EXHIBIT 10.9
EFUNDS CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT ("Agreement"), dated February 14, 2003, by and between eFunds
Corporation, a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx (the
"Executive").
WHEREAS, the Executive currently serves as the Company's Interim Chief
Financial Officer pursuant to that certain Independent Contractor Agreement,
dated June 20, 2002 (the "Current Agreement"); and
WHEREAS, the Company wishes to employ the Executive as a Senior Vice
President and its Chief Financial Officer and Executive is willing to accept
such employment on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the Company and the Executive set forth below, the Company and
the Executive agree as follows:
I. Employment Period.
Upon the terms and conditions set forth herein, the Company hereby agrees
to employ the Executive as a Senior Vice President and its Chief Financial
Officer and the Executive hereby agrees to accept such employment. The term of
such employment (the "Employment Period") shall commence on April 1, 2003 (the
"Start Date") and shall continue until March 31, 2005, unless earlier terminated
as provided in this Agreement. This Agreement and the Employment Period may be
extended following the expiration of the initial Employment Period upon the
mutual agreement of the parties. Notwithstanding the foregoing, the Executive's
employment by the Company shall be "at-will" and the Chief Executive Officer
(the "CEO") or the Board of Directors of the Company (the "Board") may terminate
the Executive's employment at any time for any reason or no reason.
II. Terms of Employment.
A. Position and Duties.
1. During the Employment Period, the Executive agrees to serve as a
Senior Vice President and the Chief Financial Officer of the Company and to
perform such reasonable duties as are generally considered consistent with such
positions and as the Board or the CEO shall assign to the Executive from time to
time.
2. During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote his full-time attention to the business and affairs of the Company and
to use the Executive's reasonable efforts to perform faithfully and efficiently
his responsibilities. During the Employment Period it shall not be a violation
of this
Agreement for the Executive to telecommute up to two business days per week or
to serve on corporate, civic or charitable boards or committees or provide
consulting services to others so long as such activities do not significantly
interfere with the Executive's performance of his responsibilities to the
Company pursuant to this Agreement.
B. Compensation. During the Employment Period, the Executive shall be
entitled to receive the following elements of compensation:
1. Base Salary. The Company shall pay the Executive a minimum base
salary (the "Annual Base Salary") of $200,000 per year (or such higher amount as
may be determined at the discretion of the Compensation Committee of the Board
(the "Compensation Committee")). The Annual Base Salary shall be paid in
accordance with the Company's normal payroll procedures and policies.
2. Annual Bonus. In addition to Annual Base Salary, the Executive
shall be eligible to be paid, for each of the Company's fiscal years ending
during the Employment Period, an annual bonus (the "Annual Bonus"). The
Executive's minimum target Annual Bonus will be 60% of the Annual Base Salary
actually paid to the Executive for that fiscal year (or such higher percentage
as may be determined in the discretion of the Compensation Committee). The
amount of the Annual Bonus actually paid to the Executive for any given fiscal
year may be higher or lower than the target Annual Bonus and will be determined
in accordance with the performance parameters established under, and the other
terms and conditions of, the Company's existing Annual Incentive Plan (or any
comparable successor plan). Any Annual Bonus earned by the Executive shall be
paid no later than the end of the third month following the fiscal year for
which the Annual Bonus is awarded, unless the Executive shall elect to defer the
receipt of such Annual Bonus in accordance with the terms and conditions of any
deferred compensation plan established by the Company. If the Employment Period
shall expire prior to the end of a given fiscal year, or if the Executive shall
cease to serve as an employee of the Company prior to the actual date of payment
of any Annual Bonus, the Compensation Committee shall, in the exercise of its
sole and absolute discretion, determine whether any Annual Bonus will be paid to
the Executive and the amount of such Bonus.
3. Stock Options. The Executive shall be entitled to participate in
the eFunds Corporation 2000 Stock Incentive Plan (or any comparable successor
plan) and shall receive an option to purchase 175,000 shares of the Company's
Common Stock on the Start Date. The exercise price of such option shall be equal
to the closing price on the Nasdaq National Market of the Company's Common Stock
on the Start Date and such option will generally vest in equal installments on
the two succeeding anniversaries of the Start Date. It is understood and agreed
that the Executive will not receive additional option grants unless otherwise
determined by the Compensation Committee of the Board in the exercise of its
sole and absolute discretion.
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4. Savings, Retirement and Other Incentive Plans. The Executive
shall be entitled to participate in all other incentive, savings, deferred
compensation, stock purchase and retirement plans, practices, policies and
programs applicable generally to the Company's other senior executives.
5. Welfare Benefit Plans. To the extent that the Executive's
position, title, tenure, salary, age, health and other qualifications make the
Executive eligible, the Executive and/or the Executive's family, as the case may
be, shall be eligible to participate in all welfare benefit plans, practices,
policies and programs generally provided by the Company (including, without
limitation, medical, prescription, dental, disability, employee life, group
life, accidental death and travel accident insurance plans and programs).
6. Expenses. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in
furtherance of the Executive's duties in accordance with the then prevailing
policies, practices and procedures of the Company.
7. Fringe Benefits. The Executive shall be entitled to a car
allowance in the amount of $1,500 per month but shall not otherwise be entitled
to any fringe benefits, such as tax and financial planning services provided to
the Company's senior executives under any other plans, practices, programs and
policies of the Company.
8. Vacation. The Executive shall be entitled to three weeks (15
days) of paid time off ("PTO") per year and shall be entitled to standard
Company holidays in accordance with the plans, policies, programs and practices
of the Company.
III. Obligations of the Company upon Termination.
A. No further payments shall be owing by the Company to the Executive if
the Executive's employment with the Company shall be terminated prior to the
expiration of the Employment Period (other than the balance of any of the Annual
Base Salary earned by the Executive prior to the date of such termination which
has not theretofore been paid and any payments in respect of any PTO accrued by
the Executive) regardless of whether any such termination is occasioned by the
Company or the Executive and irrespective of the reason for any such
termination.
B. Any and all benefits or other forms of compensation to the Executive
(such as the disposition of any options held by Executive, the balance of
Executive's account under the Company's Employee Stock Purchase or deferred
compensation plans, and the Executive's 401(k) account (collectively, "Other
Benefits")) shall be governed by the rules applicable to such plans and programs
and the terms of any agreements between the Executive and the Company related to
such Other Benefits, as the same are in effect on the date (the "Termination
Date") of termination of the Executive's employment; provided, however, that
under no circumstances is
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the Executive entitled to severance pay and it is hereby agreed that the
Executive shall not be entitled to participate in the Company's standard
severance programs.
C. Disposition of Equity Instruments. In the event the Company should
assert that the employment of the Executive shall have been terminated for
"Cause" (as such term is defined in the agreement related to the option
referenced in Section II(B)(3) or any other equity-based award hereinafter
granted to Executive) and the Executive shall dispute such assertion, the
exerciseability or vesting of any options, restricted shares, restricted stock
rights, SARs or similar instruments which would be forfeited by the Executive by
reason of such termination shall be suspended during the pendency of such
dispute. If it is ultimately determined that the termination of the Executive's
employment was not properly characterized as being for Cause, such suspension
shall be lifted and the Executive shall retain such instruments for a period of
time from the date of such determination equivalent to the time period during
which the Executive would have retained such instruments following the
Termination Date had the termination of the Employment Period not been
wrongfully characterized as for Cause, although in no event may any equity-based
award be retained beyond its originally scheduled term.
IV. Non-Competition Agreement.
A. As an essential inducement to the Company to enter into this Agreement,
and as consideration for the promises of the Company contained herein, the
Executive agrees that during the Employment Period and for a period of one year
after any Termination Date (the "Restricted Period"), the Executive will not:
1. Control or own (directly or indirectly) more than two percent of
the outstanding capital stock of or other equity interest in any "Competitor;"
or
2. 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 2 and the foregoing clause 1 being
hereinafter referred to as "Restricted Activities").
3. 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, so long as
the provision of such products and services is governed by the Federal Fair
Credit Reporting Act, 15 U.S.C. Section 1681 et. seq. (or any successor
provision), (iii) managing or deploying networks of ATMs 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 10% or more of the total revenues of such
entity, division or subsidiary. By way of example, if an entity maintains a
subsidiary which derives a 10% or more of its revenues from debit
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transaction processing, the Executive could not engage in any Restricted
Activity with respect to that subsidiary. The Executive would not, however, be
prohibited from engaging in any Restricted Activity for another division or
subsidiary of such entity so long as the Executive's relationship with such
other division or subsidiary is not maintained as a pretext designed to enable
Executive to avoid compliance with the spirit of the foregoing and the Executive
does not engage in any Restricted Activity with respect to the debit processing
subsidiary during the Restricted Period. Without limiting the generality of the
foregoing, "Competitors" shall by definition include Equifax, Experian,
TransUnion, First Data Corporation, Concord EFS, M&I, EDS, Total System Services
and their respective subsidiaries.
B. The Executive agrees that a breach by the Executive of any of the terms
of this Agreement 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 Agreement or prevent a threatened or potential breach of this
Agreement by the Executive.
V. Miscellaneous.
A. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without reference to principles of conflict
of laws. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
B. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
C. This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive. This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
D. The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
E. The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to immediately
assert any right the Executive or the Company may have hereunder shall not be
deemed to be a waiver of such provision or right or any other provision or right
of this Agreement.
F. From and after the Start Date, this Agreement is intended to supercede
and replace any other prior severance agreements or arrangements between the
parties including without limitation the Current Agreement; provided, however,
that this Agreement shall not supercede or
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replace any Confidentiality Agreement between Executive and the Company. No
payments shall be owing to the Executive by reason of the termination of the
Current Agreement as aforesaid.
G. The obligations of the Company and the Executive under this Agreement
which by their nature may require either partial or total performance after the
expiration of the term of this Agreement shall survive such expiration.
IN WITNESS WHEREOF, the parties have hereunto set their hand as of the day
and year first above written.
EFUNDS CORPORATION Executive
By: /s/ Xxxxxxx X. Adstedt /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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