<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
/X/ Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange
of 1934
For the quarterly period ended March 31, 1998
or
/ / Transition report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the transition period from________________to___________
COMMISSION FILE NUMBER: 1-11905
NATIONAL PROCESSING, INC.
(Exact name of Registrant as specified in its charter)
OHIO 61-1303983
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
ONE OXMOOR PLACE
101 BULLITT LANE, SUITE 450
LOUISVILLE, KENTUCKY 40222
(Address of principal executive offices) (Zip Code)
(502) 326-7000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
--- ---
The number of shares outstanding of the Registrant's Common Stock as of April
11, 1998 was 50,575,000.
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NATIONAL PROCESSING, INC.
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION
Page No.
------------
<S> <C>
Item 1. Condensed Consolidated Financial Statements (unaudited)
Consolidated Balance Sheets - March 31, 1998
and December 31, 1997 3
Consolidated Statements of Income -
Three Months Ended March 31, 1998 and 1997 4
Condensed Consolidated Statements of
Cash Flows -Three Months Ended March 31, 1998 and 1997 5
Notes to Condensed Consolidated Financial
Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
PART II OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 15
SIGNATURES 16
</TABLE>
2
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NATIONAL PROCESSING, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands)
<TABLE>
<CAPTION>
Unaudited
March 31 December 31
1998 1997
---------- -----------
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents $ 23,743 $ 38,887
Securities available for sale 1,923 1,188
Accounts receivable-trade 67,898 104,752
Check inventory 7,177 7,395
Restricted deposits-client funds 114,124 83,183
Deferred tax assets 9,851 10,941
Other current assets 9,685 10,064
-------- --------
Total current assets 234,401 256,410
Property and equipment:
Furniture and equipment 104,332 94,976
Building and leasehold improvements 18,225 15,679
Software 17,323 16,219
Property leased from affiliate 4,173 4,173
Land and improvements 2,501 1,591
-------- --------
146,554 132,638
Accumulated depreciation and amortization 70,882 66,467
-------- --------
75,672 66,171
Other Assets:
Goodwill, net of accumulated amortization of
$11,788 in 1998 and $10,616 in 1997 178,743 170,327
Acquired merchant portfolios 20,281 21,115
Other assets 7,720 8,004
-------- --------
Total other assets 206,744 199,446
-------- --------
TOTAL ASSETS $516,817 $522,027
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Restricted deposits-client funds $114,124 $ 83,183
Accounts payable-trade 3,214 5,209
Merchant payable-check services 6,143 7,271
Accrued bankcard assessments 15,297 19,806
Income tax payable to NCC 3,657 4,262
Acquisition balance due -- 26,781
Other accrued liabilities 23,353 30,551
-------- --------
Total current liabilities 165,788 177,063
Obligation under property leased from affiliate 2,518 2,591
Other long-term liabilities 2,996 2,674
Deferred tax liabilities 3,780 2,874
-------- --------
Total liabilities 175,082 185,202
Shareholders' equity:
Preferred stock, without par value; 5,000,000
shares authorized; no shares issued or
outstanding -- --
Common stock, without par value; 95,000,000 shares
authorized; 50,575,000 shares issued and
outstanding 1 1
Contributed capital 175,215 175,215
Retained earnings 166,519 161,609
-------- --------
Total shareholders' equity 341,735 336,825
-------- --------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $516,817 $522,027
======== ========
</TABLE>
See notes to condensed consolidated financial statements
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NATIONAL PROCESSING, INC.
CONSOLIDATED STATEMENTS OF INCOME
Unaudited
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended
March 31
1998 1997
--------- ---------
<S> <C> <C>
Revenues $ 114,007 $ 88,420
Operating expenses 52,432 42,793
Wages and other personnel expenses 32,023 22,949
General and administrative expenses 14,701 13,235
Restructuring charges -- 6,340
Depreciation and amortization 6,250 4,009
--------- ---------
INCOME (LOSS) FROM OPERATIONS 8,601 (906)
Net interest (expense) income (17) 1,084
--------- ---------
Income before income taxes 8,584 178
Provision for (benefit from)
income taxes 3,676 (192)
--------- ---------
NET INCOME $ 4,908 $ 370
========= =========
BASIC AND DILUTED INCOME PER COMMON SHARE $ 0.10 $ 0.01
========= =========
Shares used in computation 50,833 50,575
</TABLE>
See notes to condensed consolidated financial statements
4
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NATIONAL PROCESSING, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
Unaudited
(In thousands)
<TABLE>
<CAPTION>
Three Months Ended
March 31
1998 1997
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 4,908 $ 370
Items not requiring cash currently:
Depreciation and amortization 6,250 4,009
Restructuring charge -- 6,340
Deferred income taxes 1,996 --
Change in current assets and liabilities:
Accounts receivable 37,490 21,031
Check inventory 218 766
Accounts payable-trade (2,106) (5,015)
Merchant payable-check services (1,128) (534)
Accrued bankcard assessments (4,509) (3,015)
Income taxes payable (605) (362)
Other current assets/liabilities (6,863) (1,244)
Other, net (3,577) (2,378)
--------- ---------
Net cash provided by operating activities 32,074 19,968
--------- ---------
INVESTING ACTIVITIES
Capital expenditures (13,613) (7,481)
Purchases of securities available for sale (735) (146,752)
Proceeds from sales and maturity of securities 152,315
available for sale --
Acquisitions, net of cash acquired (32,797) (1,750)
--------- ---------
Net cash used by investing activities (47,145) (3,668)
--------- ---------
FINANCING ACTIVITIES
Principal payments under property leased from affiliate (73) (36)
--------- ---------
Net cash used by financing activities (73) (36)
--------- ---------
Net (decrease) increase in cash and cash equivalents (15,144) 16,264
Cash and cash equivalents, beginning of period 38,887 3,330
--------- ---------
Cash and cash equivalents, end of period $ 23,743 $ 19,594
========= =========
Supplemental Disclosure
Taxes paid $ (5,160) $ (280)
</TABLE>
See notes to condensed consolidated financial statements
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NATIONAL PROCESSING, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Unaudited
1. ACCOUNTING POLICIES
The accompanying unaudited condensed consolidated financial
statements have been prepared in accordance with generally accepted
accounting principles for interim information and with the instructions
to Form 10-Q and Article 10 of regulation S-X. Accordingly, although
the balance sheet at December 31, 1997 has been derived from the
audited consolidated financial statements at that date, the
accompanying condensed consolidated financial statements do not include
all the information and footnotes required by generally accepted
accounting principles. These financial statements should be read in
conjunction with National Processing Inc.'s (the "Company") audited
consolidated financial statements for the year ended December 31, 1997
which include full disclosure of relevant financial policies and
information.
In the opinion of management, the accompanying condensed
consolidated financial statements have been prepared on a basis
consistent with accounting principles applied in the prior periods and
include all adjustments (consisting of normal recurring accruals)
considered necessary for fair presentation of the financial position,
results of operations and cash flows for the interim periods presented.
The results of operations for the interim periods are not necessarily
indicative of the results that may be expected for the full year or any
other interim period.
2. RESTRUCTURING CHARGE
During the three month period ended March 31, 1997, the Company
recorded non-recurring expenses of $6,340,000 for severance pay and
other costs related to organizational restructuring. These charges
decreased net income and earnings per share by approximately $3,867,000
and $.08, respectively. At March 31, 1998, other accrued liabilities
include $1.5 million related to the restructuring charge.
3. RECLASSIFICATIONS
Certain 1997 amounts have been reclassified to conform with the
1998 presentation.
4. ACQUISITIONS
On January 2, 1998 the Company acquired the remaining 20.4% of the
common stock of FA Holdings, Inc., the sole owner of Financial Alliance
Processing Services, Inc., an independent sales organization
specializing in selling credit and debit card processing services for
$26.8 million.
On January 15, 1998, the Company acquired all of the outstanding
shares of JBH Travel Audit Inc. ("JBH"), a company which audits fees
payable to travel agencies, for $6.3 million in cash. The purchase
price is subject to increase by as much as $2.0 million based upon the
earnings of the acquired company during its next 2 years of operation.
The acquisition, which has been accounted for as a purchase, increased
the Company's
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goodwill by $4.6 million which is being amortized over 40 years. The
results of JBH's operations since its acquisition are included in the
Company's results of operations.
The combined pro forma effect of this transaction was not
material to previously reported periods.
Supplemental cash flow information related to the acquisition
is as follows:
<TABLE>
<CAPTION>
(Dollars in thousands)
--------------------------------------------------------------------------------------------
<S> <C>
Net assets other than cash acquired $ 1,384
Purchase price in excess of net assets acquired 4,632
-------
Net cash used to acquire JBH $ 6,016
=======
</TABLE>
5. NET INCOME PER COMMON SHARE
The calculation of net income per common share follows (in thousands
except per share amount):
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------
1998 1997
---- ----
<S> <C> <C>
BASIC:
Net income $ 4,908 $ 370
Average common shares outstanding 50,575 50,575
Net income per share - basic $ .10 $ .01
DILUTED:
Net income $ 4,908 $ 370
Average common shares outstanding 50,575 50,575
Stock option adjustment 258 0
Average common shares outstanding - diluted 50,833 50,575
Net income per common share - diluted $ .10 $ .01
</TABLE>
6. COMPREHENSIVE INCOME
In June 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards (SFAS) No. 130, Reporting
Comprehensive Income. This statement establishes standards for
reporting the components of comprehensive income and requires that all
items that are required to be recognized under accounting standards as
components of comprehensive income be included in a financial
statement that is displayed with the same prominence as other
financial statement. Comprehensive income includes net income as well
as certain items that are reported directly within a separate
component of shareholders' equity and bypass net income. The Company
adopted the provisions of SFAS No. 130 in the first quarter of 1998;
however, any differences between net income and comprehensive income
are insignificant.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
---------------------------------------------------------------
RESULTS OF OPERATIONS
---------------------
GENERAL STATEMENT
National Processing, Inc. (The "Company") provides low-cost,
high-volume transaction processing services and customized processing solutions.
The Company deploys technology and applications software primarily to merchants
and other commercial businesses, corporations and providers of travel-related
services.
The Company is an Ohio corporation that was formerly a wholly owned
subsidiary of National City Corporation, an Ohio-headquartered bank holding
company. Following the Company's initial public offering in August 1996,
National City Corporation continued to own 85% of the Company's outstanding
common stock. In May 1997, National City Corporation purchased 1,265,000 shares
of the Company's common stock in the open market and currently owns
approximately 88% of the Company's outstanding common stock.
The financial information and related discussion included herein
reflect the results of operations of the following acquisitions from their
respective acquisition dates; on February 4, 1997, the Company acquired NTA,
Inc. a freight payment processing company; on June 18, 1997, the Company
acquired the operating assets and liabilities of Intracon, Inc., a freight
payment processing company; on June 20, 1997, the Company acquired the operating
assets and liabilities of MRS Jamaica, Inc., a healthcare form processing
company; on September 30, 1997, the Company acquired Caribbean Data Services,
Ltd., a data processing company; on October 24, 1997, the Company acquired 79.6%
of the outstanding shares of FA Holdings, Inc., a debit and credit card
processor (the Company acquired the remaining outstanding shares of FA Holdings,
Inc. on January 2, 1998); on January 15, 1998 the Company acquired JBH Travel
Audit, Inc., a travel fee auditing company.
COMPONENTS OF REVENUE AND EXPENSES
Revenues. The Company's revenues are generated from a variety of
sources through the Company's wholly owned subsidiary National Processing
Company. Merchant Services revenues are primarily derived from fees paid by
merchants for the authorization, processing, and settlement of credit and debit
card transactions, exclusive of interchange fees, and for the acceptance of
checks. Merchant fees include assessment fees, which are amounts charged by
credit card associations for clearing services, advertising and other expenses.
Revenues from Corporate Services are derived from transaction fees for the
processing of remittances, accounts payable and freight bills, and for providing
integrated document solutions involving electronic imaging, archival, processing
and payment settlement. Revenues from Travel Services depend primarily on the
volume of ticket sales by travel agents on behalf of airlines. A small portion
of revenues are derived from earnings on cash balances which are maintained by
customers pursuant to contract terms. Revenues derived from services provided to
affiliates are immaterial.
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Expenses. Operating expenses include all direct costs of providing
services to customers, excluding hourly labor. The most significant components
of operating expenses are assessment fees, authorization fees and data
processing expenses. Wages and other personnel expenses include wages and
personnel expenses for hourly employees. General and administrative expenses
include management salaries and benefits, facilities maintenance and software
applications programming. Depreciation of property and equipment and software
amortization are recognized on a straight-line basis over the estimated useful
life of the related asset. Amortization of goodwill associated with acquisitions
is recognized over forty years. Amortization of other costs associated with the
purchase of contracts or other business assets is recognized over varying
periods from three to fifteen years based upon the contract period and projected
revenue stream.
RESULTS OF OPERATIONS
The following table summarizes the Company's operating results as a
percentage of revenues:
<TABLE>
<CAPTION>
Three Months Ended
March 31
-------------------
1998 1997
------ -------
<S> <C> <C>
Revenues 100.0% 100.0%
Operating expenses 46.0 48.4
Wages and other personnel expenses 28.1 26.0
General & administrative expenses 12.9 15.0
Restructuring charge 0.0 7.2
Depreciation and amortization 5.5 4.5
------ ------
Income (loss) from operations 7.5 (1.0)
Net interest income 0.0 1.2
------ ------
Income before income taxes 7.5 0.2
Provision for (benefit from) income taxes 3.2 (0.2)
------ ------
Net income 4.3% 0.4%
====== ======
</TABLE>
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THREE MONTHS ENDED MARCH 31, 1998 COMPARED TO THREE MONTHS ENDED MARCH 31, 1997
Revenues. Consolidated revenue increased $25.6 million, or 28.9%, to
$114.0 million for the quarter ended March 31, 1998, from $88.4 million for the
comparable 1997 period. The increase is primarily due to revenues from the last
five acquisitions which contributed $21.0 million. Consolidated revenues from
the core business group increased $4.6 million, or 5.2%. Core business increases
resulted principally from increases in the merchant card and freight operations
offset by decreases in the remittance operations.
Costs and Expenses. Consolidated costs and expenses increased $16.1
million, or 18.0%, to $105.4 million for the quarter ended March 31, 1998 from
$89.3 million during the comparable 1997 period.
Operating expenses increased $9.6 million, or 22.5%, to $52.4 million
for the quarter ended March 31, 1998 from $42.8 million in 1997. The increase
was primarily due to the last five acquisitions which contributed $6.0 million
in 1998 operating expenses. The Company's core businesses reflected increases in
operating expenses of $3.8 million principal due to increased revenue and
increases in operating expenses at the Company's remittance operations due to
delays in converting to its new imaging technology.
Wages and other personnel expenses increased $9.1 million, or 39.5%, to
$32.0 million for the quarter ended March 31, 1998, from $22.9 million in 1997.
This increase is due primarily to the last five acquisitions which added $8.9
million in 1998.
General and administrative expenses increased $1.5 million, or 11.1%,
to $14.7 million for the quarter ended March 31, 1998, from $13.2 million in
1997. This increase resulted from the general and administrative expenses
contributed in 1998 by the last five acquisitions.
Restructuring charges of $6.3 million in 1997 resulted from $5.1
million for severance pay and $1.2 million for other costs, related to
organizational restructuring.
Depreciation and amortization increased $2.2 million, or 55.9%, to $6.3
million for the quarter ended March 31, 1998, from $4.0 million in 1997. The
increase was primarily due to the amortization of intangibles and the
depreciation of fixed assets acquired in the last five acquisitions and
additions of fixed assets at the Company's core businesses.
Net Interest Income. The Company incurred net interest expense of less
than $0.1 million in the 1998 period compared to net interest income of $1.1
million in 1997. This decrease resulted from decreased investment balances
reflecting the cash used for the 1997 acquisitions.
Tax Provision. Income tax expense for the quarter ended March 31, 1998
was $3.7 million compared to a tax benefit of $0.2 million in 1997. The increase
resulted principally from the increase in taxable income and increases in the
effective tax rate resulting from decreases in non-taxable interest income and
increases in non-deductible amortization expense resulting from the 1997
acquisitions.
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LINE OF BUSINESS REVIEW
The composition of the Company's statements of income by line of
business follows:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Merchant Travel Corporate
Services Services Services Corporate Consolidated
- ---------------------------------------------------------------------------------------------------------------------------------
THREE MONTHS ENDED MARCH 31
- ---------------------------------------------------------------------------------------------------------------------------------
(In 1998 1997 1998 1997 1998 1997 1998 1997 1998 1997
thousands)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $63,912 $49,568 $12,674 $11,367 $37,421 $27,485 $ - $ - $114,007 $88,420
-
Operating expenses 40,737 35,043 2,477 2,181 9,218 5,569 - - 52,432 42,793
Wages and other
personnel expenses 7,696 4,513 5,479 4,914 18,848 13,522 - - 32,023 22,949
General and
administrative
expenses 7,461 7,034 1,560 1,649 5,680 4,552 - - 14,701 13,235
Restructuring charge - - - - - - - 6,340 - 6,340
Depreciation and
amortization 2,932 1,567 908 791 2,410 1,651 - - 6,250 4,009
-------------------------------------------------------------------------------------------------------------
Income (loss) from
operations 5,086 1,411 2,250 1,832 1,265 2,191 - (6,340) 8,601 (906)
Net interest income
(expense) 46 44 (34) 23 (29) 13 - 1,004 (17) 1,084
-------------------------------------------------------------------------------------------------------------
Income (loss)
before income taxes 5,132 1,455 2,216 1,855 1,236 2,204 - (5,336) 8,584 178
Provision for
(benefit from) 635 441 - 3,676
income taxes 2,363 872 699 779 (2,305) (192)
-------------------------------------------------------------------------------------------------------------
Net income (loss) $ 2,769 $ 820 $ 1,344 $ 1,156 $ 795 $ 1,425 $ - $(3,031) $ 4,908 $ 370
-------------------------------------------------------------------------------------------------------------
</TABLE>
Indirect general and administrative expenses are allocated to the lines
of business based upon various methods determined by the nature of the expenses.
The Corporate entity reflects interest income and related expenses from the
proceeds of the Company's August 1996 initial public offering, a $6.3 million
non-recurring charge during the first quarter of 1997 for severance pay and
other costs related to organizational restructuring, and the related income tax
expenses.
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<PAGE> 12
The following is an analysis of the Company's income as derived from
its three lines of business, Merchant Services, Travel Services and Corporate
Services.
Merchant Services.
Merchant Services authorizes, processes and settles credit and debit
card transactions and authorizes and collects checks for a variety of merchants.
Historically, the Company has derived a substantial portion of its merchant card
revenues from larger merchants. The October 1997 acquisition of FA Holdings,
Inc., a debit and credit card processor specializing in smaller merchants
increased revenues from smaller merchants. In this competitive pricing
environment, the Company is continually negotiating customer contracts during
which it encounters both client gains and losses. The ability to successfully
renew and obtain merchant contracts is significant to preserving and growing
marginal profit.
Net income was $2.8 million for the quarter ended March 31, 1998
compared to $.9 million for the comparable 1997 period. The increase was due to
higher revenues from the Financial Alliance acquisition and increases in fee
income at the Company's core Merchant Card operations which were not matched by
comparable increases in operating expenses. The Merchant Check operations
contributed to the increased net income with slightly lower revenues more than
offset by significantly lower operating expenses. Additionally, general and
administrative expenses were lower (as a percentage of revenues) due to the
growth in revenues resulting from the Company's 1997 acquisitions which were not
matched by comparable increases in general and administrative expenses. These
increases in pre-tax income were partially offset by higher (as a percentage of
revenues) wages and other personnel expense and higher income tax expense
resulting from the higher pre-tax income and the non-tax deductible amortization
of intangibles associated with the FA acquisitions.
Travel Services.
Travel Services principally settles airline ticket purchases made
through travel agents on behalf of airlines and thus derives a substantial
portion of its revenues from an exclusive long-term contract with the Airlines
Reporting Corporation ("ARC"). The Company is compensated on a "cost plus" basis
under this contract which expires in December 2001.
Net income was $1.3 million for the quarter ended March 31, 1998,
compared to $1.2 million for the comparable 1997 period. The increase resulted
principally from a reduction (as a percentage of revenues) of general and
administrative expenses resulting from the Company's 1997 acquisitions.
Corporate Services.
Corporate Services processes remittances, accounts payable and freight
bills and provides integrated document solutions involving electronic imaging,
archival, processing and payment settlement.
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Net income was $.8 million for the quarter ended March 31, 1998,
compared to $1.4 million for the comparable 1997 period. The decrease was due
primarily to decreases in volume at the Company's remittance operations and
increased costs related to the implementation of imaging technologies at the
remittance operations. The decrease was offset by lower (as a percentage of
revenues) general and administrative expenses due to the company's 1997
acquisitions.
SEASONALITY
The Company experiences seasonality in its businesses, particularly in
its Merchant Services and Travel Services businesses. The Company typically
realizes higher revenues in the third and fourth calendar quarters and lower
revenues in the first calendar quarter, reflecting increased transaction volumes
and travel in the summer and holiday months and a decrease in transaction volume
during the quarter immediately following the holiday season.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary uses of capital resources include acquisitions,
capital expenditures and working capital. Future business acquisitions may be
funded through current liquidity, borrowed funds, and/or issuances of common
stock.
The Company's capital expenditures include amounts for computer systems
hardware and software, office furniture, and building expansion and remodeling.
During the three month period ended March 31, l998, the Company's capital
expenditures totaled $13.9 million. Such expenditures were principally financed
from operating cash flow, which totaled approximately $26.4 million. Operating
cash flow during the three month period ended March 31, 1997, totaled $20.0
million and capital expenditures were $7.5 million. The Company expects capital
expenditures for the remainder of 1998 to be approximately $21.1 million. It is
anticipated that these expenditures will be funded with operating cash flows.
As the Company does not carry significant amounts of inventory and
historically has experienced short collection periods for its accounts
receivable, it does not require substantial working capital to support its
revenue growth. Working capital requirements will vary depending upon future
acquisition activity. Increases in working capital needs are expected to be
financed through operating cash flow and current cash and investment balances.
The Company maintains restricted cash balances held on behalf of
clients pending distribution to vendors which are shown on the balance sheet as
assets and equivalent, offsetting liabilities. These cash balances totaled
approximately $114.1 million and $83.2 million as of March 31, 1998 and December
31, 1997, respectively.
FORWARD LOOKING STATEMENT
Certain matters discussed in this report on Form 10-Q are
forward-looking statements involving risks and uncertainties that could cause
actual results to differ materially from such
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statements, including the Company's ability to attract and retain profitable
customer accounts; its ability to execute its growth strategy by consummating
mergers and acquisitions, as well as its ability to integrate and manage new
businesses; competitive factors generally, in particular price competition, and
other risks detailed from time to time in the Registrant's SEC reports.
14
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PART II - OTHER INFORMATION
ITEM 6. - EXHIBITS AND REPORTS ON FORM 8-K:
a. EXHIBITS
10.40 Employment Agreement between the Company and Donald J. Kenney dated
March 19, 1998.
27.1 Financial Data Schedule.
b. REPORTS ON FORM 8-K
January 8, 1998: On October 24, 1997, National Processing, Inc.
completed the initial stage of its acquisition of FA Holdings, Inc.
(FA). The initial state involved the acquisition of 68.3% of the then
issued and outstanding common stock of FA for $37,219,244 and the
purchase of 60,001 newly issued shares of common stock directly from
FA for 30,000,000. As a result, National Processing, Inc. owns 79.6%
of the total shares of common stock of FA.
The financial statements of the business acquired and related pro
forma financial information were provided by amendments to Form 8-K
on January 9, 1998.
FA Holdings, Inc. is the sole owner of Financial Alliance Processing
Services, Inc., and independent sales organization that specializes
in selling credit and debit card processing services to smaller
merchants.
January 23, 1998: On January 23, 1998 the Company filed Form 8KA
amending the Company's Form 8KA filed on January 9, 1998. The
amendment reflected changes to the pro forma financial information of
the Company and FA Holdings, Inc. included in the January 9, 1998 8KA.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NATIONAL PROCESSING, INC.
Date: May 13, 1998 By:
Jim W. Cate
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
By:
Danny L. McDaniel
Vice President and Controller
(Principal Accounting Officer)
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Exhibit 10.40
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT by and between National City Corporation, a Delaware
corporation (the "Company") and Donald Kenney (the "Executive") dated as of the
19th day of March, 1998.
The Company has determined that it is in the best interests of the
Company and its respective shareholders to assure that First of America Bank
Corporation, a Michigan corporation ("FOA") will have the continued dedication
of the Executive pending the merger of the Company and FOA (the "Merger")
pursuant to the Agreement and Plan of Merger dated as of November 30, 1997 and
to provide the surviving corporation after the Merger with continuity of
management. Therefore, in order to accomplish these objectives, the Company has
caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EFFECTIVE DATE. The "Effective Date" shall mean the effective date
of the Merger.
2. EMPLOYMENT PERIOD. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to enter into the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the third anniversary thereof
(the "Employment Period").
3. TERMS OF EMPLOYMENT. (a) POSITON AND DUTIES. (i) (A) During the
Employment Period, the Executive shall serve as Executive Vice President,
Corporate Services of National Processing, Inc., an Ohio corporation ("NPI"),
reporting to the Chief Executive Officer and President of NPI. The Executive
shall have general responsibility for the Corporate Services Business Line and
shall provide strategic and tactical direction for growing the business through
sales and acquisition, participate in overall NPI corporate development and
implement technology to improve productivity and profitability, and such other
authority, duties and responsibilities as are commensurate with such position
and as may be consistent with such position and (B) the Executive's services
shall be performed in Louisville, Kentucky.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote substantially all of his attention and time during normal business
<PAGE> 2
hours to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments so long as
such activities do not significantly interfere with the performance of the
Executive's responsibilities, and in the case of the activities described in
(A), conflict with his duties, as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) COMPENSATION. (i) INITIAL PAYMENT. Immediately after the Effective
Date, the Company shall make a lump sum payment to the Executive equal to the
cash payment to which the Executive would have been entitled to receive pursuant
to the Management Continuity Agreement between the Company and the Executive
dated as of November 20, 1996 (the "Prior Agreement") had he been terminated by
the Company without Cause immediately after the Effective Date.
(ii) BASE SALARY. During the Employment Period, the Executive shall
receive an annual base salary ("Annual Base Salary") of no less than $300,000,
During the Employment Period, the Annual Base Salary shall be reviewed at least
annually. Any increase in Annual Base Salary shall not serve to limit or reduce
any other obligation to the Executive under this Agreement. Annual Base Salary
shall not be reduced after any such increase and the term Annual Base Salary as
utilized in this Agreement shall refer to Annual Base Salary as so increased. As
used in this Agreement, the term "affiliated companies" shall include any
company controlled by, controlling or under common control with the Company.
(iii) ANNUAL BONUS. During the Employment Period, the Executive shall
be entitled to receive an annual cash bonus ("Annual Bonus") at a target of 35%
up to a maximum of 55% of the deemed annual base salary of $200,000 (as opposed
to the Annual Base Salary), to be determined on the same basis as annual bonus
is determined for other Executive Vice Presidents of NPI.
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<PAGE> 3
(iv) INCENTIVE AWARDS. On the Effective Date, the Company shall grant
the Executive 4,000 Shares of restricted stock of the Company (the "Restricted
Stock") and the Company shall cause NPI to grant the Executive an option to
acquire 100,000 shares of NPI's common stock (the "Option"), pursuant to the
terms of the Company's and NPI's stock incentive plans, respectively. The Option
will have an exercise price equal to the fair market value of the stock subject
thereto on the date of grant. Except as otherwise provided herein, the
Restricted Stock and the Option shall vest in three equal installments, on the
first, second and third anniversaries of the Effective Date or, if earlier, upon
a change of control of the Company (as defined in the Company's stock incentive
plan) in the case of the Restricted Stock, and upon a change of control of NPI
(as defined in NPI's stock incentive plan) in the case of the Option. During the
Employment period, the Executive shall be eligible to receive additional grants
of NPI Common Stock on the same basis as is applicable to other Executive Vice
Presidents of NPI.
(v) OTHER EMPLOYEE BENIFT PLANS. During the Employment Period, the
Executive shall be entitled to participate in all employee benefit, welfare and
other plans, practices, policies and programs ("Employee Plans") applicable to
Executive Vice Presidents of NPI on a basis no less favorable than that provided
to such executives, including, without limitation, change of control severance
arrangements which shall be entered into on or prior to the Effective Date. For
purposes of the Employee Plans, all service with FOA shall be treated as service
with the Company, NPI and their affiliates for purposes of eligibility and
vesting and for purposes of participation in any welfare plan, the Company shall
credit, or cause NPI to credit, the Executive for all out-of-pocket or
co-payment expenses incurred under any FOA plan and agrees to waive any and all
pre-existing condition limitations, to the extent such conditions were covered
under FOA plans.
(vi) SUPPLEMENTAL RETIRMEENT BENEFITS. Upon the Executive's termation
of employment with the Company, NPI or one of their affiliates, the Executive
shall be entitled to receive the retirement benefits (the "Retirement Benefits")
that the Executive would have been entitled to receive if he had been eligible
to participate in the qualified and non-qualified retirement plans, practices,
policies and programs of the Company on the same basis as peer executives of the
Company. For purposes of eligibility and vesting of the Retirement Benefits, the
Executive's service with FOA and NPI or its affiliates shall be treated as
service with the Company.
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<PAGE> 4
(vii) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the Company's policies. In addition, during the
initial 12-month period following the Effective Date, the Company shall
reimburse the Executive for all reasonable travel expenses incurred by the
Executive for travel between Kalamazoo, Michigan and Louisville, Kentucky once
every two weeks.
(viii) FRINGE BENEFITS. During the Employment Period, the Executive
shall be entitled to fringe benefits, including, without limitation, relocation
benefits, payment of club dues, and use of an automobile and payment of related
expenses, to the extent applicable to the Executive Vice Presidents of NPI.
(ix) OFFICE AND SUPPORT STAFF. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments as provided generally at any time thereafter
with respect to other peer executives of the Company and its affiliated
companies.
(x) VACATION. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the plans, policies, programs and
practices of the Company and its affiliated companies as in effect with respect
to Executive Vice Presidents of NPI.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period. If the Company determines in good faith that the Disability
of the Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to the Executive written
notice in accordance with Section 11(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers
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<PAGE> 5
and acceptable to the Executive or the Executive's legal representative.
(b) CAUSE. The Company may terminate the Exective's employment during
the Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the continued failure of the Executive to perform
substantially the Executivels duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Executive by the Board or the Chief Executive Officer of the Company which
specifically identifies the manner in which the Board or Chief Executive Officer
believes that the Executive has not substantially performed the Executive's
duties, or
(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
Company, or
(iii) conviction of a felony or guilty or nolo contendere plea
by the Executive with respect thereto.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful", unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive officer or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than two-thirds of the entire
membership of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and the Executive
is given an opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the Executive is guilty of
the conduct described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
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<PAGE> 6
(c) GOOD REASON. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean in the absence of a written consent of the Executive:
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executivels position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 3(a) of this Agreement, or any other action by the
Company or NPI which, in the Executive's reasonable judgment, results in a
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company or NPI promptly after receipt of
notice thereof given by the Executive;
(ii) any failure by the Company or NPI to comply with any of
the provisions of Section 3(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company or NPI promptly after receipt of notice thereof given by
the Executive;
(iii) the Company's or NPI's requiring the Executive to be
based at any office or location more than 35 miles from that provided in Section
3(a)(i)(B) hereof;
(iv) any purported termination by the Company or NPI of the
Executive's employment otherwise than as expressly permitted by this Agreement;
or
(v) any failure by the Company to comply with and satisfy
Section 10(c) of this Agreement.
For purposes of this Section 4(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
(a) NOTICE 0F 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 Section 11(b) of 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) to the extent applicable, 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
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<PAGE> 7
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 thirty days after the giving of such notice). The failure
by the Executive or the Company to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of the Executive or the Company, respectively,
hereunder or preclude the Executive or the Company, respectively, from asserting
such fact or circumstance in enforcing the Executive's or the Company's rights
hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (iii) 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 Disability
Effective Date, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) GOOD REASON; OTHER
THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the
Company or NPI shall terminate the Executive's employment other than for Cause
or Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, and (2) the
product of (x) the highest annual bonus paid to the Executive for any
of the three years prior to the Effective Date (the "Recent Annual
Bonus") and (y) a fraction, the numerator of which is the number of
days in the fiscal year in which the Date of Termination occurs through
the Date of Termination, and the denominator of which is 365, in each
case to the extent not theretofore paid (the sum of the amounts
described in clauses (1) and (2), shall be hereinafter referred to as
the "Accrued Obligations"); and
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<PAGE> 8
B. the amount equal to the product of (1) the number of months
and portions thereof from the Date of Termination until the third
anniversary of the Effective Date, divided by twelve and (2) the sum of
(x) the Executive's Annual Base Salary and (y) the Recent Annual Bonus;
and
(ii) until the third anniversary of the Effective Date, the
Company shall continue to provide medical and dental benefits to the Executive,
his spouse and dependents at the Company's cost on the same basis as such
benefits were provided to the Executive immediately prior to the Date of
Termination;
(iii) the Restricted Stock and the Option shall vest
immediately; and
(iv) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits (including, the Retirement Benefits) required to be paid or provided or
which the Executive is eligible to receive under any plan, program, policy or
practice or contract or agreement of the Company and its affiliated companies
through the Date of Termination (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits"); for purposes of the
Executivels entitlement to benefits under FOA's stock incentive plans in effect
prior to the Effective Date, a termination of employment entitling the Executive
to benefits under this Section 5 shall be deemed to be a termination under the
Prior Agreement.
(b) DEATH. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. In addition, the Restricted Stock and the Option
shall vest immediately. Accrued obligations shall be paid to the Executive's
estate or beneficiary, as applicable, in a lump sum in cash within 30 days of
the Date of Termination. With respect to the provision of other Benefits, the
term Other Benefits au utilized in this Section 5(b) shall include death
benefits as in effect on the date of the Executive's death with respect to peer
executives and their beneficiaries.
(c) DISABLLITY. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period, this Agreement shall
terminate without
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<PAGE> 9
further obligations to the Executive, other than for payment of Accrued
obligations and the timely payment or provision of Other Benefits, in addition,
the Restricted Stock and the Option shall vest immediately. Accrued obligations
shall be paid to the Executive in a lump sum in cash within 30 days of the Date
of Termination. With respect to the provision of other Benefits, the term Other
Benefits as utilized in this Section 5(c) shall include, and the Executive shall
be entitled after the Disability Effective Date to receive, disability and other
benefits as in effect at any time thereafter generally with respect to peer
executives of the Company.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's employment
shall be terminated for Cause or the Executive terminates his employment without
Good Reason during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive (x) his Annual Base Salary through the Date of Termination, and (y)
Other Benefits, in each case to the extent theretofore unpaid.
6. NON-EXCLUSIVITY OF RIGHTS. Except as specifically provided, nothing
in this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Executive may qualify, nor,
subject to Section 11(f), shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with the
Company or any of its affiliated companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or any of
its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7. FULL SETTLEMENT. The Company'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 Company 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
Company agrees to pay as incurred, to the full extent permitted by law, all
legal
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<PAGE> 10
fees and expenses which the Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Company, 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").
8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 8) (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 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. Notwithstanding the foregoing
provisions of this Section 8(a), if it shall be determined that the Executive is
entitled to a Gross-Up Payment, but that the Payments do not exceed 110% of the
greatest amount (the "Reduced Amount") that could be paid to the Executive such
that the receipt of Payments would not give rise to any Excise Tax, then no
Gross-Up Payment shall be made to the Executive and the Payments, in the
aggregate, shall be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 8(c), all determinations
required to be made under this Section 8, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by
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KPMG Peat Marwick LLP or such other certified public accounting firm reasonably
acceptable to the Company as may be designated by the Executive (the "Accounting
Firm") which shall provide detailed supporting calculations both to the Company
and the Executive within 15 business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is requested by
the Company. All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment, as determined pursuant to this Section 8,
shall be paid by the Company to the Executive within five days of (i) the later
of the due date for the payment of any Excise Tax, and (ii) the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 8(c) and the Executive thereafter is required to make a payment of any
Excise Tax; the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation,
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accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and sue for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) if, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 8(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Company's
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complying with the requirements of Section 8(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereo@ after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 8(c), a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
9. CONFIDENTIAL INFORMATION (a) 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 affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies 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 or as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 9 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
(b) In the event of a breach or threatened breach of this Section 9,
the Executive agrees that the Company shall be entitled to injunctive relief in
a court of appropriate jurisdiction to remedy any such breach or threatened
breach, the Executive acknowledges that damages would be inadequate and
insufficient.
(c) Any termination of the Exectitive's employment or of this Agreement
shall have no effect on the continuing operation of this Section 9.
10. 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
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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.
(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.
11. MISCELLANEOUS. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, 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.
(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:
IF TO THE COMPANY: National City Center
PO Box 5759
Cleveland, Ohio 44101
Attention: 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.
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(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 payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c)(i)-(v) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(f) From and after the Effective Date this Agreement shall supersede
any other employment agreement or understanding between the parties with respect
to the subject matter hereof.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Director, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
/s/ Donald Kenney
----------------------------------
DONALD KENNEY
NATIONAL CITY CORPORATION
By /s/ Robert G. Siefers
-------------------------------
Robert G. Siefers
Vice Chairman
16
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted from Form 10Q for
the period ended March 31, 1998 and is qualified in its entirety by reference to
such finanical statements.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<EXCHANGE-RATE> 1
<CASH> 23,743
<SECURITIES> 1,923
<RECEIVABLES> 67,898
<ALLOWANCES> 0
<INVENTORY> 7,177
<CURRENT-ASSETS> 234,401
<PP&E> 146,554
<DEPRECIATION> 70,882
<TOTAL-ASSETS> 516,817
<CURRENT-LIABILITIES> 165,788
<BONDS> 0
0
0
<COMMON> 1
<OTHER-SE> 340,735
<TOTAL-LIABILITY-AND-EQUITY> 516,817
<SALES> 0
<TOTAL-REVENUES> 114,007
<CGS> 0
<TOTAL-COSTS> 84,455
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 8,584
<INCOME-TAX> 3,676
<INCOME-CONTINUING> 4,908
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,908
<EPS-PRIMARY> .10
<EPS-DILUTED> .10
</TABLE>
