EXHIBIT 10.48
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective this 8th day
of June, 1999 (the "Effective Date") by and between Xxxxxx X. Xxxxxxxx
(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, through its direct and indirect subsidiaries, is in the
business of providing credit card and debit card transaction processing services
and settlement services (including the related products and services of
automated teller machines and check guarantee services) to merchants, financial
institutions, independent sales organizations ("ISOs"), and other similar
customers (collectively, the "Business") throughout the United States;
WHEREAS, NOVA, or its assigns, will continue to engage in the Business
throughout the United States (the "Territory");
WHEREAS, NOVA desires that Employee work for NOVA, and Employee desires to
accept said employment, all as contemplated herein;
NOW, THEREFORE, for and in consideration of his employment by NOVA pursuant
to this Agreement, the NOVA Confidential Information and Trade Secrets (as
hereafter defined) furnished to Employee by NOVA in order that he may perform
his 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 and ending two (2) years thereafter (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 his reasonable best efforts to his
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 serve as
Chief Financial Officer of NOVA. Employee shall be responsible primarily
for such duties as are assigned to him, 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 his business time,
attention, and energies to NOVA's Business, shall act at all times in the
best interests of NOVA, and shall not during the term of his 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 he may have to interfere with the performance of his 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 his 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 his Employment shall be
Two Hundred Seventy-Five Thousand and No/100 Dollars ($275,000) ("Base
Salary"), with such increases (each, a "Merit Increase") as may from time
to time be deemed appropriate by NOVA's Chief Executive Officer; 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 in each
fiscal year, within a reasonable time following the availability of NOVA's
financial statements for the preceding fiscal year. The Base Salary shall
be paid by NOVA in accordance with NOVA's regular payroll practice. As used
herein, the term "Base Salary" shall be deemed to include any Merit
Increases granted to Employee.
(b) In addition to the Base Salary, Employee shall be eligible to
receive annual bonus compensation ("Bonus Compensation") in the amount, and
on the terms and conditions described in the Annual Incentive Compensation
Schedule attached as Exhibit A (the "Incentive Compensation Plan"). Upon
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written request and subject to the terms and conditions set forth in this
Section 2(b), Employee shall be entitled to elect to receive all or part of
any Bonus Compensation payable to Employee under the Incentive Compensation
Plan in shares of NOVA common stock, par value $.01 per share ("NOVA
Stock"), valued on the basis of the closing price of NOVA Stock on the New
York Stock Exchange on the date of Employee's request (or if such date is
not a trading day, on the immediately preceding trading day); provided,
however, that NOVA shall not be obligated to comply with Employee's request
if (i) NOVA does not have shares of NOVA Stock available for issuance or
(ii) the issuance of NOVA Stock to Employee would be impracticable or
impede, in any respect, NOVA's ongoing business operations.
(c) NOVA may withhold from any benefits 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 to
Employee the following benefits:
(a) Medical Insurance. Employee and his 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 from time to time by NOVA for the benefit of its
employees and/or executive officers, pursuant to the terms set forth in
such plans.
(b) Life Insurance. Employee shall be entitled to participate in any
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life insurance plans established, offered, or adopted from time to time by
NOVA for the benefit of its employees and/or executive officers.
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(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
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(4) 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 or restricted stock plan adopted by NOVA's Board of
Directors or the Compensation Committee.
(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 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. NOVA agrees that it shall not take
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action (during the term of this Agreement or the "Continuation Period," as
defined in Section 7(a)) to modify the terms and provisions of any such
plan or arrangement so as to exclude only Employee and/or his dependents,
either by excluding Employee and/or his dependents explicitly by name or by
modifying provisions generally applicable to all employees and dependents
so that only Employee and/or his dependents would be affected.
(h) Vesting of Rights. Upon the occurrence of the events set forth in
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Sections 7(e)(i)(A), 7(e)(i)(B) or 7(e)(i)(C) during the term of this
Agreement, and regardless of whether Employee terminates this Agreement
following such occurrence, and notwithstanding any provision to the
contrary in any other agreement or document (including NOVA's applicable
plan documents), all stock options, restricted stock, and other similar
rights that have been granted to Employee and are not vested on the date of
occurrence of such event shall become vested and exercisable immediately
(collectively, the "Vested Rights") and as provided under the applicable
plan or agreement, Employee shall have the continuing right to exercise any
or all of the Vested Rights.
4. Personnel Policies. Employee shall conduct himself at all times in a
businesslike and professional manner as appropriate for a person in his position
and shall represent NOVA in all respects with good business and ethical
practices. In addition, Employee shall be subject to and abide by the policies
and procedures of NOVA applicable generally to personnel of NOVA, as adopted
from time to time.
5. Reimbursement for Business Expenses. Employee shall be reimbursed, on
no less frequently than a monthly basis, for all out-of-pocket business expenses
incurred by him in the performance of his 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.
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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 by NOVA for "Cause." For the purposes 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 violation of the covenants set forth in Section 10 or 11;
(ii) Employee's willful, intentional, or grossly negligent failure to
perform his 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; or (iv)
final conviction of Employee of a felony; provided, however, that in the
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event NOVA desires to terminate Employee's Employment pursuant to
subsections (i), (ii), or (iii) 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 (the "Cure Period"); provided,
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however, that with respect only to breaches that it is not possible to cure
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within such thirty (30) day period, so long as Employee is diligently using
his best efforts to cure such breaches or deficiencies within such period
and thereafter, the Cure Period shall be automatically extended for an
additional period of time (not to exceed sixty (60) days) to enable
Employee to cure such breaches or deficiencies, provided, further, that
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Employee continues to diligently use his best efforts to cure such breaches
or deficiencies. 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 (iv) 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.
(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 become
incapable of performing the duties under this Agreement for a continuous
period of one hundred eighty (180) consecutive days; provided, however, to
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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 such that
they no longer reflect duties and responsibilities customary for an
executive officer of a publicly-traded company; provided, however, that
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NOVA's change to a privately-held company (for example, as a result of
acquisition) and the corresponding change in Employee's duties and
responsibilities shall not, by itself, be sufficient to qualify as a
"Responsibilities Breach"; (ii) Employee is required to relocate to an
office that is
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more than thirty-five (35) miles from Employee's current office located at
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000; (iii) there is a
reduction in Employee's Base Salary payable under Section 2, an adverse
change in the terms of the Incentive Compensation Plan, or a material
reduction in benefits provided to Employee under Section 3 (whether
occurring at once or over a period of time); or (iv) NOVA materially
breaches this Agreement, (each of (i), (ii), (iii) and (iv) being referred
to as a "Responsibilities Breach"), and NOVA fails to cure said
Responsibilities Breach within the Notice Period; provided, however, that
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with respect only to breaches that it is not possible to cure within the
Notice Period, so long as NOVA is diligently using its best efforts to cure
such breaches within such Notice Period, the Notice Period shall be
automatically extended for an additional period of time (not to exceed
sixty (60) days) to enable NOVA to cure such breaches, provided, further,
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that NOVA continues to diligently use its best efforts to cure such
breaches. Notwithstanding anything to the contrary in this Section 6(e),
the Notice Period for any breach arising from the failure to pay
compensation shall be five (5) days.
(f) Employee may terminate this Agreement at any time, without cause,
upon thirty (30) days prior written notice to NOVA.
(g) NOVA may terminate this Agreement at any time, without cause, upon
written notice to Employee.
(h) This Agreement shall automatically renew for successive one (1)
year terms (each a "Renewal Term") unless either party hereto gives the
other party hereto written notice of its or his intent not to renew this
Agreement no later than one hundred eighty (180) days prior to the date the
Initial Term, or the then-current Renewal Term, is scheduled to expire.
Employee's Employment shall terminate upon termination or expiration of
this Agreement.
7. Termination Payments.
(a) Upon termination of Employee's Employment, for whatever reason
(other than termination for "Cause" pursuant to Section 6(b), termination
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by Employee pursuant to Section 6(f), expiration of this Agreement
following notice of non-renewal by Employee pursuant to Section 6(h), or
termination because Employee otherwise "quits" or voluntarily terminates
his employment other than pursuant to Section 6(e) (each, a "Termination
Exclusion") (the effective date of such termination or expiration 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 accrued but unpaid Bonus Compensation), and any other benefits
required to be provided to Employee and his dependents under contract and
applicable law:
(i) NOVA shall pay Employee in cash an amount equal to his "Annual
Base Compensation" (as defined in Section 7(e)) multiplied by two (2)
(the "Severance Payment"). The Severance Payment shall be paid 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's Employment is terminated (other than by reason of a
Termination Exclusion) within two (2) years after a Change in Control
of NOVA, NOVA shall pay
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Employee the Severance Payment in one lump sum within thirty (30) days
of the Termination Date.
(ii) NOVA shall pay Employee an amount (the "Supplemental
Payment") equal to (x) the amount of Bonus Compensation payable to
Employee for the calendar year immediately preceding the year in which
the Termination Date occurs (the "Prior Bonus Amount") multiplied by
(y) a fraction, the numerator of which is the number of days beginning
on January 1st of the calendar year in which the Termination Date
occurs and ending on the Termination Date, and the denominator of
which is 365. The Supplemental Payment shall be paid to Employee
concurrently with the payment of the Prior Bonus Amount; provided,
however, that if the Prior Bonus Amount has already been paid to
Employee, the Supplemental Payment shall be paid within 30 days of the
Termination Date. In the event the Termination Date occurs in the
first calendar year of Employee's employment, then the Supplemental
Payment shall equal the pro rata percentage (determined using the
fraction above) of the Bonus Compensation Employee would have received
for the calendar year in which the Termination Date occurred had
Employee remained employed for the entire calendar year in which the
Termination Date occurred, and the Supplemental Payment shall be paid
to Employee concurrently with NOVA's payment of Bonus Compensation
generally for such calendar year.
(iii) Notwithstanding any provision to the contrary in any other
agreement or document (including but not limited to NOVA's applicable
plan documents), all stock options, restricted stock and other similar
rights that, as of the Termination Date, have been granted to Employee
shall become vested and exercisable immediately upon notice of such
termination and, as provided under the applicable plan or agreement,
Employee shall have the continuing right to exercise any or all of
such rights.
(iv) Until the earlier to occur of (x) the expiration of the
Severance Period or (y) Employee becomes an employee of another
company providing Employee and his dependents with medical, life and
disability insurance (the period from the Termination Date until such
event being referred to herein as the "Continuation Period"), NOVA
shall provide to Employee and his dependents the coverage for the
benefits described in Sections 3(a), (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.
During the two (2) year period following the Termination Date (the
"Severance Period"), Employee shall comply with the non-disclosure
obligations and covenants not to solicit or compete set forth in Sections
10 and 11 below.
For purposes of this Section 7(a), any accrued but unpaid Bonus
Compensation shall be paid to Employee on the date that Bonus Compensation
would have been payable under the Incentive Compensation Plan had
termination of Employee's Employment not occurred.
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(b) In the event Employee's Employment is terminated as a result of
the Termination Exclusions identified in Section 7(a), Employee shall be
paid his accrued but unpaid Base Salary and/or accrued but unpaid Bonus
Compensation through the Termination Date, and any other benefits required
to be provided to Employee and his dependents under contract and applicable
law. In the event that Employee is entitled to receive Bonus Compensation
under this Section 7(b), such Bonus Compensation shall be paid on the date
that Bonus Compensation would have been payable under the Incentive
Compensation Plan if termination of Employee's Employment had not occurred.
(c) 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 thirty (30) 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 10 and 11 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 thirty (30)
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 10 and 11 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 Base Salary in effect immediately prior to the
Termination Date 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 thirty (30)
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 10 and 11 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 Base Salary in effect immediately prior to the Termination
Date 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".
(d) 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.
(e) For purposes of this Agreement, the following terms shall be
defined as follows:
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(i) "Change in Control" shall mean:
(A) The acquisition (other than from NOVA) by any person,
entity or "group", within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934 (the "Exchange Act") (excluding, for this purpose,
any employee benefit plan of NOVA or its subsidiaries
which acquires beneficial ownership of voting
securities of NOVA) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange
Act) of 25% or more of either the then outstanding
shares of NOVA Stock or the combined voting power of
NOVA's then outstanding voting securities entitled to
vote generally in the election of directors; or
(B) The consummation by NOVA of a reorganization, merger,
consolidation, in each case, with respect to which the
shares of NOVA voting stock outstanding immediately
prior to such reorganization, merger or consolidation
do not constitute or become exchanged for or converted
into more than 50% of the combined voting power
entitled to vote generally in the election of directors
of the reorganized, merged or consolidated company's
then outstanding voting securities, or a liquidation or
dissolution of NOVA or of the sale of all or
substantially all of the assets of NOVA; and
(C) The failure for any reason of individuals who
constitute the Incumbent Board to continue to
constitute at least a majority of the Board of
Directors of NOVA.
(i.e., either (A) and (C) or (B) and (C) must occur in order
to constitute a Change in Control for purposes of this
definition).
(ii) "Annual Base Compensation" means the greater of (x)
Employee's Base Salary in effect on the Termination Date, or (y) the
greatest Base Salary in effect during the calendar year immediately
prior to the calendar year in which the Termination Date occurs.
(iii) "Incumbent Board" shall mean the members of the Board of
Directors of NOVA as of the Effective Date hereof and any person
becoming a member of the Board of Directors of NOVA hereafter whose
election, or nomination for election by NOVA's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than an election or nomination
of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election
of the directors of NOVA, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act).
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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
him during the term of his Employment concerning or relative to the Business,
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 such materials for any reason after said termination.
9. Arbitration.
(a) NOVA and Employee acknowledge and agree that (except as
specifically set forth in Section 9(d)) any claim or controversy arising
out of or relating to Section 7 of this Agreement shall be settled by
binding arbitration in Atlanta, Georgia, in accordance with the National
Rules of the American Arbitration Association for the Resolution of
Employment Disputes in effect on the date of the event giving rise to the
claim or controversy. NOVA and Employee further acknowledge and agree
that either party must request arbitration of any claim or controversy
within one (1) year of the date of the event giving rise to the claim or
controversy by giving written notice of the party's request for
arbitration. Failure to give notice of any claim or controversy within one
(1) year of the event giving rise to the claim or controversy shall
constitute waiver of the claim or controversy.
(b) All claims or controversies subject to arbitration pursuant to
Section 9(a) above shall be submitted to arbitration within six (6) months
from the date that a written notice of request for arbitration is
effective. All claims or controversies shall be resolved by a panel of
three arbitrators who are licensed to practice law in the State of Georgia
and who are experienced in the arbitration of labor and employment
disputes. These arbitrators shall be selected in accordance with the
National Rules of the American Arbitration Association for the Resolution
of Employment Disputes in effect at the time the claim or controversy
arises. Either party may request that the arbitration proceeding be
stenographically recorded by a Certified Shorthand Reporter. The
arbitrators shall issue a written decision with respect to all claims or
controversies within thirty (30) days from the date the claims or
controversies are submitted to arbitration. The parties shall be entitled
to be represented by legal counsel at any arbitration proceedings.
(c) NOVA and Employee acknowledge and agree that the arbitration
provisions in this Agreement may be specifically enforced by either party,
and that submission to arbitration proceedings may be compelled by any
court of competent jurisdiction. NOVA and Employee further acknowledge and
agree that the decision of the arbitrators may be specifically enforced by
either party in any court of competent jurisdiction.
(d) Notwithstanding the arbitration provisions set forth herein,
Employee and NOVA acknowledge and agree that nothing in this Agreement
shall be construed to require the arbitration of any claim or controversy
arising under Sections 10 and 11 of this Agreement nor shall such
provisions prevent NOVA from seeking equitable relief from a court of
competent jurisdiction for violations of Sections 10 and 11 of this
Agreement. These provisions shall be enforceable by any court of competent
jurisdiction and shall not be subject to arbitration except by mutual
written consent of the parties signed after the dispute arises, any such
consent, and the terms and conditions thereof, then becoming binding on the
parties. Employee and NOVA
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further acknowledge and agree that nothing in this Agreement shall be
construed to require arbitration of any claim for workers' compensation or
unemployment compensation.
10. Nondisclosure.
(a) NOVA Confidential Information. Employee acknowledges and agrees
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that because of his Employment, he will have access to proprietary
information of NOVA concerning or relative to the Business (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 his 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.
Employee further agrees that during the Severance Period or the Exclusion
Period, as applicable, 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 10 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 his Employment or the exercise of his 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
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his Employment, he 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
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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.
11. Covenants Not to Solicit or Compete.
Employee acknowledges and agrees that, because of his Employment, he does
and will continue to have access to confidential or proprietary information
concerning merchants, associate banks and ISOs of NOVA and shall have
established 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.
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Employee agrees that during the term of his Employment and continuing throughout
the Severance Period or the Exclusion Period, as applicable, 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:
(a) compete with NOVA in providing credit card and debit card
transaction processing services within the Territory or (ii) otherwise
associate with, obtain any interest in (except as a shareholder holding
less than five percent (5%) interest in a corporation traded on a national
exchange or over-the-counter), advise, consult, 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 ownership, 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;
(b) 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 the last twelve (12) months of
his Employment;
(c) 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 the last
twelve (12) months of his Employment; or
(d) persuade or attempt to persuade any person who (i) was employed by
NOVA as of the date of the termination of Employee's Employment and (ii) is
in a sales or management position with NOVA at the time of such contact, to
terminate or modify his employment relationship, whether or not pursuant to
a written agreement, with NOVA, as the case may be.
12. New Developments. Any discovery, invention, process or improvement
made or discovered by Employee during the term of his Employment in connection
with or in any way affecting or relating to the Business (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, trade secret information of NOVA was used and which was developed
entirely on Employee's own time, unless (a) the invention relates (i) directly
to the Business 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.
13. Remedy for Breach. Employee acknowledges and agrees that his breach
of any of the covenants contained in Sections 8, 10, 11 and 12 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
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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 the covenants contained
in Sections 8, 10, 11 and 12 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.
14. 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;
(b) the restrictions placed upon Employee hereunder are narrowly
drawn, are fair and reasonable in time and territory, will not prevent him
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; and
(d) Employee's Employment places him in a position of confidence and
trust with NOVA and its employees, merchants, associate banks, ISOs,
customers, vendors and suppliers.
15. 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 and, specifically, without
limiting the foregoing, if the term of the non-competition is too long 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 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.
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16. Full Settlement and Legal Expenses. NOVA's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counter-claim, recoupment,
defense or other claim, right or action which NOVA may have against the Employee
or others. In no event shall the Employee be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the
Employee under any of the provisions of this Agreement. NOVA agrees to pay, to
the full extent permitted by law, all legal fees and expenses which the Employee
may reasonably incur as a result of any contest (regardless of the outcome
thereof) by NOVA 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 Employee about the amount of any
payment pursuant to Section 7 of this Agreement), plus in each case interest at
the applicable federal rate provided for in Section 7872(f)(2) of the Code.
17. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Georgia.
18. 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.
19. Successors and Assigns. This Agreement shall inure to the benefit of
NOVA, its subsidiaries and affiliates, and their respective successors and
assigns. This Agreement is not assignable by Employee but shall be freely
assignable by NOVA.
20. 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:
Xxxxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
(ii) If to NOVA, to:
NOVA Corporation
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx
Chief Executive Officer
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With a copy (which shall not constitute notice) to:
NOVA Corporation
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
General Counsel
21. Entire Agreement. This Agreement contains the entire agreement of the
parties, and supersedes all other prior negotiations, commitments, agreements
and understandings (written or oral) between the parties with respect to the
subject matter hereof. 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.
22. 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.
23. Survival. The provisions of Sections 7, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, 20, 22 and 24 shall survive termination of Employee's Employment and
termination of this Agreement.
24. Withholding. All payments required to be made by NOVA under this
Agreement will be subject to the withholding of such amounts, if any, relating
to federal, state and local taxes as may be required by law.
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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/ Xxxxxx X. Xxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxx
"NOVA":
NOVA Corporation
By: /S/ Xxxxxx Grzedzinksi
-----------------------------
Xxxxxx Xxxxxxxxxxx
Chairman, CEO and President
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