Exhibit 10.33
AMENDMENT NO. 1
eFUNDS CORPORATION DEFERRED COMPENSATION PLAN TRUST
Pursuant to Article VII of the eFunds Corporation Deferred Compensation Plan
Trust (the "Trust Agreement"), effective April 1, 2001, eFunds Corporation, a
Delaware corporation (the "Company") hereby amends the Trust Agreement as
follows:
1. Section 1.5 is amended in its entirety to read in full as follows:
"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 Amendment
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 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.
"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.
2. Section 2.4 is hereby added as follows:
2.4 Full Funding Level. The "Full Funding Level" shall mean an amount
equal to one hundred and twenty-five percent (125%) of the vested
accrued benefits due to the Participants under the Plan, as the same
are reasonably determined by the Company.
3. Section 2.5 is hereby added as follows:
Mandatory Contributions. The Company shall, no later than ten (10) days
after the occurrence of any Change of Control, contribute to the Trust
an amount in cash sufficient to cause the Trust assets to equal the
Full Funding Level as of the date of
such Change.
During the three (3) calendar years following the year in which any
Change of Control occurs, the Company shall annually evaluate the
accrued benefits due under the Plan as of each December 31st and shall
make a cash contribution to the Trust assets no later than the
following April 1st sufficient to cause the Trust assets to equal the
Full Funding Level. Upon the completion of the third full calendar year
following any Change of Control, maintenance of the Full Funding Level
shall no longer be required.
4. Section 2.6 is hereby added as follows:
Excess Assets. At any time after the earlier to occur of (i) the
payment all benefits owed to Participants under the Plan and (ii) the
completion of the third full calendar year following the year in which
a Change of Control occurs, upon the written request of the Company,
the Trustee shall repay to the Company any "Excess Assets" in the
Trust. "Excess Assets" means any amount by which the sum of the cash
surrender value of Policies held in the Trust and the fair market value
of all other assets in the Trust, as determined by the Trustee, exceeds
the Full Funding Level.
eFUNDS CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
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Its: SVP, HR and Administration
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Date: March 18, 2002
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XXXXX FARGO BANK, N.A.
By: Xxxxx Xxx
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Its: Vice President
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Date: March 22, 2002
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