Exhibit 10.01
SEPARATION AGREEMENT AND RELEASE OF ALL
CLAIMS
This
Separation Agreement and Release of All Claims
(“Agreement”) is entered into by and between Mary A.
Dutra (“Ms. Dutra”) and MoneyGram International,
Inc., a Delaware corporation, and its predecessors, successors,
affiliates, subsidiaries and related companies
(“MoneyGram”). This Agreement is effective as of the
date it is duly executed by both parties.
A. MoneyGram employs Ms. Dutra in the
position of Executive Vice President, Global Payment Processing and
Settlement.
B. MoneyGram and Ms. Dutra have
mutually agreed that Ms. Dutra’s employment with
MoneyGram will terminate effective September 24, 2009 (the
“Separation Date”).
C. Ms. Dutra is a participant in the
Amended and Restated MoneyGram International, Inc. Executive
Severance Plan (Tier I) (the “Severance Plan”) and the
MoneyGram International, Inc. Special Executive Severance Plan
(Tier I) (the “Special Severance Plan”).
D. MoneyGram and Ms. Dutra have
mutually agreed upon the following payments, benefits, and other
terms and conditions under which they will end their employment
relationship and resolve all actual and potential disputes between
them.
Therefore, MoneyGram and Ms. Dutra agree as
follows:
1. Termination of
Employment . Ms. Dutra’s employment with MoneyGram
shall terminate as of the Separation Date. As of the Separation
Date, Ms. Dutra hereby resigns from any position she holds
with MoneyGram and/or its parent, subsidiary or affiliate
companies.
2. Release of Claims
by Ms. Dutra . In consideration for the receipt of the payments
and other benefits described in this Agreement, to which
Ms. Dutra understands and acknowledges she may not otherwise
be entitled without executing this Agreement, Ms. Dutra hereby
releases and forever discharges MoneyGram, its parent companies,
predecessors, successors, affiliates, subsidiaries, related
companies, shareholders, and their respective members, managers,
partners, employees, officers, agents, and directors (individually
a “Released Party” and collectively the “Released
Parties”) from the following:
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2.1
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All claims
arising out of or relating to Ms. Dutra’s employment
with MoneyGram and/or Ms. Dutra’s separation from that
employment.
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2.2
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All claims
arising out of or relating to the statements, actions, or omissions
of the Released Parties.
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2.3
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All claims for
any alleged unlawful discrimination, harassment, retaliation or
reprisal, or other alleged unlawful practices arising under any
federal, state, or local statute, ordinance, or regulation,
including without limitation, claims under Title VII of the Civil
Rights Act of 1964, as amended; the Age Discrimination in
Employment Act of 1967, as amended; the Americans with Disabilities
Act of 1990, as amended; the Family and Medical Leave Act of 1993;
the Equal Pay Act of 1963; the Worker Adjustment and Retraining
Notification Act; the Employee Retirement Income Security Act of
1974; the Fair Credit Reporting Act; the Minnesota Human Rights
Act, any other federal, state or local anti-discrimination acts,
state wage payment statutes and non-interference or non-retaliation
statutes.
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2.4
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All claims for
alleged wrongful discharge; breach of contract; breach of implied
contract; failure to keep any promise; breach of a covenant of good
faith and fair dealing; breach of fiduciary duty; promissory
estoppel; Ms. Dutra’s activities, if any, as a
“whistleblower”; defamation; infliction of emotional
distress; fraud; misrepresentation; negligence; harassment;
retaliation or reprisal; constructive discharge; assault; battery;
false imprisonment; invasion of privacy; interference with
contractual or business relationships; any other wrongful
employment practices; and violation of any other principle of
common law.
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2.5
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All claims for
compensation of any kind, including without limitation, commission
payments, bonus payments, vacation pay, expense reimbursements,
reimbursement for health and welfare benefits, and
perquisites.
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2.6
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All claims for
back pay, front pay, reinstatement, other equitable relief,
compensatory damages, damages for alleged personal injury,
liquidated damages, and punitive damages.
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2.7
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All claims for
attorneys’ fees, costs, and interest except for those arising
from Section 7 of the Special Severance Plan.
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MoneyGram acknowledges and
agrees, however, that Ms. Dutra does not release any claims
that the law does not allow to be waived by private agreement or
any claims that may arise after the date on which Ms. Dutra
signs this Agreement.
3. Payments and
Benefits .
Specifically in consideration of the release of claims in this
Agreement, and only if (a) Ms. Dutra signs this Agreement
and does not rescind or revoke it as outlined in Section 10;
(b) Ms. Dutra does not resign her employment prior to the
Separation Date; (c) MoneyGram does not terminate
Ms. Dutra for Cause (as that term is defined in the Special
Severance Plan) at any time on or before the Separation Date; and
(d) Ms. Dutra signs the attached Exhibit A on the
Separation Date and does not rescind or revoke it as outlined in
Section 6 of Exhibit A, MoneyGram shall make the
following payments and provide the following benefits to Ms.
Dutra:
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3.1
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Severance. A payment in the amount of $467,717.00, less any
and all applicable voluntary and required withholdings,
representing salary severance, and a payment in the amount of
$758,130.00, less any and all applicable and voluntary and required
withholdings, representing bonus severance. Ms. Dutra
acknowledges and agrees that the salary severance and bonus
severance amounts set forth above are subject to final
determination by Ernst & Young LLP (“Ernst”) which
is the Accounting Firm for both the Severance Plan and the Special
Severance Plan. Ms. Dutra further acknowledges and agrees that
to satisfy the requirements of Section 409A of the Internal
Revenue Code, the salary severance and bonus severance payments
above shall be made on the first business day of the seventh month
following Ms. Dutra’s separation from service. For
purposes of this Agreement, “separation from service”
shall have the meaning set forth in Section 409A of the
Internal Revenue Code.
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3.2
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Management
and Line of Business Incentive Plan Payment.
Provided MoneyGram achieves the
requisite criteria to issue an award for 2009 under the Management
and Line of Business Incentive Plan (“Plan”), and
Provided that MoneyGram in fact issues a Plan award for 2009 to
Plan participants, Ms. Dutra will be eligible to receive a
Plan award for 2009 which shall be prorated based on the Separation
Date. To satisfy the requirements of Section 409A of the
Internal Revenue Code, any award under the Plan shall be made on
the first business day of the seventh month following Ms.
Dutra’s separation from service. This payment shall not be
subject to the provisions of Section 13 of the Special
Severance Plan.
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3.3
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Medical and
Dental Coverage. Following the Separation Date, MoneyGram will
continue to provide Ms. Dutra with medical and dental coverage
from October 1, 2009 through March 31, 2011, and
Ms. Dutra shall be required to pay no more for such coverage
than she would have been required to pay had she continued active
employment with MoneyGram during that period. MoneyGram will
reimburse Ms. Dutra for the tax cost, if any, arising from
income imputed to her due to the provision of this coverage.
Reimbursement for tax cost payable during the first six months
following the Separation Date shall be delayed to the first day of
the seventh month following the Separation Date to satisfy the
requirements of section 409A of the Internal Revenue
Code.
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3.4
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Life
Insurance. Ms. Dutra
will continue to receive basic life insurance coverage through
March 31, 2011 on the same terms as if she were still employed
by MoneyGram. MoneyGram will reimburse Ms. Dutra for the tax
cost, if any, arising from income imputed to her due to the
provision of this coverage. Reimbursement for tax cost payable
during the first six months following the Separation Date shall be
delayed to the first day of the seventh month following the
Separation Date to satisfy the requirements of section 409A of the
Internal Revenue Code. Further, to the extent that
Ms. Dutra’s right to life insurance coverage set forth
above (or reimbursements for the cost of such coverage, as
applicable) is taxable to Ms. Dutra, she shall pay for such
coverage for the first six months following the Separation Date and
shall be reimbursed for such payments on the first day of the
seventh month following the Separation Date to satisfy the
requirements of section 409A of the Internal Revenue
Code.
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3.5
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Special
Retirement Benefits. Ms. Dutra or her beneficiaries shall be
paid special retirement benefits under the MoneyGram Supplemental
Pension Plan (“SERP”) as and when Ms. Dutra or
such beneficiaries become entitled to benefits under the SERP,
equal to the excess of (i) the retirement benefits that would
be payable to Ms. Dutra or such beneficiaries under the SERP
if Ms. Dutra’s employment had continued through
March 24, 2011 (the “Severance Period”), assuming
all of her accrued benefits under the SERP (including those
attributable to the Severance Period) were fully vested, and her
final average compensation was equal to the Deemed Final Average
Compensation (as defined in the Special Severance Plan) over
(ii) the total benefits actually payable to Ms. Dutra or
her beneficiaries under the SERP. All such benefits will be payable
pursuant to the terms and conditions of the SERP, and no additional
enhancements will be made to Ms. Dutra’s SERP benefits
under the terms of the SERP or otherwise.
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3.6
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Outplacement
Services. Ms. Dutra
will receive reimbursement for the cost of reasonable outplacement
services for a period of two (2) years following the
Separation Date, up to a maximum reimbursement of
$15,000.
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3.7
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Other
Benefits. MoneyGram will
pay Ms. Dutra for all vacation that is accrued and unused as
of the Separation Date. Payment for accrued and unused vacation
shall be made as soon as practicable following the Separation Date.
Ms. Dutra will receive financial counseling benefits pursuant
to Section 6(b)(iv) of the Special Severance Plan. Further, to
the extent that Ms. Dutra’s right to financial
counseling benefits (or reimbursements for the cost of such
benefits, as applicable) is taxable to Ms. Dutra, she shall
pay for such financial counseling benefits for the first six months
following the Separation Date and shall be reimbursed for such
payments on the first day of the seventh month following the
Separation Date to satisfy the requirements of section 409A of the
Internal Revenue Code. Payment in lieu of the financial counseling
benefits shall be delayed until the first day of the seventh month
following the Separation Date or as otherwise required by
Section 409A of the Internal Revenue Code.
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The parties agree that these
payments and benefits satisfy any and all of MoneyGram’s
obligations under the Severance Plan and the Special Severance
Plan. Ms. Dutra shall have no right to any additional or
further payments or benefits pursuant to the Severance Plan, the
Special Severance Plan or otherwise, except as expressly set forth
in Section 4 below.
In the event it should be
determined that any of the payments made hereunder to
Ms. Dutra would be subject to an Excise Tax, then
Ms. Dutra shall be entitled to receive an additional payment
(the “Gross-Up Payment”) in an amount such that, after
payment by Ms. Dutra of all taxes (and any interest and
penalties imposed with respect thereto as a direct result of any
Underpayment as determined under the Severance Plan or Special
Severance Plan or any other action or inaction of MoneyGram, but
not any interest and penalties imposed as a direct result of
Ms. Dutra’s failure to timely remit taxes) and Excise
Tax imposed upon the Gross-Up Payment, Ms. Dutra will retain
an amount of the Gross-Up Payment equal to the Excise Tax that his
been imposed. The parties’ rights and obligations with
respect to any Gross-Up Payment shall be determined pursuant to and
conditioned upon compliance with the terms of Section 7 of the
Special Severance Plan.
4. Other Benefit
Coverages after Separation Date . Ms. Dutra’s other benefit coverages
not addressed in Section 3 above are affected as
follows:
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4.1
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Ms. Dutra’s participation in the
MoneyGram International, Inc. 401(k) Program (“401(k)
Program”) and MoneyGram’s matching obligation under the
401(k) Program will cease as of the Separation Date, and any
distribution of the 401(k) Program’s funds will be in
accordance with the provisions of the 401(k) Program.
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4.2
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The MoneyGram
Pension Plan was frozen effective December 31, 2003. Funds due
to Ms. Dutra under the MoneyGram Pension Plan, if any, will be
distributed to Ms. Dutra in accordance with the provisions of
the MoneyGram Pension Plan.
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4.3
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Ms. Dutra’s business travel accident,
short-term disability and long-term disability coverages will cease
as of the Separation Date. Shortly following the Separation Date,
Ms. Dutra will receive information regarding the option, if
any, for conversion of Ms. Dutra’s group long-term
disability coverage to individual coverage which such conversion,
if any, shall be at Ms. Dutra’s sole expense.
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4.4
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Ms. Dutra
may possess exercisable Viad Corp. and/or MoneyGram International,
Inc. Stock Option rights. Ms. Dutra agrees to observe
MoneyGram’s policy on insider trading and will not purchase
or sell MoneyGram stock while in possession of inside information,
or prior to the next window period that begins at or after
Ms. Dutra’s Separation Date. All such rights must be
exercised within three (3) months of Ms. Dutra’s
Separation Date or they will expire. Ms. Dutra may exercise
her MoneyGram International, Inc. Stock Options, if any, by
contacting Carrie Shober at 952-591-3062, via the Internet (
www.etrade.com/stockplans ) or by contracting E*Trade at
1-800-387-2331. Ms. Dutra may exercise her Viad Corp Stock
Options, if any, by contacting Debi Atkins at 602-207-5803, via the
Internet ( www.etrade.com/stockplans ) or by contacting
E*Trade at 1-800-387-2331.
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4.5
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Funds due
Ms. Dutra, if any, under the MoneyGram International, Inc.
Deferred Compensation Plan will be paid to Ms. Dutra in
accordance with the provisions of that plan.
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Ms. Dutra’s other
benefits, if any, will be paid in accordance with the provisions of
the governing document(s) for those benefits.
5. No Change of
Control . The parties
acknowledge and agree that for all purposes, there has been no
change of control (or change in control) of MoneyGram. Without
limiting the generality of the foregoing, the parties specifically
acknowledge and agree that there has been no “Change of
Control” as defined in the Severance Plan or “Change in
Control” as defined the SERP, and that Ms. Dutra is not
entitled to any payments or benefits under either the Severance
plan or the SERP or any other payments, benefits, or rights that
would arise as a result of any change of control (or change in
control) now or at any time in the future.
6. Claims Involving
MoneyGram . Ms. Dutra warrants that she has not
instituted, filed or caused others to file or institute any charge,
complaint or action against any Released Party. Ms. Dutra warrants
that, to the full extent permitted by law, she will not file or
institute any charge, complaint or action against any Released
Party with respect to any matters arising before or on the date
Ms. Dutra signs this Agreement. Ms. Dutra will not
recommend or suggest to any potential claimants or employees of
MoneyGram or their attorneys or agents that they initiate claims or
lawsuits against any Released Party, nor will Ms. Dutra
voluntarily aid, assist, or cooperat
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