RELEASE
Exhibit 10.1
RELEASE
WHEREAS, Xxxxxxx Xxxx (“Executive”) was an employee of eFunds Corporation, a Delaware
corporation (the “Company”);
WHEREAS, Executive’s employment with the Company was terminated effective as of June 30, 2006
(the “Separation Date”);
WHEREAS, Executive and the Company have previously entered into that certain Transition
Agreement, dated as of May 19, 2006 (the “Transition Agreement”), pursuant to which the Company has
agreed to make certain payments to Executive following the termination of his employment;
WHEREAS, capitalized terms used without definition herein shall have the meanings assigned to
such terms in the Transition Agreement; and
WHEREAS, it is a condition to the Company’s obligation to make the payments provided for in
the Transition 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 Transition 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 this 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 this Release shall not operate to
release any claim Executive may have against the members of the Controlled Group in his capacity as
a former shareholder of WildCard or as a Shareholder Representative under the Merger Agreement;
and, provided, further, that if the Company should hereinafter assert any cause of
action against Executive in any court or before any arbitrator (other than in his capacity as a
former shareholder of WildCard or as a Shareholder Representative under the Merger Agreement), this
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 (together with the claims retained by Executive pursuant to the
foregoing provisos, “Retained Claims”) arising after the Separation Date or under the Transition
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. §§ 2000e et
seq., the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.,
the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., the Delaware
Discrimination in Employment Act, Del. Code Xxx. Tit. 19, §§ 710-
718, the Delaware Handicapped Persons Employment Protections Act, Del. Code Xxx. Tit. 19, §§
720-728, the Arizona Civil Rights Act, Ariz. Rev. Stat. §§ 41-1401 et seq, the
Arizona Equal Pay Act, Ariz. Rev. Stat. §§ 00-000-000 the Florida Civil Rights Act, Florida
Statutes Sections 760.01 to 760.11, the Florida Equal Rights Law, Florida Statutes Section 725.07
and any other federal, state or local constitution statute, regulation 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) Nothing in the Transition Agreement or this Release shall be construed to prevent
Executive from filing a charge or complaint, including a challenge to the validity of this Release,
with the Equal Opportunity Commission or from participating in or cooperating with any
investigation conducted by the Equal Opportunity Commission.
(d) 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 Center II
0000 X. Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Xxxxxx 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 subsection 1(b) 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.
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: July 12, 2006
|
By: | /s/ Xxxxxx X. Xxxxxxx
|
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| Its | EVP & General Counsel
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| Dated: July 8, 2006 | /s/ Xxxxxxx Xxxx | |||
| Xxxxxxx Xxxx | ||||
STATE OF Florida)
County of Broward)
Subscribed and sworn before me
this 8th day of July, 2006
this 8th day of July, 2006
/s/ C. Xxxxxxxxx Xxxxxxx
|
seal | |
My Commission expires: |
