EXHIBIT 10(RR)
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT by and among USA, Inc., a Delaware corporation ("First USA"),
Banc One Corporation, an Ohio corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇. Vague
(the "Executive"), dated as of the 5th day of June, 1997.
The Board of Directors of First USA (the "First USA Board") and the Board
of Directors of the Company, have determined that it is in the best interests
of, respectively, First USA and its shareholders, and of the Company and its
shareholders, to assure that First USA will have the continued dedication of the
Executive pending the merger of First USA an the Company (the "Merger") pursuant
to the Agreement and Plan of Merger dated as of January 19, 1997 (the "Merger
Agreement"), and to provide the surviving corporation after the Merger with
continuity of management. Therefore, in order to accomplish these objectives,
the Company's Board and the First USA Board have caused the Company and First
USA, respectively to enter into this Agreement.
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean the date on which the
Effective time of the Merger (as defined in the Merger Agreement) occurs.
2. Employment Period. The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to accept employment with and remain in 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 second anniversary
of the Effective Date ("the "Employment Period").
3. Terms of Employment. (a) Position and Duties. (i) (A) During the
Employment Period, the Executive shall serve as Chairman and CEO of First USA,
with such authority, duties and responsibilities as are commensurate with such
position and as ma be consistent with such position as may be assigned to the
Executive by Chairman and CEO of the Company; (B) the Executive's services shall
be performed at Wilmington, Delaware.
(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
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 efforts to perform faithfully and efficiently such
responsibilities. The Executive shall also comply with the Company's ethics
policy during the Employment Period.
(b) Compensation. (i) Base Salary. (A) During the Employment Period,
the Executive shall receive an annual base salary ("Annual Base Salary") which
shall be paid at a monthly rate at least equal to or greater than twelve times
the highest monthly base salary paid
1
or payable, including any base salary which has been earned but deferred, to the
Executive by the Company and its affiliated companies in respect of the twelve-
month period immediately preceding the month in which the Effective Date occurs.
Increases in Annual Base Salary shall be consistent with First USA's past
practices, guided by the compensation practices of other rapidly growing
financial services companies, especially monoline credit card companies ("Past
Practices"). As used in this Agreement, the term "affiliated companies" shall
include any company controlled by, controlling or under common control with the
Company.
(ii) Annual Bonus. In addition to Annual Base Salary, for each
fiscal year ending during the Employment Period the Executive shall receive, as
a percentage of annual Base Salary, an annual bonus opportunity consistent with
Past Practices. For First USA's fiscal year ending June 30, 1997, Executive
shall be entitled to an Annual bonus payable in July, 1997 pursuant to First
USA's annual incentive plans. Executive shall be paid a pro rata bonus by the
Company with respect to the remainder of calendar year 1997.
(iii) Incentive Compensation. During the Employment Period, the
Executive shall participate in all annual and long-term incentive plans,
practices, policies and programs consistent with Past Practices; provided that
the Executive shall receive the following stock-based awards: a) 300,000 stock
options; b) 45,455 shares of restricted stock in accordance with the details
outlined in Attachment A. the Executive shall be eligible for additional stock
option awards in July, 1997 and both stock options and other stock-based awards
in 1998 and each year thereafter at such times as such awards are made to other
Executives of the Company. Each stock option agreement between the Company and
the Executive shall provide that such stock options, to the extent vested upon
the Executive's termination of employment, including pursuant to any
acceleration of vesting under the terms of this Agreement, shall remain
exercisable following such termination, for a period ending no earlier than the
expiration of the Restricted Period (as defined in Section 8(b) hereof).
(iv) Savings and Retirement Plans. During the Employment Period, the
Executive shall be entitled to participate in all savings and retirement plans,
practices, policies and programs on a basis no less favorable than that
applicable to peer executives of the Company and its affiliated companies.
(v) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be eligible
for participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, employee life, group life, accidental death and travel accident
insurance plans and programs) on a basis no less favorable than that applicable
to peer executives of the Company and its affiliated companies.
(vi) 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.
2
(vii) Fringe Benefits. During the Employment Period, the Executive
shall be entitled to fringe benefits, including, without limitation, payment of
club dues, and, if applicable, use of an automobile and payment of related
expenses, on a basis no less favorable than that applicable to peer executives
of the Company and its affiliated companies.
(viii) 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 peer executives of the Company and its affiliated companies.
(ix) 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 on a basis no less
favorable than that applicable to peer executives of the Company and its
affiliated companies but in any event no less than [four] weeks vacation per
annum during the Employment Period.
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 Disability of the Executive has occurred during the
Employment Period (pursuant to the definition of Disability set forth below),
the Company may give to the Executive written notice in accordance with Section
10(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 60th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 60 days
after such receipt, the Executive shall not have returned to substantially 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 an independent physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's legal
representative.
(b) Cause. The Company may terminate the Executive's employment during
the Employment Period for Cause. For purposes of this Agreement,
"Cause" shall mean:
(i) the willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company; or
(ii) a material breach by the Executive of this Agreement which is
not remedied by the Executive promptly after receipt of notice thereof given by
the Company.
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 interest of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the company shall
be conclusively
3
presumed to be done, or omitted to be done, by the Executive in good faith and
in the best interest of the Company.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for or without Good Reason. For purposed of this Agreement, "Good
Reason" shall mean, in the absence of a written consent of the Executive, any
material failure by the Company to comply with any of the provisions of this
Agreement, other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly and receipt
of notice thereof given by the Executive.
(d) Notice of 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 10(b) of this
Agreement. For purposed 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 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 (ii) 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 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 sum of the following amount:
(1) the Executive's Annual Base Salary through the Date of Termination to the
extent not theretofore paid; (2) any compensation previously deferred (other
than pursuant to a qualified plan) by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay, 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 (3) the
product of (x) the sum
4
of (I) the Executive's Annual Base Salary and (II) the bonus paid to the
Executive with respect to the fiscal year prior to the fiscal year in which the
Date of Termination occurs and (y) a fraction, the numerator of which the
greater of (I) the number of months and/or partial months remaining in the
Employment Period from the Date of Termination or (II) the number of months
and/or partial months remaining in the Restricted Period (as defined in Section
8(b) hereof) from the Date of Termination (such greater number of months and/or
partial months being hereinafter referred to as the "Continuation Period"), and
the denominator of which is 12; and
(ii) during the Continuation Period, or such longer period as may be
provided by the terms of the appropriate plan, program, practice or policy, the
Company shall continue benefits to the Executive and/or the Executive's family
at least equal to those which would have been provided in them in accordance
with the plans, programs, practices and policies described in Section 3(b)(v) of
this Agreement if the Executive's employment had not been terminated or, if more
favorable to the Executive, as in effect generally at any time thereafter with
respect to peer executives of the Company and its affiliated companies and their
families, provided, however, that if the Executive becomes re-employed with
another employer and is eligible to receive medical or other welfare benefits
under another employer provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other plan
during such applicable period of eligibility. For purposes of determining
eligibility (but not the time of commencement of benefits) of the Executive for
retiree benefits pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed for the Continuation
Period, and to have retired on the last day of such period; and
(iii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or 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, including any amount which (I) is earned
by, but has not been paid to, the Executive and (ii) would have been paid or
vested in the calendar year in which the Executive's termination of employment
occurs (such other amounts and benefits shall be hereinafter referred to as the
"Other Benefits"); and
(iv) all stock-based awards shall become immediately vested.
(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. 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 as 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 of the Company and
its affiliated companies and their beneficiaries.
5
(c) Disability If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits.
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 and its affiliated
companies and their families.
(d) Cause; Other than 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, (y) the
amount of any compensation previously deferred by the Executive (other than
pursuant to a qualified plan), and (z) Other Benefits, in each case to the
extent not theretofore unpaid.
(6) Non-exclusivity of Rights. 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 10(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, except where there would be duplication of benefits. 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, except as
provided in Section 5(a)(ii), such amount shall not be reduced whether or not
the Executive obtains other employment.
(8) Confidential Information; Non-Competition; Non-Solicitation. (a)
Confidential Information. The Executive shall hold in a fiduciary capacity for
the benefit of the Company all secret of confidential information, knowledge or
date 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
6
consent of the Company or as may otherwise be required by law or legal process
or in order to enforce his rights under this Agreement or as necessary to defend
himself against a claim asserted directly or indirectly by the Company or its
affiliates, communicate or divulge any such information, knowledge or data that
is not otherwise publicly available to anyone other than the Company and those
designated by it.
(b) Non-Competition. Until the earlier of (1) the second anniversary
of the Effective Date, or if later, until one year following the Executive's
Date of Termination or (2) such earlier date as the company may specify to the
Executive, in writing, not less than 30 days prior to such date (the earlier of
clause (1) or (2), the "Restricted Period"), the Executive shall not, unless the
Executive receives the prior written consent of the Company directly or
indirectly: (i) own or become employed by or provide consulting services to, any
business engaged or planning to become engaged in the business of issuing
MasterCard, Visa or other credit card accounts; (ii) own or become employed by
or provide consulting services to, any business engaged or planning to become
engaged in the business of credit card processing, authorization or clearing
services; (iii) offer, accept, purchase, solicit or assist in the offering,
acceptance, purchase or solicitation of MasterCard, Visa or other credit card
accounts for himself or others; or (iv) solicit, offer or assist in the
solicitation or offering of (A) transaction payment processing, authorization or
clearing services, or (B) the development, design or implementation of any
computer hardware or software or system or technology relative to transaction
payment processing, authorization or clearing services.
The restrictions in the previous paragraph shall not prohibit the
Executive from directly or indirectly owning as a passive investment a less than
2 percent capital and/or profits interest in any entity, provided that the Board
has determined that such entity or interest is not a business or investment
opportunity for the Company or one of its affiliates or subsidiaries, and that
any business or entity in which said entity has a direct or indirect interest is
not a business or investment opportunity for the Company or any of its
affiliates or subsidiaries.
(c) Non-Solicitation. During the Restricted Period, the Executive
shall not, directly or indirectly solicit for employment, or directly or
indirectly employ, any individual who at the time of the Executive's termination
of employment or within six months prior thereto was employed by the Company or
its affiliates.
(d) Remedies. In the event of a breach or threatened breach of this
Section 8, 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.
(e) Termination of Employment. Any termination of the Executive's
employment or of this Agreement shall have no effect on the continuing operation
of this Section 8.
9. 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 decent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
7
(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.
(10) Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, 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 directly to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
-------------------
▇▇▇▇▇▇▇ ▇. Vague
[Address]
If to First USA:
---------------
First USA, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
-----------------
Banc One Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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.
8
(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 shall not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
(f) The Executive, the Company and First USA acknowledge that prior
to the Effective Date, the terms and conditions of the Executive's employment by
First USA are governed by the terms and conditions contained in the agreement,
dated as of ____________, between First USA and the Executive and that, after
the Effective Date, this Agreement will constitute the entire agreement between
the parties and integrate all agreements between the parties with respect to the
Executive's employment by the Company, the terms and conditions of such
employment, or the termination of such employment. Any and all prior agreements,
understandings or commitments between First USA and the Executive with respect
to any such matter will, after the Effective Date, be hereby superseded and
revoked.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from their respective Boards of Directors,
the Company and First USA have caused these presents to be executed in their
respective names on their respective behalf, all as of the day and year first
above written.
By: /s/ ▇▇▇▇▇▇▇ ▇. Vague
-------------------------------
▇▇▇▇▇▇▇ ▇. Vague
FIRST USA, INC.
By:
--------------------------------
BANC ONE CORPORATION
9
ATTACHMENT A
1. At the Effective time of the Merger, the Executive will receive a grant of
300,000 Banc One stock options. These stock options will have an exercise
price equal to the market price of the stock on the date of grant market
and ▇▇▇▇ ▇▇▇▇▇ vest on December 31, 2000. Options will accelerate upon
death, disability, termination of the Company without Cause or by the
Executive for Good Reason (as such terms are defined herein). Other terms
will be provided by the Banc One Plan.
2. At the Effective time of the Merger, the Executive will receive a grant of
45,455 shares of Banc One restricted stock. These restricted stock grants
▇▇▇▇ ▇▇▇▇▇ vest on December 31, 2001. Vesting will accelerate upon same
terms as options. The vesting will be reduced in amount if certain earnings
hurdles form the credit card business are not met. The applicable years are
1998 and 1999, and the hurdles and grant reductions are as follows:
a. No reduction if the aggregate 1998 and 1999 pre-tax earnings from the
card business exceed $1.570 billion.
b. a 50% reduction if the aggregate 1998 and 1999 pre-tax earnings from
the card business are below $1.570 billion, but exceed $1,400 billion.
c. A 70% reduction if the aggregate 1998 and 1999 pre-tax earnings from
the card business are below $1.400 billion.
It in intended that adjustments to earnings hurdles for the credit card business
will be made, as appropriate, for acquisitions and other relevant items as if
such business continued as an independent concern. Any amounts not vested
pursuant to the preceding provisions will vest on December 31, 2006. Other terms
as provided by Banc One stock plan.
10