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 Teresa H. Johnson (“Ms. Johnson”) 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. Johnson in
the position of Executive Vice President, General Counsel and
Secretary.
B. MoneyGram and Ms. Johnson 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. Johnson agree
as follows:
1. Termination of
Employment . Ms. Johnson’s employment with
MoneyGram shall terminate due to retirement effective
September 30, 2009 (the “Separation Date”). As of
the Separation Date, Ms. Johnson hereby resigns from all positions
she holds with MoneyGram and/or its parent, subsidiary or affiliate
companies.
2. Consulting
Agreement . On the
Separation Date, Ms. Johnson and MoneyGram shall enter into a
consulting agreement (the “Consulting Agreement”) in
substantially the form attached hereto as
Exhibit A.
3. Release of Claims
by Ms. Johnson . In consideration for the receipt of the payments
and other benefits described in this Agreement, to which
Ms. Johnson understands and acknowledges she may not otherwise
be entitled without executing this Agreement, Ms. Johnson
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 any and all claims and causes
of action, known or unknown, against any of the Released Parties,
including but not limited to:
3.1
All claims arising out of or relating to Ms. Johnson’s
employment with MoneyGram and/or Ms. Johnson’s
separation from that employment.
3.2
All claims arising out of or relating to the statements, actions,
or omissions of the Released Parties.
3.3
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.
3.4
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. Johnson’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.
3.5
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, except as otherwise provided in this
Agreement and the Consulting Agreement.
3.6
All claims for back pay, front pay, reinstatement, other equitable
relief, compensatory damages, damages for alleged personal injury,
liquidated damages, and punitive damages.
3.7
All claims for attorneys’ fees, costs, and interest, except
as otherwise provided in this Agreement.
3.8
All claims, including without limitation, claims for any payments
or benefits under the MoneyGram International, Inc. Special
Executive Severance Plan (Tier I) (the “Special Severance
Plan”) and the Amended and Restated MoneyGram International,
Inc. Executive Severance Plan (Tier I) (the “Severance
Plan”), and claims related to any right to participate in the
Special Severance Plan and the Severance Plan.
MoneyGram acknowledges and
agrees, however, that Ms. Johnson does not release (i)
any claims that the law does
not allow to be waived by private agreement, (ii) any claims
that are based on events occurring after the date on which
Ms. Johnson signs this Agreement, or (iii) any claims to
indemnification or insurance coverage, including but not limited
to, “D & O coverage”, that she may have with
respect to any claims made or threatened against her in her
capacity as an officer or employee of MoneyGram.
Ms. Johnson agrees to
execute and deliver to MoneyGram a further release (the
“Release”) in substantially the form attached hereto as
Exhibit B within sixty (60) days of the Separation
Date.
4. Payments and
Benefits . Specifically in consideration of the release of
claims in this Agreement, subject to Ms. Johnson signing and
not revoking this Agreement and subject to Ms. Johnson timely
executing and not revoking the Release in the time period
prescribed above, MoneyGram shall make the following payments and
provide the following benefits to Ms. Johnson:
4.1
Severance . A payment in the amount of $875,000, less any
and all applicable voluntary and required withholdings,
representing salary severance, payable in a lump sum payment on the
first business day of the seventh month following
Ms. Johnson’s “separation from
service.”
4.2
Bonus . Provided that (i)(x) MoneyGram actually
achieves the criteria requisite to make payments in respect of
awards for 2009 under the Management and Line of Business Incentive
Plan (the “MIP”) or (y) the Board of Directors of
MoneyGram (the “Board”) or the appropriate committee of
the Board authorizes MoneyGram to make payments in respect of MIP
awards as if the requisite criteria for 2009 had been met for such
year under the MIP and (ii) MoneyGram in fact makes payments
in respect of MIP awards for 2009 to all or substantially all of
the MoneyGram Leadership Team MIP participants for such year,
Ms. Johnson shall be eligible to receive a MIP award for 2009,
which shall be prorated based on the Separation Date; provided that
such amount shall in no event exceed 75% of Ms. Johnson’s
annual target incentive opportunity for 2009 under the MIP. Any
such amount, if paid shall be paid on the date payments are made to
other MIP participants, but in no event later than March 15 of
the year immediately following the year in which such payment is no
longer subject to a substantial risk of forfeiture within the
meaning of Section 409A of the Internal Revenue Code of 1986
and the Treasury regulations promulgated thereunder
(“Section 409A”).
4.3
Special Retirement Benefits . Ms. Johnson or her
beneficiaries shall be paid such special retirement benefits under
the MoneyGram Supplemental Pension Plan (“SERP”) as she
would have been entitled to be paid had her employment been
terminated by MoneyGram without “Cause” (as such term
is defined in the Special Severance Plan) on the Separation Date,
as computed in accordance with Section 6(c) of the Special
Severance Plan. All such benefits shall be payable in accordance
with the terms and conditions of Section 6(c) of the Special
Severance Plan, and no additional enhancements shall be made to
Ms. Johnson’s SERP benefits under the terms of the SERP
or otherwise.
4.4
Attorneys’ Fees . Upon receipt of invoices, and
subject to a cap of $7,500, MoneyGram shall pay
Ms. Johnson’s reasonable legal fees associated with the
review, negotiation and execution of this Agreement.
4.5
Other Benefits . MoneyGram shall pay to Ms. Johnson, as
soon as practicable but no later than (30) days following the
Separation Date, in a lump sum payment,
(i) Ms. Johnson’s unpaid but accrued salary as of
the Separation Date, (ii) Ms. Johnson’s unused vacation
days for 2009, and (iii) Ms. Johnson’s accrued but
unpaid business expenses as of the Separation Date that are subject
to reimbursement in accordance with MoneyGram’s
policy.
5. Other Benefit
Coverages after Separation Date . Ms. Johnson’s other benefit coverages
not addressed in Section 4 above are affected as
follows:
5.1
Ms. Johnson’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.
5.2
The MoneyGram Pension Plan was frozen effective December 31,
2003. Funds due to Ms. Johnson under the MoneyGram Pension
Plan, if any, will be distributed to Ms. Johnson in accordance with
the provisions of the MoneyGram Pension Plan.
5.3
Ms. Johnson’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. Johnson will receive information regarding the option, if
any, for conversion of Ms. Johnson’s group long-term
disability coverage to individual coverage which such conversion,
if any, shall be at Ms. Johnson’s sole expense.
MoneyGram shall provide Ms. Johnson with the right to elect to
continue group medical and dental insurance coverage after the
Separation Date, under 29 U.S.C. § 1161 et seq. (commonly
known as “COBRA”). Ms. Johnson shall be solely
responsible for paying her portion of the premiums, which premiums
shall be the published monthly rate of group health insurance under
COBRA. MoneyGram acknowledges that Ms. Johnson qualifies for
retiree medical insurance coverage, having satisfied the
eligibility requirements, and shall remain an eligible covered
retiree, having met both the age and service requirements of
10 years of service and age 55 prior to the Separation
Date.
5.4
Ms. Johnson may possess exercisable Viad Corp. and/or
MoneyGram International, Inc. Stock Option rights. Ms. Johnson
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. Johnson’s Separation Date. All such rights
must be exercised within the respective time periods set forth in
the applicable stock option agreements or they will expire.
Ms. Johnson 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. Johnson 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.
5.5
Funds due Ms. Johnson, if any, under the MoneyGram
International, Inc. Deferred Compensation Plan will be paid to
Ms. Johnson in accordance with the provisions of that
plan.
6. Taxes
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6.1
Gross-Up Payments . Anything in this Agreement to the
contrary notwithstanding, and except as set forth below, in the
event that it will be determined that Ms. Johnson’s
Payments (as hereinafter defined) would be subject to the Excise
Tax, then Ms. Johnson will be entitled to receive an
additional payment (the “Gross-Up Payment”) in an
amount such that, after payment by Ms. Johnson of all taxes
(and any interest and penalties imposed with respect thereto) and
Excise Tax imposed upon the Gross-Up Payment, Ms. Johnson
retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon such Payments.
6.2
Determination By Accountant . Subject to the provisions of
Section 6.3(ii), all determinations required to be made under this
Section 6, including whether and when a Gross-Up Payment to
Ms. Johnson is required, the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such
determination, will be made by MoneyGram’s auditor or another
nationally recognized accounting firm appointed by MoneyGram (the
“Accounting Firm”). In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity
or group effecting the transaction which results in the application
of the Excise Tax, Ms. Johnson may appoint another nationally
recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). The Accounting Firm will provide
detailed supporting calculations both to MoneyGram and
Ms. Johnson within 15 business days of the receipt of notice
from Ms. Johnson that there has been a Payment, or such
earlier time as is requested by MoneyGram. All fees and expenses of
the Accounting Firm will be borne solely by MoneyGram. Any Gross-Up
Payment, as determined pursuant to this Section 6, will be
paid by MoneyGram to Ms. Johnson within five days of the
receipt of the Accounting Firm’s determination. Any
determination by the Accounting Firm will be binding upon MoneyGram
and Ms. Johnson. As a result of the uncertainty in the
application of Section 4999 of the Internal Revenue Code of
1986 (the “Code”) at the time of the initial
determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments that will not have been made by MoneyGram should
have been made (the “Underpayments”), consistent with
the calculations required to be made hereunder. In the event
MoneyGram exhausts its remedies pursuant to Section 6.3 and
Ms. Johnson thereafter is required to make a payment of any
Excise Tax, the Accounting Firm will determine the amount of the
Underpayments that have occurred and any such Underpayments will be
promptly paid by MoneyGram to or for the benefit of
Ms. Johnson.
6.3
Notification Required . Ms. Johnson will notify
MoneyGram in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by MoneyGram of the
Gross-Up Payment. Such notification will be given as soon as
practicable but no later than 10 business days after
Ms. Johnson is informed in writing of such claim.
Ms. Johnson will apprise MoneyGram of the nature of such claim
and the date on which such claim is requested to be paid.
Ms. Johnson will not pay such claim prior to the expiration of
the 30-day period following the date on which Ms. Johnson
gives such notice to MoneyGram (or such shorter period ending on
the date that any payment of taxes with respect to such claim is
due). If MoneyGram notifies Ms. Johnson in writing prior to
the expiration of such period that it desires to contest such
claim, Ms. Johnson shall:
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(i)
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Give MoneyGram
any information reasonably requested by MoneyGram relating to such
claim,
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(ii)
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Take such
action in connection with contesting such claim as MoneyGram will
reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by MoneyGram,
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(iii)
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Cooperate with
MoneyGram in good faith in order to effectively contest such claim,
and
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(iv)
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Permit
MoneyGram to participate in any proceedings relating to such claim;
provided, however, that MoneyGram will bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and
hold Ms. Johnson harmless, on an after-tax basis, for any
Excise Tax or income tax, (including interest and penalties)
imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this
Section 6.3, MoneyGram will control all proceedings taken in
connection with such contest and, at its sole discretion, may
pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the applicable taxing authority in
respect of such claim and may, at its sole discretion, either
direct Ms. Johnson to pay the tax claimed and sue for a refund, or
contest the claim in any permissible manner, and Ms. Johnson
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as MoneyGram will determine;
provided, however, that if MoneyGram directs Ms. Johnson to
pay such claim and sue for a refund, MoneyGram will pay the amount
of such payment to Ms. Johnson, and will indemnify and hold
Ms. Johnson harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties) imposed with
respect to such payment or with respect to any imputed income in
connection with such payment; and provided, further, that any
extension of the statute of limitations relating to payment of
taxes for the taxable year of Ms. Johnson with respect to
which such contested amount is claimed to be due is limited solely
to such contested amount. Furthermore, MoneyGram’s control of
the contest will be limited to issues with respect to which the
Gross-Up Payment would be payable hereunder, and Ms. Johnson
will be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other
taxing authority.
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6.4
Repayment . If, after the receipt by Ms. Johnson of a
Gross-Up Payment or an amount paid by MoneyGram pursuant to
Section 6.3, Ms. Johnson becomes entitled to receive any
refund with respect to the Excise Tax to which such Gross-Up
Payment relates or with respect to such claim, Ms. Johnson
will (subject to MoneyGram’s compliance with the requirements
of Section 6.3, if applicable) promptly pay to MoneyGram the
amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by
Ms. Johnson of an amount paid by MoneyGram pursuant to
Section 6.3, a determination is made that Ms. Johnson will not
be entitled to any refund with respect to such claim and MoneyGram
does not notify Ms. Johnson in writing of its intent to
contest such denial of refund prior to the expiration of
30 days after such determination, then Ms. Johnson will
not be required to repay such amount to MoneyGram, but the amount
of such payment will offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
6.5
Withholding . Notwithstanding any other provision of this
Section 6, MoneyGram may, in its sole discretion, withhold and
pay over to the Internal Revenue Service or any other applicable
taxing authority, for the benefit of Ms. Johnson, all or any
portion of any Gross-Up Payment.
6.6
Definitions . The following terms will have the following
meanings for purposes of this Section 6:
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(i)
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“Excise
Tax” shall mean the excise tax imposed under
Section 4999 of the Code, together with any interest or
penalties imposed with respect to such excise tax.
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(ii)
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A
“Payment” shall mean any payment or distribution in the
nature of compensation (within the meaning of
Section 280G(b)(2) of the Code) to or for the benefit of
Ms. Johnson, whether paid or payable pursuant to this
Agreement or otherwise.
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7.
Section 409A .
7.1
The intent of the parties is that payments and benefits under this
Agreement comply with or be exempt from Section 409A and,
accordingly, to the maximum extent permitted, this Agreement shall
be interpreted to be in compliance therewith. To the extent that
any provision hereof is modified in order to comply with or be
exempt from Section 409A, such modification shall be made in
good faith and shall, to the maximum extent reasonably possible,
maintain the original intent and economic benefit to
Ms. Johnson and MoneyGram of the applicable provision without
violating the provisions of Section 409A. In no event
whatsoever will MoneyGram be liable for any additional tax,
interest or penalties that may be imposed on Ms. Johnson under
Section 409A or any damages for failing to comply with
Section 409A.
7.2 A
termination of employment shall not be deemed to have occurred for
purposes of any provision of this Agreement providing for the
payment of any amounts or benefits subject to Section 409A
upon or following a termination of employment unless such
termination is also a “separation from service” within
the meaning of Section 409A and, for purposes of any such
provision of this Agreement, references to a
“termination,” “termination of employment”
or like terms shall mean “separation from service.” If
Ms. Johnson is deemed on the date of termination to be a
“specified employee” within the meaning of that term
under Section 409A(a)(2)(B), then with regard to any payment
or the provision of any benefit that is otherwise considered
deferred compensation under Section 409A payable on account of
a “separation from service,” such payment or benefit
shall be made or provided at the date which is the earlier of
(i) the expiration of the six (6)-month period measured from
the date of such “separation from service” of
Ms. Johnson, and (ii) the date of
Ms. Johnson’s death (the “Delay Period”).
Upon the expiration of the Delay Period, all payments and benefits
delayed pursuant to this Section 7.2 shall be paid or
reimbursed to Ms. Johnson in a lump sum, and any remaining payments
and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.
In the event, any payments hereunder shall be delayed for a period
exceeding the six (6)-month period referred above, Ms. Johnson
shall be entitled to interest payments at the LIBOR rate accruing
after such six (6)-month period on any payments delayed beyond such
six (6)-month period.
7.3
Notwithstanding anything herein to the contrary, (i) all
expenses or other reimbursements as provided herein shall be
payable in accordance with MoneyGram’s policies in effect
from time to time, but in any event shall be made on or prior to
the last day of the taxable year following the taxable year in
which such expenses were incurred by Ms. Johnson; (ii) no
such reimbursement or expenses eligible for reimbursement in any
taxable year shall in any way affect the expenses eligible for
reimbursement in any other taxable year; (iii) the right to
reimbursement or in-kind benefits shall not be subject to
liquidation or exchanged for another benefit; and (iv) any tax
gross-up payment as provided herein shall be made in any event no
later than the end of the calendar year immediately following the
calendar year in which Ms. Johnson remits the related taxes
(and any reimbursement of expenses incurred due to a tax audit or
litigation shall be made no later than the end of the calendar year
immediately following the calendar year in which the taxes that are
the subject of the audit or litigation are remitted to the taxing
authority, or, if no taxes are to be remitted, the end of the
calendar year following the calendar year in which the audit or
litigation is completed).
7.4
For purposes of Section 409A, Ms. Johnson’s right
to receive any installment payments pursuant to this Agreement
shall be treated as a right to receive a series of separate and
distinct payments. Whenever a payment under this Agreement
specifies a payment period with reference to a number of days
(e.g., “payment shall be made within sixty (60) days
following the date of termination”), the actual date of
payment within the specified period shall be within the sole
discretion of MoneyGram.
8. No Change of
Control; No Right to Participate . 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. Johnson 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. Ms. Johnson understands, acknowledges and agrees that
she has no rights to any payments or benefits pursuant to the
Severance Plan or the Special Severance Plan. Ms. Johnson, now
and forever, hereby waives any rights to participate as an
“Executive” under the Severance Plan or as a
“Participant” in the Special Severance Plan.
9. Claims Involving
MoneyGram . Ms. Johnson warrants that she has not
instituted, filed or caused others to file or institute any charge,
complaint or action against any Released Party. Ms. Johnson
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. Johnson signs this Agreement, other than with respect
to enforcement of this Agreement and/or the Consulting Agreement.
Ms. Johnson 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. Johnson voluntarily aid, assist, or cooperate
with any claimants or employees of MoneyGram or their attorneys or
agents in any claims or lawsuits now pending or commenced in the
future against any Released Party; provided, however, that nothing
in this paragraph will be construed to prevent Ms. Johnson
from giving truthful testimony in response to direct questions
asked pursuant to a lawful subpoena during any future legal
proceedings involving any Released Party. Further, this Agreement
does not purport to limit any right Ms. Johnson may have to
file a charge under any civil rights statute or to participate in
an investigation or proceeding conducted by the Equal Employment
Opportunity Commission or other investigative agency. This
Agreement does, however, waive and release any right to recover
damages or other relief under any civil rights statute.
10. Post-Employment
Restrictions and Obligations . Ms. Johnson understands, acknowledges and
agrees that she continues to be bound by the post-employment
restrictions and other obligations set forth in the Employee Trade
Secret, Confidential Information and Post-Employment Restriction
Agreement between Ms. Johnson and MoneyGram.
11.
Non-Disparagement . Ms. Johnson hereby acknowledges that she is
not aware of any acts or practices of any Released Party that she
knows or believes to be unlawful or unethical. Ms. Johnson agrees
not to express any derogatory or damaging statements about any
Released Party, the management of MoneyGram or MoneyGram’s
business condition in any public way or to anyone who could make
these statements public. MoneyGram shall instruct both the
Executive Chairman of the Board and the President and Chief
Executive Officer of MoneyGram not to knowingly disparage,
criticize, or otherwise make any derogatory statements regarding
Ms. Johnson in any communications made in a public manner.
Ms. Johnson and MoneyGram understand and acknowledge that this
non-disparagement provision is a material inducement to the making
of this Agreement and that if either party breaches this provision,
the other party will be entitled to pursue its legal and equitable
remedies, including without limitation, the right to recover
damages (including but not limited to any amounts paid and/or owing
under this Agreement) and to seek injunctive relief. It is
understood and acknowledged that nothing in this Section 11
will be construed to prevent either party from giving truthful
testimony in response to direct questions asked pursuant to a
lawful subpoena during any future legal proceedings.
12. Time to Consider
Agreement . Ms. Johnson understands and acknowledges
that she may take twenty-one (21) calendar days to decide
whether to sign this Agreement (“Consideration
Period”). Ms. Johnson represents that if she
