EXHIBIT 10.33
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this 31st of July
1998, to be effective as of the 1st day of March 1998 (the "Effective Date") by
and among Xxxxxxx X. Xxxxxx (hereinafter referred to as "Employee") and NOVA
Corporation, a Georgia corporation ("NOVA").
W I T N E S S E T H :
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WHEREAS, NOVA is in the business of providing credit and debit card
transaction processing services (and related products and services) to
merchants, financial institutions, independent sales organizations ("ISOs"), and
other similar customers (the "Business") throughout the United States;
WHEREAS, Employee currently serves as Executive Vice President, Operations
of NOVA;
WHEREAS, NOVA, or its assigns, will continue to engage in the Business
throughout the United States (the "Territory);
WHEREAS, NOVA desires for Employee to continue to work for NOVA and
Employee desires to continue said employment, all as contemplated herein;
NOW, THEREFORE, for and in consideration of her continued employment by
NOVA pursuant to this Agreement, NOVA Confidential Information and Trade Secrets
(as hereafter defined) furnished to Employee by NOVA in order that she may
continue to perform her duties under this Agreement, the mutual covenants and
agreements herein contained, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Employment of Employee. NOVA hereby employs Employee for a period
beginning as of the Effective Date (the "Employment Commencement Date") and
ending February 29, 2000 (the "Initial Term"), unless Employee's employment by
NOVA is sooner terminated or automatically renewed pursuant to the terms of this
Agreement (Employee's employment by NOVA pursuant to the terms of this Agreement
shall hereinafter be referred to as "Employment").
(a) Employee agrees to such Employment on the terms and conditions herein
set forth and agrees to devote her reasonable best efforts to her
duties under this Agreement and to perform such duties diligently and
efficiently and in accordance with the directions of NOVA's Chief
Executive Officer.
(b) During the term of Employee's Employment, Employee shall be employed
as Executive Vice President, Operations of NOVA. Employee shall be
responsible primarily for such duties as are assigned to her, from
time to time, by NOVA's Chief Executive Officer which in any event
shall be such duties as are customary for an officer in those
positions.
(c) Employee shall devote substantially all of her business time,
attention, and energies to NOVA's Business, shall act at all times in
the best interest of NOVA, and shall not during the term of her
Employment be engaged in any other business activity, whether or not
such business is pursued for gain, profit, or other pecuniary
advantage, or permit such personal interests as she may have to
interfere with the performance of her duties hereunder.
Notwithstanding the foregoing, Employee may participate in industry,
civic and charitable activities so long as such activities do not
materially interfere with the performance of her duties hereunder.
2. Compensation. During the term of Employee's Employment and in
accordance with the terms hereof, NOVA shall pay or otherwise provide to
Employee the following compensation:
(a) Employee's annual salary during the term of her Employment shall be
One Hundred Forty-Three Thousand Dollars ($143,000)("Base Salary"),
with such increases as may from time to time be deemed appropriate by
NOVA's Chief Executive Officer (subject to approval by the
Compensation Committee of NOVA) (a "Merit Increase"); provided,
however, that so long as this Agreement remains in effect, Employee's
Base Salary shall be reviewed annually by NOVA's Chief Executive
Officer.
(b) Employee's Base Salary shall be paid by NOVA in accordance with NOVA's
regular payroll practice.
(c) In addition to the Base Salary, Employee may annually receive bonus
compensation pursuant to the schedule set forth as Exhibit A ("Bonus
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Compensation"). Employee may also receive such other bonus or
incentive compensation as may be awarded Employee from time to time by
the Board of Directors of NOVA.
(d) NOVA may withhold from any compensation payable under this Agreement
all federal, state, city or other taxes as shall be required pursuant
to any law or governmental regulation or ruling.
3. Benefits. During the term of Employee's employment, and for such time
thereafter as may be required by Section 7 hereof, NOVA shall provide Employee
the following benefits:
(a) Medical Insurance. Employee and her dependents shall be entitled to
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participate in such medical, dental, vision, prescription drug,
wellness, or other health care or medical coverage plans as may be
established, offered or adopted form time to time by NOVA for the
benefit of its employees and/or executive officers, at no cost to
Employee.
(b) Life Insurance. Employee shall be entitled to participate in any life
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insurance plans established, offered, or adopted from time to time by
NOVA for the benefit of its employees and/or executive officers.
(c) Disability Insurance. Employee shall be entitled to participate in
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any disability insurance plans established, offered, or adopted from
time to time by NOVA for the benefit of its employees and/or executive
officers.
(d) Vacations, Holidays. Employee shall be entitled to at least four (4)
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weeks of paid vacation each year and all holidays observed by NOVA.
(e) Stock Option Plans. Employee shall be eligible for participation in
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any Stock Option Plan adopted by NOVA's Board of Directors.
(f) Other Benefits. In addition to and not in any way in limitation of
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the benefits set forth in this Section 3, Employee shall be eligible
to participate in all additional employee benefits provided by NOVA
(including, without limitation, all tax-qualified retirement plans,
non-qualified retirement and/or deferred compensation plans, incentive
plans, other stock option
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or purchase plans, and fringe benefits) on the same basis as such are
afforded to other executive officers of NOVA during the term of this
Agreement.
(g) Terms and Provisions of Plans Control. Notwithstanding any provisions
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of this Section 3 to the contrary, Employee and her dependents shall
only be entitled to participate in plans or arrangements of NOVA to
the extent generally allowed for similarly situated employees and/or
executive officers by the terms and provisions of such plans or
arrangements. NOVA agrees that it shall not take action (during the
term of this Agreement or the Severance Period, as hereinafter
defined) to modify the terms and provisions of any such plan or
arrangement so as to exclude only Employee and/or her dependents
either by excluding Employee and/or her dependents explicitly by name
or by modifying provisions generally applicable to all employees and
dependents so that only Employee and/or her dependents would ever
possibly be affected.
4. Personnel Policies. Employee shall conduct herself at all times in a
businesslike and professional manner as appropriate for a person in her position
and shall represent NOVA in all respects as complies with good business and
ethical practices. In addition, Employee shall be subject to and abide by the
policies and procedures of NOVA applicable to personnel of NOVA, as adopted from
time to time.
5. Reimbursement for Business Expenses. Employee shall be reimbursed in
accordance with NOVA's regular expense reimbursement practice for all out-of-
pocket business expenses incurred by her in the performance of her duties
hereunder, provided that Employee shall first document and substantiate said
business expenses in the manner generally required by NOVA under its policies
and procedures.
6. Term and Termination of Employment.
(a) This Agreement shall be effective as of the Effective Date.
(b) Employee's Employment shall terminate immediately upon the discharge
of Employee for "Cause." For the purpose of this Agreement, the term
"Cause," when used with respect to termination by NOVA of Employee's
Employment hereunder, shall mean termination as a result of: (i)
Employee's competition with the Business of NOVA either directly or
indirectly, (ii) Employee's willful, intentional, or grossly negligent
failure to perform her duties under this Agreement diligently and in
accordance with the directions of NOVA; (iii) Employee's willful,
intentional, or grossly negligent failure to comply with the decisions
or policies of NOVA; (iv) Employee's failure to discharge Employee's
duty of loyalty to NOVA; or (v) final conviction of Employee of a
felony; provided, however, that in the event NOVA desires to terminate
Employee's Employment pursuant to subsections (i), (ii), (iii), or
(iv) of this Section 6 (b), NOVA shall first give Employee written
notice of such intent, detailed and specific description of the
reasons and basis therefor, and thirty (30) days to remedy or cure
such perceived breaches or deficiencies by Employee (the "Cure
Period"). If Employee does not cure the perceived breaches or
deficiencies within the Cure Period, NOVA may discharge Employee
immediately upon written notice to Employee. If NOVA desires to
terminate Employee's Employment pursuant to subsection (v) of this
Section 6(b), NOVA shall first give Employee three (3) days prior
written notice of such intent.
(c) Employee's Employment shall terminate immediately upon the death of
Employee.
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(d) Employee's Employment shall terminate immediately upon thirty (30)
days prior written notice to Employee if Employee shall at any time be
incapacitated by reason of physical or mental illness or otherwise
incapable of performing the duties under this Agreement for a
continuous period of one hundred eighty (180) consecutive days;
provided, however, to the extent NOVA could, with reasonable
accommodation and without undue hardship, continue to employ Employee
in some other capacity after such one hundred eighty (180) day period,
NOVA shall, to the extent required by the Americans With Disabilities
Act, offer to do so, and, if such offer is accepted by Employee,
Employee shall be compensated accordingly.
(e) Employee may terminate this Agreement, upon thirty (30) days prior
written notice to NOVA (the "Notice Period"), in the event (i) there
is a material diminution in Employee's duties and responsibilities, or
such duties and responsibilities are otherwise diminished such that
they no longer reflect duties and responsibilities customary for an
Executive Vice President, Operations, or (ii) Employee is required to
relocate to an office that is more than fifty (50) miles from
Employee's current office located at Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (each of (i) and (ii) being referred to as a
"Responsibilities Breach"), and NOVA fails to cure said
Responsibilities Breach, to the reasonable satisfaction of Employee,
within the Notice Period.
(f) Employee may, at her sole option and her sole discretion, give notice
of her intent to terminate her Employment hereunder at any time within
ninety (90) days after a "Change in Control" (as defined below) has
occurred, and may thereafter terminate her employment hereunder
pursuant to the terms of this Section 6(f). Employee may exercise this
right by giving NOVA one hundred eighty (180) days written notice of
such intent at any time within such ninety (90) day period, and
Employee's Employment hereunder shall terminate as of the expiration
of such one hundred eighty (180) day period. For the purposes of this
Agreement, "Change in Control" means (i) the acquisition, directly or
indirectly, by any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended), within
any 12 month period, of securities of the corporation representing an
aggregate of twenty-five percent (25%) or more of the combined voting
power of NOVA's outstanding securities (an "Acquisition"), and during
the period of 18 months following such Acquisition, individuals who at
the beginning of such period constitute NOVA's board of directors,
cease for any reason to constitute at least a majority thereof, unless
the election of each new director was approved in advance by a vote of
at least a majority of the directors then still in office who were
directors at the beginning of the period, or (ii) the sale of all or
substantially all of NOVA's assets.
(g) This Agreement shall automatically renew for successive two (2) year
terms (each a "Renewal Term") unless either party hereto gives the
other party hereto written notice of its or her intent not to renew
this Agreement no later than one hundred eighty (180) days prior to
the date the Initial Term, or any Renewal Term, is scheduled to
expire.
(h) Other than as specifically provided in this Section 6, and then only
in strict compliance with the terms hereof, NOVA may not terminate
this Agreement and/or Employee's Employment.
7. The Severance Period.
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(a) Upon termination of Employee's Employment, for whatever reason (other
than termination for "Cause" pursuant to Section 6(b), termination
because this Agreement has not been automatically renewed by Employee
after the Initial Term or any Renewal Term, or termination because
Employee "quits" or otherwise voluntarily terminates her Employment
other than as specifically contemplated herein (each, a "Termination
Exclusion"), but including termination because this Agreement has not
been automatically renewed by NOVA) (the effective date of such
termination being referred to as the "Termination Date"), in addition
to any amounts payable to Employee hereunder (including but not
limited to accrued but unpaid Base Salary or Bonus Compensation), and
any other benefits required to be provided to Employee and her
dependents under contract and applicable law:
(i) NOVA shall pay Employee an aggregate amount in cash equal to
two (2) times her then Base Salary (the "Severance Payment").
The Severance Payment shall be paid by NOVA to Employee in
twenty-four (24) equal monthly payments, the first of which
shall be made on the first day of the calendar month following
the calendar month in which the Termination Date occurs;
provided, however, that if Employee terminates her Employment
after a Change in Control of NOVA pursuant to the terms of
Section 6(f) hereof, NOVA shall pay Employee the Severance
Payment in one lump sum within fifteen (15) days of the
Termination Date;
(ii) Not later than ninety (90) days after the end of the fiscal
year during which the Termination Date occurs, NOVA shall pay
Employee a pro rata (relative to the Termination Date) portion
of the Bonus Compensation Employee would have been eligible for
had she remained in the employ of the Company until the end of
such fiscal year;
(iii) Notwithstanding any provision to the contrary in any other
agreement or document (including but not limited to NOVA's
stock option plans), all stock options that, as of the
Effective Date, have been granted to Employee shall become
vested and exercisable immediately upon notice of such
termination (whether given by NOVA or by Employee, and
including notice by NOVA pursuant to Section 6(g) that it does
not intend to renew this Agreement, but excluding notice given
by Employee in connection with a Termination Exclusion)
(collectively, the "Vested Options"), and until the later of
the Termination Date or such later date as provided under the
applicable stock option plan or stock option agreement,
Employee shall have the continuing right to exercise any or all
of the Vested Options;
(iv) To the extent that Employee and/or any of her dependents is
eligible to, and timely elects to, receive continuation
coverage under any group health plan providing medical,
dental, vision, prescription drug, wellness or other health
care or medical coverage which is subject to the provisions
of part 6 of Title I of ERISA ("COBRA"), NOVA shall timely
pay any premiums required for such coverage for the duration
of the two (2) year period following the Termination Date
(the "Severance Period"), or, at the election of NOVA, NOVA
shall pay Employee a lump sum as reimbursement for such
COBRA expenses. This payment of premiums by NOVA is not
intended to alter in any way the provisions of any group
health plan of NOVA, and all time limits, effects of
subsequent coverage and all other relevant provisions of any
group health plan of NOVA, and all time limits, effects of
subsequent coverage and all other relevant provisions of any
such plan remain unchanged and shall
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control Employee's (and her dependents') entitlement to
coverage or benefits under such plan;
(v) For the duration of the Severance Period (or until Employee
becomes an employee of another company providing Employee and her
dependents with medical, life and disability insurance), NOVA shall
provide to Employee and her dependents the coverage for the benefits
described in Sections 3(b) and (c); provided, however, such coverage
shall not be provided to the extent that such coverage is generally
provided through an insurance contract with a licensed insurance
company and such insurance company will not agree to insure for such
coverage; and
(vi) During the Severance Period, Employee shall comply with the
non-disclosure obligations and covenants not to solicit or
compete set forth in Sections 9 and 10 below.
(b) In the event Employee's Employment is terminated as a result of one of
the Termination Exclusions identified in Section 7(a), NOVA, at its
sole option and its sole discretion and at any time within fifteen
(15) days of the Termination Date, may cause Employee to be obligated
to comply with the non-disclosure obligations and covenants not to
solicit or compete set forth in Sections 9 and 10 below for a period
of one (1) or two (2) years following the Termination Date, as set
forth below:
(i) By giving notice to Employee at any time within fifteen (15)
days of the Termination Date of its intent to exercise the
"One Year Option" herein described, NOVA may cause Employee to
be obligated to comply with the non-disclosure obligations and
covenants not to solicit or compete set forth in Sections 9
and 10 below for a period of one (1) year following the
Termination Date; provided, however, that NOVA shall pay
Employee an aggregate amount in cash equal to Employee's then
current Base Salary multiplied by one (1) (the "One Year
Payment"). The One Year Payment shall be paid by NOVA to
Employee in twelve (12) equal monthly payments, the first of
which shall be made on the first day of the calendar month
following the calendar month in which the Termination Date
occurs. In the event NOVA exercises the One Year Option, the
one (1) year period following the Termination Date shall be
deemed the "Exclusion Period";
(ii) By giving notice to Employee any time within fifteen (15) days
of the Termination Date of its intent to exercise the "Two
Year Option" herein described, NOVA may cause Employee to be
obligated to comply with the non-disclosure obligations and
covenants not to solicit or compete set forth in Sections 9
and 10 below for a period of two (2) years following the
Termination Date; provided, however, that NOVA shall pay
Employee an aggregate amount in cash equal to Employee's then
current Base Salary multiplied by two (2) (the "Two Year
Payment"). The Two Year Payment shall be paid by NOVA to
Employee in twenty-four (24) equal monthly payments, the first
of which shall be made on the first day of the calendar month
following the calendar month in which the Termination Date
occurs. In the event NOVA exercises the Two Year Option, the
two (2) year period following the Termination Date shall be
deemed the "Exclusion Period".
(c) In the event of the death of Employee, all benefits and compensation
hereunder shall, unless otherwise specified by Employee, be payable
to, or exercisable by, Employee's estate.
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8. Products, Notes, Records and Software. Employee acknowledges and agrees
that all memoranda, notes, records and other documents and computer software
created, developed, compiled, or used by Employee or made available to her
during the term of her Employment concerning or relative to the Business of
NOVA, including, without limitation, all customer data, billing information,
service data, and other technical material of NOVA is and shall be NOVA's
property. Employee agrees to deliver without demand all such materials to NOVA
within three (3) days after the termination of Employee's Employment. Employee
further agrees not to use materials for any reason after said termination.
9. Nondisclosure.
(a) NOVA Confidential Information. Employee acknowledges and agrees that
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because of her Employment, she will have access to proprietary
information of NOVA concerning or relative to the Business of NOVA
(collectively, "NOVA Confidential Information") which includes, without
limitation, technical material of NOVA, sales and marketing
information, customer account records, billing information, training
and operations information, materials and memoranda, personnel records,
pricing and financial information relating to the business, accounts,
customers, prospective customers, employees and affairs of NOVA, and
any information marked "Confidential" by NOVA. Employee acknowledges
and agrees that NOVA Confidential Information is and shall be NOVA's
property. Employee agrees that during the term of her Employment,
Employee shall keep NOVA Confidential Information confidential, and
Employee shall not use NOVA Confidential Information for any reason
other than on behalf of NOVA pursuant to, and in strict compliance
with, the terms of this Agreement. Employment further agrees that
during the Severance Period or the Exclusion Period, as applicable (as
defined above), Employee shall continue to keep NOVA Confidential
Information confidential, and Employee shall not use NOVA Confidential
Information for any reason or in any manner.
(b) Notwithstanding the foregoing, Employee shall not be subject to the
restrictions set forth in subsection (a) of this Section 9 with
respect to information which:
(i) becomes generally available to the public other than as a
result of disclosure by Employee or the breach of Employee's
obligations under this Agreement;
(ii) becomes available to Employee from a source which is unrelated
to her Employment or the exercise of her duties under this
Agreement, provided that such source lawfully obtained such
information and is not bound by a confidentiality agreement
with NOVA; or
(iii) is required by law to be disclosed.
(c) Trade Secrets. Employee acknowledges and agrees that because of her
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Employment, she will have access to "trade secrets" (as defined in the
Uniform Trade Secrets Act, O.C.G.A. (S) 10-1-760, et seq. (the Uniform
-- ----
Trade Secrets Act") of NOVA ("Trade Secrets"). Nothing in this
Agreement is intended to alter the applicable law and remedies with
respect to information meeting the definition of "trade secrets" under
the Uniform Trade Secrets Act, which law and remedies shall be in
addition to the obligations and rights of the parties hereunder.
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10. Covenants Not to Solicit or Compete.
(a) Employee acknowledges and agrees that, because of her Employment, she
does and will continue to have access to confidential or proprietary
information concerning merchants, associate banks and ISOs of NOVA and
establish relationships with such merchants, associate banks and ISOs
as well as with the vendors, consultants, and suppliers used to
service such merchants, associate banks and ISOs within the Territory.
In consideration of the benefits and compensation Employee is
receiving hereunder, and other valuable consideration, Employee agrees
that during the term of her Employment and continuing throughout the
Severance Period or the Exclusion Period, as applicable (provided NOVA
complies with its obligations set forth in Section 7 hereof), Employee
shall not, directly or indirectly, either individually, in
partnership, jointly, or in conjunction with, or on behalf of, any
person, firm, partnership, corporation, or unincorporated association
or entity of any kind:
(i) (aa) compete with NOVA in providing credit card and debit card
transaction processing services within the Territory or (bb)
otherwise obtain any interest in, lend money to, guarantee the
debts or obligations of, or perform services in either a
supervisory or managerial capacity or as an advisor,
consultant or independent contractor for, or otherwise
participate in the management or control of, any person, firm,
partnership, corporation, or unincorporated association of any
kind which is providing credit card and debit card transaction
processing services within the Territory in competition with
NOVA;
(ii) solicit or contact, for the purpose of providing products or
services the same as or substantially similar to those
provided by NOVA in connection with the Business, any person
or entity that during the term of Employee's Employment was a
merchant, associate bank, ISO or customer (including any
actively-sought prospective merchant, associate bank, ISO or
customer) of NOVA and with whom Employee had material contact
or about whom Employee learned material information during her
Employment;
(iii) persuade or attempt to persuade any merchant, associate bank,
ISO, customer, or supplier of NOVA to terminate or modify such
merchant's, associate bank's, ISO's, customer's, or supplier's
relationship with NOVA if Employee had material contact with
or learned material information about such merchant, associate
bank, ISO, customer or supplier during her Employment; or
(iv) persuade or attempt to persuade any person who (aa) was
employed by NOVA as of the date of the termination of
Employee's Employment and (bb) is in a sales or management
position with NOVA at the time of such contact, to terminate
or modify her employment relationship, whether or not pursuant
to a written agreement, with NOVA.
11. New Developments. Any discovery, invention, process or improvement
made or discovered by Employee during the term of her Employment in connection
with or in any way affecting or relating to the Business of NOVA (as then
carried on or under active consideration) shall forthwith be disclosed to NOVA
and shall belong to and be the absolute property of NOVA; provided, however,
that this provision does not apply to an invention for which no equipment,
supplies, facility, or trade secret information of NOVA was used and which was
developed entirely on Employee's own time, unless (a)
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the invention relates (i) directly to the Business of NOVA or (ii) to NOVA's
actual or demonstrably anticipated research or development; or (b) the invention
results from any work performed by Employee for NOVA.
12. Remedy for Breach. Employee acknowledges and agrees that her breach
of any of the covenants contained in Sections 8, 9 and 10 of this Agreement
would cause irreparable injury to NOVA and that remedies at law of NOVA for any
actual or threatened breach by Employee of such covenants would be inadequate
and that NOVA shall be entitled to specific performance of the covenants in such
sections or injunctive relief against activities in violation of such sections,
or both, by temporary or permanent injunction or other appropriate judicial
remedy, writ or order, without the necessity of proving actual damages. This
provision with respect to injunctive relief shall not diminish the right of NOVA
to claim and recover damages against Employee for any breach of this Agreement
in addition to injunctive relief. Employee acknowledges and agrees that she
will be responsible for all legal expenses, including attorney's fees, which
NOVA incurs in pursuing remedies, whether legal or equitable, for any actual or
threatened breach of this Agreement by Employee. Employee acknowledges and
agrees that, subject to NOVA's compliance with the provisions of Section 7
hereof, the covenants contained in Sections 8, 9 and 10 of this Agreement shall
be construed as agreements independent of any other provision of this or any
other contract between the parties hereto, and that the existence of any claim
or cause of action by Employee against NOVA, whether predicated upon this or any
other contract, shall not constitute a defense to the enforcement by NOVA of
said covenants.
13. Reasonableness. Employee has carefully considered the nature and
extent of the restrictions upon her and the rights and remedies conferred on
NOVA under this Agreement, and Employee hereby acknowledges and agrees that:
(a) the restrictions and covenants contained herein, and the rights and
remedies conferred upon NOVA, are necessary to protect the goodwill
and other value of the Business of NOVA;
(b) the restrictions placed upon Employee hereunder are narrowly drawn,
are fair and reasonable in time and territory, will not prevent her
from earning a livelihood, and place no greater restraint upon
Employee than is reasonably necessary to secure the Business and
goodwill of NOVA;
(c) NOVA is relying upon the restrictions and covenants contained herein
in continuing to make available to Employee information concerning the
Business of NOVA; and
(d) Employee's Employment places her in a position of confidence and trust
with NOVA and its employees, merchants, associate banks, ISOs,
customers, vendors and suppliers.
14. Invalidity of Any Provision. It is the intention of the parties
hereto that the provisions of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies of each state and
jurisdiction in which such enforcement is sought, but that the unenforceability
(or the modification to conform with such laws or public policies) of any
provision hereof shall not render unenforceable or impair the remainder of this
Agreement which shall be deemed amended to delete or modify, as necessary, the
invalid or unenforceable provisions. The parties further agree to alter the
balance of this Agreement in order to render the same valid and enforceable.
The terms of the non-competition provisions of this Agreement shall be deemed
modified to the extent necessary to be enforceable; it shall be modified to
encompass the longest term which is enforceable and, if the scope of the
geographic area of non-competition is too great to be enforceable, it shall be
modified to encompass the greatest area that is enforceable. The parties
further agree to submit any issues regarding such
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modification to a court of competent jurisdiction if they are unable to agree
and further agree that if said court declines to so amend or modify this
Agreement, the parties will submit the issue of amendment or modification of the
non-competition covenants in this Agreement to binding arbitration in accordance
with the commercial arbitration rules then in effect of the American Arbitration
Association. Any such arbitration hearing will be held in Atlanta, Georgia, and
this Agreement shall be construed and enforced in accordance with the laws of
the State of Georgia, including this arbitration provision.
15. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Georgia.
16. Waiver of Breach. The waiver by NOVA of a breach of any provision of
this Agreement by Employee shall not operate or be construed as a waiver of any
subsequent breach by Employee.
17. Successors and Assigns. This Agreement shall inure to the benefit of
NOVA, its respective subsidiaries and affiliates, and their respective
successors and assigns. This Agreement is not assignable by Employee but shall
be freely assignable by NOVA.
18. Notices. All notices, demands and other communications hereunder
shall be in writing and shall be delivered in person or deposited in the United
States mail, certified or registered, with return receipt requested, as follows:
(i) If to Employee, to:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
(ii) If to NOVA, to:
NOVA Corporation
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Chief Financial Officer
Telephone No.: (000) 000-0000
19. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof, and supersedes in its
entirety the Employment Agreement between Employee and NOVA Information Systems,
Inc. dated November 1, 1991, which is of no further force or effect and hereby
deemed terminated. It may not be changed orally but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
20. Indemnification. At all times during and after Employee's Employment
and the effectiveness of this Agreement, NOVA shall indemnify Employee (as a
director, officer, employee and otherwise) to the fullest extent permitted by
law and shall at all times maintain appropriate provisions in its Articles of
Incorporation and Bylaws which mandate that NOVA provide such indemnification.
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21. Survival. The provisions of Sections 7, 8, 9, 10, 11, 12, 14 and 20
shall survive termination of Employee's Employment and termination of this
Agreement.
(Signatures begin on following page)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above shown.
"EMPLOYEE":
BY: /s/ Xxxxxxx X. Xxxxxx
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"NOVA":
NOVA Corporation
By: /s/ Xxxxxx Xxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxx
Chairman, CEO and President
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EXHIBIT A
Annual Incentive Compensation Schedule
. Payment of annual incentive (the "Bonus Payment") to be based upon relative
achievement of Targeted Net Income (as defined).
. Net Income is Net Income determined in accordance with GAAP as determined
from the annual audited Financial Statements, as adjusted to exclude non-
operating gains and losses.
. Targeted Net Income will be established annually by the Board of Directors.
. Payment will be calculated y determining the percentage relationship
between Net Income and Targeted Net Income (such percentage relationship
being referred to as the "Actual/Targeted Ratio"). For each full percent
by which the Actual/Targeted Ratio equals or exceeds 80%, Employee will
receive, in addition to her then current Base Salary, the following
percentage (the "Bonus Percentage") of her Base Salary as the Bonus
Payment:
Actual Net Income/
Targeted Net Income Bonus Percentage Maximum % of Base Salary
(the "Actual/Targeted Ratio") (% of Base Salary) Payable as the Bonus Payment
----------------------------- ------------------ -----------------------------
80% - 84% 1% 5%
85% - 89% 2% 15%
90% - 94% 3% 30%
95% - 99% 4% 50%
* *
* If the Actual/Targeted Ratio is equal to or greater than 101%, for each
full percentage point by which the Actual/Targeted Ratio exceeds 100% (the
"Excess"), the Bonus Percentage (pursuant to which Employee's Bonus Payment
shall be calculated) shall be equal to the aggregate of (i) 50%, and (ii)
the Excess; provided, however, that the Bonus Percentage may never exceed
100%.
For Example, if the Actual/Targeted Ratio is 112%, the Actual/Targeted
Ratio exceeds 100% by 12%, and 12% is the "Excess." Therefore, the Bonus
Percentage would be equal to the aggregate of (i) 50%, and (ii) 12%;
accordingly, the Bonus Percentage would be 62% and Employee's Bonus Payment
would be 62% of her then current Base Salary. If Employee's Base Salary was
$100,000, Employee would receive, in addition to her Base Salary, a Bonus
Payment of $62,000.
. The foregoing notwithstanding, in order for any bonus to be payable with
respect to any fiscal year, the Revenue for such fiscal year must equal or
exceed 105% of the Revenue for the immediately preceding fiscal year.
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