Exhibit 10.22
eFunds Corporation
Separation Agreement
SEPARATION AGREEMENT by and between eFunds Corporation, a Delaware corporation
(collectively with any successor entity, the "Company"), and Xxxx X. Xxxxx, Xx.
("Executive") dated as of the 1st day of November, 2002.
WHEREAS, Executive is currently an employee of the Company;
WHEREAS, the further employment of Executive will be terminated as of
December 31, 2002 (the "Separation Date");
WHEREAS, the Chief Executive Officer ("CEO") of the Company has
determined that it is in the best interests of the Company and its stockholders
to ensure that the Company will have Executive's full support of and
participation in the transition of the executive leadership of the Company; and
WHEREAS, the CEO has therefore determined to provide Executive with
assurances regarding the benefits to be received by Executive during this
transition period and following the expected departure of the Executive from
employment with the Company.
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Payments.
(a) Subject to the terms and conditions set forth in this
Agreement, the Company agrees to employ the Executive as its Transition
Coordinator from the date of this Agreement until the Separation Date and the
Executive agrees to serve in such capacity during such time. In the event that
the Executive so remains in the employ of the Company through the Separation
Date and his resignation from further employment with the Company remains
effective as of such date or if the Company should terminate the further
employment of Executive prior to such Date without "Cause" (as hereinafter
defined), Executive shall be entitled to a lump-sum transition payment in the
amount of $140,000 (less any applicable withholding taxes), such payment to be
made as soon as practicable but in no case later than 15 days following
Executive's compliance with Section 2(a)(iii) so long as Executive is then in
compliance with all of his other obligations under this Agreement. In addition,
the Company shall not reduce the base salary (the "Base Salary") of Executive
from its current level $23,333.33 per month during the period (the "Transition
Period") preceding the Separation Date and shall continue to pay such amount to
the Executive in accordance with past practice. In the event the Company should
terminate the further employment of Executive without Cause prior to the
Separation Date, the Company shall nevertheless continue to pay Executive the
Base Salary throughout the Transition Period and Executive shall remain entitled
to receive the lump-sum payment described above and the payments referenced in
subsections 1(b), (c) and (d). If the Company should terminate the employment of
Executive prior to the Separation Date for Cause, the Company shall have no
further payment obligations hereunder from and after the date of any such
termination so long as the Company has paid the Base Salary through such date of
termination. As used herein, "Cause" shall mean a continuing material failure by
Executive to substantially comply with the requirements of Section II(a) for
five or more days following his receipt of written demand for compliance from
the CEO which specifies in reasonable detail the circumstances demonstrating
Executive's failure to so comply.
(b) Subject to the terms and conditions set forth in this
Agreement, Executive shall be entitled to the following transition support
payments following the Separation Date:
(i) During the period (the "Extension Period") commencing
on January 1, 2003 and ending on the earlier to occur
of (1) the date Executive obtains employment with a
"Competitor" (as hereinafter defined) and (2) June
30, 2003 (it being
understood and agreed that the maximum number of
differential payments shall be six), Executive shall
be entitled to a monthly payment equal to the amount,
if any, by which the Base Salary exceeds the gross
monthly cash compensation received by Executive from
any subsequent employer; provided, however, that the
Company's payment obligations during the Extension
Period shall cease on the date Executive becomes
employed by any Competitor regardless of the monthly
cash compensation received by Executive from such
entity.
(ii) In order to be eligible to receive the differential
payments payable during the Extension Period,
Executive must provide the Company with reasonable
documentation (such as a payroll statement from
Executive's employer or, if applicable, a written
statement to the effect that Executive was not
employed) evidencing the cash compensation received
by Executive during the prior month. Differential
payments will be made in arrears within 30 days of
the Company's receipt of the foregoing. Executive
agrees to use diligent efforts to obtain new
employment during the Extension Period. Executive
further agrees not to disclose the existence of the
differential payments to any subsequent employer and
to refrain from manipulating the elements of
Executive's compensation by any subsequent employer
in a manner designed to maximize the differential
payments payable by the Company.
(c) The Company will reimburse Executive for up to $2,500.00 in
fees and expenses incurred by Xxxxxxxx Xxxxxx Xxxxx & Xxxx, attorneys for
Executive, in negotiating and reviewing this Agreement and advising Executive
regarding the same.
(d) During the remaining term of Executive's employment with the
Company prior to the Separation Date, he shall continue to receive his car
allowance but he shall not otherwise be entitled to continue to receive other
perquisites afforded the executive officers of the Company.
II. Conditions.
(a) The Company's obligations under Section 1 are subject to the
following conditions:
(i) Executive must supply the Company and its affiliates
with transition support during the Transition Period
to the extent reasonably requested by the CEO;
(ii) Executive must not disparage the Company or its
affiliates or their management during the Transition
Period nor during the six-month period following the
Separation Date;
(iii) Executive must execute the Release attached as
Exhibit A and deliver the same to the offices of the
Company (8501 X. Xxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000, attn: General Counsel) within
the 21 day period following the Separation Date and
must not rescind the same during the Rescission
Period referenced in Section 1(c) thereof; and
(iv) Executive must (upon reasonable notice and mutually
convenient scheduling) cooperate with the Company and
its counsel with regard to any past, present or
future legal, regulatory, investigatory (including
any inquiries or investigations by management of the
Company or its Board of Directors (or a committee
thereof)) or other proceeding or matter which relates
to or arises out of matters occurring during
Executive's employment, or the termination thereof
(collectively, an "Employment Related Matter"). The
Company hereby agrees to give Executive access to and
copies of all documents and records (excluding
2
privileged documents and records) which may be
relevant to any of such proceedings or matters.
(b) No amounts shall be payable under Section 1 (other than
Executive's Base Salary through the date of termination of his employment) if
(i) Executive's employment with the Company is terminated prior to the
Separation Date for Cause or due to the death or disability of Executive or (ii)
Executive resigns from employment with the Company prior to the Separation Date.
III. Fringe Benefits; Restricted Stock Unit Award.
(a) Subject to Section 1(d), any and all benefits or other forms
of compensation to Executive (such as the disposition of any options held by
Executive, the balance of Executive's account under the Employee Stock Purchase
or Deferred Compensation PlanS, 401(k) account and accrued vacation pay) shall
be governed by the rules applicable to such plans and programs, as the same are
in effect on the Separation Date; provided, however, that the payments set forth
in this Agreement are Executive's sole entitlement to severance pay and
Executive shall not also be entitled to receive payment under the Company's
standard severance programs. For purposes of the foregoing, Executive's
separation from employment shall be deemed to have been occasioned by the
resignation of Executive on the Separation Date.
(b) Upon the execution of this Agreement by Executive, Executive
shall forfeit all of his right, title and interest in and to that certain award
of restricted stock rights, dated as of June 10, 2002, which award shall
thereupon be cancelled and without further force and effect.
IV. Non-Competition.
(a) As an essential inducement to the Company to enter into this
Agreement, and as consideration for the promises of the Company contained
herein, Executive agrees that during the Transition Period, he will not:
(i) Control or own (directly or indirectly) more than two
percent of the outstanding capital stock of or other
equity interest in any "Competitor;" or
(ii) Serve as an officer, member, director, contractor,
agent, consultant, advisor or employee of or to any
Competitor wherever located.
(iii) As used herein, "Competitor" shall mean any entity
for which a substantial portion of its business
consists of (i) processing debit, ATM, ACH or EBT
transactions or providing software that allows others
to process such transactions, (ii) providing
data-based risk management, decision support or
customer relationship management products and
services (including any check guarantee product),
(iii) managing or deploying networks of ATMs or (iv)
providing business process outsourcing services (such
as call centers or accounts receivable or payable
processing). Without limiting the generality of the
foregoing, "Competitors" shall include Equifax,
Experian, TransUnion, First Data Corporation
(including NYCE), Concord EFS (including Primary
Payment Systems and STAR), M&I, EDS and Total System
Services (and any of their respective subsidiaries
which engage in any of the foregoing activities as a
substantial portion of their business).
(b) Executive may engage in one or more of the foregoing
activities following the Transition Period, but the Company shall thereupon be
immediately released from any further obligation to make differential payments
to Executive pursuant to Section 1(b)(i) and from any obligation to pay
Executive the lump sum transition payment referenced in Section 1(a) if the same
has not theretofore been paid.
(c) Executive agrees that a breach by him or of any of the terms
of this Section 4 will cause great and irreparable injury and damage to the
Company and that the Company shall have a right to
3
equitable relief, including, but not limited to, a temporary restraining order,
preliminary injunction, permanent injunction and/or order of specific
performance, as a remedy to enforce this Section 4 or prevent a threatened or
potential breach of this Section 4 by Executive. In addition, the Company will
be immediately relieved of any further payment obligations under Section 1 if
Executive should breach this Section 4.
V. Indemnification:
(a) The Company shall continue to indemnify and to advance the
expenses of defense to Executive to the fullest extent permitted or authorized
by its certificate of incorporation or bylaws as in effect on the date of this
Agreement, or if greater, to the fullest extent permitted or authorized by
applicable law. The Company shall also reimburse Executive for the reasonable
costs and expenses (including, without limitation, legal and other professional
fees, costs and expenses) he incurs in connection with fulfilling his commitment
under Section 2(a)(iv).
(b) The Company hereby represents and warrants that a true and
correct copy of the provisions of its certificate of incorporation and by-laws
related to the indemnification of its officers, as the same are in effect on the
date hereof, is attached hereto as Exhibit B.
VI. Miscellaneous.
(a) Executive may not assign or delegate any of Executive's rights
or obligations in respect of this Agreement and any attempted assignment or
delegation shall be void and of no effect. This Agreement is binding upon and
enforceable by the Company and its successors and assigns. This Agreement (but
not the Release), including the Company's payment obligations hereunder, will
terminate upon the death of Executive. This Agreement is governed by the
substantive laws of the State of Delaware, without regard to its conflicts of
law rules.
(b) This Agreement is intended to supercede and replace any other
prior severance agreements or arrangements between the parties, including that
certain Executive Transition Assistance Agreement, dated as of December 28,
2001, and that certain Change In Control Agreement, dated as of October 19,
2000, which agreements and arrangements will, as of the execution of this
Agreement by Executive and the Company, be null and void and of no further force
and effect. This Agreement shall not, however, supercede or replace any
Confidentiality Agreement between the Company (or any of its subsidiaries) and
Executive and each such agreement shall remain in full force and effect.
(c) The failure of a party to insist upon strict compliance with
any of the terms, conditions or covenants expressed in this Agreement shall not
be deemed a waiver of such term, condition or covenant, or any other term,
condition or covenant, nor shall any waiver or relinquishment of any right or
power under this Agreement on one or more times be deemed a waiver or
relinquishment of such right or power or any other right or power at any other
time or times.
(d) Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(e) This Agreement may be executed in one or more counterparts,
any one of which need not contain the signatures of more than one party, but all
such counterparts taken together will constitute one and the same instrument.
(f) Executive has been informed that the terms of this Agreement
will be open for acceptance and execution by Executive until November 18, 2002
during which time Executive may consider whether or not to accept this Agreement
and consult with an attorney of Executive's choosing to
4
advise Executive regarding the same. If Executive does not execute and deliver
this Agreement by such date, the offer contained herein shall be wholly null and
void.
(g) This Agreement shall constitute the resignation, effective as
of the Separation Date, by Executive from further employment by the Company, its
subsidiaries and from any and all offices Executive may hold with any of the
foregoing entities.
IN WITNESS WHEREOF, Executive and the Company have hereunto set their hands as
of the date set forth above.
EXECUTIVE
/s/ Xxxx X. Xxxxx, Xx.
--------------------------------------
Xxxx X. Xxxxx, Xx.
eFUNDS CORPORATION
/s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
Chairman and Chief Executive
Officer
5
EXHIBIT A
RELEASE
WHEREAS, Xxxx X. Xxxxx, Xx. ("Executive") was an employee of eFunds
Corporation, a Delaware corporation (the "Company");
WHEREAS, Executive's employment with the Company was terminated
effective as of December 31, 2002 (the "Separation Date");
WHEREAS, Executive and the Company have previously entered into that
certain Separation Agreement, dated as of November 1, 2002 (the "Separation
Agreement"), pursuant to which the Company has agreed to make certain payments
to Executive following the termination of his employment; and
WHEREAS, it is a condition to the Company's obligation to make the
payments provided for in the Separation Agreement that Executive execute,
deliver and not rescind this Release.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, Executive and the
Company hereby agree as follows:
1. Release.
(a) As consideration for the promises of the Company
contained in the Separation Agreement, Executive, for himself and his successors
and assigns, hereby fully and completely releases and waives any and all claims,
complaints, rights, causes of action or demands of whatever kind, whether known
or unknown or suspected to exist by Executive (collectively, "Claims") which he
has or may have against the Company and any company controlling, controlled by
or under common control with the Company (collectively with the Company, the
"Controlled Group") and their respective predecessors, successors and assigns
and all officers, directors, shareholders, employees and agents of those persons
and companies ("the Released Parties") arising out of or related to any actions,
conduct, promises, statements, decisions or events occurring prior to or on the
Separation Date (the "Released Matters"), including, without limitation, any
Claims based on or arising out of Executive's employment with the Controlled
Group and the cessation of that employment; provided, however, that such release
shall not operate to relieve the members of the Controlled Group of any
obligation to indemnify Executive against any Claims brought against Executive
by any third party by reason of Executive's status as an officer or employee of
the Controlled Group; and, provided, further, that if the Company should assert
any cause of action against Executive in any court or before any arbitrator,
such release shall be rescinded and thereafter be wholly null and void. So long
as this Release remains effective as against Executive, Executive agrees that he
will not, and will cause his affiliates not to, institute any legal proceedings
against the Released Parties in respect of any Claim nor will he authorize any
other party, whether governmental or otherwise, to seek individual remedies on
his behalf with respect to any Claim. The Company agrees that, by signing this
Release Executive is not waiving any Claim (a "Retained Claim") arising after
the Separation Date or under the Separation Agreement.
(b) Executive's release of Claims is intended to extend
to and include Claims of any kind arising under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Sections 2000e et seq., the Age
Discrimination in Employment Act, 29 U.S.C. Sections 621 et seq., the Americans
with Disabilities Act, 42 U.S.C. Sections 12101 et seq., the Delaware
Discrimination in Employment Act, Del. Code Xxx. Tit. 19, Sections 710-718, the
Delaware Handicapped Persons Employment Protections Act, Del. Code Xxx. Tit. 19,
Sections 720-728 and any other federal, state or local statute, Executive Order
or ordinance prohibiting employment discrimination or otherwise relating to
employment, as well as any claim for breach of contract (other than a Retained
Claim), wrongful discharge, breach of any express or implied promise,
misrepresentation, fraud, retaliation, violation of public policy, infliction of
emotional distress, defamation, promissory estoppel, equitable estoppel,
invasion of privacy or any other theory, whether legal or equitable.
(c) Executive has been informed of Executive's right to
revoke this Release insofar as it extends to potential claims under the Age
Discrimination in Employment Act by informing the Company of Executive's intent
to revoke this Agreement within seven (7) calendar days following the execution
of this Release by Executive. Executive has further been informed and
understands that any such rescission must be in writing and hand-delivered to
the Company or, if sent by mail, postmarked within the applicable time period,
sent by certified mail, return receipt requested, and addressed as follows:
eFunds Corporation
Xxxxxx Ranch Center II
0000 X. Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
The Company and Executive agree that if Executive exercises Executive's right of
rescission under this Section (c), the Company's obligations under Section 1 of
the Transition Agreement shall be null and void.
2. Miscellaneous.
(a) Executive may not assign or delegate any of
Executive's rights or obligations in respect of this Release and any attempted
assignment or delegation shall be void and of no effect. This Release is binding
upon and enforceable by the Company and the other members of the Controlled
Group and their respective successors and assigns. This Release is governed by
the substantive laws of the State of Delaware, without regard to its conflicts
of law rules.
(b) The failure of a party to insist upon strict
compliance with any of the terms, conditions or covenants expressed in this
Release shall not be deemed a waiver of such term, condition or covenant, or any
other term, condition or covenant, nor shall any waiver or relinquishment of any
right or power under this Release on one or more times be deemed a waiver or
relinquishment of such right or power or any other right or power at any other
time or times.
(c) Whenever possible, each provision of this Release
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Release is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Release.
(d) This Release may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
instrument.
2
IN WITNESS WHEREOF, the Company and Executive have hereunto set their hands to
this Release as of the dates set forth below.
eFUNDS CORPORATION
Dated: By: _________________________
Its _________________________
Dated: _____________________________
Xxxx X. Xxxxx, Xx.
STATE OF ___________)
County of ____________)
Subscribed and sworn before me
this ___ day of ___________, ____.
_____________________________________ seal
Notary Public, State of _____________
My Commission expires:_______________
3
