Exhibit 10.4
FISERV,
INC.
EMPLOYEE RESTRICTED STOCK
AGREEMENT
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Employee: Jeffery W. Yabuki
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Date: December 1,
2005
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Number of Shares of Common Stock
Subject To This Agreement: 52,849
Pursuant to the Fiserv, Inc. Stock Option and
Restricted Stock Plan (the “Plan”), the Compensation
Committee of the Board of Directors (the “Committee”)
of Fiserv, Inc. (the “Company”) has awarded you on this
date the number of shares of the Company’s Common Stock, $.01
par value (the “Common Stock”), set forth above (the
“Restricted Stock”). You have agreed to accept the
award based on the terms and conditions set forth in the agreement
below (the “Agreement”):
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1.
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Date of
Award . The
Restricted Stock is awarded to you on the date above (the
“Award Date”).
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2.
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Restrictions . Except as otherwise provided herein,
Restricted Stock may not be sold, transferred, pledged, assigned,
encumbered or otherwise alienated or hypothecated until the date of
release (the “Release Date”) determined as follows: the
Release Date with respect to 100% of the shares of Restricted Stock
shall be the third anniversary of the Award Date. The Committee, in
its sole discretion, may at any time accelerate the Release Date
with respect to the Restricted Stock or a portion of the Restricted
Stock.
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On the applicable Release Date as
determined in this Section, that portion of Restricted Stock shall
become free of the restrictions above and, subject to
Section 4, be freely transferable by you.
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3.
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Escrow . Certificates for shares of Restricted Stock
shall be issued as soon as practicable in your name, but shall be
held in escrow by the Company, as escrow agent. Unless theretofore
forfeited as provided herein, Restricted Stock shall cease to be
held in escrow and certificates for such Stock shall be delivered
to you on the applicable Release Date.
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4.
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Restrictive Covenants
. If you violate any of the restrictive covenants
set forth in Section 7.3.1 of your Employment Agreement with
the Company dated November 7, 2005 (the “Employment
Agreement”), then in addition to other remedies of law, your
right to this Restricted Stock shall terminate immediately.
Furthermore, the Company may cancel, rescind, suspend, withhold or
otherwise limit or restrict any portion of the Restricted Stock at
any time if you are not in compliance with all applicable
provisions of this Agreement and the Plan, or if you engage in any
of the activities listed in Section 7.3.1 of the Employment
Agreement. In addition, failure to comply with the provisions of
Section 7.3.1 of the Employment Agreement prior to
and
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during the 12 months after any
release of Restricted Stock pursuant to all or any part of this
Restricted Stock Agreement shall cause such release to be
rescinded. The Company will notify you in writing of any such
rescission within 24 months after such release. Within 10 days
after receiving such notice from the Company, you will pay to the
Company, as a result of the release of Restricted Stock, an amount
equal to the fair market value of the Restricted Stock on the
applicable Release Date.
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5.
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Terminations of Employment/Change of
Control .
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(a)
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The
restrictions on the remaining Restricted Stock for which a Release
Date has not occurred under Section 2 shall lapse and all
shares of Restricted Stock shall become fully vested, upon the
occurrence of the following events:
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(i)
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your employment
is terminated by the Company other than for Cause (as defined in
the Employment Agreement);
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(ii)
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your employment
is terminated due to death or Disability (as defined by the
Employment Agreement);
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(iii)
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you voluntarily
terminate employment for Good Reason (as defined in the Employment
Agreement); or
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(iv)
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a Change of
Control occurs (as defined in the Key Executive Employment and
Severance Agreement dated November 7, 2005 (the
“KEESA”).
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(b)
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All Restricted
Stock for which a Release Date has not occurred under
Section 2 prior to the following terminations of employment
shall be forfeited to the Company on the date on which the
termination of employment occurs due to:
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(i)
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the
Company’s termination of your employment for Cause (as
defined in the Employment Agreement); or
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(ii)
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your voluntary
termination of employment without Good Reason (as defined in the
Employment Agreement).
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6.
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Certificate Legend
. Each certificate for shares of Restricted Stock
may bear the following legend:
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“THE SALE OR OTHER TRANSFER OF
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE, WHETHER
VOLUNTARY, INVOLUNTARY OR BY OPERATION OF LAW, IS SUBJECT TO
CERTAIN RESTRICTIONS SET FORTH IN THE FISERV, INC. STOCK OPTION AND
RESTRICTED STOCK PLAN AND A RESTRICTED STOCK AGREEMENT BETWEEN
FISERV, INC. AND THE REGISTERED OWNER HEREOF. A COPY OF SUCH PLAN
AND SUCH AGREEMENT MAY BE OBTAINED FROM THE SECRETARY OF FISERV,
INC.”
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When the restrictions imposed
by
