Exhibit 10.02
AMENDED AND
RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (the “ Agreement ”) dated as of
September 1, 2009 by and between MoneyGram International,
Inc., a Delaware corporation (together with its direct and indirect
subsidiaries, successors and permitted assigns under this
Agreement, the “ Company ”) and Pamela H.
Patsley (“ Executive ”).
WHEREAS, Executive is currently
employed by the Company as its Executive Chairman pursuant to the
terms of an employment agreement by and between the Company and
Executive dated January 21, 2009, as amended on May 12,
2009 (the “ Prior Employment Agreement ”);
WHEREAS, the Company desires to
continue Executive’s employment in the position of Chief
Executive Officer of the Company effective September 1, 2009
and enter into this Agreement which will supersede the Prior
Employment Agreement and set for the terms and conditions under
which Executive will continue to serve the Company and its
affiliates; and
WHEREAS, Executive wishes to continue
her employment with the Company as Chief Executive Officer on the
terms and conditions set forth herein.
NOW THEREFORE, in consideration of
the premises and mutual covenants herein and for other good and
valuable consideration, the receipt and sufficiency of which is
mutually acknowledged, the parties agree as follows:
1. Term of Employment .
Subject to the provisions of Section 8 of this Agreement,
Executive shall continue to be employed by the Company and shall
assume the position of Chief Executive Officer for the period
commencing on September 1, 2009 (the “ Effective
Date ”) and ending on August 31, 2013 (the “
Expiration Date ” and such period the “
Employment Term ”) on the terms and subject to the
conditions set forth in this Agreement.
2. Position .
a. During the Employment Term,
Executive shall serve as the Company’s Chief Executive
Officer. Executive shall continue to serve as the Company’s
Executive Chairman; provided, that Executive shall resign her
position as the Company’s Executive Chairman at the request
of the Board of Directors of the Company (the “ Board
”). As Chief Executive Officer and subject to the terms of
this Agreement, Executive shall have such duties and authority
consistent with such position and as shall be determined from time
to time by the Board. During the Employment Term, Executive shall
also serve on the Board, any committees of the Board, the board of
directors of subsidiaries of the Company and any committees thereof
without additional compensation therefor.
b. During the Employment Term,
Executive shall serve the Company faithfully and conscientiously,
shall promote the interests and reputation of the Company and shall
comply with the policies of the Company. Executive will be required
to devote substantially all of Executive’s business time to
the performance of Executive’s duties hereunder and will not
engage in any other business, profession or occupation for
compensation or otherwise without the prior written consent of the
Board; provided that nothing herein shall preclude Executive, from
continuing to serve on any board of directors or trustees of any
business corporation or any charitable organization or continuing
to serve in Executive’s current board positions; provided in
each case, and in the aggregate, that (i) such activities do
not conflict or interfere with Section 9, and (ii) any
future board positions of Executive will require approval of the
Board; provided, however, that the Executive shall be entitled to
replace one board position with another with disclosure to, but not
approval by, the Board. Executive has delivered to the Company a
letter dated as of the effective date of this Agreement setting
forth the boards of directors on which Executive currently serves.
The Company acknowledges and agrees that Executive’s
continued service on such boards shall not be deemed to violate the
provisions of this Agreement, including without limitation the
provisions of Section 9 hereof.
c. Executive shall perform her
duties from Dallas, Texas at an office agreed to by the Company and
Executive. Executive may engage, as employees of the Company, such
office staff as she may reasonably determine necessary for her to
discharge her responsibilities under this Agreement. Executive
shall travel from time to time to the Company’s headquarters
and other locations as required to fulfill her duties hereunder.
Executive shall be entitled to fly first class, and shall be
provided by the Company with business travel accidental life
insurance, with coverage at least equal to 12 months of Base
Salary (as defined below).
d. Executive, in her capacity
as a director and officer of the Company, shall continue to have
the benefit of the Indemnification Agreement entered into by the
parties on January 21, 2009 (the “ Indemnification
Agreement ”).
3. Base Salary . During
the Employment Term, the Company shall pay Executive a base salary
at the annual rate of $850,000, payable in regular installments in
accordance with the Company’s usual payment practices. The
Human Resources Committee of the Board shall review at least
annually Executive’s Base Salary and shall increase or
maintain the Base Salary at each such review by an amount as to
which it shall have sole discretion. Executive’s annual base
salary, as in effect from time to time, is hereinafter referred to
as the “ Base Salary .”
4. Bonus .
a. Signing Bonus . In
consideration for becoming the Company’s Chief Executive
Officer, Executive shall receive a special one-time signing bonus
in the amount of $250,000 (less statutory withholdings) payable in
a lump sum within thirty (30) days of the Effective Date.
b. Cash Bonus .
Executive shall be eligible to participate in the Company’s
Management and Line of Business Incentive Plan (“ MIP
”). The annual MIP bonus targets shall be established by the
Board, and Executive’s annual bonus shall be 100% of
Executive’s Base Salary if the defined base target is
achieved and 200% of the Executive’s Base Salary if the
maximum defined target is achieved. The annual bonus shall be paid
in accordance with the terms of the MIP but in no event later than
the 15th day of the third month of the fiscal year following the
fiscal year to which such annual bonus relates.
5. Equity Arrangements .
Executive shall participate in the Company’s equity incentive
compensation program.
6. Employee Benefits .
During the Employment Term, Executive shall be entitled to the
following benefits: (i) executive health exam;
(ii) financial planning services; (iii) health club
subsidy; and (iv) participation in the Company’s
Deferred Compensation Plan for Executives, all as in effect from
time to time (collectively “ Employee Benefits
”), on the same basis as those benefits are generally made
available to other senior executives of the Company, in each case,
to the extent Executive is eligible for such benefits under the
terms of such plans. Executive will also participate in all other
applicable employee benefit and welfare benefit plans as apply to
all employees generally, on such terms and conditions as may be in
effect and/or amended from time to time, in each case, to the
extent Executive is eligible for such benefits under the terms of
such plans. Executive shall be entitled to five (5) weeks paid
vacation per calendar year, such vacation to extend for such
periods and shall be taken at such intervals as shall be
appropriate and consistent with the proper performance of
Executive’s duties hereunder.
7. Business Expenses .
During the Employment Term, reasonable business expenses incurred
by Executive in the performance of Executive’s duties
hereunder (including travel between her home and the
Company’s offices and expenses of accommodations while at the
Company’s offices) shall be reimbursed by the Company within
30 days following Executive’s submission of appropriate
documentation of such expenses in accordance with Company policies.
The Company shall reimburse Executive for reasonable
attorney’s fees incurred in connection with the negotiation
of this Agreement and the Non-Qualified Stock Option Agreement
dated August 31, 2009; provided, however, that such
reimbursement shall not exceed $10,000.
8. Termination . The
Employment Term and Executive’s employment hereunder may be
terminated by either party at any time and for any reason.
a. By the Company For Cause
or By Executive’s Resignation Without Good Reason .
(i) The Employment Term and
Executive’s employment hereunder may be terminated by the
Company for Cause (as defined below) and shall terminate
automatically upon Executive’s resignation without Good
Reason (as defined in Section 8(b)).
(ii) For purposes of this
Agreement, “ Cause ” shall mean
(A) Executive’s willful refusal to carry out, in all
material respects, the reasonable and lawful directions of the
Board that are within Executive’s control and consistent with
Executive’s status as a senior executive of the Company and
her duties and responsibilities hereunder (except for a failure
that is attributable to Executive’s illness, injury or
Disability) for a period of 10 days following written notice
by the Company to Executive of such failure; provided, however,
that “Cause” shall not be deemed to exist under this
clause (A) if Executive’s refusal is attributable to her
good faith belief, as articulated in writing to the Board if the
Board so requests, that the Board’s directions are unlawful
or are inimical to the best interests of the Company’s
shareholders in that such directions would result in one
shareholder of the Company deriving a material improper benefit or
advantage at the expense of other shareholders of the Company,
(B) fraud or material dishonesty in the performance of
Executive’s duties hereunder, (C) an act or acts on
Executive’s part constituting (x) a felony under the
laws of the United States or any state thereof, (y) a
misdemeanor involving moral turpitude or (z) a material
violation of federal or state securities laws, (D) an
indictment of Executive for a felony under the laws of the United
States or any state thereof, (E) Executive’s willful
misconduct or gross negligence in connection with Executive’s
duties hereunder which is materially injurious to the financial
condition or business reputation of the Company,
(F) Executive’s material breach of the Company’s
Code of Ethics, Always Honest policy or any other code of conduct
in effect from time to time to the extent applicable to Executive,
and which breach has a material adverse effect on the Company; or
(G) Executive’s breach of the provisions of
Section 9, 10, or 11 of this Agreement which breach has a
material adverse effect on the Company.
(iii) If Executive’s
employment is terminated by the Company for Cause, or if Executive
resigns without Good Reason, Executive shall be entitled to
receive
(A) the
Base Salary through the date of termination payable in accordance
with the Company’s regular payroll practices;
(B) reimbursement for any unreimbursed business expenses
properly incurred by Executive in accordance with this
Agreement;
(C) such
Employee Benefits, if any, as to which Executive may be entitled
under the employee benefit plans of the Company payable in
accordance with such employee benefit plans;
(D) such
rights as the Executive may have under the equity grant set forth
in Section 5 above; and
(E) the
benefits set forth in Section 2(d) above and any rights which the
Executive may have under director and officer insurance then
maintained by the Company (the amounts described in clauses
(A) through (E) hereof being referred to as the “
Accrued Rights ”).
Following such termination of
Executive’s employment by the Company for Cause or
resignation by Executive without Good Reason, except as set forth
in this Section 8(a)(iii), Executive shall have no further
rights to any Base Salary, payment of monetary compensation or
bonus under this Agreement.
b. By the Company Without
Cause or Resignation by Executive for Good Reason .
(i) The Employment Term and
Executive’s employment hereunder may be terminated by the
Company without Cause or by Executive’s resignation for Good
Reason.
(ii) For purposes of this
Agreement, “ Good Reason ” shall mean
(A) any material reduction in Executive’s position
(including status, offices, titles or reporting requirements) ,
authority, duties or responsibilities, but excluding the failure to
continue to serve as Executive Chairman of the Company or an
isolated, insubstantial or inadvertent action not taken in bad
faith; (B) any reduction of Executive’s Base Salary, or
annual bonus opportunity then in effect, unless such reduction is
consistent with similar reductions applied to other senior
management of the Company, (C) the failure of the Company to
pay or cause to be paid any other material amount due pursuant to
this Agreement; (D) the requirement that Executive relocate
the office from which she renders services hereunder to an office
which is more than twenty-five miles from the city limit of Dallas,
Texas or (E) any material breach of this Agreement or the
Indemnification Agreement by Company; provided that none of
the events described in clauses (A), (B), (C), (D) and (E) of
this Section 8(b)(ii) shall constitute Good Reason hereunder
unless (x) Executive shall have given written notice to the
Company of the event which Executive asserts gives rise to her
right to terminate her employment with Good Reason within ninety
(90) days following the occurrence of any such event and
(y) the Company shall have failed to remedy such event within
thirty (30) days of the Company’s receipt of such
notice.
(iii) If Executive’s
employment is terminated by the Company without Cause (other than
by reason of death or Disability) or if Executive resigns for Good
Reason, Executive shall be entitled to receive:
(A) the
Accrued Rights payable in accordance with Section 8(a)(iii)
hereof;
(B) subject
to Section 14(g)(i) hereof, payment in equal installments , in
accordance with the Company’s normal payroll practices, as in
effect on the date of termination of Executive’s employment,
over the Restricted Period (as defined below), of an aggregate
amount over the Restricted Period (as defined below) equal to the
sum of (x) (1) if the termination of employment occurs
prior to August 31, 2012, two time times the Base Salary in
effect as of the date hereof or such greater Base Salary as may
then be in effect or (2) if the termination of employment
occurs on or after August 31, 2012, one and a half times the
Base Salary in effect on the date hereof or such greater Base
Salary as may then be in effect and (y) provided that the
Company actually achieves performance goals for the applicable
performance period necessary for participants in the MIP to receive
cash bonuses pursuant to the MIP with respect to such performance
period and that such cash bonuses are actually paid, a pro-rata
portion of Executive’s base Target Bonus Percentage (as
defined in the MIP) for the year in which the termination takes
place, based upon the percentage of the calendar year that shall
have elapsed through the date of Executive’s termination of
employment or, if Executive has been employed hereunder for more
than 180 days of the calendar year in which her termination
occurs, a bonus for the full year;
(C) subject
to Section 14(g)(iii) hereof, continuation of health and life
insurance Employee Benefits for a period of 18 months from the
date of Executive’s termination of employment; and
(D) vesting
of the options granted pursuant to Section 5 above as follows:
for Time-Based Options, vesting through the date 12 months
after the date of termination; and for Performance-Based Options,
vesting through any Performance-Vesting Date that occurs during the
12-month period following the date of termination; (capitalized
terms used in this clause D and Section 8(d) shall have the
definition set forth in the Non-Qualified Stock Option Agreement
dated August 31, 2009). The number of Time-Based Options
deemed exercisable upon termination shall be calculated after
giving effect to the acceleration of vesting specified in this
clause (D).
The rights described in clauses (B),
(C) and (D) hereof are referred to as the “
Additional Rights ”.
Following Executive’s
termination of employment by the Company without Cause (other than
by reason of Executive’s death or Disability) or by
Executive’s resignation for Good Reason, except as set forth
in this Section 8(b)(iii), Executive shall have no further
rights to Base Salary, payment of monetary compensation or bonus
under this Agreement
Notwithstanding anything else to the
contrary contained in this Agreement, if (i) the Company
temporarily suspends Executive from her duties, (ii) at such
time, the Company has pending an inquiry or investigation that the
Board reasonably and in good faith believes may lead to a Cause
termination of Executive, and (iii) Executive tenders her
resignation based on the Good Reason with respect to the suspension
of duties within the required period for resigning for Good Reason,
the Company may delay treating the resignation as for Good Reason
until the completion of the investigation or inquiry and need not
treat the resignation as based on Good Reason at such date if it
can then establish Cause; provided, however, that Executive shall
retain her right to terminate employment for Good Reason based on
other factors, if applicable. During the period of such inquiry or
investigation, Executive shall continue to be employed by the
Company, subject to the Company’s right to terminate
Executive for Cause at any time, subject further to the notice and
cure provisions in the definition of Cause, relating to the inquiry
or investigation or otherwise.
c. Disability or Death
.
(i) The Employment Term and
Executive’s employment hereunder shall terminate upon
Executive’s death and may be terminated by the Company if
Executive becomes physically or mentally incapacitated and is
therefore unable for a period of six (6) consecutive months or
for an aggregate of nine (9) months in any twenty-four
(24) consecutive month period to perform Executive’s
duties (such incapacity is hereinafter referred to as “
Disability ”). Any question as to the existence of the
Disability of Executive as to which Executive and the Company
cannot agree shall be determined in writing by a qualified
independent physician mutually acceptable to Executive and the
Company. If Executive and the Company cannot agree as to a
qualified independent physician, each shall appoint such a
physician and those two physicians shall select a third who shall
make such determination in writing. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
(ii) Upon termination of
Executive’s employment hereunder for either Disability or
death, Executive or Executive’s estate (as the case may be)
shall be entitled to receive:
(A) the
Accrued Rights payable in accordance with Section 8(a)(iii)
hereof; and
(B) the
Additional Rights payable in accordance with Section 8(b)(iii)
hereof,
Following Executive’s
termination of employment due to death or Disability, except as set
forth in this Section 8(c)(ii), Executive shall have no
further rights to any Base Salary, payment of monetary compensation
or bonus under this Agreement.
d. Expiration of Employment
Term . Unless Executive’s employment is earlier
terminated pursuant to paragraphs (a), (b) or (c) of this
Section 8, Executive’s termination of employment
hereunder (whether or not Executive continues as an employee of the
Company thereafter) shall be deemed to occur on the close of
business on the day immediately preceding the Expiration Date and
Executive shall be entitled to receive the Accrued Rights payable
in accordance with Section 8(a)(iii) hereof. If Executive remains
employed for the entire Employment Term, then she shall be entitled
to receive a bonus for the full year in which the Employment Term
expires; provided that the Company actually achieves performance
goals for the applicable performance period necessary for
participants in the MIP to receive cash bonuses pursuant to the MIP
with respect to such performance period. In addition, if Executive
remains employed for the entire Employment Term, Executive’s
Performance-Based Options shall vest through any
Performance-Vesting Date that occurs on or before the first
anniversary of the Expiration Date. Following such termination of
Executive’s employment, except as set forth in this
Section 8(d), Executive shall have no further rights to any
Base Salary, severance benefit or bonus under this Agreement.
Unless the parties otherwise agree in writing, continuation of
Executive’s employment with the Company beyond the expiration
of the Employment Term shall be deemed an employment at will and
shall not be deemed to extend any of the provisions of this
Agreement and Executive’s employment may thereafter be
terminated at will by either Executive or the Company;
provided that the provisions of Sections 9, 10, 11 and
12 of this Agreement shall survive any termination of this
Agreement or Executive’s termination of employment
hereunder.
e. Notice of
Termination . Any purported termination of employment by the
Company or by Executive (other than due to Executive’s death)
shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 14(i) hereof. For purposes
of this Agreement, a “ Notice of Termination ”
shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of employment under the provision so
indicated.
f. Board/Committee
Resignation . Upon termination of Executive’s employment
for any reason, Executive agrees to resign, as of the date of such
termination and to the extent applicable, from the Board (and any
committees thereof) and the Board of Directors (and any committees
thereof) of any of the Company’s affiliates.
g. Timing of Payment .
Unless otherwise specifically set forth in this Section 8 or
Section 14(g) hereof, any amounts due under this Section 8
shall be paid in a lump sum within sixty (60) calendar days
following the date of termination of Executive’s employment
or earlier if required by applicable law.
h. Offset . The
Company’s obligation to pay Executive the Base Salary and
bonus amounts hereunder shall be subject to set-off, counterclaim
or recoupment of amounts owed by Executive to the Company or its
subsidiaries; provided, that, for federal income tax purposes, if
any amount has been set-off, the amount set off shall be deemed to
have been paid by Executive to the Company and an amount shall be
deemed to be paid by the Company to Executive pursuant to this
Agreement as of the date of such set-off; provided, further, that
the amount deemed to be paid by the Company to the Executive shall
be a gross amount including all applicable withholding taxes
required to be withheld by the Company.
i. Nature of Payments .
Any amounts due under this Section 8 are in the nature of
payments considered to be reasonable by the Company and are not in
the nature of a penalty.
j. Waiver and Release .
As a condition precedent to receiving the Base Salary and bonus
provided under this Section 8 (other than those already
accrued prior to the date of termination), Executive shall have
(x) executed, within twenty-one (21) days, or if required
for an effective release, forty-five (45) days, following
Executive’s termination of employment, a waiver and release
substantially in the form attached hereto as Exhibit A
and the seven (7) day revocation period set forth in
Section 6 of such release shall have expired and
(y) continued to comply with the provisions of Sections 9
and 10 of this Agreement.
9. Non-Competition .
a. Executive acknowledges and
recognizes the highly competitive nature of the businesses of the
Company and its subsidiaries and acknowledges and recognizes that
as a consequence of Executive’s job performance and duties,
Executive will acquire knowledge of trade secrets or other
confidential information of the Company or its subsidiaries. In
order to better protect the goodwill of the Company and its
subsidiaries and to prevent the disclosure of the Company’s
or its subsidiaries’ trade secrets and confidential
information and thereby help insure the long-term success of the
business, Executive agrees as follows:
(1) For purposes of this
Section 9, the “ Restricted Period ” shall
be the per
