INDEPENDENT DIRECTOR OPTION AWARD AGREEMENT eFunds Corporation 2006 STOCK INCENTIVE PLAN
Exhibit 10.7
Optionee: «Name___First» «Name___Last»
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Optionee ID #: «ID» | |||
Grant
number: «Grant_Number»
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Optioned shares: | |||
| «M___Stock_Options» | ||||
Grant date: , ___
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Price per share: $ |
THIS OPTION AWARD (this “Agreement”) is made by eFunds Corporation, a corporation incorporated
under the laws of the State of Delaware (the “Company”), United States of America, to «Name_First» «Name_Last»
(the “Recipient”) as of the ___ day of , 200_.
RECITALS:
WHEREAS, the Company has adopted the eFunds Corporation 2006 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
as a member of the Board of Directors (the “Board”) of the Company 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 «M___Stock_Options» shares (the “Shares”) of the Company’s Common Stock, par value $0.01
per share, at a price of $
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 service on the Board for any reason other than a “Qualifying Termination.” As used
herein, a “Qualifying Termination” shall mean Recipient’s “Approved Retirement,” death or
“Disability.” “Qualifying Termination” shall also include Recipient’s voluntary termination of
his or her services to the Company following a “Change in Control.” The date of any
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termination of Recipient’s services on the Board is herein referred to as the “Termination Date.”
Any portion of the Option remaining unexercised upon the expiration of the Term and any portion of
the Option which has 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. Recipient shall
retain such portions of the Option as are vested on the Termination Date for the periods
hereinafter set forth. Only vested portions of the Option are exercisable.
Section 2. Definitions.
“Approved Retirement” shall mean any voluntary termination of service on the Board 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, or any other termination of service or employment that the Committee determines qualifies
as an approved retirement.
Beneficial Owner” shall have the meaning defined in Rule 13d-3 promulgated under the Exchange
Act.
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 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
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representing 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.
“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 the Company at the time of such disability.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“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.
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 services on the Board 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 the termination of Recipient’s services to the
Company did not constitute a Qualifying Termination or (ii) one year after the Termination Date, if
such termination constituted a Qualifying 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
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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.
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.
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
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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. Disputes.
Any dispute arising out of or in connection with this Agreement shall be finally settled under the
commercial rules of the American Arbitration Association by one or more arbitrators appointed in
accordance with such Rules. The place of arbitration shall be Phoenix, Arizona, U.S.A., and the
arbitration shall be conducted in the English language.
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
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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.
(e) Nothing in this Agreement or the Plan shall be construed as giving the Recipient the right
to be retained as a director of the Company.
(f) The Company may not amend, alter, suspend, discontinue or terminate this Agreement,
prospectively or retroactively, in any manner that would have an adverse effect on the rights of
the Recipient hereunder without the consent of the Recipient (or his or her beneficiaries).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
eFunds Corporation
By: |
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| {Title} |
| Grant number: «Grant_Number» | ||||
Grant date: |
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