Exhibit 10.21
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of the 1st day of November, 1996, by and between Deluxe Corporation. ("Client")
and DRH Strategic Consulting Inc. ("Consultant").
WHEREAS, Consultant serves as an advisor on financial services
businesses and employs or engages persons with significant experience and
special abilities relating to Client's business; and
WHEREAS, Client desires to retain the services of Consultant and
Consultant desires to be retained by Client to provide services as an
independent contractor.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, the parties hereby agree as follows:
1. Retention of Consultant and Services to be Performed.
1.1 Client hereby retains Consultant for the Term of this
Agreement (as hereinafter defined), and Consultant hereby accepts such retention
by Client. The services performed by Consultant's duties shall be as set forth
in Schedule A and, subject to any limitations set forth in Schedule A, such
services shall be performed at such reasonable times and places as Consultant
and Client shall mutually agree.
1.2 Consultant shall make available to Client the services of
Donald R Hollis, its President ("Hollis"), for the performance of Consultant's
obligations under this Agreement.
2. Term and Termination.
2.1 Unless earlier terminated as provided in paragraph 2.2,
the term of this Agreement (the "term") shall be as set forth in Schedule A
hereto.
2.2 The Agreement may be terminated prior to expiration of the
Term as follows:
(a) Upon the death of Hollis;
(b) By Client in the event that Hollis is unable, by reason of
physical or mental disability, to perform the services contemplated by this
Agreement for a period of more than 60 days in any 6-month period;
(b) By Client in the event that Consultant fails to perform
its obligations under this Agreement and does not cure such failure within 60
days of receipt of written notice thereof from Client;
(b)By Client in the event that Consultant fails to perform its
obligations under this Agreement and does not cure such failure within 60 days
of receipt of written notice thereof from Client;
(c) By Consultant in the event that Client fails to perform
its obligations under this Agreement and does not cure such failure within 60
days of receipt of written notice therefrom from Consultant;
(d) By Client upon 6 months prior written notice to Consultant
in the event that Client determines to cease engaging in the financial services
business;
(e) By Consultant upon 45 days prior to written notice to
Client in the Consultant determines to cease operating its business, by
Consultant; or
(f) By mutual written agreement of the parties.
Nothing in this paragraph 2.2 shall prevent Consultant from suspending the
performance of its services under this Agreement, without being deemed to be in
breach of its obligations hereunder, the event that Client fails to pay when due
the compensation specified in paragraph 3.
3. Compensation.
3.1 During the term of this Agreement, Consultant shall
receive from Client the compensation payable as set forth on Schedule A hereto.
3.2 Upon termination of this Agreement, Consultant shall be
entitled to any compensation earned by Consultant to the date of termination,
and no portion of the current installment of any retainer payment shall be
refundable.
4. Reimbursement of Expenses. Consultant shall be entitled, upon
submission of detailed invoices, to reimbursement of travel and other expenses
reasonably incurred in connection with Consultant's services. Payment shall be
due within 15 days of invoice submission.
5. Cooperation. Client agrees to cooperate with Consultant to the
extent necessary for Consultant to perform the services hereunder, including
providing Consultant with necessary information, including internal documents
and background reports related to Client's business, plans and strategies.
6. Confidentiality.
6.1 Consultant recognizes and acknowledges that the business
of Client is highly competitive and that, by reason of its engagement,
Consultant may have access to confidential and proprietary information regarding
Client, including information provided pursuant to paragraph 5. Consultant
hereby agrees not to disclose or intentionally use for the benefit of anyone
other than Client any such confidential or proprietary information.
6.2 The provisions of paragraph 6.1 shall survive for a period
of 2 year after the termination of this Agreement.
6.3 The provisions of Section 6.1 shall not apply to any
information which (a) is, at the time of disclosure to Consultant, a part of the
public domain or thereafter becomes a part of the public through no violation of
this Agreement, (b) was available to Consultant on a non-confidential basis
prior to its disclosure to Consultant by Client, (c) becomes available to
Consultant on a non-confidential basis from a source other than Client, provided
that such source is not bound by a confidentiality agreement with Client or an
affiliate of Client, or (d) is required to be disclosed in a filing required by
law or as otherwise contemplated by paragraph 6.4 below.
6.4 If Consultant is required, in any civil or criminal legal
proceeding or any regulatory proceeding or any similar process or pursuant to
any request of a regulatory authority having jurisdiction over Consultant, to
disclose any propriety or confidential information, the Consultant shall give to
Client prompt notice of such request so that Client may seek an appropriate
protective order or waive Consultant's compliance with the provisions of this
Agreement; provided, however, that is in the absence of a protective order or
the receipt of waiver hereunder, Consultant is nonetheless, in the opinion of
its counsel, compelled to disclose such information to any tribunal or else
stand liable for contempt or suffer any other censure or penalty, Consultant may
disclose such information to such tribunal without liability hereunder.
7. Independent Contractor.
7.1 For all purses of this Agreement, Consultant is an
independent contractor and not any employee, agent, partner or joint venturer of
or with the Client. Consultant acknowledges and agrees that, except as otherwise
expressly authorized by Client, it shall have no power to bind Client, or to
assume or to create, any contract or agreement on behalf of Client or in
Client's name.
7.2 Consultant shall be responsible for the payment of all
federal, state and local taxes payable with respect to any compensation paid to
Consultant hereunder.
7.3 Should Consultant engage other persons to assist Hollis in
the performance of Consultant's services hereunder, Consultant shall be solely
responsible for the compensation of such persons and for any tax withholding and
payroll taxes required in connection with such compensation.
7.4 Consultant hereby agrees that any written work product
produced on Client's behalf shall be deemed a "work for hire", which shall
become the property of the Client.
8. Other Activities During the Term of this Agreement.
8.1 This Agreement shall not be deemed or construed to require
Consultant to devote its full time and attention to the performance of services
hereunder nor to constitute an exclusive engagement of Consultant or Hollis.
Subject to the restrictions, if any, contained in Schedule A hereto, Consultant
and Hollis may undertake or engage in other activities during the term of this
Agreement, provided such other activities do not interfere with the performance
of Consultant's duties and obligations hereunder.
8.2 Client shall not be precluded from engaging other
consultants to perform services for Client, which may be similar to services
performed by Consultant hereunder.
9. Additional Terms. The parties may set forth such additional terms
and conditions as they mutually agree upon in Schedule A hereto.
10. Assignment. As a personal services contract, this Agreement is not
assignable by Consultant, but it may be assigned by Client to, and it shall be
binding upon and inure to the benefit of, any personal or entity succeeding to
all or substantially all of the business or assets of the Client.
11. Interpretation. It is the intent of the parties that in case of any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of the
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provisions has never been contained herein. Moreover, it is the
intent of the parties that in case any of the provisions contained int he
Agreement shall be held to be excessively broad or, for any reason, such
provisions shall be construed by limiting and reducing it as determined by a
court of competent jurisdiction, so as to enforceable to the extent compatible
with applicable law.
12. Notices. All notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered in person, by
facsimile, or by registered or certified mail, return receipt requested,
addressed as provided on Schedule A hereto or to such other address as either
party may notify the other in writing.
13. Complete Agreement; Amendments. This Agreement, including Schedule
A hereto, contains the entire agreement and understanding of the parties with
respect to the subject matter of the Agreement, and no representations,
promises, agreements or understanding, written or oral, not contained herein
shall be of any force or effect. No change, modification, or waiver of any
provision of this Agreement shall be valid or binding unless it is writing dated
subsequent to the date hereof, and signed by the party intended to be bound.
14. Headings. The headings of the paragraphs herein are for the
purposes of reference only and in no way shall limit, define or otherwise affect
the provisions hereof.
15. Counterparts. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal lows of the State of Illinois, without regard to
the provisions thereof respecting the conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first written above.
DRH STRATEGIC CONSULTING, INC.
BY: /s/ Donald R. Hollis
PRESIDENT
DELUXE CORPORATION
CLIENT
BY /s/ John A. Blanchard III
ITS: Chairman & CEO
The undersigned, Donald R. Hollis, individually acknowledges and agreed
to provide consulting services to Client under the foregoing Consulting
Agreement and to comply with and be bound by the terms and conditions of the
foregoing Consulting Agreement.
/s/ Donald R. Hollis
Donald R. Hollis
SCHEDULE A
TO
CONSULTING AGREEMENT
1A. Services to be Performed.
(a) Description of Services:
Consultant to provide market insight, reaction to strategy, technology
and product plans, and assistance in conveying to customers/prospects
Client's strengths.
(b) Locations and Amount of Services:
Dedicated Services: At least 20 dedicated days of consulting
services per year at (a) Client's place of business or (b)
other locations (including the places of business of Client's
customers) designated by Client.
Referral Services: Consultant will be available by phone to
provide advice and feedback to Client on a demand basis to
queries. There is no limitation to the number of such calls.
(c) Scheduling:
The scheduling of consulting services shall be subject to Hollis'
availability. Client shall use its best efforts to provide as much
advance notice of its scheduling needs as possible, and Consultant and
Hollis shall do their best efforts to accommodate such needs.
2A. Term of Agreement.
This term of this Agreement shall commence on November 1, 1996 and
continue until October 31, 1997.
3A. Compensation.
(a) Retainer Fees: Client shall pay Consultant a fee at a rate of $3,500
per day of service. However, if during the twelve months less than
twenty days have been utilized, Consultant shall bill for and Client
shall pay for the number of days necessary to reach the 20 day minimum
stipulated in 1A(b)
4A. Restrictions on Consultant's Other Activities.
Consultant hereby agrees that, during the term of this Agreement, it
shall not enter into any agreement to provide consulting services to:
1.) First Data Corp
Hackensack, NJ
2.) EDS
Plano, TX
5A. Address for Notice.
If to Consultant: If to Client:
DRH Strategic Consulting, Inc. Deluxe Corporation
One First National Plaza 3680 Victoria Street North
3184 Shoreview, MN 55126
Chicago, Illinois 60603 Attn: J. A. Blanchard
Facsimile: _______________
ADDENDUM
Addendum to that certain Consulting Agreement, dated as of November 1,
1996 (the "Agreement"), by and between Deluxe Corporation and DRH Strategic
Consulting, Inc. Capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Agreement.
1. At the end of Section 3A(a), add the words: "Fees shall not be payable
hereunder for attendance by Hollis at meetings of the Board of Directors of
Client."
2. The Agreement shall not be finally effective prior to its approval by the
Board of Directors of Client. Prior to such final effectiveness, the Agreement
may be terminated by either party immediately upon written notice to the other.
Accepted and Agreed:
DRH STRATEGIC CONSULTING, INC. DELUXE CORPORATION
By: /s/ Donald R. Hollis By: /s/ John A. Blanchard
Its: President Its: Chairman and CEO