Exhibit 10.2
CHANGE IN CONTROL AGREEMENT
AGREEMENT by and between eFunds Corporation, a Delaware corporation
(the "Company"), and Xxxxxxx X. Xxxxxxxxx. (the "Executive") dated as of June 3,
2002.
The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its shareholders to ensure that
the Company will have the continued dedication and service of the Executive,
notwithstanding the possibility, threat or occurrence of a Business Combination
(as defined below) and to encourage the Executive's full support of and
participation in implementing the Company's business strategy involving one or
more significant transactions. The Board believes it is imperative to diminish
the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks associated with these types of strategic initiatives, to
encourage the Executive to provide his or her full attention and dedication to
the Company and its business strategies notwithstanding such personal
uncertainty and to provide the Executive with compensation and benefits
arrangements upon the occurrence of a Business Combination which ensure that the
compensation and benefits expectations of the Executive will be satisfied and
that the Executive will continue to receive compensation and benefits
competitive with those of other corporations. Therefore, in order to accomplish
these objectives, the Board has caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
I. Certain Definitions.
A. "Affiliate" shall have the meaning defined in Rule 12b-2
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). The "Affiliates" of a Person shall also include such Person's
"Associates," as such term is defined in Rule 12b-2 promulgated under the
Exchange Act.
B. "Beneficial Owner" shall have the meaning defined in Rule
13d-3 promulgated under the Exchange Act.
C. "Business Combination" shall be deemed to have occurred if
the conditions set forth in any one of the following paragraphs shall have been
satisfied:
1. 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 3 below; or
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2. 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 shareholders 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; or
3. there is consummated a merger, share exchange, 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 merger or consolidation, 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
4. the shareholders 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 subsidiaries, other than a sale or disposition of all or
substantially all of the assets of the Company and its subsidiaries to a Person,
at least 65% of the combined voting power of the voting securities of which are
owned by shareholders of the Company in substantially the same proportions as
their ownership of the Company immediately prior to such sale or disposition.
D. "Business Combination Period" shall mean the period
commencing on the date hereof and ending on the third anniversary of the date
hereof; provided, however, that commencing on the date one year after the date
hereof, and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the "Renewal Date"), the
Business Combination Period shall be automatically extended so as to terminate
three years from such Renewal Date, unless at least 120 days prior to the
then-current Renewal Date the Company shall give notice to the Executive that
the Business Combination Period shall not be so extended.
E. "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.
F. [Intentionally Omitted]
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G. "Effective Date" shall mean the first date during the
Business Combination Period on which a Business Combination occurs.
H. "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.
II. Employment Period.
Subject to the terms and conditions of this Agreement, the
Company hereby agrees to continue the Executive in its employ, and the Executive
hereby agrees to remain in the employ of the Company for the period commencing
on the Effective Date and ending on the third anniversary of such date (the
"Employment Period").
III. Terms of Employment.
A. Position and Duties.
1. Position. Except with the Executive's written consent given in his
or her discretion, during the Employment Period, (a) the Executive's position
(including status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and assigned by the
Executive at any time during the 180-day period immediately preceding the
Effective Date and (b) the Executive's services shall be performed from the
location where the Executive was employed immediately preceding the Effective
Date or at a location less than 50 miles from such location.
2. Attention to the Company's Affairs. During the Employment Period,
and excluding any periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable attention and time during
normal business hours to the business and affairs of the Company and, to the
extent necessary to discharge the responsibilities assigned to the Executive
hereunder, to use the Executive's reasonable efforts to perform faithfully and
efficiently such responsibilities. During the Employment Period it shall not be
a violation of this Agreement for the Executive to (a) serve on corporate, civic
or charitable boards or committees, (b) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (c) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and agreed that to
the extent that any such activities have been conducted by the Executive prior
to the Effective Date, the continued conduct of such activities (or the conduct
of activities similar in nature and scope thereto)
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subsequent to the Effective Date shall not thereafter be deemed to interfere
with the performance of the Executive's responsibilities to the Company.
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B. Compensation.
1. Base Salary. During the Employment Period, the Executive shall
receive an annual base salary (the "Annual Base Salary"), which shall be paid
not less often than monthly, at least equal to twelve times the monthly base
salary paid or payable, including any base salary which has been earned but
deferred, to the Executive by the Company and its Affiliates immediately
preceding the month in which the Effective Date occurs. During the Employment
Period, the Annual Base Salary shall be reviewed no more than 12 months after
the last salary increase awarded to the Executive prior to the Effective Date
and thereafter at least annually. In considering any increase to the Executive's
Annual Base Salary, the Executive will be treated in the same manner as other
members of the Company's senior executive team and all senior officers of any
Person in Control of the Company (such other senior executive team members and
senior officers are herein collectively referred to as "Peer Executives"). For
example, if the annual base salaries of the Peer Executives are established by
reference to a percentile of comparative market data, the increase, if any, to
Executive's Annual Base Salary shall be established in a like manner. The annual
Base Salary shall not be reduced after any such increase and the term Annual
Base Salary as utilized in this Agreement shall refer to Annual Base Salary as
so increased. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Agreement.
2. Annual Incentive Payment or Bonus. In addition to the Annual Base
Salary, the Executive shall be paid, for each fiscal year ending during the
Employment Period (ratably apportioned in the case of any fiscal year which is
not included within the Employment Period in its entirety), an annual incentive
payment or bonus (the "Annual Incentive Payment") in cash on the same basis as
such incentive payments or bonuses are paid to other Peer Executives. For
example, if annual incentive payments are created for other Peer Executives, the
target award for the Executive shall be established in the same manner as the
target award for the other Peer Executives (e.g. by reference to a percentile
target based on comparative market data) and the performance criteria and
performance measurements governing any payment earned by Executive shall be
based on the same performance criteria (such as earnings per share or return of
average capital employed) and performance measurements applied to the other Peer
Executives. Notwithstanding the foregoing, if the payment of a bonus to other
Peer Executives is, in whole or part, not based on objective performance
criteria, Executive's Annual Incentive Payment shall be at least equal to the
average of Executive's Annual Incentive Payments for the last two full fiscal
years prior to the Effective Date or, if Executive was not in the employment of
the Company during any portion of such two full fiscal years, Executive's target
Annual Incentive Payment for the fiscal year in which the Effective Date
occurred (such amount being herein referred to as the "Recent Annual Incentive
Payment"). Special or one-time awards (such as those associated with a new hire
or promotion or relocation bonuses) shall not be taken into account when
computing the Recent Annual Incentive Payment. During the Employment Period, the
Executive's annual target incentive or bonus opportunity shall in no event be
less favorable to the Executive than that provided by the Company to the
Executive under its annual incentive or bonus plans during the fiscal year in
which the Effective Date occurred, provided that any special or one time awards
(such as those associated with a new hire or promotion or relocation bonuses)
shall not be taken into account. Each such Annual Incentive Payment shall be
paid no later than the end of the third
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month of the fiscal year next following the fiscal year in respect of which the
Annual Incentive Payment is awarded, unless the Executive shall elect to defer
the receipt of such Annual Incentive Payment.
3. Stock Incentive Plans. During the Employment Period, the Executive
shall be entitled to participate in any stock incentive, option, performance
share and other stock-based incentive plans (if any) on the same basis as other
Peer Executives. For example, if other Peer Executives are awarded stock options
or restricted stock units or shares based on references to comparative market
data, Executive's awards shall be made on the same basis, and shall, in any
event, contain the same terms and conditions, and if applicable, be subject to
the same performance criteria, as applied to awards to other Peer Executives.
Notwithstanding the foregoing, such long-term incentive opportunities for the
Executive shall in no event be less favorable, in each case and in the
aggregate, than those provided by the Company and its Affiliates for the
Executive during the fiscal year during which the Effective Date occurs,
provided that any special or one-time awards (such as those associated with a
new hire or promotion) shall not be taken into account.
4. Savings, Retirement and Other Incentive Plans. During the Employment
Period, the Executive shall be entitled to participate in all other incentive,
savings and retirement plans, practices, policies and programs applicable
generally to other Peer Executives, but in no event shall such plans, practices,
policies and programs provide the Executive with incentive opportunities
(measured with respect to both regular and special incentive opportunities, to
the extent, if any, that such distinction is applicable), savings opportunities
and retirement benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided for the Executive at any
time during the one year period immediately preceding the Effective Date or if
more favorable to the Executive, those provided generally at any time after the
Effective Date to other Peer Executives; provided, however, that such benefits
may be reduced pursuant to a general (across-the-board) reduction of such
benefits similarly affecting all Peer Executives.
5. Welfare Benefit Plans. During the Employment Period, the Executive
and/or the Executive's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under all welfare benefit plans,
practices, policies and programs (including, without limitation, medical,
prescription, dental, disability, employee life, group life, accidental death
and travel accident insurance plans and programs) to the extent applicable
generally to other Peer Executives but in no event shall such plans, practices,
policies and programs provide the Executive with benefits which are less
favorable, in the aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time during the one
year period immediately preceding the Effective Date or, if more favorable to
the Executive, those provided generally at any time after the Effective Date to
other Peer Executives; provided, however, that such benefits may be reduced
pursuant to a general (across-the-board) reduction of such benefits similarly
affecting all Peer Executives.
6. Expenses. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in
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accordance with the most favorable policies, practices and procedures of the
Company and its Affiliates in effect for the Executive at any time during the
one year period immediately preceding the Effective Date or, if more favorable
to the Executive, as in effect generally at any time thereafter with respect to
other Peer Executives.
7. Fringe Benefits. During the Employment Period, the Executive shall
be entitled to fringe benefits, including, without limitation, tax and financial
planning services, use or reimbursement for the use of an automobile, and
payment of related expenses, in accordance with the most favorable plans,
practices, programs and policies of the Company and its Affiliates in effect for
the Executive at any time during the one year period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally at
any time thereafter with respect to other Peer Executives; provided, however,
that such benefits may be reduced pursuant to a general (across-the-board)
reduction of such benefits similarly affecting all Peer Executives.
8. Office and Support Staff. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial and
other assistance, not materially less favorable than that provided to the
Executive by the Company and its Affiliates at any time during the one year
period immediately preceding the Effective Date or, if more favorable to the
Executive, as provided generally at any time thereafter with respect to other
Peer Executives.
9. Vacation. During the Employment Period, the Executive shall be
entitled to paid vacation and holidays in accordance with the most favorable
plans, policies, programs and practices of the Company and its Affiliates as in
effect for the Executive at any time during the one year period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other Peer Executives.
IV. Termination of Employment.
A. Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If the Company determines in good faith that the "Disability" of the Executive
has occurred during the Employment Period, it may, give a Notice of Termination
to the Executive in accordance with Sections IV.D. and XI.B. of this Agreement
of its intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company or its Affiliates, as the case may be,
shall terminate effective on the 30th day after receipt of the Notice of
Termination by the Executive (unless such date is extended as provided in
Section IV.F.), provided that, the Executive shall not have returned to
full-time performance of his or her duties within such 30 day notice period. For
purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company or its Affiliates, as the case may
be, on a full-time basis for 180 consecutive days as a result of incapacity due
to mental or physical illness which is determined to be permanent by a physician
selected by the Company or its insurers and acceptable to the Executive or the
Executive's legal representative.
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B. Cause. The Company may terminate the Executive's employment
during the Employment Period with or without Cause. For purposes of this
Agreement, "Cause" shall mean:
1. the willful and continued failure of the Executive to perform
substantially the Executive's material duties with the Company and its
Affiliates (other than any such failure resulting from incapacity due to
physical or mental illness or any such actual or anticipated failure after the
issuance of a Notice of Termination for Good Reason by the Executive pursuant to
Section IV.D. hereof), after a written demand for substantial performance is
delivered to the Executive by the Board which specifically identifies the manner
in which the Board believes that the Executive has not substantially performed
the Executive's duties; or
2. the willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company or its
Affiliates.
For purposes of this provision, (a) no act or failure to act on the
part of the Executive shall be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without reasonable belief
that the Executive's action or omission was in the best interests of the Company
and (b) in the event of a dispute concerning the application of this provision,
no claim by the Company that Cause exists shall be given effect unless the
Company establishes to the Committee (as defined in Section XI.J.) by clear and
convincing evidence that Cause exists. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer of the Company (if Executive is not
the Chief Executive Officer) or based upon the advice of counsel for the Company
(or if the Executive is counsel to the Company, based upon the Executive's own
legal conclusions) shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of the Company.
C. Good Reason. The Executive's employment during the
Employment Period may be terminated by the Executive with or without Good
Reason. For purposes of this Agreement, "Good Reason" shall mean:
1. except with Executive's written consent given in his or her
discretion, the assignment to the Executive of any duties inconsistent in any
respect with the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section III.A. of this Agreement, or the taking of any other action which
results in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial or inadvertent action not
taken in bad faith and which is remedied promptly after receipt of notice
thereof given by the Executive;
2. any failure by the Company (or any successor employer) to comply
with any of the provisions of Section III.B. of this Agreement, other than an
isolated, insubstantial and inadvertent failure not occurring in bad faith and
which is remedied promptly after receipt of notice thereof given by the
Executive;
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3. any requirement that Executive perform Executive's duties at any
location other than as provided in clause III.A.1(b) hereof or that the
Executive travel for business purposes to a substantially greater extent than
required immediately prior to the Effective Date;
4. any purported termination of the Executive's employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of
Section IV.D hereof and otherwise expressly permitted by this Agreement. For
purposes of this Agreement, no such purported termination shall be effective;
5. any failure by the Company to comply with and satisfy Section X.C.
of this Agreement; or
6. any request or requirement that the Executive take any action or
omit to take any action that is inconsistent with or in violation of the
Company's ethical guidelines and policies as the same existed within the 120 day
period prior to the Effective Date or any professional ethical guidelines or
principles that may be applicable to the Executive or, if Executive is counsel
to the Company, requesting or requiring Executive to practice in or under the
laws of any jurisdiction or appear before any court or other tribunal to or
before which Executive is not admitted to practice.
For purposes of this Section IV.C., any good faith claim of "Good
Reason" made by the Executive shall be presumed to be correct unless the Company
establishes to the Committee by clear and convincing evidence that Good Reason
does not exist. The Executive's right to terminate the Executive's employment
for Good Reason shall not be affected by the Executive's incapacity due to
physical or mental illness. The Executive's continued employment shall not
constitute a consent to, or a waiver of rights with respect to, any act or
failure to act constituting Good Reason hereunder.
D. Notice of Termination. Any purported termination of the
Executive's employment during the Employment Period (other than by reason of
death) shall be communicated by a Notice of Termination given in accordance with
Section XI.B. of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (1) indicates the specific termination
provision in this Agreement relied upon (or that Executive's employment is being
terminated without Cause or by the Executive without Good Reason), (2) to the
extent applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated and (3) if the "Date of Termination" (as defined
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than thirty days after the giving
of such notice). Further, a Notice of Termination for Cause is required to
include a copy of a resolution duly adopted by the affirmative vote of not less
than three-quarters of the entire membership of the Employer's Board at a
meeting of the Employer's Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Employer's Board),
finding that, in the good faith opinion of the Employer's Board, the Executive
is guilty of the conduct described in subparagraph B.1. or B.2. above, and
specifying the particulars thereof in detail. A failure to set forth in the
Notice of Termination any fact or circumstance which contributes to a
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showing of Disability, Good Reason or Cause shall not waive any rights hereunder
or preclude the person delivering such from asserting such fact or circumstance
in enforcing rights hereunder;
E. Date of Termination. "Date of Termination" means (1) if the
Executive's employment is terminated for Cause, or by the Executive for Good
Reason or any other reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be (subject to extension as
provided in Section IV.F.), (2) if the Executive's employment is terminated
during the Employment Period other than for Cause or Disability, the Date of
Termination shall be the date on which Executive is notified of such
termination, (3) if the Executive's employment is terminated by reason of death
during the Employment Period, the Date of Termination shall be the date of death
of the Executive and (4) if the Executive's employment is terminated for
Disability, the date Executive's employment is terminated as provided in Section
IV.A.; provided, however, that the Date of Termination specified in this Section
E. may be extended to the date of termination (if applicable) provided in
Section IV.F.
F. Dispute Concerning Termination. If within fifteen (15) days
after any Notice of Termination is given, or, if later, prior to the Date of
Termination (as determined without regard to this Section IV.F.), the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning whether a termination has properly been characterized as for
Cause, Good Reason or Disability, the Date of Termination shall be extended
until the earlier of (i) the date on which the Employment Period ends or (ii)
the date on which the dispute is finally resolved, either by mutual written
agreement of the parties or by a final judgment, order or decree of an
arbitrator or a court of competent jurisdiction (which is not appealable or with
respect to which the time for appeal therefrom has expired and no appeal has
been perfected); provided, however, that the Date of Termination shall be
extended by a notice of dispute given by the Executive only if such notice is
given in good faith and the Executive pursues the resolution of such dispute
with reasonable diligence.
G. Compensation During Dispute. If a purported termination
occurs during the Employment Period and the Date of Termination is extended in
accordance with Section IV.F. hereof, Executive shall continue to receive the
full compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, salary) and the Executive shall continue as a
participant in all compensation, benefit and insurance plans in which the
Executive was participating when the notice giving rise to the dispute was given
until the Date of Termination, as determined in accordance with Section IV.F.
hereof.
H. Pre-Effective Date Actions. For purposes of this Agreement,
the Executive's employment shall be deemed to have been terminated during the
Employment Period by the Company without Cause or by the Executive with Good
Reason, if (i) the Executive's employment is terminated by the Company without
Cause prior to the Effective Date (whether or not a Business Combination ever
occurs) and such termination was at the request or direction of a Person who has
entered into an agreement (or a non-binding letter of intent or similar
instrument) with the Company the consummation of which would constitute a
Business Combination, (ii) the Executive terminates his or her employment for
Good Reason prior to the
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Effective Date (whether or not a Business Combination ever occurs) and the
circumstance or event which constitutes Good Reason occurs at the request or
direction of such a Person, or (iii) the Executive's employment is terminated by
the Company without Cause or by the Executive for Good Reason and such
termination or the circumstance or event which constitutes Good Reason is
otherwise in connection with or in anticipation of a Business Combination
(whether or not a Business Combination ever occurs). For purposes of any
determination regarding the applicability of the immediately preceding sentence,
any position taken by the Executive shall be presumed to be correct unless the
Company establishes to the Committee by clear and convincing evidence that such
position is not correct.
V. Post-Termination Obligations.
A. Good Reason; Other Than for Cause. If, during the
Employment Period, Executive's employment shall be terminated other than for
Cause, Disability or by reason of the death of the Executive or if the Executive
shall terminate employment for Good Reason:
1. the Company shall pay to the Executive in a lump sum in cash within
5 days after the Date of Termination the aggregate of the following amounts:
(a) the sum of (i) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (ii) any Annual
Incentive Payment paid or payable in respect of the most recently completed
fiscal year of the Company, to the extent such amount is determinable and not
theretofore paid and (iii), unless otherwise specified by Executive or
prohibited by the terms of any deferral agreement, any compensation previously
deferred by the Executive (together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in clauses (i), (ii) and
(iii) shall be hereinafter referred to as the "Accrued Obligations"). In the
event the Executive's Annual Incentive Payment is not determinable on the Date
of Termination, such Annual Incentive Payment shall be paid to the Executive, in
a lump sum in cash, within five days after the date the amount of such Payment
is determinable; and
(b) an amount equal to the product of (i) three and (ii) the
sum of (x) the Executive's Annual Base Salary as of the Date of Termination and
(y) the higher of (A) the Recent Annual Incentive Payment and (B) the
Executive's target Annual Incentive Payment for the fiscal year in which the
Date of Termination occurs; and
(c) an amount equal to the product of three times the higher
of (i) the sum of the amounts that would have been contributed based on the
Reference Amount (defined below) to the Executive's account under (x) all
retirement plans in which the Executive was eligible to participate immediately
prior to the Effective Date and (y) any excess or supplemental retirement plan
in which the Executive was eligible to participate as of the Effective Date (the
"ERISA Excess Plan") (the ERISA Excess Plan and such retirement plans, as
amended, and any successor or replacement plans being referred to as the
"Plans") as the Plans were in effect and funded for the fiscal year immediately
preceding the Effective Date or (ii) the sum of the amounts that would have been
contributed based on the Reference Amount, to the Plans in which the
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Executive was eligible to participate immediately prior to the Date of
Termination as those Plans were in effect and funded for the fiscal year
immediately preceding the Date of Termination. For the purposes hereof, the term
"Reference Amount" shall mean an amount equal to one-third of the amount
calculated in clause V.A.1.(b).
2. for three years after the Executive's Date of Termination, or such
longer period as may be provided by the terms of the appropriate plan, program,
practice or policy, the Executive and/or the Executive's family shall continue
to receive benefits at least equal to those which would have been provided to
them in accordance with the plans, programs, practices and policies described in
Section III.B.5. of this Agreement if the Executive's employment had not been
terminated or, if more favorable to the Executive, as in effect generally at any
time thereafter with respect to other Peer Executives; provided, however, that
if the Executive becomes re-employed with another employer and is eligible to
receive medical or other welfare benefits under another employer provided plan,
the medical and other welfare benefits described herein shall be secondary and
supplemental to those provided under such other plan during such applicable
period of eligibility. For purposes of determining eligibility (but not the time
of commencement of benefits) of the Executive for retiree welfare benefits
pursuant to such plans, practices, programs and policies, the Executive shall be
considered to have remained employed until three years after the Date of
Termination and to have retired on the last day of such period as a qualified
retiree;
3. immediately following the Executive's Date of Termination and, if a
Change of Control shall earlier occur, immediately following the Change of
Control, the Company shall take all such action as may be required fully and
immediately (but without duplication of benefits under this Section V.A.3.) to:
(a) vest all outstanding, unvested options that may have been
granted to the Executive under the Company's stock incentive plan or any
successor or replacement plan (the "SIP") and permit the Executive a period
equal to the lesser of five years following that Date of Termination or the
remaining term of the applicable options to exercise such options in accordance
with the provisions of the SIP and any applicable award agreement (as modified
or amended as a result of the actions required by this clause);
(b) vest all other restricted shares, restricted stock units
or SARs theretofore granted the Executive under the SIP or any other
equity-based compensation plan (except as may be specifically provided in any
given award agreement); and
(c) in the case that the Company is not the surviving
corporation in a Transaction, to provide the Executive with the economic
equivalent of the value that the Executive would have received had the Company
been the surviving corporation of the Transaction and taken the actions required
in clauses (a) and (b) hereof.
4. the Company shall, at its sole expense as incurred, provide the
Executive with out-placement services the scope and provider of which shall be
selected by the Executive in his or her sole discretion; and
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5. to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits required to
be paid or provided to the Executive or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its Affiliates (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits").
B. Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section V.B. shall include, without limitation, and the
Executive's estate and/or beneficiaries shall be entitled to receive, benefits
at least equal to the most favorable benefits provided to the estates and
beneficiaries of Peer Executives under such plans, programs, practices and
policies relating to death benefits, if any, as in effect with respect to other
Peer Executives and their beneficiaries at any time during the one year period
immediately preceding the Effective Date or, if more favorable to the
Executive's estate and/or the Executive's beneficiaries, as in effect on the
date of the Executive's death with respect to other Peer Executives and their
beneficiaries.
C. Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the Executive in a lump sum
in cash within 30 days of the Date of Termination. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section V.C.
shall include, and the Executive shall be entitled after the Date of Termination
to receive, disability and other benefits at least equal to the most favorable
of those generally provided to disabled Peer Executives and/or their families in
accordance with such plans, programs, practices and policies relating to
disability, if any, as in effect generally with respect to other Peer Executives
and their families at any time during the one year period immediately preceding
the Effective Date or, if more favorable to the Executive and/or the Executive's
family, as in effect at any time thereafter generally with respect to other Peer
Executives and their families
D. Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Employment Period, this
Agreement shall terminate without further obligations to the Executive other
than the obligation to pay to or provide the Executive with (1) his or her
Annual Base Salary through the Date of Termination, (2) the amount of any
compensation previously deferred by the Executive and (3) Other Benefits, in
each case to the extent theretofore unpaid. If the Executive terminates
employment during the Employment Period, excluding a termination for Good Reason
or Disability, this Agreement shall terminate without further obligations to the
Executive, other than for Accrued Obligations and the timely
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payment or provision of Other Benefits. In such case, all Accrued Obligations
shall be paid to the Executive in a lump sum in cash within 30 days of the Date
of Termination.
VI. Non-exclusivity of Rights.
Nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any plan, program, policy or
practice for which the Executive may qualify, nor, subject to Section XI.F.,
shall anything herein limit or otherwise affect such rights as the Executive may
have under any other contract or agreement with the Company or any of its
Affiliates. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy, practice or program of or
any contact or agreement with the Company or any of its Affiliates or subsequent
to the Date of Termination shall be payable in accordance with such plan,
policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
VII. Full Settlement.
The payment and performance obligations provided for in this
Agreement shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which may be assertable against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and, except as
specifically provided in Section V.A.2. hereof, such amounts shall not be
reduced whether or not the Executive obtains other employment. The Company
agrees to pay as incurred, to the full extent permitted by law, all legal fees
and expenses which the Executive may incur in good faith as a result of any
contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code"). Such payments shall be made within five (5)
business days after delivery of the Executive's written requests for payment
accompanied with such evidence of fees and expenses incurred as the Company
reasonably may require.
VIII. Certain Additional Payments.
A. Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
payment or benefit received or to be received by the Executive (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or any other plan, arrangement or agreement with the Company, any Person whose
actions result in a Business Combination or any Person Affiliated with the
Company or such Person, but determined without regard to any additional payments
required under this Section VIII) (collectively, a "Payment") would be subject
to the excise tax imposed by Section 4999 of the Code (or any successor section)
or any interest or penalties are incurred by the Executive with respect to such
excise tax (any such tax, together with any such interest and
14
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section VIII.A., if it shall be determined that the Executive is entitled to a
Gross-Up Payment, but that the Executive, after taking into account the Payments
and the Gross-Up Payment, would not receive a net after-tax benefit of at least
$50,000 (taking into account both income taxes and any Excise Tax) as compared
to the net after-tax benefit the Executive would receive if the Gross-Up Payment
were eliminated and the Payments were reduced, in the aggregate, to an amount
(the "Reduced Amount") such that the receipt of Payments would not give rise to
any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the
Payments, in the aggregate, shall be reduced to the Reduced Amount. For purposes
of determining whether any of the Payments will be subject to the Excise Tax and
the amount of such Excise Tax, (i) all of the Payments shall be treated as
"parachute payments" (within the meaning of Section 280G(b) of the Code) unless,
in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the
Executive and selected by the Accounting Firm (as defined below), such payments
or benefits (in whole or in part) do not constitute parachute payments,
including by reason of Section 280G(b)(4)(A) of the Code, (ii) all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel,
such excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered (within the meaning of Section
280G(b)(4)(B) of the Code) in excess of the "base amount" (as defined in Section
280G(b)(3) of the Code) allocable to such reasonable compensation, or are
otherwise not subject to the Excise Tax, and (iii) the value of any non-cash
benefits or any deferred payment or benefit shall be determined by the
Accounting Firm in accordance with the principals of Sections 280G(d)(3) and (4)
of the Code. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income tax at the highest marginal rate
of federal income taxation in the calendar year in which the Gross-Up Payment is
to be made and state and local income taxes at the highest marginal rate of
taxation in the state and locality of Executive's residence (or, if higher, the
state and locality of Executive's employment) on the Date of Termination (or if
there is no Date of Termination, then the date on which the Gross-Up Payment is
calculated for purposes of this Section VIII.A.), net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state and
local taxes.
B. Subject to the provisions of Section VIII.C., all
determinations required to be made under this Section VIII, including whether a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
Ernst & Young or such other certified public accounting firm as may be
designated by the Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that a Payment has been made or
will be required, as the case may be, or such earlier time as is requested by
the Company. In the event that the
15
Accounting Firm is serving as accountant or auditor for the Person or group of
Persons effecting a Business Combination, the Executive shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section VIII., shall be paid by the Company to the Executive within five days of
the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment") consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section VIII.C. and the Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of the Executive.
C. The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Executive
is informed in writing of such claim and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which he or she gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
1. give the Company any information reasonably requested by the Company
relating to such claim;
2. take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company;
3. cooperate with the Company in good faith in order to effectively
contest such claim; and
4. permit the Company to participate in any proceedings relating to
such claim; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section VIII.C., the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals,
16
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the Executive to pay the
tax claimed and xxx for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, further, however,
that if the Company directs the Executive to pay such claim and xxx for a
refund, the Company shall advance the amount of such payment to the Executive,
on an interest-free basis and shall indemnify and hold the Executive harmless,
on an after-tax basis, from any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
D. If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section VIII.C., the Executive becomes
entitled to receive any refund with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of Section VIII.C.)
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of any amount advanced by the Company pursuant to
Section VIII.C., a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
E. The Gross-Up Payment shall be made not later than the fifth
day following the Date of Termination; provided, however, that if the amount of
such Gross-Up Payment, and the limitation on such payments set forth in Section
VIII.A. hereof, cannot be finally determined on or before such day, the Company
shall pay to the Executive on such day an estimate, as determined in good faith
by the Accounting Firm, of the minimum amount of such Gross-Up Payment to which
the Executive is clearly entitled and shall pay the remainder of such payments
(together with interest on the unpaid remainder (or on all such payments to the
extent the Company fails to make such payments when due) at 120% of the rate
provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can
be determined but in no event later than the thirtieth (30th) day after the Date
of Termination. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to the Executive, payable on the fifth (5th)
business day after demand by the Company (together with interest at 120% of the
rate provided in section 1274(b)(2)(B) of the Code). At the time that payments
are made under this Agreement, the Company shall provide the Executive with a
written statement setting forth the manner in which such payments were
calculated and the basis for such calculations including, without limitation,
17
any opinions or other advice the Company has received from Tax Counsel, the
Accounting Firm or other advisors or consultants (and any such opinions or
advice which are in writing shall be attached to the statement).
IX. Confidential Information.
During the term of this Agreement and for a period of three
(3) years thereafter, Executive will retain in confidence all proprietary and
confidential information concerning the Company and its Affiliates, including,
without limitation, customer lists, cost and pricing information, employee data,
trade secrets and software and, shall return to the Company or destroy all
copies and extracts thereof (however and on whatever medium recorded), without
keeping any copies thereof. The foregoing obligation with respect to the
protection of confidential information shall not apply to (A) any information
which was known to the Executive prior to disclosure to the Executive by the
Company or any of the Company's Affiliates; (B) any information which was in the
public domain prior to its disclosure to the Executive; (C) any information
which comes into the public domain through no fault of the Executive; (D) any
information which the Executive is required to disclose by a court or similar
authority or under subpoena, provided that the Executive provides the Company
with notice thereof and assists, at the Company's sole expense, any reasonable
endeavor by the Company, using appropriate means, to obtain a protective order
limiting the disclosure of such information; and (E) any information which is
disclosed to the Executive by a third party which has a legal right to make such
disclosure. In no event shall an asserted violation of the provisions of this
Section IX. constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
X. Successors.
A. This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives. If the Executive shall die while any amount would still be
payable to the Executive hereunder (other than amounts which, by their terms,
terminate upon the death of the Executive) if the Executive had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the executors, personal
representatives or administrators of the Executive's estate.
B. This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
C. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall
18
entitle the Executive to compensation from the Company in the same amount and on
the same terms as the Executive would be entitled to hereunder if the Executive
were to terminate the Executive's employment for Good Reason after the Effective
Date, except that, for purposes of implementing the foregoing, the date on which
any such succession becomes effective shall be deemed the Date of Termination.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
19
XI. 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. All notices and other communications hereunder shall be
addressed as follows:
If to the Executive:
Xxxxxxx X. Xxxxxxxxx.
00 Xxxxxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
Telecopy: N/A
If to the Company:
eFunds Corporation
Xxxxxx Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopy: 000-000-0000
Attn: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be in writing
and shall be effective five days after mailing, if sent by first class mail,
postage prepaid to the address set forth above, two business days after mailing
if sent by priority or overnight courier (next business day delivery) or upon
transmission if sent by telecopy, with receipt of the correct answer back.
C. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
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 assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section IV.C. of this Agreement, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
20
F. The Executive and the Company acknowledge that, except as
may otherwise be provided under any other written agreement between the
Executive and the Company, the employment of the Executive by the Company is "at
will" and, subject to Section IV.H. hereof, prior to the Effective Date, the
Executive's employment may be terminated by either the Executive or the Company
at any time prior to the Effective Date, in which case the Executive shall have
no further rights under this Agreement, provided that nothing herein shall be
construed to limit or prevent the Executive from receiving compensation and
benefits from the Company or its Affiliates that are customarily paid and
provided other Peer Executives who leave the employment of the Company or any of
its Affiliates or which may be payable to the Executive pursuant to the
severance provisions of any employment offer letter or severance agreement
between the Executive and the Company. From and after the Effective Date, this
Agreement shall supersede any other agreement between the parties with respect
to the subject matter hereof (e.g., benefits accruing to the Executive upon
termination of employment following a Business Combination), including the
severance provisions of any such offer letter or severance agreement.
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 (including, without
limitation, those under Section V. hereof) shall survive such expiration.
H. All claims by the Executive for benefits under this
Agreement shall be directed to and determined by the Committee and shall be in
writing. Any denial by the Committee of a claim for benefits under this
Agreement shall be delivered to the Executive in writing and shall set forth the
specific reasons for the denial and the specific provisions of this Agreement
relied upon. The Committee shall afford a reasonable opportunity to the
Executive for a review of the decision denying a claim and shall further allow
the Executive to appeal to the Committee a decision of the Committee within
sixty (60) days after notification by the Committee that the Executive's claims
has been denied.
I. Notwithstanding any other provision in this Agreement to
the contrary, the Board shall delegate the responsibilities, duties and powers
specified under this Agreement to be observed or performed by the "Committee" to
a committee (the "Committee") consisting of not less than three individuals who
were directors of the Company ("Incumbent Directors") before any Business
Combination; provided, however, that in the event that fewer than three
Incumbent Directors are available at the time of such delegation or thereafter,
the Committee's members may include such individual or individuals as may be
appointed by the Incumbent Directors; and provided, further, however, the
maximum number of individuals (including directors) appointed to the Committee
shall not exceed five.
21
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from the Board, the Company has caused these
presents to be executed in its name on its behalf, all as of the day and year
first above written.
eFunds Corporation Executive
By: /s/ Xxxx X. Xxxxxxxxx III By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------- ------------------------
Its: Chief Executive Officer
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