue Code ("409A") the Grantee
may elect t
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