EXHIBIT 10.1
EFUNDS CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT ("Agreement"), dated September 9, 2002, by and between eFunds
Corporation, a Delaware corporation (the "Company"), and Xxxx X. Xxxxx (the
"Executive").
WHEREAS, the Company wishes to employ the Executive as its Chief
Executive Officer and Executive is willing to accept such employment on the
terms and conditions hereinafter set forth;
WHEREAS, the Company and the Executive will also enter into that
certain Change in Control Agreement on the Start Date referenced herein (the
"Change in Control Agreement"); and
WHEREAS, capitalized terms used without definition herein shall have
the meanings assigned to such terms in the Change in Control Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the Company and the Executive set forth below, the Company and
the Executive agree as follows:
I. Employment Period. Upon the terms and conditions set forth herein, the
Company hereby agrees to employ the Executive as its Chief Executive Officer,
and the Executive hereby agrees to accept such employment. The term of such
employment (the "Employment Period") shall commence on September 16, 2002 (the
"Start Date") and shall continue until September 16, 2005, unless earlier
terminated as provided in this Agreement. Upon the expiration of the initial
term of the Employment Period, this Agreement and the Employment Period shall be
automatically extended for successive additional one year terms, unless one
party shall give a notice of non-renewal to the other at least 90 days prior to
scheduled expiration of the initial or any renewal term. Notwithstanding the
foregoing, the Executive's employment by the Company shall be "at-will" and the
Board of Directors of the Company (the "Board") may terminate the Executive's
employment at any time either with or without "Cause" (as hereinafter defined).
II. Terms of Employment.
A. Position and Duties.
1. During the Employment Period, the Executive agrees to serve as the Chief
Executive Officer and Chairman of the Board of the Company and to perform such
reasonable duties as are generally considered consistent with such positions and
as the Board shall assign to the Executive from time to time.
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2. During the Employment Period, and excluding any periods of vacation and
sick leave to which the Executive is entitled, the Executive agrees to devote
his full-time attention to the business and affairs of the Company and to use
the Executive's reasonable efforts to perform faithfully and efficiently his
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to serve on corporate, civic or charitable
boards or committees or provide consulting services to others so long as such
activities are approved in advance by the Board of Directors of the Company and
do not significantly interfere with the Executive's performance of his
responsibilities as a full-time employee of the Company in accordance with this
Agreement (it being understood and agreed that the continued service of the
Executive on the Board of Directors of Staples, Inc. shall be permitted
hereunder).
B. Compensation. During the Employment Period, the Executive shall be
entitled to receive the following elements of compensation:
1. Base Salary. The Company shall pay the Executive a minimum base
salary (the "Annual Base Salary") of $500,000 per year (or such higher amount as
may be determined at the discretion of the Compensation Committee of the Board
(the "Compensation Committee")). The Annual Base Salary shall be paid in
accordance with the Company's normal payroll procedures and policies.
2. Annual Bonus. In addition to Annual Base Salary, the Executive shall
be eligible to be paid, for each full fiscal year ending during the Employment
Period, an annual bonus (the "Annual Bonus"). The Executive's minimum target
Annual Bonus will be 70% of the Annual Base Salary actually paid to the
Executive for that fiscal year (or such higher percentage as may be determined
in the discretion of the Compensation Committee). The amount of the Annual Bonus
actually paid to the Executive for any given fiscal year may be higher or lower
than the target Annual Bonus and will be determined in accordance with the
performance parameters established under, and the other terms and conditions of,
the Company's existing Annual Incentive Plan (or any comparable successor plan).
Any Annual Bonus earned by the Executive shall be paid no later than the end of
the third month following the fiscal year for which the Annual Bonus is awarded,
unless the Executive shall elect to defer the receipt of such Annual Bonus in
accordance with the terms and conditions of any deferred compensation plan
established by the Company. For 2002, the Executive shall receive a guaranteed
bonus of $87,500, payable as aforesaid. If the Employment Period shall expire
prior to the end of a given fiscal year, the bonus, if any, payable for the
portion of the year during which the Executive was employed shall be determined
by the Compensation Committee.
3. Stock Options. The Executive shall be entitled to participate in the
eFunds Corporation 2000 Stock Incentive Plan (or any comparable successor plan)
on generally the same terms and conditions as the other senior executive
officers of the Company (the "Senior Executives"), it being understood and
agreed that the Executive will be eligible for option grants commensurate with
the Executive's status as Chief Executive Officer. The general target for the
imputed value of the annual equity-based award to the Executive shall be 250% of
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the Executive's then Annual Base Salary, it being understood and agreed that
this target is not a mandatory or minimum requirement and that the actual value
of any future equity-based awards to the Executive shall be determined by the
Compensation Committee in the exercise of its sole discretion. On the Start
Date, the Executive shall receive a ten-year option to purchase 307,692 shares
of Common Stock at a price equal to the closing price (the "Closing Price") of
the Company's Common Stock on the Nasdaq National Market on the business day
immediately preceding the Start Date, as such price is reported in the Wall
Street Journal, Western Edition, and a grant of a number of restricted stock
rights equal to $500,000 divided by the Closing Price. The understanding of the
parties is that it is not currently contemplated that the Executive will receive
an equity-based award in 2003 in light of the foregoing.
4. Savings, Retirement and Other Incentive Plans. The Executive shall be
entitled to participate in all other incentive, savings, deferred compensation,
stock purchase and retirement plans, practices, policies and programs applicable
generally to the other Senior Executives.
5. Welfare Benefit Plans. To the extent that the Executive's position,
title, tenure, salary, age, health and other qualifications make the Executive
eligible, the Executive and/or the Executive's family, as the case may be, shall
be eligible to participate in all welfare benefit plans, practices, policies and
programs generally provided by the Company (including, without limitation,
medical, prescription, dental, disability, employee life, group life, accidental
death and travel accident insurance plans and programs).
6. Expenses. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in
furtherance of the Executive's duties in accordance with the then prevailing
policies, practices and procedures of the Company.
7. Fringe Benefits. The Executive shall be entitled to fringe benefits,
including, without limitation, tax and financial planning services, use or
reimbursement for the use of an automobile, as the case may be, and payment of
related expenses, in accordance with the plans, practices, programs and policies
of the Company.
8. Vacation. The Executive shall be entitled to six weeks of paid time off
per year and shall be entitled to standard Company holidays in accordance with
the plans, policies, programs and practices of the Company.
III. Obligations of the Company upon Termination.
A. Good Reason; Other Than for Cause; Non-Renewal by the Company.
1. If the Company shall terminate the Executive's employment prior to
the expiration of the Employment Period other than for Cause or if the Executive
shall terminate his employment prior to such expiration for "Good Reason" (as
hereinafter defined),
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the Company shall pay to the Executive in a lump sum in cash the aggregate of
the following amounts:
(a) the sum of (i) the Executive's Annual Base Salary through
the date of termination (the "Termination Date") of the employment of the
Executive to the extent not theretofore paid, (ii) any Annual Bonus paid or
payable in respect of the most recently completed fiscal year of the Company, to
the extent such amount is determinable and not theretofore paid and (iii) any
vacation pay accrued by the Executive through the Termination Date (the sum of
the amounts described in clauses (i), (ii) and (iii) shall be hereinafter
referred to as the "Accrued Obligations"). In the event the Executive's Annual
Bonus for the most recently completed fiscal year of the Company is not
determinable on the Termination Date, such Annual Bonus shall (subject to any
deferral election made by the Executive) be paid to Executive in a lump sum, in
cash, as soon as administratively feasible after the date the amount of such
Annual Bonus is determined and in any event prior to the expiration of the three
month period referenced in Section II (B)(2). Any other amounts payable pursuant
to this Section III(A)(1)(a) shall be paid as soon as administratively feasible
following the Termination Date.
(b)an amount equal to the Annual Base Salary that would have
been earned by the Executive had the Executive remained continuously employed
throughout the remaining original term of the Employment Period at the Annual
Base Salary in effect on the Termination Date; and
(c) an amount equal to the Annual Bonus(es) that would have been
earned by the Executive had the Executive remained continuously employed
throughout the remaining scheduled term of the Employment Period and been
awarded Annual Bonus(es) at the target Annual Bonus rate in effect on the
Termination Date (pro-rated for any year that would not have been completed in
its entirety).
(d) Notwithstanding the foregoing, if the aggregate payments
contemplated by subsections (b) and (c) do not exceed 150% of the Base Salary in
effect on the Termination Date (the "Base Termination Amount"), the Company
shall instead pay the Executive an amount equal to the Base Termination Amount.
2. If the Employment Period shall expire by reason of an election by the
Company not to renew this Agreement, the Company shall pay the Executive the
Base Termination Amount in a lump sum in cash as soon as administratively
feasible following the Termination Date related to such expiration.
3. Any and all benefits or other forms of compensation to the Executive
(such as the disposition of any options held by Executive, the balance of
Executive's account under the Company's Employee Stock Purchase or deferred
compensation plans, and the Executive's 401(k) account (collectively, "Other
Benefits")) shall be governed by the rules applicable to such plans and programs
and the terms of any agreements between the Executive and the Company related to
such Other Benefits, as the same are in effect on the Termination
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Date; provided, however, that the payments set forth in this Agreement (and the
Change In Control Agreement) are the Executive's sole entitlement to severance
pay and the Executive shall not also be entitled to receive payment under the
Company's standard severance programs.
4. Notwithstanding the foregoing, no amounts shall be owing to the
Executive under the foregoing clause (2) of this Section III(A) or subsections
(b), (c) or (d) of clause (1) of this Section III(A) unless the Executive shall
have timely executed and delivered the Release attached to this Agreement as
Exhibit A and the seven day rescission period referenced in Section 1(a) thereof
shall have expired without the Executive having sent a notice of revocation or
rescission to the Company, at which point any accrued amounts ("Termination
Payments") which are then payable under such clause or subsections shall be paid
to Executive as soon as administratively feasible.
B. Death; Disability; for Cause or Without Good Reason; Non-Renewal by the
Executive. If the Executive's employment is terminated prior to the expiration
of the Employment Period by (1) reason of the Executive's death or "Disability"
(as hereinafter defined), (2) the Company for Cause or (3) the Executive without
Good Reason or if the Employment Period shall expire by reason of an election by
the Executive not to renew this Agreement, this Agreement shall automatically
terminate on the relevant effective Termination Date. In any such event, the
Company's only obligations to the Executive (or his heirs, estate or legal
representatives, as the case may be) shall be for the payment of any Accrued
Obligations owed to the Executive on such Date and the timely payment or
provision for payment of any applicable Other Benefits in accordance with the
provisions of Section III(A)(3). Any Accrued Obligations owing hereunder shall
(subject to any deferral election by the Executive) be paid as soon as
administratively feasible after the Termination Date.
C. Disputes. In the event of any dispute regarding the appropriate
characterization of any termination of the employment of the Executive, the
payment of any Termination Payments asserted to be owing to the Executive shall
be suspended until the date on which the dispute is finally resolved, either by
mutual written agreement of the parties or by a final judgment, order or decree
of an arbitrator or a court of competent jurisdiction. If such resolution
requires the payment to the Executive of any Termination Payments, such Payments
shall be promptly paid following such resolution, plus simple interest from the
Termination Date through the date of payment calculated at a rate of 7.0% per
annum.
D. Payment of Legal Fees. In the event of any dispute regarding the reasons
for any termination of the Employment Period prior to its scheduled expiration,
the non-prevailing party hereby agrees to pay all reasonable legal fees and
expenses (including, but not limited to, attorney's fees) which the prevailing
party may incur in good faith as a result of defending or pursuing such dispute.
E. Disposition of Equity Instruments. In the event the Company should
assert that the employment of the Executive shall have been terminated for Cause
and the Executive shall dispute such assertion, the exerciseability or vesting
of any options, restricted shares, restricted
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stock rights, SARs or similar instruments which would be forfeited by the
Executive by reason of such termination shall be suspended during the pendency
of such dispute. If it is ultimately determined that the termination of the
Executive's employment was not properly characterized as being for Cause, such
suspension shall be lifted and the Executive shall retain such instruments for a
period of time from the date of such determination equivalent to the time period
during which the Executive would have retained such instruments following the
Termination Date had the termination of the Employment Period not been
wrongfully characterized as for Cause, although in no event may any equity-based
award be retained beyond its originally scheduled term.
F. Certain Additional Payments by the Company. In the event it shall be
determined that any payment or benefit received or to be received by the
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or any other plan, arrangement or agreement with the
Company, but determined without regard to any additional payments required under
Section (A) of Exhibit B) would be subject to the excise tax imposed by Section
4999 (or any successor section) of the Internal Revenue Code of 1986, as
amended, or any interest or penalties are incurred by the Executive with respect
to such or any other excise tax, then the Executive shall be entitled to receive
additional payments in an amount determined in accordance with Exhibit B.
IV. Reasons for Termination.
A. Cause. For purposes of this Agreement, "Cause" shall mean:
1. the willful and continued failure of the Executive to perform
substantially the Executive's material duties (other than as a result of the
mental of physical illness of the Executive or any such failure as may allegedly
occur after the Executive issues a Notice of Termination for Good Reason
pursuant to Section IV(D) hereof) for a period of 30 days or more after a demand
for substantial performance is delivered to the Executive by the Board which
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive's material duties;
2. the Executive engages in illegal conduct or gross misconduct which
is materially and demonstrably injurious to the commercial interests of the
Company;
3. the Executive commits an act of fraud, misappropriation, embezzlement
or other similar act of dishonesty;
4. the Executive is formally charged by an appropriate governmental
authority with having engaged in any conduct of the type described in
subsections 2 or 3 above; or
5. the Executive is convicted or pleads guilty or nolo contendre to
criminal misconduct constituting a felony or gross misdemeanor involving a
breach of ethics, moral turpitude or other immoral conduct which reflects
adversely upon the reputation or interests of
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the Company or its customers or vendors or the Executive becomes subject to
criminal sanctions that will prevent the Executive from performing his duties in
the ordinary course for a period of time that is likely to exceed 30 days.
B. Good Reason. The Executive may terminate his employment with the Company
at any time, whether with or without Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
1. except with the Executive's prior consent, the assignment to the
Executive of any significant duties inconsistent with the Executive's status and
position as the Chief Executive Officer of the Company or any other action by
the Board which results in a material and ongoing diminution of the Executive's
position and authority;
2. any failure by the Company to comply with any of the provisions of
this Agreement, other than an isolated failure not occurring in bad faith which
is remedied by the Company promptly after receipt of notice thereof given by the
Executive;
3. a requirement by the Company that the Executive maintain his
principal residence at a location outside of the Scottsdale, Arizona area as a
condition to his continued employment;
4. any request or requirement by the Company or the Board that the
Executive take any action or omit to take any action that is inconsistent with
or in violation of the Company's ethical guidelines and policies or any
professional ethical guidelines or principles that may be applicable to the
Executive; or
5. except with the Executive's prior consent or as a result of a failure
of the stockholders of the Company to elect the Executive to the Board or any
legal or regulatory requirements applicable to the Company, the removal of the
Executive from the office of Chairman of the Board (it being understood and
agreed that the appointment by the Board of a Lead Director shall not be deemed
to constitute such a removal).
C. Death or Disability. If the Company determines in good faith that the
Executive has become "Disabled" (as defined below) during the Employment Period,
it may give a "Notice of Termination" (as defined below) to the Executive in
accordance with Section IV(D) of this Agreement of its intention to terminate
the Executive's employment by reason of such Disability. In such event,
Executive's employment with the Company shall automatically terminate on the
30th day after the date of such Notice of Termination (unless such Termination
Date is extended by the Board) if the Executive shall not have returned to
full-time performance of the Executive's duties within such 30 day notice
period. For purposes of this Agreement, "Disability" shall mean the inability of
the Executive to substantially perform the essential functions of the
Executive's position for a period of 60 or more consecutive days as a result of
a mental or physical illness.The Executive's employment and the Employment
Period shall terminate automatically upon the Executive's death.
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D. Notice of Termination. Any purported termination of the Executive's
employment during the Employment Period (other than by reason of the death of
the Executive) shall be communicated by a notice (a "Notice of Termination")
given by the party seeking to terminate such employment to the other party
hereto in accordance with Section VI(B) of this Agreement. Any Notice of
Termination shall (1) indicate the specific termination provision in this
Agreement relied upon by the party giving such notice (or that the Executive's
employment is being terminated by the Company without Cause or by the Executive
without Good Reason), (2) to the extent applicable, set forth in reasonable
detail the facts and circumstances claimed to provide a basis for the
termination of the Executive's employment under the provision so indicated and
(3) if the Termination Date not the date of receipt of such notice, specify a
Termination Date (which date shall be not more than 180 days after the date of
the Notice of Termination). A Notice of Termination for Cause shall include a
certified copy of a resolution to such effect duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of the Board. The
failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of
Disability, Good Reason or Cause shall not waive any right of the Executive or
the Company, as the case may be, from asserting such fact or circumstance in
enforcing their respective rights hereunder;
E. Dispute Concerning Termination. Notwithstanding the existence of any
dispute regarding the characterization of the reasons for any termination, the
Termination Date shall be the date set forth in the Notice of Termination.
V. Non-Competition Agreement.
A. As an essential inducement to the Company to enter into this Agreement,
and as consideration for the promises of the Company contained herein, the
Executive agrees that during the term of his employment and for a period of 18
months after any Termination Date or, if longer (but not to exceed two years), a
period of time equivalent to the amount of time it would have taken the
Executive to earn an amount of Base Salary equal to the aggregate amount of any
Termination Payments made to the Executive (the "Restricted Period"), the
Executive will not:
1. Control or own (directly or indirectly) more than two percent of the
outstanding capital stock of or other equity interest in any "Competitor;" or
2. Serve as an officer, member, director, contractor, agent, consultant,
advisor or employee of or to any Competitor wherever located (the activities
referenced in this clause 2 and the foregoing clause 1 being hereinafter
referred to as "Restricted Activities").
3. As used herein, "Competitor" shall mean any entity (or, with regard
to an entity which engages in multiple lines of business, any division or
subsidiary of such entity) primarily engaged in the business of (i) processing
debit, ATM or EBT transactions or providing software that allows others to
process such transactions, (ii) providing data-based risk
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management, decision support or customer relationship management products and
services, so long as the provision of such products and services is governed by
the Federal Fair Credit Reporting Act, 15 U.S.C. ss.1681 et. seq. (or any
successor provision), (iii) managing or deploying networks of ATMs providing
business process outsourcing services (such as call centers or accounts
receivable or payable processing). An entity, or a subsidiary or division
thereof, shall not be considered to be a Competitor merely by engaging in the
business of providing any of the foregoing products or services if the revenues
from one or more of such activities do not constitute 10% or more of the total
revenues of such entity, division or subsidiary. By way of example, if an entity
maintains a subsidiary which derives a 10% or more of its revenues from debit
transaction processing, the Executive could not engage in any Restricted
Activity with respect to that subsidiary. The Executive would not, however, be
prohibited from engaging in any Restricted Activity for another division or
subsidiary of such entity so long as the Executive's relationship with such
other division or subsidiary is not maintained as a pretext designed to enable
Executive to avoid compliance with the spirit of the foregoing and the Executive
does not engage in any Restricted Activity with respect to the debit processing
subsidiary during the Restricted Period. Without limiting the generality of the
foregoing, "Competitors" shall by definition include Equifax, Experian,
TransUnion, First Data Corporation, Concord EFS, M&I, EDS and Total System
Services.
B. The Executive agrees that a breach by the Executive of any of the terms
of this Agreement will cause great and irreparable injury and damage to the
Company and that the Company shall have a right to 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 Agreement or prevent a threatened or potential breach of this
Agreement by the Executive. In addition, the Company will be immediately
relieved of any obligation to make any Termination Payments to the Executive if
the Executive should breach this Section V.
VI. Miscellaneous.
A. This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, without reference to principles of conflict of
laws. The captions of this Agreement are not part of the provisions hereof and
shall have no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
B. All notices and other communications hereunder shall be in writing and
shall be, addressed as follows:
If to the Executive:
Xxxx X. Xxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
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With a copy to:
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx & Associates, P.A.
00 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Telecopy: 000-000-0000
If to the Company:
eFunds Corporation
Attn: General Counsel
0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be in writing
and shall be effective five days after mailing, if sent by first class, postage
prepaid to the address set forth above, two business days after mailing if sent
by priority or overnight courier (next business day delivery) or upon
transmission if sent by telecopy, with receipt of the correct answer back.
C. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
D. This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive other
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by the Executive's legal representatives.
If the Executive shall die while any amount would still be payable to the
Executive hereunder (other than amounts which, by their terms, terminate upon
the death of the Executive) if the Executive had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the executors, personal representatives or
administrators of the Executive's estate. This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns.
E. The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
F. The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to immediately
assert any right the Executive or the Company may have hereunder, including,
without limitation, the right of the Executive to terminate employment for Good
Reason pursuant to Section IV(B) of this Agreement or the right of the Company
to terminate the Executive's employment for Cause or by reason of the Disability
of the Executive pursuant to Section IV(A) or Section IV(C), respectively, of
this
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Agreement, shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
G. This Agreement is intended to supercede and replace any other prior
severance agreements or arrangements between the parties; provided, however,
that this Agreement shall not supercede or replace any Confidentiality Agreement
between Executive and the Company.
H. The obligations of the Company and the Executive under this Agreement
which by their nature may require either partial or total performance after the
expiration of the term of this Agreement shall survive such expiration.
I. In no event shall any amounts be payable under this Agreement if the
Executive should become entitled to any payments pursuant to the Change in
Control Agreement. This Agreement is expressly made subject to Section XI (F) of
the Change in Control Agreement.
J. Notwithstanding any other provision in this Agreement to the contrary,
the Board may delegate the responsibilities, duties and powers specified under
this Agreement to be observed or performed by the Board to the Compensation
Committee or the Board Affairs Committee
K. The Executive acknowledges that the terms of this Agreement have been
open for acceptance and execution for at least 30 days during which time the
Executive has considered whether or not to accept this Agreement and consulted
with an attorney of the Executive's choosing to advise the Executive regarding
the same.
L. Nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any plan, program, policy or practice
provided by the Company and for which the Executive may qualify.
M. In no event shall the Executive be obligated to seek other employment or
to take any other action to mitigate or reduce the amounts payable to the
Executive under this Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hand as of the
day and year first above written.
EFUNDS CORPORATION Executive
By: /s/ Xxxx X. Xxxxx III /s/ Xxxx X.Xxxxx
---------------------- ----------------------
Its: Lead Director Xxxx X. Xxxxx
----------------------
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EXHIBIT A
RELEASE
WHEREAS, Xxxx X. Xxxxx ("the Executive") is an employee of eFunds
Corporation, a Delaware corporation (the "Company");
WHEREAS, the Executive's employment with the Company has been terminated
effective as of , (the "Termination Date");
WHEREAS, the Executive and the Company have previously entered into that
certain Executive Employment Agreement, dated as of September 9, 2002 (the
"Agreement"), pursuant to which the Company has agreed to make certain payments
to the Executive following the termination of his employment;
WHEREAS, it is a condition to the Company's obligation to make certain of
the payments provided for in the Agreement that the Executive execute, deliver
and not rescind this Release; and
WHEREAS, it is a condition to the effectiveness of this Release that the
Company in fact make such payments.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, the Executive and the
Company hereby agree as follows:
1. Release.
(a) As consideration for the promises of the Company contained in the
Agreement, the Executive, for him 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 the Executive (collectively, "Claims") which the Executive
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
Termination Date (the "Released Matters"), including, without limitation, any
Claims based on or arising out of the 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 the Executive against any Claims brought against the
Executive by any third party by reason of the Executive's status as an officer
or employee of the Controlled Group; and, provided, further, that the
effectiveness of such release shall be suspended until such time as the Company
shall have fulfilled its obligation to make the Termination Payments referenced
under Section III(A)(1)(b), (c) or (d) or Section III(A)(2) of the Employment
Agreement (it being understood and agreed that following the fulfillment by the
Company of such obligation, such suspension shall be lifted and such release
shall be fully effective and enforceable from and as of its date of
A-1
execution by the Executive). As an essential inducement to the Executive to
enter into this Agreement, and as consideration for the promises of the
Executive contained herein, the Company, for itself and its successors, assigns
and affiliates hereby fully and completely releases and waives any and all
Claims which it or they have or may have against the Executive arising out of or
related to the Released Matters; provided, however, that such release shall not
operate to relieve the Executive from any obligation to reimburse the members of
the Controlled Group for any disbursements (such as travel and entertainment
expenses) improperly charged by the Executive to such Group; and, provided,
further, that the effectiveness of such release shall be suspended during the
term of any suspension of the effectiveness of the release given by the
Executive above (it being understood and agreed that upon the lifting of the
suspension of the effectiveness of the Executive's release, such release shall
be fully effective and enforceable from and as of its date of execution by the
Company). the Executive and the Company each further agree that they will not,
and will cause their affiliates not to, institute any legal proceedings against
the persons released by them in respect of any Claim nor will they authorize any
other party, whether governmental or otherwise, to seek individual remedies on
their behalf with respect to any Claim. The Executive and the Company agree
that, by signing this Release, neither party is waiving any Claim arising after
the Termination Date or by reason of any breach of the Agreement.
(b) The Executive's release of Claims is intended to extend to and include
Claims of any kind arising Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C.ss.ss.2000e et seq., the Age Discrimination in Employment Act,
29 U.S.C.ss.ss.621 et seq., the Americans with Disabilities Act, 42 X.X.X.xx.xx.
12101 et seq., the Delaware Discrimination in Employment Act, Del. Code Xxx.
Tit. 19,ss.ss.710-718, the Delaware Handicapped Persons Employment Protections
Act, Del. Code Xxx. Tit. 19,ss.ss.720-728, the Arizona Civil Rights Act, Ariz.
Rev. Stat.ss.ss.41-1401, et seq., the Arizona Employment Relationship and
Constructive Discharge Law, Ariz. Rev. Stat.ss.ss.23-1501, et seq. 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 any breach of the Agreement), 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) The Executive has been informed of the 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 the Executive's intent to revoke
this Release within seven (7) calendar days following the execution of this
Release by the Executive. The 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
A-2
The Company and the Executive agree that if the Executive exercises the
Executive's right of rescission, under this Section(c), the Company's
obligations to make any Termination Payments to the Executive under Section
III(A)(1)(b), (c) or (d) or Section III(A)(2) of the Agreement shall be null and
void.
2. Miscellaneous.
(a) The Executive may not assign or delegate any of the 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 and inures to the benefit of the
Executive and the Executive's, heirs and executors. 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.
(e) The Executive has been informed that the terms of this Release will be
open for acceptance and execution for 30 days after the Termination Date, during
which time the Executive may consider whether or not to accept this Release and
consult with an attorney of the Executive's choosing to advise the Executive
regarding the same. If the Executive does not execute this Release and deliver
the same to the Company by such date, the obligation of the Company to make any
Termination Payments under Section III(A)(1)(b), (c) or (d) or Section III(A)(2)
of the Agreement shall be wholly null and void.
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IN WITNESS WHEREOF, the Company and the 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
STATE OF )
County of )
Subscribed and sworn before me
this day of , .
seal
Notary Public, State of
My Commission expires:
A-4
EXHIBIT B
CERTAIN ADDITIONAL PAYMENTS
A. Anything in this Agreement to the contrary notwithstanding and except as
set forth below, in the event it shall be determined that any payment or benefit
(collectively, a "Payment") received or to be received by the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company, but
determined without regard to any additional payments required under this Section
(A) would be subject to the excise tax imposed by Section 4999 or any successor
section) of the Internal Revenue Code of 1986, as amended (the "Code") or any
interest or penalties are incurred by the Executive with respect to such or any
other excise tax (any such tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount determined in accordance with this Exhibit B such that
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Exhibit B, if it shall be
determined that the Executive is entitled to a Gross-Up Payment, but that the
Executive, after taking into account the Payments and the Gross-Up Payment,
would not receive a net after-tax benefit of at least $50,000 (taking into
account both income taxes and any Excise Tax) as compared to the net after-tax
benefit the Executive would receive if the Gross-Up Payment were eliminated and
the Payments were reduced, in the aggregate, to an amount (the "Reduced Amount")
such that the receipt of Payments would not give rise to any Excise Tax, then no
Gross-Up Payment shall be made to the Executive and the Payments, in the
aggregate, shall be reduced to the Reduced Amount. For purposes of determining
whether any of the Payments will be subject to the Excise Tax and the amount of
such Excise Tax, (i) all of the Payments shall be treated as "parachute
payments" (within the meaning of Section 280G(b) of the Code (or any successor
section)) unless, in the opinion of tax counsel ("Tax Counsel") selected by the
Company and reasonably acceptable to the Executive, such payments or benefits
(in whole or in part) do not constitute parachute payments, including by reason
of Section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments"
within the meaning of Section 280G(b)(1) of the Code shall be treated as subject
to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute
payments (in whole or in part) represent reasonable compensation for services
actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in
excess of the "base amount" (as defined in Section 280G(b)(3) of the Code)
allocable to such reasonable compensation, or are otherwise not subject to the
Excise Tax, and (iii) the value of any non-cash benefits or any deferred payment
or benefit shall be determined by the "Accounting Firm" (as hereinafter defined)
in accordance with the principals of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the Executive
shall be deemed to pay federal income tax at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-Up
B-1
Payment is to be made (determined by giving affect to the maximum loss of
itemized deductions that could be suffered by the Executive by virtue of his
receipt of the Gross-Up Payment) and state and local income taxes at the highest
marginal rate of taxation in the state and locality of Executive's residence on
the Termination Date (or if there is no Termination Date, then the date on which
the Gross-Up Payment is calculated for purposes of this Exhibit B), net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes.
B. Subject to the provisions of Section (C), all determinations required to
be made under this Exhibit B, including whether a Gross-Up Payment is required
and the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by a nationally recognized
certified public accounting firm designated by the Company and reasonably
acceptable to the Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that a Payment has been made or
will be required, as the case may be, or such earlier time as is requested by
the Company. All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment, as determined pursuant to this Exhibit B,
shall be paid by the Company to the Executive within five days of the receipt of
the Accounting Firm's determination. Any determination by the Accounting Firm
shall be binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which should have been made by the Company will not in fact
have been made ("Underpayment"). In the event that the Company exhausts its
remedies pursuant to Section (C). and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.
C. The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which he gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
1. give the Company any information reasonably requested by the Company
relating to such claim,
2. take such action in connection with contesting such claim as the
Company shall 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 the Company,
B-2
3. cooperate with the Company in good faith in order to effectively
contest such claim, and
4. permit the Company to participate in any proceedings relating to such
claim; provided, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section (C)(4), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Executive 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 the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest and penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and, further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall 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.
D. If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section (C), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section (C) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of any amount
advanced by the Company pursuant to Section (C), a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
E. The Gross-Up Payment shall be made not later than the fifth day
following the Termination Date; provided, however, that if the amount of such
Gross-Up Payment, and the limitation on such payments set forth in Section (A)
hereof, cannot be finally determined on or before such day, the Company shall
pay to the Executive on such day an estimate, as determined in good faith by the
Accounting Firm, of the minimum amount of such Gross-Up Payment to which the
Executive is clearly entitled and shall pay the remainder of such payments
(together with interest on the unpaid remainder (or on all such payments to the
extent the Company fails to make such payments when due) at 120% of the rate
provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can
be determined but in no event later than the 30th day after the Termination
Date. In the event that the amount of the estimated payments exceeds the amount
subsequently determined to have been due, such excess shall constitute a loan by
the Company to the Executive, payable on the fifth business day after demand by
the Company (together with interest at 120% of the rate provided in section
1274(b)(2)(B) of the Code). At the time that payments are made under this
Agreement, the Company shall provide the Executive with a written statement
setting forth the manner in which such payments were calculated and the basis
for such calculations including, without limitation, any opinions or other
advice the Company has received from Tax Counsel, the Accounting Firm or other
advisors or consultants (and any such opinions or advice which are in writing
shall be attached to the statement).
B-3
