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EXHIBIT 10.18
CHANGE IN CONTROL AGREEMENT
AGREEMENT by and between eFunds Corporation, a Delaware corporation
(the "Company"), and Paul H. Bristow (the "Executive") dated as of May 12, 2000.
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, other than a Person or group of Persons who are, or
would be if the securities of the Company were registered pursuant to Section 12
of the Exchange Act, entitled to report their ownership of the Company's
securities on a Schedule 13G in lieu of a Schedule 13D (but only during such
time as such Person or group of Persons remain eligible to use such Schedule
13G), 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
(it
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being understood and agreed that, during the period preceding the Split-Off
Date, the ownership by Deluxe and any Person Controlled by Deluxe of more than
20% of the combined voting power of the Company's then outstanding securities
shall not constitute a "Business Combination" pursuant to this Section I.C.1.);
or
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 (it being
understood and agreed that, during the period preceding the Split-Off Date, the
ownership by Deluxe and any person Controlled by Deluxe of more than 20% of the
combined voting power of the Company's then outstanding securities a result of
any such recapitalization (or similar transaction) shall not constitute a
"Business Combination" pursuant to this Section I.C.3);
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; or
5. if, prior to the Split-Off Date, any of the transactions described
in the foregoing clauses (1), (2), (3) or (4) should occur with regard to Deluxe
(in making such determination, the word "Deluxe shall be substituted for the
words "the Company" in such clauses and the reference to the "Board" in clause 2
shall be deemed to refer to the Board of Directors of Deluxe).
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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 an Person without the consent
or acquiescence of any third party.
F. "Deluxe" shall mean Deluxe Corporation, a Minnesota
corporation.
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.
I. "Split-Off Date" shall mean the date that Deluxe and
Persons Controlled by Deluxe shall cease to own at least 50% of the
combined voting power of the Company's then outstanding 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
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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) subsequent to the Effective
Date shall not thereafter be deemed to interfere with the performance of the
Executive's responsibilities to the Company.
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
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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 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
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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 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
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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.
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
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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;
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
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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 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
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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 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
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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 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
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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
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.
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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 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
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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 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
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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 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
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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, 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 sue 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 sue 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
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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, 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, Deluxe 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
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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 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.
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.
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B. All notices and other communications hereunder shall be
addressed as follows:
If to the Executive:
Paul H. Bristow
4134 Three Lakes Drive
Long Grove, IL 60047
Telecopy: 847-478-1884
If to the Company:
eFunds Corporation
400 W. Deluxe Parkway
P. O. Box 12536
Milwaukee, WI 53212-0536
Telecopy: 414-341-5141
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.
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
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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 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.
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.
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/ John A. Blanchard III By: /s/ Paul H. Bristow
-------------------------------- -------------------------------
John A. Blanchard III Paul H. Bristow
Its: Chief Executive Officer
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