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Exhibit 10.1
TRANSITION AGREEMENT
This Transition
Agreement (“Agreement”) is entered into as of March 7,
2005, by and between Deluxe Corporation, a Minnesota corporation
(“Deluxe”), and Lawrence J. Mosner
(“Mosner”), an individual residing in the State of
Minnesota.
WHEREAS, Mosner
has served as the Chairman and Chief Executive Officer
(“CEO”) of Deluxe since December 2000, and has been a
member of the Board of Directors of Deluxe (the
“Board”) since August 1999;
WHEREAS, Mosner
has announced his intention voluntarily to retire from his officer
and director positions with Deluxe upon the election by the Board
of Mosner’s successor as CEO of Deluxe;
WHEREAS, the
Board wants to recognize Mosner’s many years of loyal service
to Deluxe and to provide for the smooth transition of the CEO
position;
WHEREAS, the
parties desire to set forth all matters regarding Mosner’s
retirement as CEO, resignation from the Board and his service as a
consultant to the new CEO; and
WHEREAS, the
Board believes it is in the best interests of Deluxe’s
shareholders to enter into this Agreement.
NOW THEREFORE,
in consideration of the premises and the covenants herein, the
sufficiency of which is hereby acknowledged, Mosner and Deluxe
agree as follows:
1.
Retirement as CEO . Effective on the earlier of: (i)
December 31, 2005, and (ii) the date on which his successor as CEO
is elected by the Board (the “Retirement Date”), Mosner
shall retire as Deluxe’s CEO, from all other officer
positions he currently holds with Deluxe and its affiliates and
from all director positions he holds with Deluxe and its
affiliates. Effective upon the Retirement Date, the Severance
Agreement, effective March 1, 2001, between Deluxe and Mosner (the
“Severance Agreement”), and the Executive Retention
Agreement dated December 18, 2000, between Deluxe and Mosner (the
“Retention Agreement”), shall each terminate and be of
no further force or effect.
2.
Consulting Regarding Transition of CEO Duties . After the
Retirement Date and for a period not to exceed six months (the
“Transition Period”) at the option of the Board, Mosner
shall assist the new CEO in the transition of his duties as CEO in
a diligent and business-like manner as and when reasonably
requested by the new CEO, pursuant to the terms and conditions set
forth below:
(a)
Duration . Such assistance shall be limited to no more than
eight hours per week of consultations by Mosner, which may be
performed from any location that is mutually acceptable to Mosner
and the new CEO.
(b)
Duties . Such assistance may include, in each case, only at
the direction and request of Deluxe’s new CEO: (i)
representing Deluxe with key industry, civic and philanthropic
constituents, (ii) assisting Deluxe’s new CEO in maintaining
and developing business relationships with key strategic partners,
(iii) regularly meeting with the new CEO to review progress toward
the refinement and execution of Deluxe’s strategy, and (iv)
assisting the new CEO in the recognition and motivation of
employees in pursuing Deluxe’s strategy.
(c)
Reporting Relationship . During the Transition Period,
Mosner shall report to Deluxe’s new CEO.
(d)
Manner of Performance . During the Transition Period, Mosner
shall perform all services and duties that reasonably may be
required of him pursuant to the terms hereof, to the reasonable
satisfaction of Deluxe. Mosner shall not take any action that would
be adverse to Deluxe’s business interests or that may subject
Mosner, Deluxe or any of its affiliates to civil or criminal
liability. In performing services hereunder, Mosner agrees to
comply in full with all applicable laws, ethical standards, rules
and regulations, and with Deluxe’s conflict of interest
policies. Mosner represents that, on the date of this Agreement, he
does not have any interest in any entity that would violate
Deluxe’s conflict of interest policies or materially
interfere in any manner with the performance of services under this
Agreement. Subject to the restrictive covenants contained in this
Agreement, including the non-disclosure and non-compete covenants,
Mosner may engage in activities on his own behalf or on behalf of
entities other than Deluxe and its affiliates, and may allocate his
time between his obligations under this Agreement and such other
activities in any manner Mosner deems appropriate, so long as
Mosner’s obligations under this Agreement are satisfied.
Mosner will have the sole right to supervise, manage, control and
direct the performance of the details incident to Mosner’s
duties described in this Agreement.
(e)
Independent Contractor Status . Deluxe is retaining Mosner
in the capacity of an independent contractor and not as an employee
or agent of Deluxe or any of its affiliates. Mosner shall not be
authorized at any time to execute any transaction on behalf of
Deluxe or any of its affiliates. Nothing in this Agreement shall
create, or shall be construed as creating, any form of partnership,
joint venture, employer-employee relationship, or other affiliation
that would permit Mosner to bind Deluxe or any of its affiliates
with respect to any matter or would cause Deluxe or any of its
affiliates to be liable for any action of Mosner. Neither Deluxe
nor Mosner will represent to any third party that Mosner’s
engagement by Deluxe hereunder is in any capacity other than as an
independent contractor. Except as provided in Section 5 of this
Agreement, Deluxe shall not be obligated to maintain any insurance
for Mosner, including, but not limited to, medical, dental, life or
disability insurance. Except as required by law, Mosner will not be
eligible to participate in any employee benefit plan or program of
Deluxe. To the extent Mosner employs others in providing services
under this Agreement, Mosner agrees to comply with all applicable
workers’ compensation laws and to provide satisfactory
evidence of such compliance to Deluxe on request.
3.
Compensation Until the Retirement Date . Mosner shall
continue to receive his current salary, bonus payable for 2004
performance and other compensation to which he is entitled in his
current position with Deluxe to the Retirement Date. Mr. Mosner
shall continue to receive the standard executive officer benefit of
Company-paid reimbursements for financial and
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tax planning
for 2005, in an aggregate amount not to exceed $16,000 for such
year. On the Retirement Date, all compensation related to
Mosner’s employment with Deluxe under all other agreements
and arrangements, including all perquisite programs, shall cease,
and no further compensation shall be due from or paid by Deluxe to
Mosner, except as contemplated in this Agreement or as otherwise
required by law.
4.
2005 Compensation Determinations . The Compensation
Committee of the Board (the “Committee”) shall
authorize the following compensation for Mosner for services as CEO
during 2005:
(a)
Annual Bonus . Mosner shall participate in the Annual
Incentive Plan for 2005, and shall be entitled to be paid a
pro-rated portion of the bonus that he would otherwise receive
thereunder for the portion of the calendar year 2005 for which he
served as CEO; provided that , Mosner shall not be eligible
to defer any portion of this bonus into restricted stock units as
set forth in such plan. Such bonus payout shall be made in February
2006, at the same time as payments under such plan are usually
made.
(b)
Long-Term Incentives . Mosner shall participate in the
annual Long-Term Incentive Program (“LTIP”) for 2005,
the awards for which are expected to be made at the April 2005
Compensation Committee meeting, and to be awarded the following
grants: (i) non-qualified options to acquire 8,700 shares of the
Company’s common stock (having an exercise price equal to the
then-current market price per share), (ii) 1,800 shares of
restricted common stock, and (iii) a standard grant of long-term
performance award shares, in each case, subject to the standard
terms and conditions of the Company’s Stock Incentive Plan
and applicable award agreements for each such grant or award. The
grants set forth in clauses (i) and (ii) of this Section 4(b)
constitute one-third of the grants that the Committee would
normally expect to grant to Mosner in the absence of his voluntary
retirement.
5.
Compensation as Consultant . As compensation for Mosner
agreeing to serve as a consultant to his successor as CEO, Deluxe
shall make the following payments to and distributions for the
benefit of, Mosner.
(a)
Salary . During the Transition Period, Deluxe shall pay
Mosner at the rate of $500 per hour of services performed as a
consultant.
(b)
Expenses . Deluxe shall reimburse Mosner for all reasonable
out-of-pocket expenses incurred by him in connection with the
performance of his services as a consultant during the Transition
Period within 30 days following his delivery of an accounting of
those expenses to Deluxe in accordance with Deluxe’s
then-current travel and business expense policy.
(c)
Recognition of Qualified or Approved Retirement . Effective
as of the Retirement Date, the Committee shall recognize
Mosner’s retirement as a (i) “Qualified
Retirement” for purposes of Mr. Mosner’s Restricted
Stock Award Agreement dated May 4, 2004, his Performance Award
Agreement dated May 4, 2004, and his Nonqualified Stock Option
Agreements dated March 14, 2002, March 10, 2003 and May 4, 2004,
and an “Approved Retirement” under Mr. Mosner’s
Agreement for Awards Payable in Restricted Stock Units dated March
2004, and his Nonqualified Stock Option Agreements dated May 9,
2000 and January 26,
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2001, in all
cases, with the Company, such recognition to include the grants of
stock options, shares of restricted stock and performance share
awards to be made in April 2005, as set forth in Section 4(b)
hereof.
(d)
Medical Coverage . Effective as of the Retirement Date,
Mosner shall be deemed to be a “qualified retiree”
under all medical plans currently available to executive officers
of Deluxe. As a “qualified retiree,” Mosner and his
wife would continue to be covered under all medical plans currently
available to executive officers of Deluxe for the remainder of his
and his wife’s lives, subject to any changes in such plans as
may be made generally. Under current plan terms, costs would be
shared by Mosner and Deluxe in the following proportions: until he
reaches age 65, Mosner would bear 65% of the insurance premiums and
Deluxe would bear 35%; at and after age 65, Mosner would bear 25%
and Deluxe would bear 75%.
(e)
Taxes and Withholding . To the extent required by the
federal and applicable state income tax laws and regulations,
Deluxe shall withhold and deduct from compensation during the
Transition Period all required withholding and
deductions.
(f)
Interpretation . The existence of any dispute respecting the
interpretation of this Agreement or the Release, or the alleged
breach of this Agreement or the Release, will not nullify or
otherwise affect Deluxe’s obligations to recognize
Mosner’s retirement as “Qualified” or
“Approved” pursuant to Sections 5(c) and 5(d)
hereof.
6.
Continued Executive Benefits .
(a)
Prior to Retirement Date . Until the Retirement Date, Mosner
shall be entitled to such medical, disability, life insurance
coverage, vacation, sick leave, holiday benefits and any other
benefits, in each case as are customarily made available to
Deluxe’s executive officers, all in accordance with
Deluxe’s benefits program in effect from time to
time.
(b)
After Retirement Date . After the Retirement Date, Mosner
shall be entitled only to the benefits set forth in Section 4,
Section 5(d) and the second sentence of Section 3 of this
Agreement. For the avoidance of doubt, the parties acknowledge and
agree that Mosner shall not continue to participate, after the
Retirement Date, in any of the following plans, in each case, as
amended to date, except with respect to balances of deferred
accounts existing in any such plan as of the Retirement Date: (i)
Amended and Restated 2000 Employee Stock Repurchase Plan, (ii)
Deluxe Corporation Deferred Compensation Plan (2001 Restatement),
(iii) Deluxe Corporation Executive Deferred Compensation Plan for
Employee Retention and Other Eligible Arrangements, (iv) Deluxe
Corporation Supplemental Benefit Plan, and (v) any executive
perquisite plan of Deluxe, other than as set forth in the second
sentence of Section 3 hereof.
(c)
Death or Disability . In the event that Mosner dies prior to
the Retirement Date, his heirs, representatives or his estate shall
be entitled to the compensation and benefits described in Section
4(a) (using the actual days for which he acted as CEO to determine
the pro-rated portion described therein), Section 4(b) and Section
5(d); provided that an authorized representative enters into
the Release on behalf of such heirs, representatives or estate. In
the event that Mosner becomes disabled to the degree that he cannot
perform his normal duties as
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Chairman and
CEO prior to the Retirement Date, then he shall be entitled to the
compensation and benefits described in Sections 4(a) (using the
actual days for which he acted as CEO to determine the pro-rated
portion described therein), Section 4(b) and Section 5(d);
provided that he enters into the Release, or his authorized
representative enters into the Release on his behalf.
7.
Release . In consideration of the promises, covenants and
other valuable consideration provided by Deluxe in this Agreement,
Mosner agrees that, for him to be entitled to receive the payments
and other benefits described in this Agreement, he will execute the
Release attached hereto as Exhibit A on the Retirement Date. Deluxe
will also execute the Release on the Retirement Date.
8.
Confidential Information . Mosner will not make any
unauthorized use, publication or disclosure, either during or after
the Transition Period, of any information generated or acquired by
him during his employment with Deluxe or during the performance of
his consulting services under this Agreement, including, but not
limited to, information of a confidential or trade secret nature
(“Confidential Information”). Confidential Information
includes information not generally known by or available to the
public about or belonging to Deluxe or belonging to other persons
to whom Deluxe may have an obligation to maintain information in
confidence. Authorization for disclosure of Confidential
Information may be obtained only through Deluxe’s General
Counsel or designee. Mosner will not disclose to Deluxe, or induce
Deluxe to use, any confidential or trade secret information or
material belonging to others.
9.
Non-Competition . During the Transition Period and for a
period of five consecutive years thereafter, Mosner agrees not to
compete with Deluxe in accordance with the terms set
forth
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