Exhibit 10.1


 


Severance and General Release Agreement


 


By and Between


 


Scott Galit and MetaBank


 


Dated February 8, 2010


 


1

















 


SEVERANCE AND GENERAL RELEASE AGREEMENT


 


This
Severance and General Release Agreement (“Agreement”) made this 8th day of February,
2010, by and between Scott Galit (“Employee”), an individual, and MetaBank (“Bank”),
a corporation.


 


WHEREAS,
Bank has decided to accept Employee’s resignation from employment with Bank
effective on February 5, 2010; and


 


WHEREAS,
the purpose of this Agreement is to provide certain benefits to Employee
following termination of employment in exchange for a covenant not to sue and
general release of all claims against Bank; and


 


WHEREAS,
by executing this Agreement, Bank does not admit that Employee possesses a
legally valid claim or potential claim, and without admitting wrongdoing or
liability, Bank desires to enter into this Agreement to put to rest all
potential controversies between the parties and avoiding the costs and expenses
associated with defending any such claims or controversies;


 


NOW,
THEREFORE, in consideration of the covenants undertaken and the releases
contained in this Agreement, Employee and Bank agree as follows:


 


1.                                      TERMINATION.  Employee’s termination of employment is
effective on February 5, 2010 (the “Termination Date”).   Bank shall pay Employee the Employee’s
normal compensation through the Termination Date.  In addition, Bank agrees to pay Employee the
net balance of any accrued but unused vacation and/or floating holidays as of
the Termination Date in the amount of Nineteen Thousand Eight Hundred
Fifty-Nine and 58/100 Dollars ($19,859.58) less applicable withholding elected
by Employee or as required by applicable law.


 


2.                                      SEVERANCE.  In consideration of a fully enforceable
Severance and General Release Agreement and other promises made by Employee as
set forth herein, Bank shall provide the following Severance Benefits to
Employee:


 


a.                                      Separation Pay.  Bank shall pay Employee One Hundred
Twenty-Seven Thousand Five Hundred and No/100 Dollars ($127,500.00) in one lump
sum, which represents an amount equal to Employee’s regular wages for
twenty-six weeks, less standard withholding and deductions elected by Employee
or required by applicable law, payable on the first pay period at least eight (8) days
after Bank’s receipt of the executed Agreement provided Employee does not
revoke Employee’s acceptance of the Agreement as provided in Paragraph 11.  Employee acknowledges that said Separation Pay
amount is over and above any sums payable to Employee as a result of the
cessation of the employment relationship with Bank.


 


b.                                      Employee
Benefits.  Bank will
continue to provide Employee all regular employee benefits up to the
Termination Date.  Employee may be
eligible to continue coverage under Bank’s group health insurance plan, and any
other plans to which rights accrue under the Comprehensive Omnibus
Reconciliation Act of 1985 as amended


 

















 


(COBRA),
to the extent required under COBRA. 
Coverage under the COBRA plan[s] shall be in accordance with the terms
of the plan[s] as such may be amended from time to time.  If Employee elects COBRA coverage, Bank will
pay Employee’s COBRA premium for health insurance coverage, as such coverage
exists on Employee’s last day of employment, until the earlier of the following
occurs:  1) three months following the
Termination Date; or 2) the date Employee is no longer eligible for COBRA
coverage.


 


c.                                       Bank will
reimburse all reasonable business expenses incurred by Employee prior to the
Termination Date which remain unreimbursed as of the Termination Date, provided
that such expenses are reimbursable under Bank’s policy and provided further
that Employee submit such reasonable substantiation and documentation as may be
specified by Bank within sixty (60) days of the Termination Date.


 


3.                                      ADVISORY AND
CONSULTING SERVICES.  In consideration of
the Separation Benefits described in Paragraph 2 above, Employee agrees to
provide a maximum of eighty (80) hours of advisory and consulting services to
Bank during the twelve (12) months following the Termination  Date upon reasonable notice from the Bank’s
Board of Directors, its President or the President of Meta Payment
Systems.  Furthermore, Employee agrees to
cooperate fully with Bank during the twelve (12) month period and thereafter on
matters relating to his employment in the conduct of Bank business, including
any litigation, claim or suit in which Bank deems Employee’s cooperation is
needed.  Employee acknowledges that he has
no authority to bind Bank either as a officer, employee or agent following the
Termination Date.  Bank shall pay or
reimburse Employee for all reasonable out-of-pocket business expenses actually
incurred or paid by Employee in the performance of such advisory and consulting
services, subject to such reasonable substantiation and documentation as may be
specified by Bank from time to time.  All
business expenses shall be submitted by Employee for reimbursement not later
than thirty (30) days after such expenses are incurred.


 


4.                                      NON-DISPARAGEMENT.  Employee agrees that Employee will not make
disparaging, uncomplimentary or negative remarks about Bank, its products,
business affairs or employees for a period of one year.  As damages from a violation of this Section will
be difficult to measure, the parties agree that liquidated damages of $10,000
are reasonable, and Employee shall pay Bank this amount for any breach of this
Section.


 


5.                                      DENIAL OF ANY
VIOLATION — AGREEMENT NOT EVIDENCED. 
Bank expressly denies any violation of its policies, procedures,
contractual obligations, or state or federal laws or regulations.  Accordingly, while this Agreement resolves
all issues between Bank and Employee relating to any alleged violation of Bank
policies or procedures or any state or federal law or regulation, this
Agreement does not constitute an adjudication or finding on the merits and it
is not, and shall not be construed as an admission by Bank of any violation of
its policies, state or federal laws, or regulations.  Moreover, neither this Agreement nor anything
in this Agreement shall be construed to be or shall be admissible in any
proceedings as evidence of or an admission by Bank of any violation of its
policies, procedures, state or federal laws. 
This Agreement may be introduced, however, in any proceeding to enforce
the Agreement.  Such introduction shall
be pursuant to an order protecting its confidentiality.


 


2

















 


6.                                      GENERAL RELEASE
AND DISCHARGE.  Except for those
obligations created by or arising out of this Agreement for which receipt or
satisfaction has not been acknowledged herein, Employee on behalf of Employee
and Employee’s decedents, dependents, heirs, executors, administrators,
assigns, and successors, and each of them, hereby covenants not to sue and
fully releases and discharges Bank and its parent, subsidiaries and affiliates,
past and present, and each of them, as well as its and their trustees,
directors, officers, agents, attorneys, insurers, employees, stockholders,
representatives, assigns and  successors,
past and present and each of them, hereinafter together and collectively
referred to as “Releasees,” with respect to and from any and all claims, wages,
demands, rights, liens, agreements, contracts, covenants, actions, suits,
causes of action, obligations, debts, costs, expenses, attorneys’ fees,
damages, judgments, orders and liabilities, of whatever kind or nature in law,
equity or otherwise, whether now known or unknown, suspected or unsuspected,
and whether or not concealed or hidden, which Employee now owns or holds or has
at any time heretofore owned or held as against said Releasees, arising out of
or any way connected with Employee’s employment relationship with Bank or the
termination of Employee’s employment or any other transactions, occurrence,
actions, omissions or any loss, damage or injury whatever, known or unknown,
suspected or unsuspected, resulting from any act or omission, by or on the part
of said releases, or any of them, committed or omitted prior to the date of
this Agreement.


 


Employee
specifically understands and agrees that this waiver, release and discharge
includes:


 


(a)                                 All claims arising under federal, state
or local laws prohibiting employment discrimination such as, without
limitation,


 


i.                                          The Age Discrimination in Employment Act
(ADEA);


ii.                                       The Older Workers Benefit Protection Act
(OWBPA);


iii.                                    Title VII of the Civil Rights Act of
1964;


iv.                                   The Civil Rights Act of 1991;


v.                                      The Americans With Disabilities Act (ADA);


vi.                                   The Equal Pay Act;


vii.                                The Family and Medical Leave Act;


viii.                             The Worker’s Adjustment and Retraining
Notification Act (WARN);


ix.                                   The Occupational Safety and Health Act;


x.                                      The South Dakota Human Relations Act and
the fair employment practices laws of the state or states in which Employee has
been employed by Bank or any of its subsidiaries or other affiliates;


xi.                                   The New York State Human Rights Law, New
York City Human Rights Law, the New York State Workers Compensation Law, and
New York Labor Law Wage and Hour Claims;


 


(b)                                 Claims for breach of contract, either
express or implied;


 


(c)                                  Claims for personal injury, harm or
damages, whether intentional or unintentional;


 


3

















 


(d)                                 Claims growing out of any legal
restrictions on the right to terminate Employee, including any claim for
wrongful discharge;


 


(e)                                  Claims for benefits including, without
limitation, those arising under Employees’ Retirement Income Security Act of
1974;


 


(f)                                   For any other work related claim that may
arise from or may be related to her employment, up to and through the date of
this Agreement; and


 


Employee agrees not to
litigate any such claims except for breach or validity of this Agreement. Bank
and Employee agree that by entering into this Agreement, Employee does not
waive claims that may arise after the date the Agreement is executed or any
claim for any vested rights under any applicable pension plan.


 


Employee represents
and warrants that Employee has been paid all wages due and owing from Bank,
including but not limited to overtime, in accordance with the Fair Labor
Standards Act, and has received any and all benefits for which Employee would
be eligible under the Family and Medical Leave Act.


 


7.                                      BUSINESS
INFORMATION — CONFIDENTIALITY.  Employee
acknowledges that by reason of Employee’s position with Bank, Employee had
access to trade secrets and other non-public information relating to MetaBank
or its affiliates, including without limitation:  any MetaBank proprietary information,
technical data, trade secrets or know-how, including, but not limited to,
research, product plans, products, services, suppliers, customer lists and
customers (including, but not limited to, customers of MetaBank), prices and
costs, markets, software, developments, inventions, protocols, interfaces,
laboratory notebooks, processes, formulas, technology, designs, drawings,
engineering materials, hardware configuration information, marketing data,
licenses, finances, budgets or other business information disclosed by MetaBank
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment (the “Confidential Information”); provided, however, that
Confidential Information does not 


include
information that is publicly available or generally known in the industry
through no fault or misconduct of Employee.


 


Employee
acknowledges that the Confidential Information is vital, sensitive,
confidential and proprietary to MetaBank and/or its affiliates, and MetaBank
derives economic benefits from maintaining such information confidential.  Employee shall (i) hold the Confidential
Information in the strictest confidence and take all reasonable precautions to
prevent the inadvertent disclosure of Confidential Information to any unauthorized
individual or entity; and (ii) not disclose or use the Confidential
Information.  This restriction shall
remain in effect for so long as the information at issue falls within the
definition of Confidential Information.


 


8.                                      RETURN OF
CONFIDENTIAL MATERIALS.  Employee shall
return to Bank and shall not take or copy in any form or manner any
Confidential Materials and information, including all originals and copies,
whether in paper or computer stored form.


 


4

















 


9.                                      PAYMENT OF
TAXES.  Employee agrees that Employee
shall be exclusively liable for the payment of all federal and state taxes
which may result from the payments contemplated by this Agreement.  Employee acknowledges that Bank and/or its
attorneys do not make and have not made any representations regarding the
taxability of the payments.


 


10.                               RIGHT TO
CONSULT WITH ATTORNEY.  Employee
acknowledges that Employee has a right to consult with an attorney or any other
advisor, counselor or consultant of Employee’s choosing prior to signing this
Agreement and that Employee is hereby advised in writing to consult with an
attorney prior to executing this Agreement.


 


11.                               WAIVER OF
CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT AND THE OLDER WORKERS
BENEFIT PROTECTION ACT OF 1990. 
Notwithstanding anything in this Agreement to the contrary, Employee
understands this voluntary waiver releases Bank of any and all claims under the
Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection
Act of 1990 (OWBPA) and that Employee has been given forty-five (45) days to
sign this Agreement after it has been received in order to consider all its’
terms fully.  Employee acknowledges that
upon the commencement of the period for consideration of this Agreement,
MetaBank provided Employee with the information required by the Age
Discrimination in Employment Act and the Older Workers Benefit Protection Act
of 1990 as set forth in Exhibit A attached hereto.  Employee may revoke Employee’s acceptance of
this Agreement at any time within seven (7) days following execution of
this Agreement and the Agreement shall not become effective or enforceable
until expiration of this seven (7) day period (the “Revocation Period”).  Should Employee revoke this Agreement during
the Revocation Period, this entire Agreement shall be deemed null and
void.  This waiver does not apply to
rights or claims under the ADEA and OWBPA that may arise after the date the
waiver is executed.  If Employee desires
to revoke this Agreement, revocation may be made by a written revocation
delivered to Sandy Hegland, Senior Vice President, Director of Human Resources,
MetaBank, 418 Sixth Ave., Suite 205, Des Moines, Iowa 50309.


 


12.                               DEADLINE TO
EXECUTE AND DELIVER AGREEMENT.  This
Agreement shall be null and void and have no force and effect if not executed
and delivered by Employee to Sandy Hegland, Senior Vice President, Director of
Human Resources, MetaBank, 418 Sixth Ave., Suite 205, Des Moines, Iowa
50309 on or before March 22, 2010.


 


13.                               EMPLOYEE
ACKNOWLEDGMENTS.  Prior to signing this
Agreement, Employee acknowledges that Employee read and carefully considered
this Agreement, and had an opportunity to ask questions about it, to discuss
this Agreement with Employee’s attorney, advisor, counselor, consultant or
other person of Employee’s choosing. 
Employee acknowledges that Employee is signing this Agreement freely and
voluntarily.  Employee acknowledges
receiving a copy of this Agreement on February 5, 2010.


 


14.                               COMPLETE
AGREEMENT.  This Agreement constitutes
and contains the entire agreement and final understanding concerning Employee’s
employment, voluntary resignation from the same, and the other subject matters
addressed herein between the parties.  It
is intended by the parties as a complete and exclusive statement of the terms
of the Agreement.  It supersedes and
replaces all prior negotiations and all agreements proposed or otherwise,
whether


 


5

















 


written
or oral, concerning the subject matters hereof. 
Any representation, promise or agreement not specifically included in
this Agreement shall not be binding upon or enforceable against either
party.  This is a fully integrated
agreement.


 


15.                               SEVERABILITY
AND INVALID PROVISIONS.  If any provision
of this Agreement or the application hereof is held invalid, the invalidity
shall not affect other provisions or applications of the Agreement which can be
given effect without the invalid provisions or applications and to this end,
the provisions of this Agreement are declared to be severable.


 


16.                               CHOICE OF LAW /
CONSENT TO JURISDICTION.  This Agreement
shall be deemed to have been executed and delivered from the State of South
Dakota, and the rights of obligations of the parties hereunder shall be
construed and enforced in accordance with and governed by the laws of the State
of South Dakota without regard to the principles of conflicts of law.  Employee agrees that any lawsuit arising
directly or indirectly or otherwise in connection with, out of or related to
this Agreement may be litigated only in the courts whose situs is within the
State of South Dakota, and Employee specifically waives any right Employee may
have to transfer or change venue of any such litigation, and herby consents and
submits to the jurisdiction of any courts located within the State of South
Dakota.


 


17.                               JOINT
PREPARATION OF AGREEMENT.  Each party has
cooperated in drafting the preparation of this Agreement.  Hence, any construction to be made of this
Agreement shall not be construed against any party on the basis that the party
was the drafter.


 


18.                               WAIVER OF
BREACH — EFFECT.  No waiver of any breach
of any term of provision of this Agreement shall be construed to be nor shall
be, a waiver of any other breach of this Agreement.  No waiver shall be binding unless in writing
and signed by the party waiving the breach.


 


19.                               FURTHER
EXECUTIONS.  All parties agree to
cooperate fully and to execute any and all supplementary documents to make all
additional actions that may be necessary or appropriate to give full force to
the basic terms intended of this Agreement which are not inconsistent with its
terms.


 


20.                               HEADINGS NOT
BINDING.  The use of headings in this
Agreement is only for ease of reference and the headings have no effect and are
not to be considered part or a term of this Agreement.


 


21.                               AT WILL EMPLOYMENT. By signing below,
Bank and Employee agree that Employee was free to terminate employment with
Bank at will, without cause, and Bank was free to terminate the employment of
Employee, at will, without cause.


 


22.                               STATUS DURING SEVERANCE BENEFIT PERIOD.
Commencing with the Termination Date, Employee shall cease to be an employee of
Bank for any purpose. The payment of Severance Pay under this Agreement shall
be payments to a former employee.


 


6

















 


23.                               ATTORNEYS’ FEES.  If litigation is commenced to enforce this
Agreement, the party who substantially prevails in such litigation shall be
entitled to the recovery of reasonable attorneys’ fees, costs and expenses
(including deposition and other discovery expenses), which recovery shall be
enforceable by judgment of the court.


 


I
have read the foregoing Agreement, I accept and agree to the provisions it
contains, and hereby execute it voluntarily with full understanding of its
consequences.


 


Executed
this 8th day of February, 2010.


 


	
   

  	
   

  	
  MetaBank

  
	
   

  	
   

  	
   

  
	
  /s/
  Scott Galit

  	
   

  	
  /s/
  Brad C. Hanson

  
	
  Scott
  Galit

  	
   

  	
  Brad
  C. Hanson, Executive Vice President of Meta Financial Group and MetaBank and President
  of Meta Payments Systems

  



 


7