Exhibit 10(pp)
EXECUTIVE NON-COMPETITION AGREEMENT
This Agreement is made among Richard K. Struthers (the
“Executive”), MBNA Corporation (the
“Corporation”) and MBNA America Bank, N.A. (the
“Bank”) (the Corporation and the Bank are collectively
designated in this Agreement as the “Company”).
1. Purpose
. Executive is a senior executive of the
Company and has extensive knowledge of the Company’s business
and marketing practices, customer and vendor relationships and
other matters of a confidential nature which are proprietary and
highly valuable to the Company. The Company’s business would
be substantially damaged if, following the end of the
Executive’s employment by the Company, the Executive were to
be employed by a competitor of the Company or to use or disclose to
others the Company’s business information. The purpose of
this Agreement is to set forth certain agreements between the
Executive and the Company relating to the Executive’s
activities following the end of the Executive’s employment by
the Company.
2. Non-competition
. Unless otherwise agreed in writing by the
Company, the Executive will not, directly or indirectly, in any
capacity (including as director, officer, employee, stockholder,
partner, owner, consultant or advisor) provide services of any
kind, anywhere in the world, until eighteen (18) months
following the end of the Executive’s employment by the
Company (“Restricted Period”), to any Issuer of
MasterCard, VISA, American Express, Discover Card or any other type
or credit card or charge card, any bank or other lender which makes
consumer loans of any kind, any insurance company or agency which
issues or markets personal lines insurance policies, or any
affiliate of any such entity. These services include, but are not
limited to, services relating to (i) sales, endorsement,
co-branding or similar agreements, (ii) product development
and marketing, (iii) credit approval and collections,
(iv) customer service, (v) funding or other treasury
matters, (vi) loan portfolio acquisitions, mergers or other
acquisitions, (vii) financial, legal or accounting matters, or
(viii) acquisition of or advice or assistance to others to
acquire the Corporation or the Bank or beneficial ownership of 10%
or more of the Corporation’s Common Stock. In addition, the
Executive agrees that during the Restricted Period, the Executive
will not provide services to any affinity group or commercial
organization, or any affiliate of such entity, relating to an
affinity or co-branded credit card, consumer loan or personal lines
insurance program with the Company or any other entity. The
Executive agrees that these restrictions are reasonable.
a. Following the end
of the Executive’s employment by the Company, or sooner upon
request of the Company, the Executive will deliver to the Company
the originals and all copies of all records and other documents
acquired in the Executive’s capacity as an employee of the
Company which relate to the Company or its business, customers,
vendors or employees and which are in the Executive’s
possession or within the Executive’s control, other than
records and other documents which (i) are a matter or public
record, (ii) relate directly and primarily to the
Executive’s compensation and benefits as an employee of the
Company, or (iii) the Company gives the Executive permission
to retain in the Executive’s possession. The Executive shall
not retain or deliver to any other person any copies of any such
records or documents.
b. The Executive
will not use for the Executive’s benefit or for the benefit
of any person other than the Company, and will not ever disclose to
any person who is not a Company employee, or to any Company
employee except as necessary in the performance of the
Executive’s duties to the Company, any confidential
information concerning the Company. The determination of whether
information concerning the Company is confidential shall be made by
the Company in its sole discretion. The Executive acknowledges that
all information concerning the Company, its plans, programs,
policies, finances, customers, vendors, employees and business
shall be deemed confidential unless a matter of public record or
unless publicly known otherwise than through a breach by the
Executive of this Agreement.
c. The Executive
will not make any statement in writing, orally or otherwise, to any
person, including without limitation any employee, customer or
other person known by the Executive to be a business associate of
the Company or of its directors, officers or employees, which
criticizes, disparages, condemns or impugns the reputation or
character of the Company or any director, officer or employee of
the Company, whether or not true and whether or not
confidential.
d. The Executive
shall not disclose this Agreement or any provision of this
Agreement to any person without the Company’s prior written
consent except that (i) the Executive may disclose the terms
of this Agreement as necessary in connection with obtaining
personal tax, financial planning or legal advice; and (ii) the
Executive may disclose the terms of Section 2 to any person
who proposes to engage the Executive as an employee or consultant.
This obligation of the Executive shall continue notwithstanding the
filing of a copy of this Agreement with the Securities and Exchange
Commission.
e. Disclosure which
otherwise would constitute a breach of this Section 3 shall
not be deemed a breach thereof to the extent such disclosure is
required by law.
f. The obligations
of the Executive under Section 3.a. and 3.b. shall continue so
long as the information remains confidential. The obligations of
the Executive under Section 3.d. shall expire eighteen
(18) months after the end of the Executive’s employment
with the Company.
4. Consideration to
Executive . As consideration to the
Executive for the execution and performance of this Agreement, the
Company will issue to the Executive 52,515 shares of the
Corporation’s Common Stock subject to the restrictions set
forth in Section 5 of this Agreement (“Restricted
Shares”) and will make the payments described in
Section 6 of this Agreement. Additional consideration to the
Executive for the execution and performance of this Agreement
includes the continued employment of the Executive by the Company,
and the compensation and benefits received and to be received by
the Executive in connection with the Executive’s present and
future employment by the Company.
a. Except as
provided below in Section 5.b. or as otherwise approved in
writing by the Company, the Restricted Shares may not be sold or
transferred by the Executive until after the Restricted Period.
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b. If the
Executive’s employment is terminated due to the death or
Disability (as defined in the Policies adopted under the
Corporation’s 1997 Long Term Incentive Plan
(“Policies”)) of the Executive, all restrictions on the
Restricted Shares shall lapse.
c. As described in
Section 4, the Restricted Shares have been granted as
consideration for the Executive agreeing to the provisions of
Sections 2 and 3 of this Agreement. Accordingly, the restrictions
on the Restricted Shares shall not lapse upon a Change in Control
(as defined in the Policies) or a termination of the
Executive’s employment due to Retirement (as defined in the
Policies), notwithstanding any provisions in the Policies to the
contrary. Furthermore, the Restricted Shares shall not be forfeited
as a result of termination of the Executive’s employment,
regardless of the reason for termination, notwithstanding any
provision in the Policies to the contrary.
d. If during the
Restricted Period the Executive violates any provision of
Section 2 of this Agreement, then in addition to any other
remedies available at law or in equity or under this Agreement, the
Restricted Shares shall be forfeited.
e. Even if the
Executive is no longer obligated to comply with Section 2 of
this Agreement in the limited circumstances described in
Section 6.a. of this Agreement, the Restricted Shares remain
subject to the terms of this Section 5 as these shares have
been granted as consideration for the Executive agreeing to the
provisions of Sections 2 and 3 of this Agreement. Accordingly, in
such case the Restricted Shares may not be sold or transferred
during the Restricted Period as provided in Section 5.a. and
the Restricted Shares shall be forfeited if during the Restricted
Period the Executive violates any provision of Section 2 or
3.
f. The Corporation
agrees to issue the Restricted Shares registered in the name of the
Executive upon execution of this Agreement. Thereafter the
Executive shall have all of the rights of a stockholder of the
Corporation with respect to such shares, including the right to
receive dividends and to vote, subject to this Agreement. If any of
the shares are forfeited, the Executive authorizes the Corporation
to cancel the shares and the certificates for the shares and
irrevocably appoints the Corporation as its attorney-in-fact for
this purpose. The Corporation will hold certificates representing
the shares until the Restricted Period has lapsed or terminated.
Upon lapse or termination of the Restricted Period, the Corporation
will deliver to the Executive a certificate representing the
shares. Certificates delivered to the Executive evidencing such
shares may bear a legend to the effect that they may be sold,
pledged or otherwise transferred only in accordance with applicable
federal and state securities laws. The Executive agrees to sell or
transfer such shares only in accordance with applicable laws.
g. The Executive
shall be entitled to receive dividends and distributions paid by
the Corporation with respect to the shares subj
