Exhibit 10.1
SEPARATION AGREEMENT
This Separation Agreement is made and entered into April 3 , 1998,
between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Employee) and Deluxe Corporation, a Minnesota
corporation having its principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Deluxe).
WHEREAS, Employee has been employed by Deluxe for several years; and
WHEREAS, the parties agree to set forth herein the terms and conditions
under which such employment is terminated.
NOW THEREFORE, in consideration of the mutual benefits and promises
contained herein the parties agree as follows:
1. Termination. Employee and Deluxe agree that Employee voluntarily
terminates his employment with Deluxe on March 31, 1998 (Termination Date).
2. Payments and Benefits. Deluxe and Employee agree that the following
payments and benefits, less applicable payroll and any supplemental deductions,
shall be provided by Deluxe to Employee:
A. Two Hundred Six Thousand and 00/100 Dollars ($206,000.00) in
three installments of Sixty-Eight Thousand Six Hundred
Sixty-Six and 66/100 Dollars ($68,666.66), at the time
described in the last paragraph of this Section, Sixty-Eight
Thousand Six Hundred Sixty-Six and 66/100 Dollars ($68,666.66)
on April 8, 1999 and Sixty-Eight Thousand Six Hundred
Sixty-Six and 68/100 Dollars ($68,666.68) on April 8, 2000,
respectively.
B. All accrued vacation pay as of Termination Date.
C. Accrued amounts in Employee's Stock Purchase Plan Account as
of Termination Date, if any.
D. Payment to Employee of his accrued balance in the Deferred
Compensation Plan, if any, in accordance with the terms of the
Plan.
E. Payment to Employee of his accrued balance in his Supplemental
Retirement Plan Account, if any, in accordance with the terms
of the Plan.
Except as otherwise provided, the payments and benefits described in this
Section shall be provided by Deluxe to Employee upon receipt of the signed
Separation Agreement and a Release in the form attached as Exhibit A, but no
earlier than five (5) nor later than seven (7) days after the expiration of the
rescission period referred to in Section 7. Such payments shall be reduced by
any amount Employee owes Deluxe for outstanding credit card or other charges.
3. Full Compensation. The payments that will be made to Employee
pursuant to this Separation Agreement shall compensate him for and extinguish
any and all claims he may have arising out of his employment with Deluxe or his
employment termination as of the effective date of the Release, including but
not limited to claims for attorneys' fees and costs, and any and all claims for
any type of legal or equitable relief.
4. Insurance. If Employee rescinds this Separation Agreement pursuant
to Section 7 below, Employee will still have the right to continue his health,
dental, vision and life plans as provided by law.
5. Benefits. Employee is a participant in various employee benefit
plans sponsored by Deluxe. Unless otherwise agreed hereunder, the payment or
cancellation of benefits, including the amounts and the timing thereof, will be
governed by the terms of the employee benefit plans. Deluxe will provide
Employee the same assistance given other participants in employee benefit plans
so long as he is entitled to benefits thereunder.
6. Records, Documents and Property. Employee will return to Deluxe all
of its property including, but not limited to its records, correspondence and
documents as well as all computers, keys, pagers and corporate charge cards.
7. Rescission. Employee acknowledges that he has had a period of
twenty-one (21) days in which to consider this Separation Agreement and the
Release referred to in Section 8 and deliver signed originals of them to the
officer and at the address set out below in this Section. Once this Separation
Agreement and the Release are executed, Employee may rescind this Separation
Agreement and the Release within seven (7) calendar days to reinstate federal
claims and fifteen (15) days to release Minnesota claims. To be effective, any
rescission within the relevant time periods must be in writing and delivered to
Deluxe Corporation, in care of ▇▇▇▇▇ St. ▇▇▇▇▇▇▇, Vice President, Deluxe
Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, either by
hand or by mail within the respective periods. If sent by mail, the rescission
must be (1) postmarked within the respective periods (2) properly addressed to
Deluxe Corporation; and (3) sent by certified mail, return receipt requested.
8. General Release. In consideration of the payments and other
undertakings stated herein, the parties shall sign a separate Release in the
form attached hereto as Exhibit A at the time each signs this Separation
Agreement.
9. Confidential Deluxe Information. Employee agrees that for a period
of two (2) years after execution of this Agreement, Employee will not use or
disclose Confidential Information of Deluxe.
"Confidential Information" means all confidential or proprietary
information of Deluxe or any affiliate or subsidiary, including without
limitation, financial data, trade secrets, customer and mailing lists, business
plans, sales and marketing plans, business acquisition or divestiture plans,
data processing systems, books and records, research and development activities
relating to existing commercial activities and new products, services and
offerings under active consideration, which Employee may have acquired or
obtained during the course of Employee's employment with Deluxe.
10. Standstill. Employee agrees that for a period of two (2) years
after Termination Date, Employee will not directly or indirectly, (a) effect or
seek, offer or propose (whether publicly or otherwise) to effect, or cause or
participate in or in any way assist any other person or entity to effect or
seek, offer or propose (whether publicly or otherwise) to effect or participate
in (i) any acquisition, sale, breakup or auction of more than one percent of the
outstanding securities (or beneficial ownership thereof) or any assets (except
in the ordinary course of business) of Deluxe or any of its subsidiaries or
affiliates; (ii) any takeover bid, tender offer, merger or other business
combination involving Deluxe or any of its subsidiaries or affiliates; (iii)
except as a creditor, any recapitalization, restructuring, liquidation,
dissolution, or other extraordinary transaction with respect to Deluxe or any of
its subsidiaries or affiliates; (iv) any solicitation of proxies to vote any
common shares of Deluxe; or (v) negotiate, execute or perform any agreement,
arrangement or understanding with any person or entity regarding a possible
transaction of the type described above involving Deluxe or any of its
subsidiaries or affiliates; (b) take any action which might compel Deluxe to
make a public announcement regarding any of the types of matters referred to in
clause
(a); (c) form, join, or in any way participate in a group of persons or entities
acting jointly or in concert with respect to Deluxe or any of its subsidiaries
or affiliates as to any of the types of matters referred to in clauses (a) or
(b); (d) otherwise act alone or in concert with others, to seek to control or
influence the management, board of directors or policies of Deluxe or any of its
subsidiaries or affiliates with respect to any of the foregoing; or (e) enter
into discussions or arrangements with any other person or entity with respect to
any of the foregoing, unless Employee has acquired the explicit prior written
consent of the President of Deluxe to engage in such foregoing activity.
11. Confidentiality. The terms of this Separation Agreement and the
Release shall be treated as confidential by both Employee and Deluxe and neither
party shall disclose its terms to anyone, except Employee may disclose the terms
of this Separation Agreement and the Release to his immediate family, legal
counsel and accountant. Deluxe may disclose the terms of this Separation
Agreement and the Release to its officers and directors, outside auditors, and
to employees who have a legitimate need to know the terms in the course of
performing their duties and either party may disclose the terms of this
Separation Agreement and the Release if requested or ordered by a governmental
agency or court of competent jurisdiction. Each party recognizes and agrees that
this confidentiality provision was a significant inducement for the other to
enter into this Separation Agreement and Release.
12. Non-Recruitment. For a period of two (2) years after Termination
Date, Employee shall not for himself or any other person or entity either,
directly or indirectly, recruit for employment any person who at any time during
the period one (1) year prior to Termination Date through expiration of the
non-recruitment period is or was an employee of Deluxe or any of its affiliates
or subsidiaries.
13. Non-Disparagement. The parties mutually agree that they shall not
disparage or defame each other in any respect or make any such comments
concerning the employment relationship between them.
14. Non-Competition. Employee agrees that for a period of two (2) years
after Termination Date, Employee will not (a) serve as an officer, principal,
advisor, agent, partner, director, stockholder, employee or consultant of any
corporation or other business enterprise that engages in activities, directly or
through an affiliate, that are directly competitive with the commercial
activities of Deluxe from which it derives a significant portion of its revenue
and which were engaged in by Deluxe at the time of the termination of Employee's
employment without the prior written consent of the President and Chief
Executive Officer of Deluxe Corporation; or (b) with respect to such activities
that are directly competitive, cause customers, distributors or suppliers under
contract or doing business with Deluxe at any time within one year prior to and
including the Termination Date to modify their business relationships with
Deluxe in any material respect.
Ownership by Employee of less than one percent (1%) of the outstanding
shares of capital stock of any corporation, for investment purposes, shall not
constitute a breach of this provision.
For commercial activities to be "directly competitive" with those of
Deluxe within the meaning of this Agreement, such activities must consist of
selling or attempting to sell the same types of products or services from which
Deluxe Corporation now derives at least one percent (1%) of its revenue or which
are the subject of business development plans (which the parties agree are the
following general categories: (a) check products used by financial institutions
and their customers; (b) check and check transaction security features; (c)
check related printed forms products; (d) direct marketing services for
financial institutions; (e) market research information services for financial
institutions; (f) electronic funds transfers services of the type provided by
Deluxe or any of its subsidiaries or similar to any payment risk management
services provided by Deluxe or any of its affiliates; and (g) direct marketing
sales of check products to the same classes of customers).
14. Reference Letter. In consideration for Employee's agreement to the
Non-Competition provision described above, Deluxe agrees that in the event the
parties agree upon the text of a reference
letter on or before April 6, 1998 a copy of it shall be attached and
incorporated by reference as Exhibit B and Employee may provide a copy of such
letter to any prospective employer. Deluxe agrees that any communication by ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ III, President, concerning Employee's employment with Deluxe shall
in tone and content not be inconsistent with the statements contained in any
Exhibit B.
15. Non-Assignment. The parties agree that this Separation Agreement
and the Release will not be assigned by either party unless the other party
agrees to such assignment in writing.
16. Merger. This Separation Agreement and the Release, and the employee
benefit plans in which Employee is a participant supersede all prior oral and
written agreements and communications between the parties. Employee and Deluxe
agree that any and all claims which either might have had against the other are
fully released and discharged by this Separation Agreement and the Release, and
that the only claims which either may hereafter assert against the other will be
derived only from an alleged breach of the terms of the Separation Agreement or
the Release or, as against Deluxe, or any employee benefit plan in which
Employee is a participant.
17. Entire Agreement. This Separation Agreement and Release constitute
the entire agreement between the parties with respect to the termination of
Employee's employment relationship with Deluxe, and the parties agree that there
were no inducements or representations leading to the execution of this
Separation Agreement or Release except as herein contained.
18. Voluntary and Knowing Action. Employee acknowledges that he has
been advised of his right to be represented by his own attorney, that he has
read and understands the terms of this Separation Agreement and the Release, and
that he is voluntarily entering into the Separation Agreement and the Release.
19. Governing Law. This Separation Agreement and the Release will be
construed and interpreted in accordance with the laws of the State of Minnesota.
20. Counterparts. This Separation Agreement and the Release may be
executed simultaneously in two or more counterparts, each of which will be
deemed an original, but all of which together will constitute one of the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Separation
Agreement as of the day and year first above written.
DELUXE CORPORATION EMPLOYEE
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ III By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇▇▇▇ III ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
STATE OF MINNESOTA
COUNTY OF ▇▇▇▇▇▇
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ , a Notary Public, do hereby certify that ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ personally known to me to be the same person whose name is subscribed
to the foregoing instrument, appeared before me this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act, for the uses and purposes therein set forth.
Given under my hand and official seal this 3rd day of April, 1998.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public
STATE OF MINNESOTA
COUNTY OF ▇▇▇▇▇▇
The foregoing instrument was acknowledged before me this 6th day of April, 1998
by ▇. ▇. ▇▇▇▇▇▇▇▇▇ III, the President of Deluxe Corporation, a Minnesota
corporation, on behalf of the Corporation.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public
Exhibit A
RELEASE
Definitions. We intend all words used in this Release to have their plain
meaning in ordinary English. Technical legal words are not needed to describe
what we mean. Specific terms we use in this Release have the following meanings:
A. We, as used herein, includes Deluxe Corporation defined at B and
Employee, as defined at C.
B. Deluxe Corporation, as used herein, shall at all times mean Deluxe
Corporation, its subsidiaries, successors and assigns, their affiliated
companies, their successors and assigns, their affiliated and predecessor
companies and the present or former officers, employees and agents of any of
them, whether in their individual or official capacities, and the current and
former trustees or administrators of any profit sharing, pension or other
benefit plan applicable to the employees or former employees of Deluxe
Corporation, in their official and individual capacities.
C. Employee, as used herein, means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or anyone who
has or obtains any legal rights or claims through him.
D. Employee's Claims means any rights Employee has now or hereafter to
any relief of any kind from Deluxe Corporation whether or not Employee knows now
about those rights, arising out of his employment with Deluxe Corporation, and
his employment termination, including, but not limited to, claims for breach of
contracts; fraud or misrepresentation; violation of the Minnesota
anti-discrimination laws, the Americans with Disabilities Act, or other federal,
state, or local civil rights laws based on disability or other protected class
status; defamation; intentional or negligent infliction of emotional distress;
breach of the covenant of good faith and fair dealing; promissory estoppel;
negligence; wrongful termination of employment; and any other claims for
unlawful employment practices. However, this Release shall not affect any claims
which Employee could have made under any welfare benefit plan or any profit
sharing, pension or retirement plan through Deluxe Corporation or which may
arise under the Agreement to which this Release is attached.
Agreement to Release Claims. Employee agrees that he is receiving a substantial
amount of money paid by Deluxe Corporation. Employee agrees to give up all
Employee's Claims against Deluxe Corporation in exchange for those payments.
Employee will not bring any lawsuits, file any charges, complaints, or notices,
or make any other demands against Deluxe Corporation based on Employee's Claims.
Employee agrees that the money and benefits Employee is receiving are full and
fair compensation for the release of all Employee's Claims. Employee agrees that
Deluxe Corporation does not owe Employee anything in addition to what Employee
will be receiving.
Employee understands that he may rescind (that is, cancel) this Release within
seven (7) calendar days of signing it to reinstate federal claims and within
fifteen (15) days to reinstate state claims. To be effective, Employee's
rescission must be in writing and delivered to Deluxe Corporation in care of
▇▇▇▇▇ St. ▇▇▇▇▇▇▇, Vice President, Deluxe Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, either by hand or by mail within the relevant
period. If sent by mail, the rescission must be postmarked within the relevant
period, properly addressed to Deluxe Corporation, and sent by certified mail,
return receipt requested.
Deluxe Corporation agrees to give up any claim against Employee that Deluxe
Corporation may have now or hereafter arising from or in connection with
Employee's employment with Deluxe Corporation, except as may arise under the
Agreement to which this Release is attached.
We acknowledge that we have read this Release carefully and understand all its
terms. In agreeing to sign this Release, we have not relied on any statements or
explanations made by either of us.
We agree that this Release shall be effective as of the last date set out below.
Deluxe Corporation and Employee understand and agree that this Release, the
Agreement and the Deluxe Corporation employee benefit plans in which Employee is
a participant, contain all of the agreements between Deluxe Corporation and
Employee. We have no other written or oral agreements.
Dated: April 3 , 1998 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Witnesses:
/s/ ▇▇▇▇▇ St. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DELUXE CORPORATION
Dated: April 6 , 1998 By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ III
▇. ▇. ▇▇▇▇▇▇▇▇▇ III
President
Witnesses:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Exhibit B
To Whom It May Concern:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ left the employment of Deluxe Corporation on March 31, 1998. ▇▇.
▇▇▇▇▇▇▇▇▇ indicated to me his desire to move on to new personal and professional
challenges.
▇▇▇▇ made many major contributions in the two and one-half years that he was
with us. He led the reorganization and improved the level of professionalism of
our product management, marketing and sales organizations. He initiated and
created a united brand strategy for the many divisions, products and services of
Deluxe. He also helped to set our strategic direction.
However, as we began to evolve our organization to implement our strategy it
became apparent that his position as Senior Vice President of Sales and
Marketing would change, a change that ▇▇▇▇ led and with which he agreed. Those
changes would alter his role in the company and as a result ▇▇▇▇ felt it would
be best if he pursued other opportunities.
Sincerely,
▇. ▇. ▇▇▇▇▇▇▇▇▇ III
President