Exhibit 10.11
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 3d day of November, 2004, (the "Award Date") by and
between eFunds Corporation, a corporation incorporated under the laws of the
State of Delaware, United States of America, and Xxxx Xxxxx ("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
52,576 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 the fifth anniversary of the
Award Date and 12-1/2% shall vest on each of the sixth, seventh, eighth and
ninth anniversaries of the Award Date. 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 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
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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. The vested portion of the Restricted Stock Right shall be
converted into Shares six months after the date of the termination of the
Recipient's employment with the Company and its Affiliates.
Section 2. Definitions.
"Beneficial Owner" shall have the meaning defined in Rule 13d-3
promulgated under the Exchange Act.
"Cause" shall have the meaning given such term in the Retention Agreement
of even date between Recipient and the Company.
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
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immediately after such Transaction, or (B) a Transaction effected to
implement a recapitalization of the Company (or similar transaction) in
which no Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or there is consummated an agreement for the
sale or disposition by the Company of all or substantially all of the
assets of the Company and its Affiliates, other than a sale or disposition
of all or substantially all of the assets of the Company and its
Affiliates to a Person, at least 65% of the combined voting power of the
voting securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company
immediately prior to such sale or disposition.
"Control" shall mean the right, either directly or indirectly, to elect a
majority of the members of the board of directors (or similar governing body) of
a Person without the consent or acquiescence of any third party.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Good Reason" shall have the meaning given such term in the Retention
Agreement of even date between Recipient and the Company.
"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).
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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)
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.
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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. 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 9 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. In the
event of any
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inconsistency between the provisions of this Agreement and that certain Change
in Control Agreement, dated as of September 16, 2002 and amended October 7,
2004, between Recipient and the Company, regarding the acceleration of the
vesting of the Restricted Stock Right, 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,
director or employee of the Company or any of its Affiliates. In addition, the
Company or an Affiliate may at any time dismiss the 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/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxx X.Xxxxx
Xxxxxxx Xxxxxxxxx Xxxx Xxxxx
Senior VP, Human Resources
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