EXHIBIT 10.8
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such release shall be rescinded and thereafter be wholly null and void.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. Section 2000e et seq., the Age Discrimination in
Employment Act, 29 U.S.C. Section 621 et seq., the Americans with Disabilities
Act, 42 U.S.C. Section 12101 et seq., the Delaware Discrimination in Employment
Act, Del. Code Xxx. Tit. 19, Section 710-718, the Delaware Handicapped Persons
Employment Protections Act, Del. Code Xxx. Tit. 19, Section 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.
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: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Its CFO
Dated: /s/ Xxxx X. Xxxxx, Xx.
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Xxxx X. Xxxxx, Xx.
STATE OF ARIZONA)
County of MARICOPA)
Subscribed and sworn before me this 2nd day of January, 2003.
/s/ Xxxxxx Xxxxxx seal
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Notary Public, State of Arizona
My Commission expires: July 06
