Exhibit 10.1
NON-EMPLOYEE DIRECTOR
RESTRICTED STOCK AWARD AGREEMENT
THIS NON-EMPLOYEE DIRECTOR RESTRICTED STOCK AWARD AGREEMENT
("Agreement") is made effective as of _____________________, 200__, by and
between TOTAL SYSTEM SERVICES, INC., a Georgia corporation (the "Corporation"),
and ______________________________ ("Director").
WHEREAS, Director has been awarded _______ fully paid and
non-assessable shares of the Common Stock of the Corporation, par value $0.10
per share ("Restricted Shares"), pursuant to the terms and conditions of the
Corporation's 2002 Long-Term Incentive Plan ("Plan") and this Agreement; and
WHEREAS, the Restricted Shares will be held in an account at Mellon
Investor Services, LLC ("Mellon") for Director until the shares become
transferable and non-forfeitable in accordance with the terms and conditions of
the Plan and this Agreement.
NOW, THEREFORE, in accordance with the provisions of the Plan and this
Agreement, Director hereby agrees to the following terms and conditions:
1. Transfer of Shares; Custody of Restricted Shares
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The Corporation hereby transfers the Restricted Shares to Director
subject to the terms and conditions set forth in the Plan and in this
Agreement. Effective upon the date of such transfer, Director will be
the holder of record of the Restricted Shares and will have all rights
of a shareholder with respect to such shares (including the right to
vote such shares at any meeting at which the holders of the
Corporation's Common Stock may vote, the right to receive all dividends
declared and paid upon such shares and the right to exercise any rights
or warrants issued in respect of any such shares), subject only to the
terms and conditions set forth in the Plan and in this Agreement. The
Restricted Shares will be held in an account for Director at Mellon,
who will hold the shares in accordance with the terms and conditions
set forth in the Plan and in this Agreement.
2. Restriction Against Transfer
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Neither the Restricted Shares nor any interest in the Restricted Shares
may be sold, assigned, transferred, pledged or hypothecated or
otherwise be disposed of or encumbered except at the time(s) and under
the circumstances specifically permitted or required by this Agreement
including, but not limited to, any pledge of the Restricted Shares. In
the event of any attempt to effect any action in contravention of the
next preceding sentence, then, any provision of this Agreement to the
contrary notwithstanding, such Restricted Shares shall thereupon be
forfeited to the Corporation.
3. Forfeiture Condition
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Any Restricted Shares which do not vest pursuant to the provisions of
Section 4 below will be forfeited to the Corporation unless the
Corporation's Compensation Committee in its sole discretion determines
otherwise, as more fully provided in Section 4 below.
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4. Vesting of Restricted Shares
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(a) Vesting Conditions. If Director continues to serve on the Board of
Directors of the Corporation through the date(s) indicated in Column I
below, the Restricted Shares will become non-forfeitable (i.e., "vest")
to the extent indicated in Column II below:
(I) (II)
If service the % of the Restricted
continues through then Shares which vests is
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____________, 200__ 100%
Such vesting will occur (to the extent indicated in Column (II) above)
at the close of business on the applicable date(s) indicated in Column
(I) above. Any Restricted Shares which are not vested on the date of
Director's termination of service from the Board of Directors will be
forfeited to the Corporation, unless the Compensation Committee in its
sole and exclusive discretion determines otherwise.
(b) Effect of Death (Other Than by Suicide) or Disability. If
Director's service with the Board of Directors of the Corporation
terminates by reason of Director's death (other than by suicide) or
Disability, then any Restricted Shares which are not vested at the time
of such termination will become vested automatically.
(c) Effect of Attaining Age 72. If Director's service with the Board of
Directors terminates due to Director's attainment of age 72 pursuant to
the provisions of the Corporation's by-laws, then any Restricted Shares
which are not vested at the time of such termination of service will
become vested automatically.
(d) No Forfeiture of Vested Shares. Any Restricted Share which vests
pursuant to the preceding provisions of this Section 4 will not
thereafter be forfeited. As soon as practicable after any Restricted
Shares vest pursuant to the preceding provisions of this Section 4,
Mellon will transfer or deliver such shares to Director free of any
restrictions imposed pursuant to the terms and conditions set forth in
this Agreement, but not necessarily free of restrictions imposed by
applicable securities laws.
5. Effect of Forfeiture
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Any Restricted Shares which are forfeited to the Corporation pursuant
to any provision of this Agreement will be surrendered and such shares
will thereupon be canceled. All of Director's rights and interests in
and to such shares (including the purchase price, if any, paid for such
shares) will terminate upon such forfeiture without any payment of
consideration by the Corporation, unless otherwise determined by the
Committee.
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6. General Provisions
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(a) Administration, Interpretation and Construction. The terms and
conditions set forth in this Agreement will be administered,
interpreted and construed by the Compensation Committee, whose
decisions will be final, conclusive and binding on the Corporation, on
Director and on anyone claiming under or through the Corporation or
Director. Without limiting the generality of the foregoing, any
determination as to whether an event has occurred or failed to occur
which causes the Restricted Shares to be forfeited pursuant to the
terms and conditions set forth in this Agreement, will be made in the
good faith but absolute discretion of the Compensation Committee. By
accepting the transfer of Restricted Shares, Director irrevocably
consents and agrees to the terms and conditions set forth in this
Agreement and to all actions, decisions and determinations to be taken
or made by the Compensation Committee in good faith pursuant to the
terms and conditions set forth in this Agreement.
(b) Rights Not Assignable or Transferable. No rights under this
Agreement will be assignable or transferable other than by will or the
laws of descent and distribution, either voluntarily, or, to the full
extent permitted by law, involuntarily, by way of encumbrance, pledge,
attachment, levy or charge of any nature except as otherwise provided
in this Agreement. Director's rights under this Agreement will be
exercisable during Director's lifetime only by Director or by
Director's guardian or legal representative.
(c) Terms and Conditions Binding. The terms and conditions set forth in
the Plan and in this Agreement will be binding upon and inure to the
benefit of the Corporation, its successors and assigns, including any
assignee of the Corporation and any successor to the Corporation by
merger, consolidation or otherwise, and Director, Director's heirs,
devisees and legal representatives. In addition, the terms and
conditions set forth in the Plan and in this Agreement will be binding
upon and inure to the benefit of Mellon and its successors and assigns.
(d) No Liability for Good Faith Business Acts or Omissions. Director
recognizes and agrees that the Compensation Committee, the Board, or
the officers, agents or employees of the Corporation and its
Subsidiaries, in their oversight or conduct of the business and affairs
of the Corporation and its Subsidiaries, may in good faith cause the
Corporation or a Subsidiary to act, or to omit to act, in a manner that
may, directly or indirectly, prevent the Restricted Shares from
vesting. No provision of this Agreement will be interpreted or
construed to impose any liability upon the Corporation, a Subsidiary,
the Compensation Committee, Board or any officer, agent or employee of
the Corporation or a Subsidiary, for any forfeiture of Restricted
Shares that may result, directly or indirectly, from any such action or
omission.
(e) Recapitalization. In the event that Director receives, with respect
to Restricted Shares, any securities or other property (other than cash
dividends) as a result of any stock dividend or split, spin-off,
recapitalization, merger, consolidation, combination or exchange of
shares or a similar corporate change, any such securities or other
property received by Director will likewise be held by Mellon and be
subject to the terms and conditions set forth in this Agreement and
will be included in the term "Restricted Shares."
(f) Appointment of Agent. By accepting the transfer of Restricted
Shares, Director irrevocably nominates, constitutes, and appoints
Mellon as Director's agent for purposes of surrendering or
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transferring the Restricted Shares to the Corporation upon any
forfeiture required or authorized by this Agreement. This power is
intended as a power coupled with an interest and will survive
Director's death. In addition, it is intended as a durable power and
will survive Director's disability.
(g) Legal Representative. In the event of Director's death or a
judicial determination of Director's incompetence, reference in this
Agreement to Director shall be deemed, where appropriate, to Director's
heirs or devises.
(h) Titles. The titles to sections or paragraphs of this Agreement are
intended solely for convenience and no provision of this Agreement is
to be construed by reference to the title of any section or paragraph.
(i) Plan Governs. The Restricted Shares are being transferred to
Director pursuant to and subject to the Plan, a copy of which is
available upon request to the Corporate Secretary of the Corporation.
The provisions of the Plan are incorporated herein by this reference,
and all capitalized terms in this Agreement shall have the same
meanings given to such terms in the Plan. The terms and conditions set
forth in this Agreement will be administered, interpreted and construed
in accordance with the Plan, and any such term or condition which
cannot be so administered, interpreted or construed will to that extent
be disregarded.
(j) Complete Agreement. This instrument contains the entire agreement
of the parties relating to the subject matter of this Agreement and
supersedes and replaces all prior agreements and understandings with
respect to such subject matter. The parties hereto have made no
agreements, representations or warranties relating to the subject
matter of this Agreement which are not set forth herein or incorporated
by reference.
(k) Amendment; Modification; Waiver. No provision set forth in this
Agreement may be amended, modified or waived unless such amendment,
modification or waiver shall be authorized by the Compensation
Committee and shall be agreed to in writing, signed by Director and by
an officer of the Corporation duly authorized to do so. No waiver by
either party hereto of any breach by the other party of any condition
or provision set forth in this Agreement to be performed by such other
party will be deemed a waiver of a subsequent breach of such condition
or provision, or will be deemed a waiver of a similar or dissimilar
provision or condition at the same time or at any prior or subsequent
time.
(l) Governing Law. The validity, interpretation, performance and
enforcement of the terms and conditions set forth in this Agreement
will be governed by the laws of the State of Georgia, the state in
which the Corporation is incorporated, without giving effect to the
principles of conflicts of law of that state.
The Corporation has issued the Restricted Shares in accordance with the
foregoing terms and conditions and in accordance with the provisions of the
Plan. By signing below, Director hereby agrees to the foregoing terms and
conditions of the Restricted Shares.
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IN WITNESS WHEREOF, Director has set Director's hand and seal,
effective as of the date and year set forth above.
(L.S.)
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