exv10w1



 



Exhibit 10.1


eFunds Corporation

Separation Agreement



SEPARATION AGREEMENT by and between eFunds Corporation, a Delaware corporation
(collectively with any successor entity, the “Company”), and Colleen M. Adstedt
(“Employee”) dated as of August 22, 2003.


          WHEREAS, Employee is currently an employee of the Company;



          WHEREAS, the further employment of Employee will be terminated as of July
31, 2004 (the “Separation Date”);



          WHEREAS, the Chief Executive Officer (“CEO”) 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 Employee’s full support of and participation in the
transition of the Employee leadership of the Company; and



          WHEREAS, the CEO has therefore determined to provide Employee with
assurances regarding the benefits to be received by Employee during this
transition period and following the expected departure of the Employee from
employment with the Company.



          NOW, THEREFORE, the parties hereto hereby agree as follows:



	I.	 	Payments.



          (a)     Subject to the terms and conditions set forth in this Agreement, the
Company agrees to employ the Employee as its Human Resources Coordinator from
the date of this Agreement until the Separation Date and the Employee agrees to
serve in such capacity during such time. The Company shall not reduce the base
salary (the “Base Salary”) of Employee from its current level $19,583.33 per
month during the period (the “Transition Period”) preceding the Separation Date
and shall continue to pay such amount to the Employee in accordance with past
practice. Subject to the provisions of Section 2, in the event the Company
should terminate the further employment of Employee without “Cause” (as
hereinafter defined) prior to the Separation Date, the Company shall
nevertheless continue to pay Employee the Base Salary throughout the Transition
Period and Employee shall remain entitled to receive the payments and benefits
referenced in subsections 1(b), (c), (d) and (e). If the Company should
terminate the employment of Employee prior to the Separation Date for Cause,
the Company shall have no further payment obligations hereunder from and after
the date of any such termination so long as the Company has paid the Base
Salary through such date of termination. As used herein, “Cause” shall mean a
continuing material failure by Employee to substantially comply with the
requirements of Section 2(a)(ii), (iii) or (v) for five or more days following
her receipt of written demand for compliance from the CEO which specifies in
reasonable detail the circumstances demonstrating Employee’s failure to so
comply or determination by the Company that the Employee has failed to comply
with the requirements of Section 2(a)(i).



          (b)     If Employee remains employed by the Company through the date (the
“Bonus Payment Date”) in 2004 that bonuses for 2003 are paid, or if the Company
terminates the further employment of Employee prior to the Bonus Payment Date
without Cause, Employee shall remain eligible to receive a cash bonus equal to
the product obtained by multiplying (i) the amount of the cash bonus Employee
would have received had Employee remained in her previous position (Senior Vice
President – Human Resources) through the Bonus Payment Date by (ii) 0.5833.
Similarly (and notwithstanding any terms of the Restricted Stock Right Award
Agreement hereinafter described to the contrary), if Employee qualifies for a
cash bonus pursuant to the foregoing, Employee shall also be entitled to retain
the number of shares of the Company’s common stock that would have vested in
Employee on the Bonus Payment Date pursuant to that certain Restricted Stock
Right Award Agreement, dated February 14, 2003 (the “Restricted Stock Right
Award Agreement”), had Employee remained employed by the Company in her
previous position through such Date multiplied by 0.5833. If Employee does not
become entitled to a cash bonus on the




 






 





Bonus Payment Date, Employee shall forfeit all right, title and interest
in and to the aforementioned award of Restricted Stock Rights.


          (c)     Subject to the further terms and conditions set forth in this
Agreement, if Employee remains in the employment of the Company through the
Separation Date or if the Company terminates the further employment of Employee
prior to such Date without Cause, Employee shall be entitled to the following
transition support payments following the Separation Date:




	 	(i)	 	During the period (the “Extension Period”)
commencing on August 1, 2004 and ending on July 31, 2005 (it
being understood and agreed that the maximum number of
differential payments shall be twelve), Employee shall be
entitled to a monthly payment equal to the amount, if any, by
which the Base Salary exceeds the gross monthly cash
compensation received by Employee from any subsequent
employer.
	 
	 	(ii)	 	In order to be eligible to receive the
differential payments payable during the Extension Period,
Employee must provide the Company with reasonable
documentation (such as a payroll statement from Employee’s
employer or, if applicable, a written statement to the effect
that Employee was not employed) evidencing the cash
compensation received by Employee during the prior month.
Differential payments will be made in arrears within 30 days
of the Company’s receipt of the foregoing. Employee agrees
to use diligent efforts to obtain new employment during the
Extension Period. Employee further agrees not to disclose
the existence of the differential payments to any subsequent
employer and to refrain from manipulating the elements of
Employee’s compensation by any subsequent employer in a
manner designed to maximize the differential payments payable
by the Company. Self-employment or work as a consultant
shall be considered employment for purposes of the foregoing.



          (d)     The Company will provide Employee with an allowance of up to $5,000.00
for legal, financial advisory and tax preparation services provided to Employee
by Inlign Wealth Management, Mariscal Weeks, McIntyre & Friedlander, P.A. or
other advisors approved by the Company and up to $20,000.00 in out-placement
services fees and expenses. The Company shall not be required to pay any
portion of such allowances which remain unused as of the expiration of the
Transition Period.



          (e)     During the remaining term of Employee’s employment with the Company
prior to the Separation Date, she shall continue to receive her car allowance
but she shall not otherwise be entitled to continue to receive other
perquisites afforded the Employee officers of the Company. Employee hereby
waives any entitlement she may have to payment for any accrued PTO as of her
final day of employment.



          (f)     Employee acknowledges and agrees that she has received duplicative
reimbursements for travel expenses in the amount of $7,393.80. The Company
shall be entitled to recoup such amount through an offset (after-tax) against
the amounts payable to Employee hereunder.




	II.	 	Conditions.



          (a)     The Company’s obligations under Section 1 are subject to the
following conditions:




	 	(i)	 	Employee must, and hereby does, certify that
Employee has delivered to the Company prior to or
concurrently with the execution of this agreement, all
physical and electronic copies of any Company documents and
records in the possession of Employee and that Employee has
retained no copies thereof. This Section 2(a)(i) shall not
apply to Employee’s copies of contracts and agreements
between Employee and the Company which relate specifically to
the terms and conditions of Employee’s employment by the
Company. The Company



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	 	 	 	confirms that, as of the date hereof, it is not aware of
any facts or circumstances that would indicate that
Employee is not in compliance with the provisions of this
Section 2(a)(i).
	 
	 	(ii)	 	Employee must supply the Company and its
affiliates with transition support during the Transition
Period to the extent reasonably requested by the CEO;
	 
	 	(iii)	 	Employee must not disparage the Company or its
affiliates or their management during the Transition Period
nor during the Extension Period following the Separation
Date;
	 
	 	(iv)	 	Employee must execute the Release attached as
Exhibit A and deliver the same to the offices of the Company
(8501 N. Scottsdale Road, Suite 300, Scottsdale, AZ 85253,
attn: General Counsel) during the 21 day period following
Employee’s final day of employment and must not rescind the
same during the Rescission Period referenced in Section 1(c)
thereof; and
	 
	 	(v)	 	Employee must (upon reasonable notice and
mutually convenient scheduling) cooperate with the Company
and its counsel with regard to any past, present or future
legal, regulatory, investigatory (including any inquiries or
investigations by management of the Company or its Board of
Directors (or a committee thereof)) or other proceeding or
matter which relates to or arises out of matters occurring
during Employee’s employment, or the termination thereof.



          (b)     The Company shall not have any continuing payment obligations under
Section 1 or Section 3 (other than the payment of Employee’s Base Salary, Bonus
(if the termination of employment is after the Bonus Payment Date) and benefits
through the date of termination of her employment) if (i) Employee’s employment
with the Company is terminated prior to the Separation Date for Cause or (ii)
Employee resigns from employment with the Company prior to the Separation Date.
Similarly, the Company shall not have any continuing payment obligations under
Section 1 in the event of the death of Employee during the Transition Period.




	III.	 	Fringe Benefits.



          (a)     Subject to Section 1(e), any and all benefits or other forms of
compensation to Employee (such as the disposition of any options held by
Employee, the balance of Employee’s account under the Employee Stock Purchase,
Deferred Compensation and 401(k) plans) shall be governed by the rules
applicable to such plans and programs, as the same are in effect during the
Transition Period and on Employee’s final day of employment; provided, however,
that the payments set forth in this Agreement are Employee’s sole entitlement
to severance pay and Employee shall not also be entitled to receive payment
under the Company’s standard severance programs;



          (b)     Employee shall be deemed to have ceased to serve as an active employee
for purposes of the Company’s Preferred Provider Organization Health Care Plan,
Dental Benefits Plan, long and short-term disability, 401(k), life insurance
and other health and welfare plans as of August 31, 2003 (the “Event Date”).
Such date shall be deemed to constitute the date of Employee’s “Qualifying
Event” for COBRA purposes. The Company shall reimburse Employee for any
additional premiums incurred by Employee in obtaining continuing COBRA coverage
for Employee and Employee’s family under such of the health and welfare plans
as are subject to COBRA requirements as of the Event Date. Such reimbursements
shall be grossed-up by the amount of income taxes payable by Employee thereon,
with the intention being that the cost to Employee of such COBRA coverage
should approximate the coverage costs Employee incurred as an active Employee.
Employee shall cease to be eligible to contribute to the Company’s Employee
Stock Purchase and 401(k) plans as of the Event Date.



          (c)     The vesting and exerciseability of the options granted to Employee
under the Company’s 2000 Stock Incentive Plan and Stock Option Plan for Deluxe
Conversion Awards shall not be affected by




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the occurrence of the Event Date and Employee shall continue to be
considered an employee of the Company for purposes of such Plans until her
resignation, termination, death or disability. For purposes of the foregoing,
Employee’s separation from employment on the Separation Date as contemplated by
this Agreement shall be deemed to have been occasioned by the termination of
Employee without Cause. The disposition of the restricted stock rights subject
to the Restricted Stock Right Award Agreement shall be governed by the
provisions of Sections 1(b) and 6(b) hereof.



	IV.	 	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, Employee agrees that during the Transition Period and the Extension
Period, 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
	 
	 	(ii)	 	Serve as an officer, member, director,
contractor, agent, consultant, advisor or employee of or to
any Competitor wherever located.
	 
	 	(iii)	 	As used herein, “Competitor” shall mean any
entity for which a substantial portion of its business
consists of (i) processing debit, ATM, ACH 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, (iii) managing or deploying
networks of ATMs or (iv) providing business process
outsourcing services (such as IT consulting, call centers or
accounts receivable or payable processing). Without limiting
the generality of the foregoing, “Competitors” shall include
Equifax, Experian, TransUnion, First Data Corporation
(including NYCE), Concord EFS (including Primary Payment
Systems and STAR), M&I, EDS and Total System Services (and
any of their respective subsidiaries which engage in any of
the foregoing activities as a substantial portion of their
business).



          (b)     Employee agrees that a breach by her of any of the terms of this
Section 4 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
Section 4 or prevent a threatened or potential breach of this Section 4 by
Employee. In addition, the Company will be immediately relieved of any further
payment obligations under Section 1 if Employee should breach this Section 4.




	V.	 	Indemnification.



          The Company shall continue to indemnify and to advance the expenses of
defense to Employee to the fullest extent permitted or authorized by its
certificate of incorporation or bylaws as in effect on the date of this
Agreement, or if greater, to the fullest extent permitted or authorized by
applicable law. The Company shall also reimburse Employee for any reasonable
costs and expenses (including, without limitation, legal and other professional
fees, costs and expenses) she incurs in connection with fulfilling her
commitment under Section 2(a)(v).




	VI.	 	Miscellaneous.



          (a)     Employee may not assign or delegate any of Employee’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 its successors and assigns. This Agreement (but
not the Release), including the Company’s payment obligations hereunder, will
terminate




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upon the death of Employee. 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 severance arrangements between the parties, including
that certain Executive Transition Assistance Agreement, dated December 2001,
and that certain Change In Control Agreement, dated as of June 5, 2000 (the
“Change in Control Agreement”), which agreements and arrangements (including
all amendments thereto) will, as of the execution of this Agreement by Employee
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 the Company (or any of its subsidiaries) and Employee or the
Restricted Stock Right Award Agreement (as the same is modified pursuant to
this Agreement) and each of such agreements shall remain in full force and
effect. Notwithstanding the termination of the Change in Control Agreement,
the provisions of Section 1(b)(iii) of the Restricted Stock Right Award
Agreement shall be given effect under the circumstances described therein as if
the Change in Control Agreement had not been so terminated.



          (c)     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.



          (d)     Whenever possible, each provision of this Agreement will be
interpreted in such a 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)     Employee has been informed that the terms of this Agreement will be
open for acceptance and execution by Employee until August 22, 2003 during
which time Employee may consider whether or not to accept this Agreement and
consult with an attorney of Employee’s choosing to advise Employee regarding
the same. If Employee does not execute and deliver this Agreement by such
date, the offer contained herein shall be wholly null and void.



          (g)     This Agreement shall constitute the formal notification to Employee of
the termination, effective as of the Separation Date of her further employment
by the Company, its subsidiaries and from any and all offices Employee may hold
with any of the foregoing entities.




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IN WITNESS WHEREOF, Employee and the Company have hereunto set their hands as
of the date set forth above.



	 	 	 
	 	 	EMPLOYEE
	 	 	
 
	 	 	
/s/ Colleen M. Adstedt
	 	 	


	 	 	
Colleen M. Adstedt
	 	 	
 
	 	 	
eFUNDS CORPORATION
	 	 	
 
	 	 	
/s/ Paul F. Walsh
	 	 	


	 	 	
Paul F. Walsh
	 	 	
Chairman and Chief Executive 
 Officer



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Exhibit A


RELEASE



          WHEREAS, Colleen M. Adstedt. (“Employee”) was an employee of eFunds
Corporation, a Delaware corporation (the “Company”);



          WHEREAS, Employee’s employment with the Company was terminated effective
as of        ,     (the “Separation Date”);



          WHEREAS, Employee and the Company have previously entered into that
certain Separation Agreement, dated as of August 22, 2003 (the “Separation
Agreement”), pursuant to which the Company has agreed to make certain payments
to Employee following the termination of her employment; and



          WHEREAS, it is a condition to the Company’s obligation to make the
payments provided for in the Separation Agreement that Employee execute,
deliver and not rescind this Release.



          NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, Employee and the
Company hereby agree as follows:




	 	1.	 	Release.



               (a) As consideration for the promises of the Company contained in the
Separation Agreement, Employee, for herself and her 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 Employee (collectively, “Claims”) which she 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 Employee’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 Employee against any Claims brought against Employee by
any third party by reason of Employee’s status as an officer or employee of the
Controlled Group; and, provided, further, that if the Company should
hereinafter assert any cause of action against Employee in any court or before
any arbitrator, this Release shall be rescinded and thereafter be wholly null
and void. So long as this Release remains effective as against Employee,
Employee agrees that she will not, and will cause her affiliates not to,
institute any legal proceedings against the Released Parties in respect of any
Claim nor will she authorize any other party, whether governmental or
otherwise, to seek individual remedies on her behalf with respect to any Claim.
The Company agrees that, by signing this Release Employee is not waiving any
Claim (a “Retained Claim”) arising after the Separation Date or under the
Separation Agreement.



               (b) Employee’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 Ann.
Tit. 19, §§ 710-718, the Delaware Handicapped Persons Employment Protections
Act, Del. Code Ann. Tit. 19, §§ 720-728, the Arizona Civil Rights Act, Ariz.
Rev. Stat. §§ 41-1401 et seq, the Arizona Equal Pay Act, Ariz. Rev. Stat. §§
23-340-341 and any other federal, state or local constitution statute,
regulation Employee 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) Employee has been informed of Employee’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 Employee’s intent to revoke this
Agreement within seven (7) calendar days following the execution of this
Release by Employee. Employee 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
Gainey Center II

Gainey Center II

8501 N. Scottsdale Road

Suite 300

Scottsdale, AZ 85253

Attention: General Counsel



The Company and Employee agree that if Employee exercises Employee’s right of
rescission under this Section (c), the Company’s obligations under Section 1 of
the Separation Agreement shall be null and void.



	 	2.	 	Miscellaneous.



               (a) Employee may not assign or delegate any of Employee’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.




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IN WITNESS WHEREOF, the Company and Employee have hereunto set their hands
to this Release as of the dates set forth below.



	 	 	 	 	 	 	 
	 	 	 	 	 	eFUNDS CORPORATION
	 	 	 	 	 	 	 
	Dated:	 	 	 	 	By:	 
	 	 	 	 	 	 	

	 	 	 	 	 	Its	 
	 	 	 	 	 	 	

	 	 	 	 	 	 	 
	Dated:	 	 	 	 	

	 	 	 	 	 	 	Colleen M. Adstedt
	 	 	 	 	 	 	 
	STATE OF	 	
)	 	 	 	 
	 	
	 	 	 	 	 
	 	 	 	 	 	 	 
	County of	 	)	 	 	 	 
	 	
	 	 	 	 	 
	 	 	 	 	 	 	 
	
Subscribed and sworn before me

this_______day of_________,________.	 	 	 	 
	 	 	 	 	 	 	 
	


	 	 	seal	 
	Notary Public, State of	 	 	 	 	 
	 	 	

	 	 	 	 
	My Commission expires:	 	 	 	 	 
	 	 	

	 	 	 	 



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