EXHIBIT 10.5
RESTRICTED STOCK RIGHT
AWARD AGREEMENT
eFunds Corporation
2000 STOCK INCENTIVE PLAN
THIS RESTRICTED STOCK RIGHT AWARD AGREEMENT (this "Agreement") is made and
entered into as of the 14th day of February, 2003, by and between eFunds
Corporation, a corporation incorporated under the laws of the State of Delaware,
United States of America, and Xxxxxx X. Xxxxxxx (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
upon and subject to the terms and conditions of this Agreement and the Plan; and
WHEREAS, the Company and the Recipient are parties to that certain Change
in Control Agreement, dated as of May 12, 2000 (as amended the "Change in
Control Agreement").
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, the right (the "Restricted Stock Right") to receive
6,921 shares (the "Shares") of the Company's Common Stock, par value $0.01 per
share.
(b) All or a portion of the Restricted Stock Right shall vest and be
converted into Shares upon the earlier to occur (the date of such occurrence
being hereinafter referred to as the "Vesting Date") of (i) the date in 2004
that bonuses are paid pursuant to the Company's Annual Incentive Plan (the
"AIP"), (ii) March 31, 2004 or (iii) the date such vesting is mandated by
Section V(A)(3) of the Change in Control Agreement. The portion of the
Restricted Stock Right that shall vest and be converted into Shares on the
Vesting Date shall be equal to the average Achievement Percentage attained by
the Company with regard to its
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Corporate Revenue and Operating Income Performance Factors under the AIP for the
year ending December 31, 2003; provided, however, that in no event may the
portion of the Restricted Stock Right that so vests exceed 100%; and provided,
further, that 100% of the Restricted Stock Right shall be converted into Shares
if the vesting of such Right is pursuant to Section V(A)(3) of the Change in
Control Agreement. ANY PORTION OF THE RESTRICTED STOCK RIGHT WHICH DOES NOT VEST
ON THE VESTING DATE SHALL BE FORFEITED. FURTHER, ANY PORTION OF THE RESTRICTED
STOCK RIGHT WHICH SHALL NOT HAVE VESTED ON OR PRIOR TO THE DATE OF ANY
TERMINATION OF RECIPIENT'S EMPLOYMENT BY THE COMPANY AND ITS AFFILIATES, WHETHER
SUCH TERMINATION IS BY THE COMPANY OR THE RECIPIENT AND FOR ANY REASON OR NO
REASON, SHALL BE IMMEDIATELY FORFEITED AND RECIPIENT SHALL RETAIN NO RESIDUAL
RIGHTS THEREIN WHATSOEVER.
Section 2. Issuance of Stock Certificate.
A stock certificate representing any Shares into which all or a portion of the
Restricted Stock Right is converted upon the vesting thereof shall be issued to
Recipient as soon as administratively feasible following the Vesting Date.
Alternatively, the Shares received upon such vesting may be transferred by book
entry to an account designated by Recipient.
Section 3. 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 conversion of all or
a portion of the Restricted Stock Right into Shares, 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, 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 the applicable tax
withholding obligations by (a) electing to have the Company withhold a portion
of the Shares otherwise to be delivered upon conversion of the Restricted Stock
Right having a fair market value equal to the amount of such taxes, (b)
delivering to the Company shares of Common Stock previously owned by the
Recipient having a fair market value equal to the amount of such taxes or (c)
delivering to the Company cash or a check in 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 and if no Tax Election is so made, the Recipient shall be
deemed to have elected to satisfy such withholding requirement pursuant to the
option outlined in clause (a) above.
Section 4. No Transfer.
The Recipient shall not, directly or indirectly, sell, pledge or otherwise
transfer or dispose of any portion of the Restricted Stock Right or the rights
and privileges pertaining thereto. Prior to the Vesting Date, neither the
Restricted Stock Right nor the Shares subject thereto 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 5. Certain Legal Restrictions.
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The Company will not be obligated to sell or issue any Shares upon conversion of
all or any portion of the Restricted Stock Right 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
conversion of the Restricted Stock Right, 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 conversion of the Restricted Stock
Right. Shares issued upon the conversion of the Restricted Stock Right may not
be transferred except in accordance with applicable securities laws. At the
Company's election, any certificate evidencing the Shares issued to the
Recipient will bear appropriate legends restricting transfer under applicable
law.
Section 6. 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 7. 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 8. Miscellaneous.
The following general provisions shall apply to the Restricted Stock Right
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 the conversion of the
Restricted Stock Right 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; provided, however, that Recipient shall
receive, as additional compensation, payments equivalent to any dividend paid on
of the Company's Common Stock prior to the Vesting Date in an amount equal to
the dividend that would have been paid on Shares subject to the Restricted Stock
Right had they been outstanding on the record date for such dividend.
(b) Subject to the limitations in this Agreement on the transferability by
the Recipient of the Restricted Stock Right and any Shares issued pursuant
thereto, this Agreement will be binding on and inure to the benefit of the
successors and assigns of the
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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 and the Change in Control 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
written, or prior or contemporaneous 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 inconsistency between the
provisions of this Agreement and the Change in Control Agreement regarding the
acceleration of the vesting provisions hereof, the terms of the Change in
Control 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 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 without 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/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: Xxxxxx X. Xxxxxxx
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