EXHIBIT 10.4
eFunds Corporation
Executive Transition Assistance Agreement
TRANSITION ASSISTANCE AGREEMENT by and between eFunds Corporation, a Delaware
corporation (collectively with any successor entity, the "Company"), and Xxxxxxx
X. Xxxxxxxxx ("Executive") dated as of the 3rd day of June, 2002.
WHEREAS, Executive is employed as a senior executive officer of the
Company;
WHEREAS, the Compensation Committee ("Committee") of the Board of
Directors 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 implementing the Company's business
strategies;
WHEREAS, the Committee believes it is important to diminish the inevitable
distractions Executive may experience by virtue of the personal risks and
uncertainties associated with the implementation and execution of such
strategies;
WHEREAS, the Committee has therefore determined to provide Executive with
assurances regarding the transition assistance benefits to be received by
Executive in the event of a loss of Executive's employment so that Executive can
provide his or her full attention and dedication to the business and affairs of
Company and the execution of its business strategies notwithstanding any
attendant personal uncertainties to Executive;
WHEREAS, the Committee further believes it is important to secure
Executive's commitment not to compete with the Company nor solicit its employees
following any termination of Executive's employment (the date of any such
termination being hereinafter referred to as the "Separation Date");
WHEREAS, it shall further be a condition to Executive's entitlement to any
payments hereunder that Executive release any claims against the Company and its
affiliates as of the Separation Date; and
WHEREAS, it is the intention of the parties that this Agreement is not an
employment agreement and that Executive's employment with the Company shall
continue to remain "at-will" and terminable by the Company at any time for any
reason or no reason.
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Transition Support Payments.
(a) Subject to the terms and conditions set forth in this Agreement, in
the event Executive's employment with the Company is terminated by the Company
without "Cause" (any such termination being hereinafter referred to as a
"Qualifying Termination"), Executive shall be entitled to the following
transition support payments:
(i) During the twelve month period (the "Initial Payment Period")
following any Qualifying Termination, Executive shall be
compensated at a rate equal to Executive's base salary (the
"Base Amount") on the Separation Date. Such compensation shall
be paid in accordance with the Company's regular payroll
practices, except that payments shall not be owing hereunder
until such time as Executive shall have executed the Release
attached as Exhibit A and the seven day rescission period (the
"Rescission Period") referenced in Section 1(c) thereof shall
have expired without Executive having sent a notice of
revocation or rescission to the Company, at which point any
accrued amounts which are then payable hereunder shall be paid
to Executive; and
(ii) During the twelve month period (the "Extension Period" and,
collectively with the Initial Payment Period, the "Payment
Period") following the expiration of the Initial Payment
Period, Executive shall be entitled to a monthly payment equal
to the amount, if any, by which the Base Amount exceeds the
monthly compensation received by Executive from a subsequent
employer (if any).
(b) In order to be eligible to receive the differential payments payable
during the Extension Period, Executive must provide the Company with
documentation evidencing Executive's then-current monthly compensation, such as
a payroll statement from Executive's employer or, if applicable, a written
statement to the effect that Executive is not employed. 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
consistent with his obligations under this Agreement during the Payment 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) Transition support payments shall not be payable under this Agreement
in the event Executive's employment with the Company is terminated due to the
death or disability of Executive.
(d) As used herein, "Cause" shall mean a termination by the Company of
Executive's employment with the Company by reason of:
(i) Executive's engagement in illegal conduct or willful
misconduct that is demonstrably injurious to the business of
the Company or any entity controlling, controlled by or under
common control with the Company (collective, the "Controlled
Group");
(ii) a continued failure by Executive to substantially perform
Executive's material duties after a written demand for
substantial performance is delivered to Executive by the
officer of the Company to which Executive reports;
(iii) Executive commits an act, or omits to take action, in bad
faith which action or inaction results in a material detriment
to one or more members of the Controlled Group;
(iv) Executive commits an act of fraud, misappropriation,
embezzlement or other acts of dishonesty in connection with
any member of the Controlled Group or their customers or
vendors;
(v) 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 reflecting adversely upon the reputation or interests
of any member of the Controlled Group or their customers or
vendors or Executive becomes subject to criminal sanctions
that will prevent Executive from performing his or her duties
in the ordinary course for a period of time that is likely to
exceed 30 days;
(vi) Executive's use of narcotics, liquor or illicit drugs has had
a continuing and demonstrable negative effect on Executive's
ability to perform his or her duties or responsibilities to
the members of the Controlled Group; or
(vii) Executive is in default under any agreement between Executive
and the members of the Controlled Group or Executive refuses
to execute and deliver any lawful agreement that the Company
generally requires Executive's peer executives to sign.
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II. Conditions.
(a) The Company's obligations under Section 1 are subject to the following
conditions:
(i) Following the Separation Date, Executive must exhibit
professionalism in support of the Company's goals when dealing
with the Company's employees, the customers and potential
customers of the Controlled Group and Executive's
acquaintances;
(ii) Executive must supply the members of the Controlled Group with
reasonable transition support for 30 days following the
Separation Date with respect to the customers, potential
customers and employees of the Controlled Group to the extent
requested by management of the Company;
(iii) Executive must not disparage the members of the Controlled
Group or their management during the Payment Period;
(iv) Executive must comply with this Agreement; and
(v) Executive must have executed the Release form attached as
Exhibit A and must not have rescinded the same during the
Rescission Period.
(b) In no event shall any amounts be payable under this Agreement if the
"Effective Date" should occur under that certain Change in Control Agreement,
dated June 3, 2002 (the "Change in Control Agreement"), by and between Executive
and the Company, or if Executive shall become entitled to payments pursuant to
Section IV (H) of that Agreement prior to any Effective Date, in either of which
events Executive's entitlement to separation benefits shall be determined solely
by reference to the Change in Control Agreement and this Agreement shall be
wholly null and void. This Agreement is expressly made subject to Section XI (F)
of the Change in Control Agreement.
III. Fringe Benefits.
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.
IV. No Solicitation.
Executive agrees that, during the Payment Period, Executive will not participate
in any way in the solicitation or hiring of any person then-employed by the
Controlled Group or who was so employed within 90 days of any such solicitation
or hiring by Executive or by a third party.
V. 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 Payment Period, he or she 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
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(ii) 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
(ii) and the foregoing clause (i) being hereinafter referred
to as "Restricted Activities");
(iii) 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
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). 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 a major portion of the total revenues of
such entity, division or subsidiary. By way of example, if an
entity maintains a subsidiary which derives a majority of its
revenues from transaction processing, Executive could not
engage in any Restricted Activity with respect to that
subsidiary. The intention of the parties being also that
Executive will not engage in such Activities with regard to or
on behalf of another subsidiary or division of that entity
where this relationship is maintained as a pretext designed to
enable Executive to avoid compliance with the spirit of the
foregoing. 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. Nothing contained herein shall,
however, preclude Executive from engaging in any Restricted
Activity with respect to or for a financial institution, such
as a bank, thrift or brokerage house after the termination of
his employment.
(b) Executive agrees that a breach by him or her of any of the terms of
this Agreement will cause great and irreparable injury and damage to the
Controlled Group and that the members of the Controlled Group 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 Executive. In addition, the Company will
be immediately relieved of any further obligations under Section 1 if Executive
should breach this Section 5.
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 the other members of the Controlled Group and
their respective 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, 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
Executive and any member of the Controlled Group or the Change in Control
Agreement, and each of such agreements 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
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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 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 June 17, 2002 during which
time Executive may consider whether or not to accept this Agreement and consult
with an attorney of Executive's choosing to 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) In the event of any litigation over the terms and conditions of this
Agreement, the prevailing party in such proceeding shall, in addition to any
other damages it may recover, be entitled to recover its reasonable costs and
attorney's fees incurred in connection with the prosecution of such action.
IN WITNESS WHEREOF, Executive and the Company have hereunto set their hands as
of the dates set forth below.
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
eFUNDS CORPORATION
/s/ Xxxxxxx X. Adstedt
----------------------------------------
Xxxxxxx X. Adstedt
Senior Vice President
Human Resources and Administration
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EXHIBIT A
RELEASE
WHEREAS, Xxxxxxx X. Xxxxxxxxx ("Executive") is an employee of eFunds
Corporation, a Delaware corporation (the "Company");
WHEREAS, Executive's employment with the Company has been terminated
effective as of _______, ______ (the "Separation Date");
WHEREAS, Executive and the Company have previously entered into that
certain Executive Transition Assistance Agreement, dated as of June 3, 2002 (the
"Transition Agreement"), pursuant to which the Company has agreed to make
certain payments to Executive following the termination of his or her
employment; 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 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. As an essential inducement to Executive to enter into this
Agreement, and as consideration for the promises of 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 Executive arising out of or related to the Released Matters;
provided, however, that such release shall not operate to relieve Executive from
any obligation to reimburse the members of the Controlled Group for any
disbursements (such as travel and entertainment expenses) improperly charged by
Executive to such Group. 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. Executive and the
Company agree that, by signing this Release, neither party is waiving any Claim
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 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, 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 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 the other members of the Controlled Group and
their respective successors and assigns and inures to the benefit of Executive
and Executive's, heirs and executors. This agreement 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 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.
(c) Whenever possible, each provision of this Agreement will be
interpreted in such 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.
(d) 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.
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