exv10w17



 



Exhibit 10.17


AMENDED AND RESTATED

EMPLOYMENT AND RETIREMENT AGREEMENT



This Amended and Restated Employment and Retirement Agreement (the “Agreement”)
is dated as of December 12, 2003, by and between MBNA Corporation, a Maryland
corporation with its head office in Wilmington, Delaware (together with its
affiliates hereinafter the “Corporation”), and Charles M. Cawley (the
“Executive”).


The Executive founded MBNA America Bank, N.A. (the “Bank”), the Corporation’s
principal subsidiary, in 1982 and has served for many years as the leader of
the Corporation and the Bank, serving as President and director of the
Corporation since its formation and initial public offering in 1991 and as its
Chief Executive Officer since October 2002, and serving as Chairman and Chief
Executive Officer of the Bank from 1991 to 2002 and President from 1985 to
2002.


The Executive is retiring as Chief Executive Officer and President of the
Corporation effective December 30, 2003. During his long career the Executive
has acquired unparalleled knowledge and experience in management and in the
credit card and consumer lending businesses and has demonstrated very
significant leadership skills. The Corporation wishes to ensure that the
Executive’s knowledge, experience and leadership abilities continue to be
available to the Corporation and are not available to the Corporation’s
competitors. The Corporation has determined that the best way to ensure these
results is to enter into this Agreement to continue employment of the Executive
as a Senior Advisor until August 15, 2005 and provide certain benefits to the
Executive, all as set forth in this Agreement. In return, during this
employment period and beyond the Corporation will have the exclusive benefit of
the Executive’s services and the Executive’s agreement never to compete with
the Corporation. The Corporation believes that this continued exclusive
benefit of the Executive’s services and the Executive’s agreement never to
compete amply justify the payments and benefits to the Executive under this
Agreement.


To reflect these arrangements the Executive and the Corporation have entered
into this Agreement. This Agreement replaces the Retirement and Consulting
Agreement dated December 6, 2002 (the “Prior Agreement”), and all other
agreements relative to the subject matter herein between the Corporation and
the Executive, except as expressly provided in this Agreement.


In consideration of the above matters and for other good and valuable
consideration, the sufficiency of which each of the parties acknowledge, the
Corporation and the Executive, intending to be legally bound hereby, agree to
the following terms and conditions.


 






 



	1.	 	Continued Employment; Retirement Date.



As of the close of business on December 30, 2003 (the “Effective Date”), the
Executive shall retire as Chief Executive Officer, President and Director of
the Corporation and as Director of the Bank. The Executive agrees that his
resignation is irrevocable and that no further action is required for it to
become effective. After the Effective Date, the Executive shall continue
employment with the Corporation serving as a Senior Advisor throughout the
period ending August 15, 2005 (the “Retirement Date”), as of which date he
shall retire from the Corporation’s employ. The period from the Effective Date
through and including the Retirement Date is the “Employment Period”.



	2.	 	Employment Services.



     (a)  During the Employment Period the Executive shall be a Senior Advisor
to members of the Executive Committee of the Bank and agrees to be available at
all reasonable times upon reasonable notice to provide assistance on such
matters as requested by members of the Executive Committee of the Bank on
behalf of the Bank or the Corporation from time to time. Such services may
include advice and assistance with new products and markets, new affinity or
endorsing relationships or the renewal of existing relationships, and other
significant business matters of the Corporation, and the Corporation’s efforts
to support education, charitable and civic organizations and other activities
in the communities in which it operates. Beginning with the Effective Date, the
Executive will cease being an officer of the Corporation and therefore will
cease having any authority to bind the Corporation (by any act, representation
or omission whatsoever) or perform any policy-making function on its behalf.


     (b)  Unless the Corporation has given its prior specific written consent,
the Executive shall not accept employment with or otherwise in any way agree to
provide business, commercial or professional services to any other person in
any manner which would significantly impair the ability of the Executive to
provide the services to the Corporation contemplated by Section 2(a) of this
Agreement.


     (c)  During the Employment Period and thereafter, the Executive shall
cooperate with and make himself reasonably available to the Corporation to
assist the Corporation with regard to any matters of which the Executive had
knowledge or in which he was involved; provided that the Executive shall not be
required to take any action that would be adverse to the Executive’s legal
interest. The Corporation will reimburse the Executive for reasonable
out-of-pocket expenses for travel, accommodations, meals and other expenses
incurred in the performance of the services.


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	3.	 	Compensation.



     (a)  During the Employment Period the Executive shall receive a base salary
in the amount of Two Million Five Hundred Thousand Dollars ($2,500,000) per
annum in the same manner and at the same times as salaries are paid to
employees generally. The Executive shall not be eligible to receive an annual
bonus or any other compensation for his services during the Employment Period,
except as provided in Sections 4 and 9(b). Except as may be specifically
otherwise provided herein, during the Employment Period the Corporation shall
provide to the Executive those benefits (including health, life insurance and
disability benefits for the Executive and his spouse) provided by the
Corporation to its full-time employees generally, consistent with the benefit
elections made by the Executive in accordance with the standard Corporation
benefit procedures.


     (b)  During the Employment Period the Executive shall be entitled to
receive any and all other benefits available to employees of the Corporation
generally.


     (c)  Effective on the Retirement Date, the Executive shall cease to be an
employee of the Corporation and shall no longer receive any compensation or
benefits from the Corporation except as provided in this Agreement or in a plan
or agreement that expressly provides that the compensation or benefit survives
or is effective on or after termination of employment. The Executive shall
commence receiving payments under the Supplemental Executive Retirement Plan
(“SERP”) as of the Retirement Date, subject to all of the terms and conditions
applicable to the operation of the SERP.



	4.	 	Other Benefits.



Beginning on the Effective Date, and continuing for the remainder of the
Executive’s life, the Corporation agrees to provide the Executive with the
benefits described in this Section 4.


     (a)  Office and Administrative Support. The Corporation will provide at
its expense an office, including furnishings and equipment, at the
Corporation’s facilities in Greenville, Delaware, comparable to the Executive’s
current office immediately prior to the Effective Date. The Corporation will
also provide at its expense secretarial support at the office.


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     (b)  Airplane Use. The Corporation will permit the Executive to use
corporate aircraft for all corporate business travel and for all personal
travel for himself and his spouse. Other persons may be included in this
travel provided that the Executive or his spouse is also on the airplane. The
aircraft will be a Falcon 2000 or another eight-seat or larger jet aircraft
selected by the Corporation or, for overseas travel, a larger aircraft but not
for more than six round trips per year. The aircraft will not be dedicated to
the Executive’s use and the Executive will give as much notice of any travel
for which the Executive requests a corporate aircraft for personal use as
reasonably possible, but not less than 72 hours, except for travel in response
to a personal emergency. No more than one aircraft will be available for the
Executive’s personal use at any time. The aggregate incremental cost to the
Corporation for the Executive’s personal use of corporate aircraft will not
exceed $250,000 in any calendar year. Aggregate incremental cost shall
include the cost to the Corporation for fuel, travel expenses for the crew,
landing fees, airport taxes, airport fees, customs fees and all in-flight food.


     (c)  Medical Benefits. The Corporation will provide, at its cost, to the
Executive after age 65 and his spouse after age 65 Medicare supplemental health
insurance coverage. Upon the death of the Executive, the Corporation agrees to
continue Medicare supplemental health insurance coverage for the Executive’s
spouse for the remainder of her life.



	5.	 	Non-competition.



     (a)  Because of the Executive’s unparalleled knowledge and experience in
the credit card and consumer lending industry and his detailed knowledge of the
Corporation’s business, plans, people and other confidential information, the
Corporation would suffer very substantial harm if the Executive engaged,
directly or indirectly, in competition with the Corporation. The Corporation
has provided financial incentives to the Executive to in part ensure that he
will not compete with the Corporation. Therefore, in consideration of the
payments and other benefits to the Executive by the Corporation under this
Agreement, and recognizing that the Executive’s receipt of certain
post-retirement benefits under various Corporation plans, such as the SERP, is
conditioned on the Executive’s not competing with the Corporation, the
Executive agrees during his lifetime (the “Restricted Period”), 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, to any issuer of MasterCard, VISA,
American Express, Discover Card or any other type of credit card or charge
card, any bank or other lender which makes consumer loans of any kind, 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


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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 or consumer loan
program with the Corporation or any other entity. The Executive agrees that
these restrictions, including their scope and duration, are reasonable, and
that the consideration for these restrictions is adequate.


     (b)  The obligations of the Executive under this Section 5 shall survive
the termination of this Agreement without regard to the reason for such
termination.



	6.	 	Confidentiality.



     (a)  Following the end of the Executive’s employment by the Corporation, or
sooner upon request of the Corporation, the Executive will deliver to the
Corporation the originals and all copies of all records and other documents
acquired in the Executive’s capacity as an employee of the Corporation which
relate to the Corporation 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 of public record,
(ii) relate directly and primarily to the Executive’s compensation and benefits
as an employee of the Corporation, (iii) the Corporation gives the Executive
permission to retain in the Executive’s possession, or (iv) are needed to
perform services as provided under this Agreement. The Executive shall not
retain or deliver to any other person any copies of any such records or
documents. Upon the Executive’s request, the Corporation will promptly provide
to the Executive a copy of each document that (i) relates directly to the
Executive’s compensation and benefits as an employee of the Corporation; (ii)
is needed by the Executive to perform services as provided under this
Agreement; or (iii) is requested by the Executive and is not deemed
confidential by the Corporation in its sole discretion. Section 6(b) will
apply to any documents delivered by the Corporation to the Executive pursuant
to clauses (i) and (ii) of the preceding sentence.


     (b)  The Executive will not use for the Executive’s benefit or for the
benefit of any person other than the Corporation, and, except as necessary or
appropriate in the performance of his duties to the Corporation, including
under this Agreement, will not ever disclose to any person any confidential
information concerning the Corporation. The Executive acknowledges that all
information concerning the Corporation, 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. Disclosure
or use which otherwise would constitute a breach of this Section 6 shall not be
deemed a breach thereof to the extent such disclosure or use is required by law
or is not done intentionally or in a grossly negligent manner. In addition,
(i) nothing in this Agreement shall prohibit the Executive from providing
truthful testimony concerning the Corporation to governmental, regulatory or
self-regulatory authorities and (ii) the parties (and their respective
employees, representatives and agents) may disclose to any and all persons,
without any limitations of any kind, the tax treatment and tax structure of
this Agreement


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and all materials of any kind (including opinions and other tax analysis)
that are provided to either party related to such tax treatment and structure.


     (c)  The obligations of the Executive under this Section 6 shall survive
the termination of this Agreement without regard to the reason for such
termination.



	7.	 	Term.



     (a)  The Executive may terminate this Agreement at any time upon written
notice to the Corporation of such termination, provided that the provisions of
Sections 5 and 6 shall survive the termination of this Agreement, without
regard to the reason for such termination. Any such termination by the
Executive shall be treated as a voluntary termination of employment by the
Executive for purposes of Section 9(b) of this Agreement. If the Executive
terminates this Agreement prior to August 15, 2005, the provision of Section
4.01(a) of the SERP requiring 12-months written notice for voluntary
termination of employment shall not apply to the Executive and is hereby
irrevocably waived by the Corporation.


     (b)  The Corporation may terminate this Agreement only if the Executive
fails without reasonable justification to provide in any material respect
services requested pursuant to this Agreement or otherwise materially breaches
this Agreement and, in either case, the Executive fails to cure such breach
within thirty (30) days after receipt of notice thereof from the Board of
Directors of the Corporation as authorized by not less than two-thirds (2/3) of
all of the members thereof and there is a determination of such breach in a
binding and final judgment, order or decree of a court or other agency of
competent jurisdiction, in effect after exhaustion or lapse of all rights of
appeal, and provided that the provisions of Sections 5 and 6 shall survive the
termination of this Agreement, without regard to the reason for such
termination.


     (c)  Upon the Executive’s death or disability, the Employment Period shall
end and Section 2 and Section 3 of this Agreement shall terminate.


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	8.	 	Taxes.



The Corporation shall report amounts paid by the Corporation to the Executive
or the benefits received by the Executive under this Agreement to federal,
state and local tax authorities as required by law. The Corporation may
withhold from any amounts payable to the Executive all federal, state or local
taxes or payments as may be required by law or as may be expressly authorized
by the Executive to be withheld, deducted or reduced from those amounts.



	9.	 	Other Terms.



     (a)  Subject to Section 9(c), this Agreement represents the entire
agreement, and supersedes all prior and contemporaneous agreements and
understandings, relative to the same subject matter, including the Prior
Agreement.


     (b)  Outstanding stock options and restricted stock awards held by the
Executive shall be administered in accordance with the terms of the
Corporation’s plan authorizing the grant of the awards, the agreements pursuant
to which the awards were issued and the Corporation policies relating to the
awards as from time to time in effect. Notwithstanding the preceding sentence,
the restricted shares held by the Executive shall vest 50% on the date of this
Agreement, 25% on August 15, 2004 and 25% on August 15, 2005, or sooner upon
the Executive’s death or “disability” or a “change in control” of the
Corporation, as such terms are defined in the Corporation policies relating to
the awards, or upon the termination by the Corporation of the Executive’s
employment. Notwithstanding the foregoing, if either the Corporation
terminates this Agreement in accordance with Section 7(b) of this Agreement
which permits the Corporation to terminate this Agreement due to the
Executive’s failure without reasonable justification to provide in any material
respect services requested under this Agreement or due to the Executive’s other
material breach of this Agreement, or the Executive voluntarily terminates his
employment with the Corporation, any such unvested restricted shares shall not
vest and will be immediately forfeited and canceled. When vesting restricted
shares pursuant to this Section 9(b) or otherwise, the Corporation shall select
in its sole discretion the specific shares to vest. The Corporation and the
Executive agree that the restricted shares granted to the Executive on January
2, 2004 are cancelled as of the date the parties have executed this Agreement.


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     (c)  Except as provided in Section 9(b) and as provided below, this
Agreement does not affect or amend prior agreements as to the Corporation’s
benefit plans available generally to employees, the Corporation’s SERP,
Supplemental Executive Insurance Plan, stock option and restricted stock
agreements, any Executive Deferred Compensation Plan agreements with the
Executive. Notwithstanding the first sentence of this Section 9(c), the
Corporation and the Executive agree that the term “competition” in the
Corporation’s SERP and in the Policies adopted under the Corporation’s 1997
Long Term Incentive Plan shall be interpreted to include the activities
described in Section 5 of this Agreement, and the portions of this agreement
concerning the term “competition” as used in SERP and in such Policies shall
survive any termination of this Agreement. Notwithstanding the first sentence
of this Section 9(c), the Corporation and the Executive agree that the Change
of Control Agreement between the Corporation and the Executive dated July 8,
2003 (the “Change of Control Agreement”) shall terminate as of the Effective
Date of this Agreement except that the tax gross-up payments related to the
imposition of excise taxes and all other terms of Section 9 of the Change of
Control Agreement shall continue in full force and effect and Section 9 of the
Change of Control Agreement in its entirety is hereby incorporated by reference
into this Agreement, except that all references therein to “Company” shall be
read to mean “Corporation” (as defined herein) and all references to the
“Agreement” shall be read to mean this Agreement. Section 9 of the Change of
Control Agreement as incorporated by reference herein shall survive any
termination of this Agreement. Notwithstanding the fact that the change of
control agreement no longer applies, the Corporation and the Executive agree
that the definition of “change of control” therein continues to apply for
purposes of the 1997 Long Term Incentive Plan and the SERP. Notwithstanding
the first sentence of this Section 9(c), the Corporation and the Executive
agree that, as applied to the Executive, the definition of “cause” in Section
2.05 of the SERP is amended in its entirety to read “conviction of the Member
for a crime that constitutes a felony for embezzling Corporate funds or for
theft of Corporate property”, and that, as applied to the Executive, the
definition of “cause” in the Policies adopted under the Corporation’s 1997 Long
Term Incentive Plan is amended in its entirety to read “conviction of the
participant for a crime that constitutes a felony for embezzling Corporate
funds or for theft of Corporate property”. The Corporation and the Executive
agree that the above amended definitions of “cause” under the SERP and under
the Policies adopted under the Corporation’s 1997 Long Term Incentive Plan
shall survive any termination of this Agreement.


     (d)  This Agreement may not be amended or changed, and neither party shall
be deemed to have waived any provision of this Agreement, unless the amendment
or change or waiver is set forth in a writing signed by a duly authorized
officer of the Corporation and by the Executive. The failure of either party
to enforce any term of this Agreement shall not constitute a waiver of any
rights or deprive the party of the right to insist thereafter upon strict
adherence to that or any other term of this Agreement, nor shall a waiver of
any breach of this Agreement constitute a waiver of any preceding or succeeding
breach.


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     (e)  The Executive acknowledges that the Executive has read and understands
each provision of this Agreement and has had an opportunity for counsel of the
Executive’s choice to review this Agreement and that no promises or inducements
have been made for the Executive to sign this Agreement except as expressly set
forth in this Agreement.


     (f)  This Agreement shall be interpreted under the laws of the State of
Delaware, without regard to principles of conflicts of laws.


     (g)  The Executive agrees that any breach by the Executive of any
provision of Section 5 or Section 6 of this Agreement would cause the
Corporation irreparable damage and that no remedy available at law would be
adequate for such violation. Accordingly, in addition to any other remedies
available at law or in equity or under any Corporation benefit or compensation
plan or this Agreement, the Corporation may immediately seek enforcement of
this Agreement in a court of appropriate jurisdiction by means of specific
performance or injunction, without posting of a bond, or otherwise.


     (h)  It is the intention of the parties that this Agreement shall be
enforceable to the fullest extent allowed by law. In the event that a court
holds any provision of Section 5 or Section 6 of this Agreement to be
unenforceable, the parties agree that, if allowed by law, that provision shall
be reduced to the degree necessary to render it enforceable without affecting
the rest of this Agreement, and, if such reduction is not allowed by law, the
parties shall promptly agree in writing to a provision to be substituted
therefor which will have an effect as close as possible to the invalid
provision that is consistent with applicable law. The invalidity or
unenforceability of any provision of this Agreement shall not affect or limit
the validity and enforceability of the other provisions hereof.


     (i)  The Corporation shall pay all costs and expenses, including reasonable
attorneys’ fees, of the Corporation and the Executive in connection with any
legal proceeding or action, whether or not instituted by the Corporation or the
Executive, relating to the interpretation or enforcement of any provision of
this Agreement, provided that if the Executive instituted the proceeding and
the judge, arbitrator or other person presiding over the proceeding
affirmatively finds that the Executive instituted the proceeding in bad faith,
the Executive shall pay all costs and expenses, including reasonable attorneys’
fees, of the Executive.


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     (j)  This Agreement may not be assigned by the Executive. This Agreement
shall inure to the benefit of and be enforceable by the Executive’s spouse or
his estate and legal representatives. This Agreement shall inure to the benefit
of and be binding upon and enforceable by the Corporation’s successors and
assigns, including any successor through merger or purchase of substantially
all the assets of the Corporation. The Corporation 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 Corporation to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent that the Corporation would be required to perform it if no such
succession had taken place. As used in this Agreement, “Corporation” shall mean
the Corporation as hereinbefore defined and any successor to its business
and/or assets as aforesaid that assumes the obligation to perform this
Agreement by operation of law, agreement or otherwise.


     (k)  The Corporation and the Executive agree that Sections 9(b), 9(c),
9(i), 9(j), 9(k) and 9(l) survive the termination of this Agreement and shall
inure to the benefit of and be binding upon and enforceable by the Corporation
and the Executive.


     (l)  The Corporation and the Executive agree that any rights of the
Executive which inured to his benefit prior to this Agreement for the
Executive’s indemnification from the Corporation and for coverage under the
Corporation’s D&O policy would continue and survive this Agreement.


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IN WITNESS WHEREOF, the parties have executed this Agreement on March 8, 2004.



	 	 	 	 	 
	 	 	EXECUTIVE
	 	 	 	 	 
	 	 	/s/ Charles M. Cawley
	 	 	

	 	 	Charles M. Cawley
	 	 	 	 	 
	 	 	MBNA CORPORATION
	 	 	 	 	 
	 	 	
By:
	 	/s/ Louis J. Freeh
	 	 	 	 	

	 	 	 	 	Louis J. Freeh
	 	 	 	 	General Counsel




	 	 	 
	ATTEST:
	 	 	 
	 	 	
/s/ John W. Scheflen
	 	 	


	 	 	
John W. Scheflen
	 	 	
Secretary




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