RESTRICTED STOCK RIGHT AWARD AGREEMENT eFunds Corporation 2000 STOCK INCENTIVE PLAN
Exhibit 10.42
THIS RESTRICTED STOCK RIGHT AWARD AGREEMENT (this “Agreement”) is made and entered into as of the
20th day of January, 2005, (the “Award Date”) by and between eFunds Corporation, a corporation
incorporated under the laws of the State of Delaware, United States of America, and Xxxxx Xxxxxx
(“Recipient”).
RECITALS:
WHEREAS, the Company has adopted the eFunds Corporation 2000 Stock Incentive Plan, as the same
may be amended from time to time (the “Plan”), pursuant to which it may grant Awards to Eligible
Persons;
WHEREAS, all capitalized and undefined terms used herein shall have the meanings given to them
in the Plan, unless otherwise defined herein; and
WHEREAS, the Recipient has provided or is expected to provide valuable services to the Company
or its Affiliates as an officer, employee or consultant of or to the Company or any of its
Affiliates and the Company desires to recognize the Recipient for such services by granting to the
Recipient an award (the “Award”) upon and subject to the terms and conditions of this Agreement and
the Plan.
NOW THEREFORE the parties hereto agree as follows:
Section 1. Award.
(a) The Company, effective as of the date of this Agreement, hereby grants to the Recipient,
and the Recipient hereby accepts from the Company, upon the terms and subject to the conditions,
limitations and restrictions set forth in this Agreement and the Plan, the right (the “Restricted
Stock Right”) to receive 10,275 shares (the “Shares”) of the Company’s Common Stock, par value
$0.01 per share.
(b) Subject to the acceleration and forfeiture provisions set forth below, 50% of the
Restricted Stock Right shall vest on February 19, 2010 and 12-1/2% shall vest on February 19, 2011,
February 19, 2012, February 19, 2013, and February 19, 2014, respectively. Any unvested portion of
the Restricted Stock Right shall be immediately forfeited and Recipient shall retain no residual
rights therein whatsoever if Recipient’s employment with or services to the Company and its
Affiliates shall be terminated for any reason other than a “Qualifying Termination.” As used
herein, a “Qualifying Termination” shall mean Recipient’s
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voluntary termination of his or her employment with or services to the Company and its Affiliates
for “Good Reason” following a “Change in Control” or a termination of Recipient’s employment with
or services to the Company and its Affiliates by the Company (or relevant Affiliate) following a
“Change in Control” and without “Cause.” In the event Recipient’s employment with or services to
the Company or its Affiliates shall be terminated under circumstances constituting a Qualified
Termination, any unvested portion of the Restricted Stock Right shall vest on the date of such
Termination.
Section 2. Definitions.
“Beneficial Owner” shall have the meaning defined in Rule 13d-3 promulgated under the Exchange
Act.
“Cause” shall mean:
(i) Recipient has breached Recipient’s obligations of confidentiality to the Company or
any of its Affiliates or with respect to its or their businesses or anyone having a business
relationship with the Company or any of its Affiliates (collectively, “Customers”);
(ii) Recipient has otherwise failed to perform Recipient’s duties and does not cure
such failure within thirty (30) days after receipt of written notice thereof;
(iii) Recipient commits an act, or omits to take action, in bad faith which results in
material detriment to the Company or any of its Affiliates or any of its or their Customers;
(iv) Recipient has had excessive absences unrelated to illness or vacation
(“excessive” shall be defined in accordance with local employment customs);
(v) Recipient has committed fraud, misappropriation, embezzlement or other acts of
dishonesty in connection with the Company or any of its Affiliates or its or their
businesses or Customers;
(vi) Recipient has been convicted or has pleaded guilty or nolo contendere to criminal
misconduct constituting a felony or gross misdemeanor, which gross misdemeanor involves a
breach of ethics, moral turpitude or immoral or other conduct reflecting adversely upon the
reputation or interest of the Company or its Affiliates or any of its or their Customers;
(vii) Recipient’s use of narcotics, liquor or illicit drugs has had a detrimental
effect on the performance of Recipient’s responsibilities to the Company or its Affiliates;
or
(viii) Recipient is in default under any agreement between Recipient and the Company or
any of its Affiliates or any of its or their Customers.
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A “Change of Control” shall be deemed to have occurred if the conditions set forth in any one
of the following paragraphs shall have been satisfied:
(i) any Person or group (as defined in Rule 13d-5 promulgated under the Exchange Act)
of Persons is or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of the Company’s then
outstanding securities, excluding, at the time of their original acquisition, from the
securities acquired directly or beneficially by any such Person or group of Persons any
securities acquired directly from the Company or in connection with a transaction described
in clause (A) of paragraph (iii) below;
(ii) the individuals who at the date of this Agreement constitute the Board of
Directors of the Company (the “Board”) and any new director (other than a director whose
initial assumption of office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the election of directors
of the Company) whose appointment or election by the Board or nomination for election by the
Company’s stockholders was approved or recommended by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors as of the date of this
Agreement or whose appointment, election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof;
(iii) there is consummated a merger, consolidation or similar transaction (each, a
“Transaction”) involving the Company or any Affiliate of the Company with any other Person,
other than (A) a Transaction which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving Person or any
parent thereof), in combination with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any Affiliate of the Company, at
least 65% of the combined voting power of the voting securities of the Company or such
surviving Person or any parent thereof outstanding immediately after such Transaction, or
(B) a Transaction effected to implement a recapitalization of the Company (or similar
transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing 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.
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“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.
“Good Reason” shall mean a voluntary decision by Recipient to terminate his or her employment
with or services to the Company and its Affiliates following a Change in Control because Recipient,
as a condition to the continuation of Recipient’s employment with or services to the Company and
its Affiliates, is required to provide services at a principal site located more than 50 miles from
the principal site at which Recipient provided such services immediately prior to the Change in
Control and Recipient does not wish to undertake any such relocation. If Recipient agrees to so
relocate and subsequently terminates his or her employment with or services to the Company and its
Affiliates, such termination shall not be considered to have been for Good Reason.
“Person” shall mean any natural person, corporation, limited liability company, association,
partnership (whether general or limited), joint venture, sole proprietorship, governmental agency,
unit, subdivision or municipality, trust, estate, association, custodian or any other individual or
entity, except that such term shall not include (i) the Company or any of its Subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee benefit plan of the Company or any
of its Affiliates, or (iii) an underwriter temporarily holding securities of the Company as part of
a public offering of such securities.
“Subsidiary” shall mean a company Controlled directly or indirectly by a specified Person.
Section 3. Issuance of Stock Certificate.
Any Shares into which all or a portion of the Restricted Stock Rights are converted will be
transferred by book entry to an account designated by Recipient (or his or her heirs).
Alternatively, Recipient (or his or her heirs) may request that a stock certificate representing
such Shares be issued to Recipient (or his or her heirs).
Section 4. 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 the Restricted Stock Right, 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 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 having a fair market value equal to the amount of such taxes or (c)
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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 Recipient
does not affirmatively select another of the above options, Recipient will be deemed to have
elected to satisfy Recipient’s tax obligations pursuant to option (a) above.
Section 5. 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, other
than by will or the laws of descent and distribution. 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 6. Certain Legal Restrictions.
The Company will not be obligated to sell or issue any Shares upon conversion 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 7. 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 8. 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.
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Section 9. 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 10 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 the dividend paid on a number of shares of the
Company’s Common Stock equal to the number of Shares subject to the Restricted Stock Right during
the period prior to its conversion into the Shares.
(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 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
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. 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, director or employee of the Company or any of
its Affiliates. In addition, the Company or an Affiliate may at any time dismiss the
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Recipient, free from any liability or any claim under this Agreement, unless otherwise
expressly provided in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| eFunds Corporation | Recipient | ||||||||
By:
|
/s/ Xxxx X. Xxxxx | By: | |||||||
| Xxxx X. Xxxxx | Xxxxx Xxxxxx | ||||||||
| Chief Executive Officer | |||||||||
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