EXHIBIT 10.5
XXXXXX X. XXXXXX INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (the "Agreement") is made and
entered into effective June 20, 2002, by and between Xxxxxx X. Xxxxxx, an
independent contractor ("Contractor"), and eFunds Corporation, a Delaware
corporation (the "Company"). In consideration of the covenants and conditions
hereinafter set forth, the Company and Contractor hereby agree as follows:
1. Services
Contractor shall serve as the Company's Chief Financial Officer and shall
provide consulting services to the Company consistent with the duties typically
performed by persons holding such office, as the same are defined from time to
time by the Chief Executive Officer of the Company (the "CEO").
2. Hours of Service
Contractor shall provide services to the Company on a full-time basis.
3. Term
(a) The initial term of this Agreement shall commence on July 1, 2002 and
shall expire on October 1, 2002. Following the expiration of the initial term,
this Agreement shall automatically be extended for successive one month renewal
terms unless one party hereto shall give notice of nonrenewal to the other at
least 10 days prior to the expiration of the then-current term.
(b) Contractor may terminate this Agreement immediately upon notice to the
Company if the Company fails to pay Contractor the consulting fees provided for
hereunder. The Company may terminate this Agreement at any time for its
convenience. If this Agreement is terminated by reason of either of the
foregoing contingencies, the Company shall pay Contractor the fees Contractor
would have earned during the remaining balance of the term during which such
termination occurs.
(c) The Company may terminate this Agreement at any time for cause if it
determines in good faith that Contractor has engaged or intends to engage in
illegal conduct or willful misconduct that is or will be injurious to the
business of the Company or if Contractor fails to substantially perform his
material duties after a written demand for substantial performance is delivered
to Contractor by the CEO. In the event of any such termination for cause, the
Company shall only be required to pay Contractor for services rendered prior to
the date of termination.
1
4. Place of Work
Contractor shall render services primarily at the Company's offices in
Scottsdale, Arizona and at such other places as may reasonably be required
in connection with the performance of his services hereunder. The Company
will make an office and administrative support available to Contractor at
its Scottsdale facility.
5. Payment for Services
The Company shall pay Contractor $2,000 for each day during which
Contactor performs services pursuant to this Agreement, such amount to be
paid within 30 days of the end of each month during the term. The Company
shall also reimburse Contractor for any reasonable out-of-pocket expenses
incurred by Contractor in performing services hereunder at a location
other than the Company's Scottsdale facility, including travel and
entertainment expenses incurred in accordance with the Company's standard
travel policies. Out of pocket expenses of $25 or more will be supported
by receipts. The Company's obligation to reimburse Contractor for any
proper out of pocket expenses incurred prior to any termination of this
Agreement shall survive such termination.
6. Confidentiality and Ownership
(a) Contractor recognizes and acknowledges that the Company possesses
certain confidential information that constitutes a valuable, special and unique
asset. As used herein, the term "confidential information" includes all
information and materials belonging to, used by, or in the possession of the
Company relating to its products, processes, services, technology, inventions,
patents, ideas, contracts, financial information, developments, business
strategies, pricing, current and prospective customers, marketing plans and
trade secrets of every kind and character, but shall not include (a) information
that was already within the public domain at the time the information is
acquired by Contractor or (b) information that subsequently becomes public
through no wrongful act or omission of Contractor. Contractor agrees that all of
the confidential information is and shall continue to be the exclusive property
of the Company, whether or not disclosed to Contractor. Contractor agrees to
take all reasonable precautions to safeguard the confidentiality of such
information.
(b) All information, inventions and data, regardless of form, generated by
Contractor in the performance of services under this Agreement is created as a
work for hire and will be the sole property of the Company. In the event that
the copyright or other intellectual property right in any data, inventions or
information generated by Contractor in the performance of services under this
Agreement does not automatically vest in the Company by law, Contractor hereby
agrees to, and hereby does, assign to the Company all right, title and interest,
worldwide, in and to such copyright or other intellectual property. Contractor
further agrees that he will, at the expense of the Company for any out of pocket
expenses incurred by Contractor in so doing, provide any reasonable assistance
required by the Company in order to enable it to perfect such rights. Contractor
agrees not to challenge the Company's ownership of any such rights and not to
take any position that is adverse to the Company's interests therein.
(c) In connection with any patentable inventions conceived or first
actually reduced to practice in connection with this Agreement, Contractor will,
at the expense of the Company for Contractor's out of pocket expenses in
rendering such assistance, furnish the Company with
2
such information and assistance as is reasonably sufficient to enable the
Company to file and prosecute patent applications thereon and will execute all
documents incident to such filing and prosecution or necessary to vest the full
right and title therein in the Company.
3
7. Return of Material
Contractor agrees that upon termination of this Agreement, Contractor will
return to the Company all drawings, blueprints, notes, memoranda,
specifications, designs, writings, software, devices, documents and any other
material containing or disclosing any confidential or proprietary information of
the Company. Contractor will not retain any such materials. The Company agrees
that upon any termination of this Agreement, the Company will return to
Contractor any materials and information in its possession which belong to
Contractor and that it will not retain any copies of such materials.
8. Warranties
Contractor warrants that:
(a) Contractor's agreement to perform services pursuant to this Agreement
does not violate any agreement or obligation between Contractor and a third
party;
(b) Any work product delivered to the Company by Contractor will not
infringe any copyright, patent, trade secret or other proprietary right held by
any third party; and
(c) The services provided by Contractor hereunder shall be performed in a
professional and workmanlike manner.
9. Relationship of Parties
Contractor is an independent contractor of the Company. Nothing in this
Agreement shall be construed as creating an employer-employee relationship or as
a guarantee or promise, express or implied, of future employment. Contractor
agrees to be responsible for any and all taxes owing to any governmental
authority in respect of amounts paid to Contractor hereunder. Contractor shall
not be eligible to participate in any benefit plans offered by the Company to
its employees, including without limitation its health, welfare, incentive, PTO
and retirement plans.
The Company agrees to indemnify Contractor from and against any claims by
third parties resulting from the performance of services hereunder as and to the
same extent indemnification is available to its other officers. The Company
shall take such steps as are necessary to cause Contractor to be covered under
the Company's Directors and Officer's insurance policies for his service as the
Company's Chief Financial Officer. The provisions of this paragraph shall
survive any termination of this Agreement.
10. No Solicitation
Contractor agrees not to induce or attempt to influence, directly or
indirectly, any employee of the Company to terminate his/her employment with the
Company following any termination of this Agreement.
11. Miscellaneous
(a) Attorneys' Fees. Should either party hereto resort to legal
proceedings in connection with this Agreement, the party prevailing in such
legal proceedings shall be entitled, in addition to such other relief as may be
granted, to recover from the non-prevailing party the
4
reasonable attorneys' fees and costs incurred by it in pursuing or defending
such legal proceedings.
(b) Governing Law; No Assignment. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its conflict of law principles. The services to be performed by Contractor
hereunder are personal in nature and he may not assign this Agreement to any
third party or delegate his duties hereunder.
(c) Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto and supersedes any prior or
contemporaneous written or oral agreements, representations and warranties
between them respecting the subject matter hereof.
(d) Amendment. This Agreement may be amended only by a writing signed by
Contractor and by a duly authorized representative of the Company.
(e) Severability. If any term, provision, covenant or condition of this
Agreement, or the application thereof to any person, place or circumstance,
shall be held to be invalid, unenforceable or void, the remainder of this
Agreement and such term, provision, covenant or condition as applied to other
persons, places and circumstances shall remain in full force and effect.
(f) Construction. The headings and captions of this Agreement are provided
for convenience only and are intended to have no effect in construing or
interpreting this Agreement. The language in all parts of this Agreement shall
be in all cases construed according to its fair meaning and not strictly for or
against either party.
(g) Rights Cumulative. The rights and remedies provided by this Agreement
are cumulative, and the exercise of any given right or remedy by either party
hereto shall not preclude or waive its right to exercise any or all of its other
rights and remedies.
(h) Nonwaiver. No failure or neglect of either party hereto in any
instance to exercise any right, power or privilege hereunder or under law shall
constitute a waiver of any other right, power or privilege or of the same right,
power or privilege in any other instance. All waivers by either party hereto
must be contained in a written instrument signed by the party to be charged with
such waiver and, in the case of the Company, by an officer of the Company or
other person duly authorized by the Company.
(i) Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law shall be
sufficient if given in writing, and if and when sent by certified or registered
mail, with postage prepaid, to Contractor's residence (as noted below), or to
the Company's principal office in Scottsdale, as the case may be.
(j) Disputes. EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE
RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
5
Company: Contractor:
By: /s/ X.X. Xxxxxxxxx By: /s/ XXXXXX X. XXXXXX
------------------ --------------------
(Signature)
Title: CEO
Name: Xxxxxx X. Xxxxxx
(Print)
----------------------------------------
Social Security #
Address:________________________________
--------------------------------
--------------------------------
6
