EMPLOYMENT
AGREEMENT, dated as of May 5, 2008, among Harland Clarke
Holdings Corp. (“ Harland Clarke Holdings ”), a
Delaware corporation, Harland Financial Solutions Inc. (the
“Company”), an Oregon corporation, and Raju Shivdasani
(the “ Executive ”).
WHEREAS,
the Company wishes to employ the Executive, and the Executive
wishes to accept such employment on the terms and conditions set
forth in this Agreement;
Accordingly,
Harland Clarke Holdings, the Company and the Executive hereby agree
as follows:
1.
Employment, Duties and Acceptance .
1.1
Employment, Duties . The Company hereby employs the
Executive for the Term (as defined in Section 2.1), to render
exclusive and full-time services to the Company as President
Enterprise Solutions Group or in such other executive position as
may be mutually agreed upon by the Company and the Executive, and
to perform such other duties consistent with such position as may
be assigned to the Executive by the Chief Executive Officer of
Harland Clarke Holdings (the “ CEO ”). During
the Term, the Executive shall report solely to the CEO (or his
designee).
1.2
Acceptance . The Executive hereby accepts such employment
and agrees to render the services described above. During the Term,
the Executive agrees to serve the Company faithfully and to the
best of the Executive’s ability, to devote the
Executive’s entire business time, energy and skill to such
employment, and to use the Executive’s best efforts, skill
and ability to promote the Company’s interests. The Executive
further agrees to accept election, and to serve during all or any
part of the Term, as an officer or director of the Company and of
any subsidiary or affiliate of the Company, without any
compensation therefor other than that specified in this Agreement,
if elected to any such position by the shareholders or by the Board
of Directors of the Company (the “ Board ”) or
of any subsidiary or affiliate, as the case may be.
1.3
Location . The duties to be performed by the Executive
hereunder shall be performed primarily at the offices of the
Company in Lake Mary, Florida subject to reasonable travel
requirements on behalf of the Company.
2.
Term of Employment; Certain Post-Term Benefits .
2.1
The Term . This Agreement and the term of the
Executive’s employment under this Agreement (the “
Term ”) shall become effective as of January 1,
2008 (the “ Effective Date ”) and will continue
until December 31, 2010 (the “ Termination Date
”), subject to earlier termination pursuant to
Section 4.
2.2
End-of-Term Provisions . Prior to the end of the Term, the
Company and the Executive shall meet to discuss whether the Term
should be extended. The Company shall have the right at any time,
however, to give written notice of non-renewal of the Term. In the
event of non-renewal of the Term by the Company and the
Executive’s employment is terminated after the end of the
Term, other than for Cause (as defined below), or Disability (as
defined below) following such notice of non-renewal, then such
termination shall be treated as a termination without Cause and the
Restricted Period (as defined below) shall be reduced to a period
of one year post termination of employment (the “ Reduced
Restricted Period ”). During such Restricted Period, the
Executive shall receive 50% of the payments set forth in
Sections 4.4(i) and 4.4(ii), subject to Executive’s
signing and not revoking the release of claims as set forth in
Section 4.6. For the avoidance of doubt, if the Company is
willing to extend the Term and Executive does not agree to extend
the Term, then upon such termination of employment at the end of
the Term, the Executive shall be bound by the restrictive covenants
set forth in Section 5 below, the Restricted Period shall not
be reduced and Executive shall not be entitled to receive any
severance benefits with respect to such termination.
Notwithstanding the foregoing, the terms of this Section 2.2
will not impact any payments or other benefits to which the
Executive would then be entitled under normal Company policies or
the LTIP (as defined below) pursuant to the terms
thereof.
3.
Compensation; Benefits .
3.1
Salary . As compensation for all services to be rendered
pursuant to this Agreement, the Company agrees to pay the Executive
a base salary, payable in accordance with the Company’s
normal payroll practices, at the annual rate of not less than
$375,000 less such deductions or amounts to be withheld as required
by applicable law and regulations (the “ Base Salary
”). In the event that the Company, in its sole discretion,
from time to time determines to increase the Base Salary, such
increased amount shall, from and after the effective date of the
increase, constitute “Base Salary” for purposes of this
Agreement.
3.2
Incentive Compensation.
3.2.1 Annual Bonus . Commencing with the 2008 fiscal
year, the Executive will be eligible to receive a bonus with
respect to 2008 and each later fiscal year ending during the Term
computed in accordance with the provisions hereafter. If, with
respect to any such fiscal year, the Company achieves
“Consolidated EBITDA” (as defined below) of at least
the percentage set forth in the table below of its business plan
for such fiscal year, such bonus shall be the percentage set forth
in the table below of Base Salary with respect to the fiscal year
for which the bonus (any such bonus, an “ Annual Bonus
”) was earned:
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Percentage of Consolidated
EBITDA in Business Plan
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Percentage of Base
Salary
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89.9% and below
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Nil
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90
— 94.9
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52%
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95
— 99.9
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56%
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Percentage of Consolidated
EBITDA in Business Plan
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Percentage of Base
Salary
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100 – 105
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60%
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105.1 – 110
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64%
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110.1 – 115
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68%
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115.1 – 120
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72%
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120.1 – 125
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76%
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125.1 and over
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80%
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An Annual Bonus
if earned in accordance with this Agreement shall be paid no later
than the fifteenth day of the third month next following the year
with respect to which such bonus was earned, provided that, except
as otherwise specifically provided in this Agreement (including,
without limitation, Section 4.4), as a condition precedent to
any bonus entitlement the Executive must remain in employment with
the Company at the time that the Annual Bonus is paid.
Notwithstanding the foregoing, to the extent that Section 162(m) of
the Internal Revenue Code of 1986, as amended (the “
Code ”), may be applicable, such Annual Bonus shall be
subject to, and contingent upon, such shareholder approval as is
necessary to cause the Annual Bonus to qualify as
“performance-based compensation” under Section 162(m)
of the Code and the regulations promulgated thereunder as well as
approval of this Section 3.2.1 by the MFW Compensation
Committee and any other required committees.
For the
purposes of this Agreement, “ Consolidated EBITDA
” means for any fiscal year of the Company, consolidated
operating income for such fiscal year of the Company plus, without
duplication, the sum of (i) depreciation and amortization
expense (excluding amounts of prepaid incentives under customer
contracts), (ii) any extraordinary non-cash expenses or
losses, (iii) any costs and expenses incurred in connection
with the acquisition by M & F Worldwide Corp. of John H.
Harland Company (the “Transaction”),
(iv) allocation of fees charged by MFW or a subsidiary to the
Company relating to the operation of the Company and (v) all
restructuring costs (as defined under U.S. generally accepted
accounting principles), in the case of clauses (i) through
(v) above, solely with respect to Harland Financial Solutions,
and minus (x) to the extent included in the statement of such
consolidated net income for such period, the sum of any
extraordinary or non-recurring income or gains (including, whether
or not otherwise includable as a separate item in the statement of
such consolidated operating income for such period, gains on the
sales of assets outside of the ordinary course of business), and
(y) any cash payments made during such period in respect of
items described in clause (ii) above subsequent to the fiscal
quarter in which the relevant non-cash expenses or losses were
reflected as a charge in the statement of consolidated operating
income, in the case of clauses (x) and (y) above, solely
with respect to Harland Financial Solutions, all as determined on a
consolidated basis, all of the foregoing to be determined by the
Board or the MFW Compensation Committee, as applicable. For the
purposes of determining compensation milestones for any fiscal
year, Consolidated EBITDA will be adjusted by the Board or the MFW
Compensation Committee, as applicable, as appropriate for material
acquisitions or dispositions of any business or assets of or by the
Company or its subsidiaries for such fiscal year and
thereafter.
3.2.2
Long Term Incentive Plan. During the Term, the Executive
shall participate in the M&F Worldwide Corp. 2008 Long Term
Incentive Plan (the “LTIP”). The specific terms of such
award shall be set forth in an
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Award Agreement
entered into with the Executive on or about the date hereof. If the
term is extended, the Executive shall participate in a new Long
Term Incentive Plan that shall commence after the LTIP ends.
Notwithstanding the foregoing, to the extent that Section 162(m) of
the Code may be applicable, the LTIP (and any subsequent Long Term
Incentive Plan) shall be subject to, and contingent upon, such
shareholder approval as is necessary to cause the LTIP to qualify
as “performance-based compensation” under Section
162(m) of the Code and the regulations promulgated
thereunder.
3.3
Business Expenses . The Company shall pay or reimburse the
Executive for all reasonable expenses actually incurred or paid by
the Executive during the Term in the performance of the
Executive’s services under this Agreement, upon presentation
of expense statements or vouchers or such other supporting
information as the Company customarily may require of its officers
provided , however , that the maximum amount
available for such expenses during any period may be fixed in
advance by the Board.
3.4
Vacation . During the Term, the Executive shall be entitled
to a vacation period or periods of five (5) weeks during any
fiscal year taken in accordance with the vacation policy of the
Company during each year of the Term. Vacation time not used by the
end of a year shall be forfeited.
3.5
Fringe Benefits . During the Term, the Executive shall be
entitled to all benefits for which the Executive shall be eligible
under any qualified pension plan, 401(k) plan, group insurance or
other so-called “fringe” benefit plan which the Company
provides to its executive employees generally, which benefits may
be subject to change to reflect the objectives and requirements of
the Transaction.
4.1
Death . If the Executive dies during the Term, the Term
shall terminate forthwith upon the Executive’s death. The
Company shall pay to the Executive’s estate: (i) any
Base Salary earned but not paid; (ii) a pro rated Annual Bonus
based on the number of days of the fiscal year worked by the
Executive; (iii) amounts payable under the LTIP in accordance
with the terms thereof; and (iv) Annual Bonus for the year
prior to the year in which the Executive dies if at the time of
death the Executive has earned an Annual Bonus payment for such
prior year and has not yet been paid such Annual Bonus. The
Executive shall have no further rights to any compensation
(including any Base Salary or Annual Bonus) or any other benefits
under this Agreement, except to the extent already earned and
vested as of the day immediately prior to his death, or as earned,
vested, or accrued by virtue of his death.
4.2
Disability . If, during the Term the Executive is unable to
perform his duties hereunder due to a physical or mental incapacity
for a period of 6 months within any 12 month period
(hereinafter a “ Disability ”), the Company
shall have the right at any time thereafter to terminate the Term
upon sending written notice of termination to the Executive. If the
Company elects to terminate the Term by reason of
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Disability, the
Company shall pay to the Executive promptly after the notice of
termination: (i) any Base Salary earned but not paid,
(ii) a pro rated Annual Bonus based on the number of days of
the fiscal year worked by the Executive until the date of the
notice of termination, (iii) amounts payable under the LTIP in
accordance with the terms thereof, and (iv) Annual Bonus for
the year prior to the year in which the Executive is terminated if
at the time of termination the Executive has earned an Annual Bonus
payment for such prior year and has not yet been paid such Annual
Bonus, in each case less any other benefits payable to the
Executive under any disability plan provided for hereunder or
otherwise furnished to the Executive by the Company. The Executive
shall have no further rights to any compensation (including any
Base Salary or Annual Bonus) or any other benefits under this
Agreement except to the extent already earned and vested as of the
day immediately prior to his termination by reason of Disability,
or as earned, vested, or accrued by virtue of his
Disability.
4.3
Cause. The Company may at any time by written notice to the
Executive terminate the Term for “Cause” (as defined
below) and, upon such termination, this Agreement shall terminate
and the Executive shall be entitled to receive no further amounts
or benefits hereunder, except for any Base Salary earned but not
paid prior to such termination. For the purposes of this Agreement,
“ Cause ” means: (i) continued neglect by
the Executive of the Executive’s duties hereunder,
(ii) continued incompetence or unsatisfactory attendance,
(iii) conviction of any felony, (iv) violation of the rules,
regulations, procedures or instructions relating to the conduct of
employees, directors, officers and/or consultants of the Company,
(v) willful misconduct by the Executive in connection with the
performance of any material portion of the Executive’s duties
hereunder, (vi) breach of fiduciary obligation owed to the
Company or commission of any act of fraud, embezzlement, disloyalty
or defalcation, or usurpation of a Company opportunity, (vii)
breach of any provision of this Agreement, including any
non-competition, non-solicitation and/or confidentiality provisions
hereof, (viii) any act that has a material adverse effect upon
the reputation of and/or the public confidence in the Company,
(ix) failure to comply with a reasonable order, policy or rule
that constitutes material insubordination, (x) engaging in any
discriminatory or sexually harassing behavior or (xi) using,
possessing or being impaired by or under the influence of illegal
drugs or the abuse of controlled substances or alcohol on the
premises of the Company or any of its subsidiaries or affiliates or
while working or representing the Company or any of its
subsidiaries or affiliates. A termination for Cause by the Company
of any of the events described in clauses (i), (ii), (iv), (ix),
(x) and (xi) shall only be effective on 15 days
advance written notification, providing Executive the opportunity
to cure, if reasonably capable of cure within said 15-day period;
provided, however, that no such notification is required if the
Cause event is not reasonably capable of cure or the Board
determines that its fiduciary obligation requires it to effect a
termination of Executive for Cause immediately.
4.4
Termination by Company without Cause or by the Executive for
Good Reason. If the Executive’s employment is terminated
by the Company without Cause (other than by reason of death or
Disability) or by the Executive for Good Reason (as defined below),
the Executive shall receive: (i) as severance pay, an amount
equal to one and one-half times the Base Salary payable in
installments in
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