Exhibit 10.5
2005 AWARD AGREEMENT
eFunds Corporation
2000 STOCK INCENTIVE PLAN
Optionee: Xxxx Xxxxx Optionee ID #: 106388026
Grant number: 2310001 Optioned shares: 177,000
Grant date: January 13, 2005 Price per share: $21.38
THIS AWARD AGREEMENT (this "Agreement") is made and entered into as of the 13th
day of January, 2005, by and between eFunds Corporation, a corporation
incorporated under the laws of the State of Delaware (the "Company"), United
States of America, and Xxxx Xxxxx (the "Recipient").
RECITALS:
WHEREAS, the Company has adopted the eFunds Corporation 2000 Stock
Incentive Plan, as the same may be amended from time to time (the "Plan"),
pursuant to which it may grant Awards to Eligible Persons;
WHEREAS, all capitalized and undefined terms used herein shall have the
meanings given to them in the Plan, unless otherwise defined herein; and
WHEREAS, the Recipient has provided or is expected to provide valuable
services to the Company or its Affiliates as an officer, employee or consultant
of or to the Company or any of its Affiliates and the Company desires to
recognize the Recipient for such services by granting to the Recipient an award
(the "Award") upon and subject to the terms and conditions of this Agreement and
the Plan.
NOW THEREFORE the parties hereto agree as follows:
Section 1. Award.
(a) The Company, effective as of the date of this Agreement, hereby grants
to the Recipient, and the Recipient hereby accepts from the Company, upon the
terms and subject to the conditions, limitations and restrictions set forth in
this Agreement and the Plan, an option (the "Option") to purchase 177,000 shares
(the "Shares") of the Company's Common Stock, par value $0.01 per share, at a
price of $21.38 per share. The Option is not intended to qualify as an incentive
stock option under the Code, and shall be deemed to be a non-qualified stock
option for all purposes.
(b) The Option shall have a term (the "Term") of ten (10) years from the
date hereof, but the unvested portion of the Option shall earlier terminate
immediately upon any termination of Recipient's employment or consulting
relationship with the Company and its Affiliates for any reason other than a
"Qualifying Termination." As used herein, a "Qualifying Termination" shall mean
any termination of the Recipient's employment with the Company other than a
termination
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of employment described in Section 3(b) of the Retention Agreement dated
November 3, 2004. Any portion of the Option remaining unexercised upon the
expiration of the Term and any portion of the Option which is not vested or does
not vest on the Termination Date shall be extinguished, and the Recipient shall
retain no residual rights of any kind in respect thereof. The Recipient shall
retain such portions of the Option as shall have vested on or before the
Termination Date for the periods hereinafter set forth.
Section 2. Definitions.
"Approved Retirement" shall mean any voluntary termination of employment
with or services to the Company or any of its Affiliates which is on or after
the later of the date on which (i) the Recipient's age is at least fifty-five
(55) and (ii) the Recipient shall have completed at least five (5) years of
continuous service with the Company and its Affiliates, or any other termination
of service or employment that the Committee determines qualifies as an approved
retirement. In determining the number of years of Recipient's service or
employment for purposes of the preceding sentence, Recipient's years of
employment with Deluxe Corporation, a Minnesota Corporation ("Deluxe"), or any
of its Subsidiaries shall be included if Recipient has been continuously
employed by the Company or any of its Affiliates since January 1, 2001.
"Beneficial Owner" shall have the meaning defined in Rule 13d-3
promulgated under the Exchange Act.
"Cause" shall mean:
(i) Recipient has breached Recipient's obligations of
confidentiality to the Company or any of its Affiliates or with respect to
its or their businesses or anyone having a business relationship with the
Company or any of its Affiliates (collectively, "Customers");
(ii) Recipient has otherwise failed to perform Recipient's duties
and does not cure such failure within thirty (30) days after receipt of
written notice thereof;
(iii) Recipient commits an act, or omits to take action, in bad
faith which results in material detriment to the Company or any of its
Affiliates or any of its or their Customers;
(iv) Recipient has had excessive absences unrelated to illness or
vacation ("excessive" shall be defined in accordance with local employment
customs);
(v) Recipient has committed fraud, misappropriation, embezzlement or
other acts of dishonesty in connection with the Company or any of its
Affiliates or its or their businesses or Customers;
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(vi) Recipient has been convicted or has pleaded guilty or nolo
contendere to criminal misconduct constituting a felony or gross
misdemeanor, which gross misdemeanor involves a breach of ethics, moral
turpitude or immoral or other conduct reflecting adversely upon the
reputation or interest of the Company or its Affiliates or any of its or
their Customers;
(vii) Recipient's use of narcotics, liquor or illicit drugs has had
a detrimental effect on the performance of Recipient's responsibilities to
the Company or its Affiliates; or
(viii) Recipient is in default under any agreement between Recipient
and the Company or any of its Affiliates or any of its or their Customers.
A "Change of Control" shall be deemed to have occurred if the conditions
set forth in any one of the following paragraphs shall have been satisfied:
(i) any Person or group (as defined in Rule 13d-5 promulgated under
the Exchange Act) of Persons is or becomes the Beneficial Owner, directly
or indirectly, of securities of the Company representing 20% or more of
the combined voting power of the Company's then outstanding securities,
excluding, at the time of their original acquisition, from the securities
acquired directly or beneficially by any such Person or group of Persons
any securities acquired directly from the Company or in connection with a
transaction described in clause (A) of paragraph (iii) below;
(ii) the individuals who at the date of this Agreement constitute
the Board of Directors of the Company (the "Board") and any new director
(other than a director whose initial assumption of office is in connection
with an actual or threatened election contest, including but not limited
to a consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board or nomination for
election by the Company's stockholders was approved or recommended by a
vote of at least two-thirds (2/3) of the directors then still in office
who either were directors as of the date of this Agreement or whose
appointment, election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof;
(iii) there is consummated a merger, consolidation or similar
transaction (each, a "Transaction") involving the Company or any Affiliate
of the Company with any other Person, other than (A) a Transaction which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
Person or any parent thereof), in combination with the ownership of any
trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any Affiliate of the Company, at least 65% of the
combined voting power of the voting securities of the Company or such
surviving Person or any parent thereof outstanding immediately after such
Transaction or (B) a Transaction effected to implement a recapitalization
of the Company (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the Company
representing
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20% or more of the combined voting power of the Company's then outstanding
securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or there is consummated an agreement for the
sale or disposition by the Company of all or substantially all of the
assets of the Company and its Affiliates, other than a sale or disposition
of all or substantially all of the assets of the Company and its
Affiliates to a Person, at least 65% of the combined voting power of the
voting securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company
immediately prior to such sale or disposition.
"Control" shall mean the right, either directly or indirectly, to elect a
majority of the members of the board of directors (or similar governing body) of
a Person without the consent or acquiescence of any third party.
"Disability" shall mean the termination of Recipient's employment with or
services to the Company or any of its Affiliates due to Recipient's permanent
disability as defined by the provisions of the long-term disability plan of
Recipient's employer at the time of such disability.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Good Reason" shall mean a voluntary decision by Recipient to terminate
his or her employment with or services to the Company and its Affiliates
following a Change in Control because Recipient, as a condition to the
continuation of Recipient's employment with or services to the Company and its
Affiliates, is required to provide services at a principal site located more
than 50 miles from the principal site at which Recipient provided such services
immediately prior to the Change in Control and Recipient does not wish to
undertake any such relocation. If Recipient agrees to so relocate and
subsequently terminates his or her employment with or services to the Company
and its Affiliates, such termination shall not be considered to have been for
Good Reason.
"Person" shall mean any natural person, corporation, limited liability
company, association, partnership (whether general or limited), joint venture,
sole proprietorship, governmental agency, unit, subdivision or municipality,
trust, estate, association, custodian or any other individual or entity, except
that such term shall not include (i) the Company or any of its Subsidiaries,
(ii) a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any of its Affiliates, or (iii) an underwriter
temporarily holding securities of the Company as part of a public offering of
such securities.
"Severance Eligible Termination" shall mean a termination by the Company
or its Affiliates of Recipient's employment with or services to the Company and
its Affiliates prior to a Change in Control if under the circumstances of such
termination Recipient is eligible to participate in the Company's then-standard
severance plans.
"Subsidiary" shall mean a Person Controlled directly or indirectly by the
Company.
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Section 3. Vesting; Exercise Date.
3.1 Normal Vesting. Subject to acceleration as provided in Section 3.2,
this Option shall vest in equal parts on 1st, 2nd and 3rd anniversary dates of
this Agreement.
3.2 Accelerated Vesting. Notwithstanding the vesting provisions contained
in Section 3.1 above, but subject to the other terms and conditions set forth
herein, the Option shall vest in full if Recipient's employment with or services
to the Company and its Affiliates shall be terminated under circumstances
constituting a Qualifying Termination (with the vesting of the Option occurring
on the Termination Date.)
3.3 Retention of Vested Options. Portions of the Option which shall have
vested on or prior to the Termination Date shall not be forfeited by the
Recipient on such Date and shall be retained by Recipient (or Recipient's
estate, heirs or personal representatives, as the case may be) for (i) 90 days
after the Termination Date, if Recipient's termination of employment with or
services to the Company and its Affiliates did not constitute a Qualifying
Termination or a Severance Eligible Termination or (ii) two years after the
Termination Date, if such termination constituted a Qualifying Termination or a
Severance Eligible Termination; provided, however, that in no event may any
portion of the Option be exercised following the expiration of the Term.
Section 4. Method of Exercise.
In order to exercise the Option granted hereunder, the Recipient must provide
written notice (the "Exercise Notice") to the Company, to the attention of the
Secretary or the administrator of the Plan, stating the number of Shares subject
to the Option being exercised. The Exercise Notice must be signed by the
Recipient and must include his or her complete address, taxpayer identification
number and such other information as the Company may request. In the case of an
exercise of the Option, the Recipient must pay to the Company the aggregate
exercise price for the number of Shares being purchased, such amount to be
payable, subject to the requirements of Section 5 with respect to employees who
are Indian nationals, in cash, by certified or cashiers check or by delivery of
shares of the Company that (i) have been owned by Recipient for at least six
months prior to the date of exercise and (ii) have a fair market value equal to
the exercise price, or a combination of the foregoing. To the extent that the
Option is exercised after the Recipient's death, the notice of exercise shall
also be accompanied by appropriate proof of the right of the person or persons
supplying the Exercise Notice to exercise the Option.
Section 5. Exercise by Broker-Dealer.
The Option may be exercised through a broker-dealer in the United States acting
on behalf of the Recipient if: (a) the broker-dealer has received from the
Recipient or the Company a copy of instructions signed by the Recipient
requesting the Company to deliver the Shares subject to the Option to the
broker-dealer on behalf of the Recipient and specifying the account into which
such Shares should be deposited; (b) adequate provision has been made with
respect to the payment of any withholding taxes due upon such exercise; and (c)
payment of the exercise price to the Company with respect to the Shares subject
to the Option being acquired upon such exercise accompanies the Recipient's
Exercise Notice and written instructions regarding delivery of the Shares.
Indian nationals must use the exercise method described in this Section 5.
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Section 6. Tax Withholding.
In order to provide the Company with the opportunity to claim the benefit of any
income tax deduction which may be available to it upon the exercise of the
Option, and in order to comply with all applicable income tax laws or
regulations, the Company may take such action as it deems appropriate to ensure
that all applicable income, withholding, social security, payroll or other
taxes, which are the sole and absolute responsibility of the Recipient, are
withheld or collected from the Recipient. Recipient may, at the Recipient's
election (the "Tax Election"), satisfy applicable tax withholding obligations by
(a) electing to have the Company withhold a portion of the Shares otherwise to
be delivered upon exercise of the Option having a fair market value equal to the
amount of such taxes or (b) delivering to the Company shares of Common Stock
having a fair market value equal to the amount of such taxes. The Tax Election
must be made on or before the date that the amount of tax to be withheld is
determined.
Section 7. Transfer of Option.
The Recipient shall not, directly or indirectly, sell, pledge or otherwise
transfer or dispose of any unexercised portion of the Option or the rights and
privileges pertaining thereto, other than by will or the laws of descent and
distribution. Neither the Option nor the Shares subject to the Option shall be
liable for or subject to, in whole or in part, the debts, contracts, liabilities
or torts of the Recipient, nor will they be subject to garnishment, attachment,
execution, levy or other legal or equitable process.
Section 8. Certain Legal Restrictions.
The Company will not be obligated to sell or issue any Shares upon exercise of
the Option or otherwise unless the issuance and delivery of such Shares
complies, in the judgment of the Company, with all relevant provisions of
applicable law and other legal requirements including, without limitation, any
applicable securities laws and the requirements of any market or stock exchange
upon which the shares of the Company (including the Shares) may then be listed.
As a condition to the exercise of Option, the Company may require the Recipient
to make such representations and warranties as may be necessary to assure the
availability of an exemption from the registration requirements of any
applicable securities laws. The Company shall have no obligation to the
Recipient, express or implied, to list, register or otherwise qualify any Shares
issued to the Recipient pursuant to the Option. Shares issued upon the exercise
of the Option may not be transferred except in accordance with applicable
securities laws. At the Company's election, the certificate evidencing the
Shares issued to the Recipient will bear appropriate legends restricting
transfer under applicable law.
Section 9. Intentionally Omitted.
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Section 10. Governing Law.
This Agreement shall be governed by, and construed and interpreted in accordance
with, the law of the State of Delaware, U.S.A., which shall be the proper law of
this Agreement notwithstanding any rules of conflict of laws or private
international law therein contained under which any other law would be made
applicable.
Section 11. Payments.
All cash payments hereunder shall be made in United States Dollars unless
another currency is selected at the discretion of the Company. Currency
translations shall be made in accordance with such methods and at such exchange
rates as the Company may determine to be fair and appropriate in its sole
discretion.
Section 12. Miscellaneous.
The following general provisions shall apply to the Option granted pursuant to
this Agreement:
(a) Neither the Recipient nor any Person claiming under or through the
Recipient will have any of the rights or privileges of a stockholder of the
Company in respect of any of the Shares issuable upon exercise of the Option
unless and until certificates representing such Shares have been issued and
delivered or, if Shares may be held in uncertificated form, unless and until the
appropriate entry evidencing such transfer is made in the stockholder records of
the Company.
(b) Subject to the limitations in this Agreement on the transferability by
the Recipient of the Option and any Shares issued pursuant thereto, this
Agreement will be binding on and inure to the benefit of the successors and
assigns of the parties hereto.
(c) If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any applicable law, then such provision will be deemed to be
modified to the minimum extent necessary to render it legal, valid and
enforceable, and if no such modification will render it legal, valid and
enforceable, then this Agreement will be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties will
be construed and enforced accordingly.
(d) This Agreement, together with the Plan, embodies the complete
agreement and understanding among the parties with respect to the subject matter
hereof and supersedes and preempts any prior or contemporaneous written or oral
understandings, agreements or representations by or among any of the parties
that may have related to the subject matter hereof in any way. In the event of
any inconsistency or conflict between the provisions of this Agreement and the
Plan, the provisions of the Plan shall govern. In the event of any conflict or
any inconsistency between the provisions of this Agreement and any other written
agreement between the Company or its Affiliates and the Recipient regarding the
acceleration of the vesting and post-Termination Date exercisability provisions
hereof, the terms of such other agreement shall govern. Any question of
administration or interpretation arising under this Agreement shall be
determined by the Committee, and such determination shall be final, conclusive
and binding upon all parties in interest.
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(e) Nothing in this Agreement or the Plan shall be construed as giving the
Recipient the right to be retained as an officer, consultant, advisor or
employee of the Company or any of its Affiliates. In addition, the Company or an
Affiliate may at any time dismiss the Recipient, free from any liability or any
claim under this Agreement, unless otherwise expressly provided in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
eFunds Corporation Recipient
By: /s/ Xxxxxxx X. Xxxxxxxxx By:___________________
Xxxxxxx Xxxxxxxxx Xxxx Xxxxx
Senior VP, Human Resources
Grant number: 2310001
Grant date: January 13, 2005
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