TRANSACTION SYSTEMS ARCHITECTS, INC. Nonqualified Stock Option Agreement - Employee (2005 Equity and Performance Incentive Plan)
Exhibit
10.1
TRANSACTION
SYSTEMS ARCHITECTS, INC.
Nonqualified
Stock Option Agreement - Employee
(2005
Equity and Performance Incentive Plan)
This
Stock Option Agreement (the “Option Agreement”) is made as of ____________, by
and between Transaction Systems Architects, Inc., a Delaware corporation (the
“Corporation”), and [__________________],
an employee of the Corporation or its Subsidiaries (the
“Optionee”).
WHEREAS,
the Board of Directors of the Corporation has duly adopted, and the stockholders
of the Corporation have approved, the 2005 Equity and Performance Incentive
Plan
(the “Plan”), which Plan authorizes the Corporation to grant to eligible
individuals options for the purchase of shares of the Corporation’s Class A
Common Stock (reclassified as Common Stock) (the “Stock”); and
WHEREAS,
the Board of Directors of the Corporation has determined that it is desirable
and in the best interests of the Corporation and its stockholders to grant
the
Optionee an option to purchase a certain number of shares of Stock, in order
to
provide the Optionee with an incentive to advance the interests of the
Corporation, all according to the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto do hereby agree as follows:
1.
GRANT
OF NON-QUALIFIED STOCK OPTION
Subject
to the terms of the Plan, the Corporation hereby grants to the Optionee the
right and option (the “Option”) to purchase from the Corporation, on the terms
and subject to the conditions set forth in this Option Agreement, [__________]
shares of Stock (the “Option Shares”). The Date of Grant of this Option is
______________. This
Option shall not constitute an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the
“Code”).
2.
TERMS
OF PLAN
The
Option granted pursuant to this Option Agreement is granted subject to the
terms
and conditions set forth in the Plan, a copy of which has been delivered to
the
Optionee. All terms and conditions of the Plan, as may be amended from time
to
time, are hereby incorporated into this Option Agreement by reference and shall
be deemed to be a part of this Option Agreement, without regard to whether
such
terms and conditions (including, for example, provisions relating to certain
changes in capitalization of the Corporation) are otherwise set forth in this
Option Agreement. In the event that there is any inconsistency between the
provisions of this Option Agreement and of the Plan, the provisions of the
Plan
shall govern. Capitalized terms used herein that are not otherwise defined
shall
have the meaning ascribed to them in the Plan.
3.
EXERCISE
PRICE
The
exercise price for the shares of Stock subject to the Option granted by this
Option Agreement is $_______ per share (the “Exercise Price”).
4. EXERCISE
OF OPTION
Subject
to the provisions of the Plan and subject to the earlier expiration or
termination of this Option in accordance with its terms, the Option granted
pursuant to this Option Agreement shall be exercisable only as
follows:
4.1
Time
of Exercise of Option
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4.1.1
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The
Option shall become exercisable with respect to the Option Shares
only as
follows: One-quarter of the Option Shares ([________] Option Shares)
shall
become exercisable on each of the first four anniversaries of the
Date of
Grant if the Optionee shall have remained in the continuous employ
of the
Corporation or any of its Subsidiaries as of each such
date.
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4.1.2
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Notwithstanding
Section 4.1.1 above, in accordance with the provisions of the Plan,
if the
Optionee ceases to be an employee of the Corporation or a Subsidiary
of
the Corporation by reason of Disability (as defined in Section 4.3.2
below), the unexercised portion of any Option held by such Optionee
at
that time will become immediately vested and will be exercisable
until
terminated in accordance with Section 4.3 below.
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4.1.3
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Notwithstanding
Section 4.1.1 above, in accordance with the provisions of the Plan,
if the
Optionee dies while employed by the Corporation or a Subsidiary of
the
Corporation (or dies within a period of one month after ceasing to
be an
employee for any reason other than Disability or within a period
of one
year after ceasing to be an employee by reason of Disability), the
unexercised portion of any Option held by such Optionee at the time
of
death will become immediately vested and will be exercisable until
terminated in accordance with Section 4.3
below.
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4.1.4
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Notwithstanding
Section 4.1.1 above, in accordance with the provisions of the Plan,
the
Option granted under this Option Agreement shall become immediately
exercisable upon the occurrence of a Change in Control (as defined
in
Section 10 below) if the Optionee is an employee of the Corporation
or any
Subsidiary on the date of the consummation of such Change in
Control.
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4.2
Limitations
The
portion of the Option that has not become exercisable as of the date of the
Optionee’s termination of employment with the Corporation or any of its
Subsidiaries for any reason shall automatically terminate as of the date of
the
Optionee’s termination of employment with the Corporation or its Subsidiaries
and shall not become exercisable after such termination. To the extent the
Option is exercisable, it may be exercised, in whole or in part; provided,
that no single exercise of the Option shall be for less than 100 shares, unless
at the time of the exercise, the maximum number of shares available for purchase
under this Option is less than 100 shares. In no event shall the Option be
exercised for a fractional share.
4.3
Termination
of Option
This
Agreement and the Option granted hereby shall terminate automatically and
without further notice on the earliest of the following dates:
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4.3.1
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90
calendar days from the date of the Optionee’s termination of employment
with the Corporation or a Subsidiary for any reason other than death
or
Disability (as defined below);
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4.3.2
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one
year after the Optionee’s permanent and total disability as defined in
Section 22(e)(3) of the Code
(“Disability”);
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4.3.3
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one
year after the Optionee’s death, if such death occurs (i) while the
Optionee is employed by the Corporation or a Subsidiary, (ii) within
the
90-day period following the Optionee’s termination of employment for any
reason other than Disability; or (iii) within the one-year period
following the Optionee’s termination of employment by reason of the
Optionee’s Disability; or
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4.3.4
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ten
years from the Date of Grant.
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The
Corporation shall have the authority to determine the date an Optionee ceases
to
be an employee by reason of Disability. In the case of death, the Option may
be
exercised by the executor or administrator of the Optionee’s estate or by any
person or persons who shall have acquired the Option directly from the Optionee
by bequest or inheritance. The Optionee shall be deemed to be an employee of
the
Corporation or any Subsidiary if on a leave of absence approved by the Board
of
Directors of the Corporation and the continuous employment of the Optionee
with
the Corporation or any of its Subsidiaries will not be deemed to have been
interrupted, and the Optionee shall not be deemed to have ceased to be an
employee of the Corporation or its Subsidiaries, by reason of the transfer
of
the Optionee’s employment among the Corporation and its
Subsidiaries.
4.4
Limitations
on Exercise of Option
In
no event may the Option be exercised, in whole or in part, after the occurrence
of an event which results in termination of the Option, as set forth in Section
4.3 above. The Option shall not be exercisable if and to the extent the
Corporation determines such exercise or method of exercise would violate
applicable securities laws, the rules and regulations of any securities exchange
or quotation system on which the Stock is listed, or the Corporation’s policies
and procedures.
4.5
Method
of Exercise of Option
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4.5.1
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To
the extent then exercisable, the Option may be exercised in whole
or in
part by written notice to the Corporation stating the number of shares
for
which the Option is being exercised and the intended manner of payment.
The date of such notice shall be the exercise date. Payment equal
to the
aggregate Exercise Price of the shares shall be payable (i) in cash
in the
form of currency or check or other cash equivalent acceptable to
the
Corporation, (ii) by actual or constructive transfer to the Corporation
of
nonforfeitable, outstanding shares of Stock that have been owned
by the
Optionee for at least six months prior to the date of exercise, (iii)
by
any combination of the foregoing methods of payment or (iv) in accordance
with such other method or manner as set forth below.
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(A) Cash
Exercise (to exercise and retain the Option Shares):
Subject to the terms and conditions of this Option Agreement and the Plan,
the
Option may be exercised by delivering written notice of exercise to the
Corporation, at its principal office, addressed to the attention of Stock Plan
Administration, or to the agent/broker designated by the Corporation, which
notice shall specify the number of shares for which the Option is being
exercised, and shall be accompanied by payment in full of the Exercise Price
of
the shares for which the Option is being exercised plus the full amount of
all
applicable withholding taxes due on the Option exercise. Payment of the Exercise
Price for the shares of Stock purchased pursuant to the exercise of the Option
shall be made either in cash or by certified check payable to the order of
the
Corporation. If the person exercising the Option is not the Optionee, such
person shall also deliver with the notice of exercise appropriate proof of
his
or her right to exercise the Option, as the Corporation may require in its
sole
discretion. Promptly after exercise of the Option as provided for above, the
Corporation shall deliver to the person exercising the Option a certificate
or
certificates for the shares of Stock being purchased.
(B) Same-Day-Sale
Exercise (to exercise and immediately sell all the Option
Shares):
Subject to the terms and conditions of this Option Agreement and the Plan,
the
Option may be exercised by delivering written notice of exercise to the
agent/broker designated by the Corporation, which notice shall specify the
number of shares for which the Option is being exercised and irrevocable
instructions to promptly (1) sell all of the shares of Stock to be issued upon
exercise and (2) remit to the Corporation the portion of the sale proceeds
sufficient to pay the Exercise Price for the shares of Stock purchased pursuant
to the exercise of the Option and all applicable taxes due on the Option
exercise. The agent/broker shall request issuance of the shares and immediately
and concurrently sell the shares on the Optionee’s behalf. Payment of the
Exercise Price for the shares of Stock purchased pursuant to the exercise of
the
Option, any brokerage fees, transfer fees, and all applicable taxes due on
the
Option exercise, shall be deducted from the proceeds of the sale of the shares.
If the person exercising the Option is not the Optionee, such person shall
also
deliver with the notice of exercise appropriate proof of his or her right to
exercise the Option, as the Corporation may require in its sole discretion.
Promptly after exercise of the Option as provided for above, the agent/broker
shall deliver to the person exercising the Option the net proceeds from the
sale
of the shares of Stock being exercised and sold.
(C) Sell-to-Cover
Exercise (to exercise and immediately sell a portion of the Option
Shares):
Subject to the terms and conditions of this Option Agreement and the Plan,
the
Option may be exercised by delivering written notice of exercise to the
agent/broker designated by the Corporation, which notice shall specify the
number of shares for which the Option is being exercised and irrevocable
instructions to promptly (1) sell the portion (which must be a whole number)
of
the shares of Stock to be issued upon exercise sufficient to generate proceeds
to pay the Exercise Price for the shares of Stock purchased pursuant to the
exercise of the Option, any brokerage or transfer fees, and all applicable
taxes
due on the Option exercise (collectively the “Exercise Costs”) and (2) remit to
the Corporation a sufficient portion of the sale proceeds to pay the Exercise
Price for the shares of Stock purchased pursuant to the exercise of the Option
and all applicable taxes due on the Option exercise. The agent/broker shall
request issuance of the shares and immediately and concurrently sell on the
Optionee’s behalf only such number of the Shares as is required to generate
proceeds sufficient to pay the Exercise Costs. Promptly after exercise of the
Option as provided for above, the Corporation shall deliver to the person
exercising the Option a certificate for the shares of Stock issued upon exercise
which are not sold to pay the Exercise Costs. Promptly after exercise of the
Option as provided for above, the agent/broker shall deliver to the person
exercising the Option any net proceeds from the sale of the Shares in excess
of
the Exercise Costs. If the person exercising the Option is not the Optionee,
such person shall also deliver with the notice of exercise appropriate proof
of
his or her right to exercise the Option, as the Corporation may require in
its
sole discretion.
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4.5.2
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As
soon as practicable upon the Corporation’s receipt of the Optionee’s
notice of exercise and payment, the Corporation shall direct the
due
issuance of the shares so
purchased.
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4.5.3
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As
a further condition precedent to the exercise of this Option in whole
or
in part, the Optionee shall comply with all regulations and the
requirements of any regulatory authority having control of, or supervision
over, the issuance of the shares of Stock and in connection therewith
shall execute any documents which the Board shall in its sole discretion
deem necessary or advisable.
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5.
TRANSFERABILITY
OF OPTIONS
During
the lifetime of an Optionee, only such Optionee (or, in the event of legal
incapacity or incompetency, the Optionee’s guardian or legal representative) may
exercise the Option. No Option shall be assignable or transferable by the
Optionee to whom it is granted, other than by will or the laws of descent and
distribution.
6.
COMPLIANCE
WITH LAW
The
Corporation shall make reasonable efforts to comply with all applicable federal
and state securities laws; provided,
however,
that notwithstanding any other provision of this Option Agreement, the Option
shall not be exercisable if the exercise thereof would result in a violation
of
any such law.
7.
RIGHTS
AS STOCKHOLDER
Neither
the Optionee nor any executor, administrator, distributee or legatee of the
Optionee’s estate shall be, or have any of the rights or privileges of, a
stockholder of the Corporation in respect of any shares of Stock issuable
hereunder unless and until such shares have been fully paid and certificates
representing such shares have been endorsed, transferred and delivered, and
the
name of the Optionee (or of such personal representative, administrator,
distributee or legatee of the Optionee’s estate) has been entered as the
stockholder of record on the books of the Corporation.
8.
WITHHOLDING
OF TAXES
If
the Corporation shall be required to withhold any federal, state, local or
foreign tax in connection with exercise of this Option, it shall be a condition
to such exercise that the Optionee pay or make provision satisfactory to the
Corporation for payment of all such taxes. The Optionee may elect that all
or
any part of such withholding requirement be satisfied by retention by the
Corporation of a portion of the shares purchased upon exercise of this Option.
If such election is made, the shares so retained shall be credited against
such
withholding requirement at the fair market value on the date of
exercise.
9.
DISCLAIMER
OF RIGHTS
No
provision in this Option Agreement shall be construed to confer upon the
Optionee the right to be employed by the Corporation or any Subsidiary, or
to
interfere in any way with the right and authority of the Corporation or any
Subsidiary either to increase or decrease the compensation of the Optionee
at
any time, or to terminate any employment or other relationship between the
Optionee and the Corporation or any Subsidiary.
10.
CHANGE
IN CONTROL
For
purposes of this Option Agreement, “Change in Control” means
(a)
the acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)) (a “Person”), of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either
(i)
the then-outstanding shares of common stock of the Corporation (the “Outstanding
Corporation Common Stock”) or (ii) the combined voting power of the
then-outstanding voting securities of the Corporation entitled to vote generally
in the election of directors (the “Outstanding Corporation Voting Securities”);
provided,
however,
that the following acquisitions shall not constitute a Change in Control: (A)
any acquisition directly from the Corporation (excluding an acquisition by
virtue of the exercise of a conversion privilege), (B) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Corporation or any corporation controlled by the Corporation or (C) any
acquisition by any corporation pursuant to a reorganization,
merger
or consolidation, if, following such reorganization, merger or consolidation,
the conditions described in sub-clauses (i), (ii) and (iii) of clause (c) of
this Section 10 are satisfied; or
(b)
if individuals who, as of the date hereof, constitute the Board of Directors
(the “Incumbent Board”) cease for any reason to constitute at least a majority
of the Board; provided,
however,
that any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Corporation’s stockholders, was
approved by a vote of at least two-thirds of the directors then constituting
the
Incumbent Board shall be considered as though such individual were a member
of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest subject to Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act or other actual or threatened solicitation of proxies
or
consents by or on behalf of a Person other than the Board; or
(c)
consummation of a reorganization, merger or consolidation, unless following
such
reorganization, merger or consolidation (i) more than 60% of, respectively,
the
then-outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly
or
indirectly, by all or substantially all of the individuals and entities who
were
the beneficial owners, respectively, of the Outstanding Corporation Common
Stock
and Outstanding Corporation Voting Securities immediately prior to such
reorganization, merger, or consolidation in substantially the same proportions
as their ownership, immediately prior to such reorganization, merger or
consolidation, of the Outstanding Corporation Common Stock and Outstanding
Corporation Voting Securities, as the case may be (for purposes of determining
whether such percentage test is satisfied, there shall be excluded from the
number of shares and voting securities of the resulting corporation owned by
the
Corporation’s stockholders, but not from the total number of outstanding shares
and voting securities of the resulting corporation, any shares or voting
securities received by any such stockholder in respect of any consideration
other than shares or voting securities of the Corporation), (ii) no Person
(excluding the Corporation, any employee benefit plan (or related trust) of
the
Corporation, any qualified employee benefit plan of such corporation resulting
from such reorganization, merger or consolidation and any Person beneficially
owning, immediately prior to such reorganization, merger or consolidation,
directly or indirectly, 20% or more of the Outstanding Corporation Common Stock
or Outstanding Corporation Voting Securities, as the case may be) beneficially
owns, directly or indirectly, 20% or more of, respectively, the then-outstanding
shares of common stock of the corporation resulting from such reorganization,
merger or consolidation or the combined voting power of the then-outstanding
voting securities of such corporation entitled to vote generally in the election
of directors and (iii) at least a majority of the members of the board of
directors of the corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of the execution
of the initial agreement providing for such reorganization, merger or
consolidation; or
(d)
(i) approval by the stockholders of the Corporation of a complete liquidation
or
dissolution of the Corporation, or (ii) the first to occur of (A) the sale
or
other disposition (in one transaction or a series of related transactions)
of
all or substantially all of the assets of the Corporation, or (B) the approval
by the stockholders of the Corporation of any such sale or disposition, other
than, in each case, any such sale or disposition to a corporation, with respect
to which immediately thereafter, (1) more than 60% of, respectively, the
then-outstanding shares of common stock of such corporation and the combined
voting power of the then-outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities
immediately prior to such sale or other disposition in substantially the same
proportion as their ownership, immediately prior to such sale or other
disposition, of the Outstanding Corporation Common Stock and Outstanding
Corporation Voting Securities, as the case may be (for purposes of determining
whether such percentage test is satisfied, there shall be excluded from the
number of shares and voting securities of the transferee corporation owned
by
the Corporation’s stockholders, but not from the total number of outstanding
shares and voting securities of the transferee corporation, any shares or voting
securities received by any such stockholder in respect of any consideration
other than shares or voting securities of the Corporation), (2) no Person
(excluding the Corporation and any employee benefit plan (or related trust)
of
the Corporation, any qualified employee benefit plan of such transferee
corporation and any Person beneficially owning, immediately prior to such sale
or other disposition, directly or indirectly, 20% or more of the Outstanding
Corporation Common Stock or Outstanding Corporation Voting Securities, as the
case may be) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then-outstanding shares of common stock of such transferee
corporation and the combined voting power of the then-outstanding voting
securities of such transferee corporation entitled to vote generally in the
election of directors and (3) at least a majority of the members of the board
of
directors of such transferee corporation were members of the Incumbent Board
at
the time of the execution of the initial agreement or action of the board
providing for such sale or other disposition of assets of the
Corporation.
11.
COMPLIANCE
WITH SECTION 409A OF THE CODE.
To
the extent applicable, it is intended that this Option Agreement and the Plan
comply with the provisions of Section 409A of the Code, so that the income
inclusion provisions of Section 409A(a)(1) do not apply to Optionee. This Option
Agreement and the Plan shall be administered in a manner consistent with this
intent, and any provision that would cause the Option Agreement or the Plan
to
fail to satisfy Section 409A of the Code shall have no force and effect until
amended to comply with Section 409A of the Code (which amendment may be
retroactive to the extent permitted by Section 409A of the Code and may be
made
by the Corporation without the consent of the Optionee).
12.
INTERPRETATION
OF THIS OPTION AGREEMENT
All
decisions and interpretations made by the Board or the Compensation Committee
thereof with regard to any question arising under the Plan or this Option
Agreement shall be binding and conclusive on the Corporation and the Optionee
and any other person entitled to exercise the Option as provided for
herein.
13.
GOVERNING
LAW
This
Option Agreement shall be governed by the laws of the State of Delaware (but
not
including the choice of law rules thereof).
14.
BINDING
EFFECT
Subject
to all restrictions provided for in this Option Agreement, the Plan, and by
applicable law relating to assignment and transfer of this Option Agreement
and
the Option provided for herein, this Option Agreement shall be binding upon
and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
15.
NOTICE
Any
notice hereunder by the Optionee to the Corporation shall be in writing and
shall be deemed duly given if mailed or delivered to the Corporation at its
principal office, addressed to the attention of Stock Plan Administration or
if
so mailed or delivered to such other address as the Corporation may hereafter
designate by notice to the Optionee. Any notice hereunder by the Corporation
to
the Optionee shall be in writing and shall be deemed duly given if mailed or
delivered to the Optionee at the address specified below by the Optionee for
such purpose, or if so mailed or delivered to such other address as the Optionee
may hereafter designate by written notice given to the Corporation.
16.
SEVERABILITY
If
one or more of the provisions of this Option Agreement is invalidated for any
reason by a court of competent jurisdiction, any provision so invalidated shall
be deemed to be separable from the other provisions hereof, and the remaining
provisions hereof shall continue to be valid and fully enforceable.
17.
ENTIRE
AGREEMENT;
ELIGIBILITY
This
Option Agreement and the Plan together constitute the entire agreement and
supersedes all prior understandings and agreements, written or oral, of the
parties hereto with respect to the subject matter hereof. Except for amendments
to the Plan incorporated into this Option Agreement by reference pursuant to
Section 2 above, neither this Option Agreement nor any term hereof may be
amended, waived, discharged or terminated except by a written instrument signed
by the Corporation and the Optionee; provided,
however,
that the Corporation unilaterally may waive any provision hereof in writing
to
the extent that such waiver does not adversely affect the interests of the
Optionee hereunder, but no such waiver shall operate as or be construed to
be a
subsequent waiver of the same provision or a waiver of any other provision
hereof. In the event that it is determined that the Optionee was not eligible
to
receive this Option, the Option and this Option Agreement shall be null and
void
and of no further effect.
SIGNATURE
PAGE
IN
WITNESS WHEREOF, the parties hereto have duly executed this Option Agreement,
or
caused this Option Agreement to be duly executed on their behalf, as of the
day
and year first above written.
Transaction
Systems Architects, Inc.
Optionee:
By:
_________________________________________ By:
_________________________________________
[__________________] [_______________________]
ADDRESS
FOR
NOTICE TO OPTIONEE:
____________________________________
Number Street Apt.
____________________________________
City
State Zip
Code
____________________________________
SS# Hire
Date
DESIGNATED
BENEFICIARY:
____________________________________
Please
Print
Last Name, First Name MI
____________________________________
Beneficiary’s
Street Address
____________________________________
City State Zip
Code
____________________________________
Beneficiary’s
Social Security Number
I
understand that in the event of my death, the above named beneficiary will
have
control of any unexercised options remaining in my account at that time. If
no
beneficiary is designated or if the named beneficiary does not survive me,
the
options will become part of my estate. This beneficiary designation does NOT
apply to stock acquired by the exercise of options prior to my
death.
____________________________________
SIGNATURE DATE
After
completing this page, please make a copy for your records and return it
to
Stock
Plan Administration, Transaction Systems Architects, Inc., 000 X. 000 Xxxxxx,
Xxxxx, XX 00000
2005
Equity and Performance Incentive Plan - US Plan
_________
Options $________/Share
Exercise Price _______
Date
