6
RESTRICTED UNIT AGREEMENT
VITAL PROCESSING SERVICES L.L.C.
THIS RESTRICTED UNIT AGREEMENT ("Agreement") is entered into this 12th day
of June, 2000, by and between _____________________ ("Transferee") and Total
System Services, Inc. ("TSYS" or the "Company").
WHEREAS, Transferee has been significant in the creation of additional
value for TSYS because of his role with Vital Processing Services L.L.C.
("Vital"); and
WHEREAS, by a Transfer Instrument of even date herewith (the "Transfer
Instrument"), TSYS has transferred to Transferee ________ of the Units owned by
TSYS in Vital (the Units so transferred being referred to as the "Restricted
Units").
NOW, THEREFORE, Transferee and TSYS hereby agree as follows:
1. Restricted Units. The provisions of the Transfer Instrument are
incorporated herein by reference. In addition to the Transfer Instrument and the
Limited Liability Company Agreement of Vital, this Agreement governs the
Transferred Units, and such agreements and instrument are sometimes referred to
collectively as the "Governing Agreements."
2. Restriction Against Transfer. The Restricted Units may not 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 the Governing Agreements. In the event of any attempt
to effect any action in contravention of the next preceding sentence, then, any
provision of any of the Governing Agreements to the contrary notwithstanding,
such Restricted Units shall thereupon be forfeited to the Company.
3. Forfeiture Condition. Any Restricted Units which do not vest pursuant to
the provisions of Section 4 below will be forfeited to the Company.
4. Vesting of Restricted Units.
(a) Vesting Conditions. If Transferee remains in the continuous
employ of the Company or a Subsidiary of the Company through June
12, 2003, the Restricted Units will become non-forfeitable
("vest") on June 12, 2003. In addition, if Vital is recapitalized
in accordance with Section 7(g) of this Agreement and the
securities received by Transferee are thereafter publicly traded
on a national securities exchange, the Restricted Units will also
vest on the first day such securities are publicly traded.
(b) Effect of Voluntary Termination or Termination for Cause or
Suicide. If Transferee's employment with the Company and its
Subsidiaries is terminated: (i) by Transferee voluntarily or (ii)
by the Company or a Subsidiary for Cause or (iii) by Transferee's
death due to suicide before the Restricted Units vest pursuant to
the provisions of paragraph 4(a) above, then the Restricted Units
will be forfeited to the Company on the date of such termination,
unless the Compensation Committee in its sole and exclusive
discretion determines otherwise.
(c) Effect of Death (Other than by Suicide) or Disability. If
Transferee's employment with the Company and its Subsidiaries
terminates by reason of Transferee's death (other than by
suicide) or Disability, then the Restricted Units will vest on
the date of such termination.
(d) Effect of Retirement or Leave of Absence. If Transferee's
employment with the Company and its Subsidiaries is terminated by
reason of Transferee's Retirement, and the Restricted Units have
previously vested, Transferee shall retain such Units. If at the
time of such termination the Restricted Units have not vested,
they will be forfeited to the Company, unless the Compensation
Committee in its sole and exclusive discretion determines
otherwise. A leave of absence which is approved in writing by the
Compensation Committee with specific reference to this Agreement
will not be considered a termination of Transferee's employment
with the Company and its Subsidiaries for purposes of this
Section 4 or any other provision of this Agreement.
(e) No Forfeiture of Vested Units. Any Restricted Unit which vests
pursuant to the preceding provisions of this Section 4 will not
thereafter be subject to the provisions of this Agreement, but
shall remain subject to the provisions of the other Governing
Agreements.
(f) Certain Effects of Vesting. From and after the date the
Restricted Units vest, they shall be treated as Units of Vital
for purposes of all of the distribution and allocation provisions
of Vital's Limited Liability Company Agreement. At no time,
whether or not vested, shall Units held by the Transferee have
any voting or consent rights whatsoever or any other right to
participate in the management of Vital.
5. Effect of Forfeiture. If any Restricted Units are forfeited to the
Company pursuant to any provision of this Agreement the Transfer Instrument will
be surrendered to the Company and will be deemed rescinded. All of Transferee's
rights and interests in and to such Restricted Units will terminate upon such
forfeiture without any payment of consideration by the Company.
6. Definitions. For purposes of this Agreement, the following capitalized
terms shall be defined as set forth below:
(a) "Cause" means a felony conviction of Transferee or the
failure of Transferee to contest prosecution for a felony, or
Transferee's willful misconduct, dishonesty, embezzlement, fraud,
deceit or civil rights violations, any of which acts cause the
Company or any Subsidiary liability or loss, as determined
by the Compensation Committee.
(b) "Compensation Committee" means the Compensation Committee of
Company's Board of Directors.
(c) "Disability" means total and permanent physical or mental
disability or incapacity of an employee to fulfill at any time or
from time to time his normal duties as an employee, as certified
in writing by two competent physicians, one of which shall be
selected by the Compensation Committee and the other of which
shall be selected by the employee or his duly appointed guardian
or legal or personal representative.
(d) "Retirement" means normal or early retirement under the
applicable Company or Subsidiary pension plan.
(e) "Subsidiary" means any company or business organization (other
than Company) in an unbroken chain of companies beginning with
Company if each of the companies (other than the last company in
the unbroken chain) owns 50% or more of the total combined voting
power in one of the other companies in the chain.
7. General Provisions.
(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 Company,
on Transferee and on anyone claiming under or through the Company
or Transferee. Without limiting the generality of the foregoing,
any determination as to whether an event has occurred or failed
to occur which causes the Restricted Units 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
Units, Transferee irrevocably consents and agrees to the terms
and conditions set forth in the Governing Agreements 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) Withholding. The Company will have the right to withhold from
any payments to be made to Transferee (whether under this
Agreement or otherwise) any taxes the Company determines it is
required to withhold with respect to Transferee under the laws
and regulations of any governmental authority, whether Federal,
state or local and whether domestic or foreign, in connection
with this Agreement, including, without limitation, taxes in
connection with the transfer of Restricted Units or the vesting
of the Restricted Units. Failure to submit any such withholding
taxes shall be deemed to cause otherwise vested Restricted Units
not to vest.
(c) 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. Transferee's
rights under this Agreement will be exercisable during
Transferee's lifetime only by Transferee or by Transferee's
guardian or legal representative.
(d) Terms and Conditions Binding. The terms and conditions set
forth in the Governing Agreements will be binding upon and inure
to the benefit of the Company, its successors and assigns,
including any assignee of the Company and any successor to
the Company by merger, consolidation or otherwise, and
Transferee, Transferee's heirs, devisees and legal
representatives.
(e) No Employment Rights. No provision of any Governing Agreement
will be deemed to confer upon Transferee any right to continue in
the employ of the Company or a Subsidiary or will in any way
affect the right of the Company or a Subsidiary to dismiss or
otherwise terminate Transferee's employment at any time for any
reason with or without cause, or will be construed to impose upon
the Company or a Subsidiary any liability for any forfeiture of
Restricted Units which may result under this Agreement if
Transferee's employment is so terminated.
(f) No Liability for Good Faith Business Acts or Omissions.
Transferee recognizes and agrees that the Compensation Committee,
the Board of Directors of Company, or the officers, agents or
employees of the Company and its Subsidiaries, in their oversight
or conduct of the business and affairs of the Company and its
Subsidiaries, may in good faith cause the Company or a Subsidiary
to act, or to omit to act, in a manner that may, directly or
indirectly, prevent the Restricted Units from vesting. No
provision of this Agreement will be interpreted or construed to
impose any liability upon the Company, a Subsidiary, the
Compensation Committee, Board of Directors or any officer, agent
or employee of the Company or a Subsidiary, for any forfeiture of
Restricted Units that may result, directly or indirectly, from
any such action or omission.
(g) Recapitalization. In the event that Transferee receives, with
respect to Restricted Units, any securities or other property
(other than cash distributions) as a result of any security
dividend or split, spin-off, recapitalization, merger,
consolidation, combination or exchange of securities, transaction
to facilitate the business of Vital being owned or operated by a
publicly traded entity, or a similar corporate change, any such
securities or other property received by Transferee will likewise
be subject to the terms and conditions set forth in this
Agreement and will be included in the term "Restricted Units."
(h) Appointment of Agent. By accepting the transfer of Restricted
Units, Transferee irrevocably nominates, constitutes, and
appoints the Company Transferee's agent for purposes of
surrendering or transferring the Restricted Units to the Company
upon any forfeiture required or authorized by this Agreement.
This power is intended as a power coupled with an interest and
will survive Transferee's death. In addition, it is intended as a
durable power and will survive Transferee's disability.
(i) Legal Representative. In the event of Transferee's death or a
judicial determination of Transferee's incompetence, reference in
this Agreement to Transferee shall be deemed, where appropriate,
to be Transferee's heirs or devisees.
(j) 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.
(k) Complete Agreement. The Governing Agreements contain the entire
agreement of the parties relating to the subject matter hereof
and supersede and replace 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 in the
Governing Agreements.
(l) 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 Transferee and by an officer of the Company 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 provisions or
condition at the same time or at any prior or subsequent time.
(m) 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 Company is incorporated, without giving
effect to the principles of conflicts of law of that state.
WITNESS the execution hereof by the undersigned.
TRANSFEREE:
__________________________________________
TOTAL SYSTEM SERVICES, INC.
By: _____________________________
Name: _____________________________
Title: _____________________________
TRANSFER INSTRUMENT
Total System Services, Inc. hereby transfers to the individual employee
thereof named below (the "Transferee") the number of Units of Vital Processing
Services L.L.C. (the "Company") shown below, effective as of the date shown
below.
The Transferee hereby acknowledges and agrees as follows:
1. The Transferee is admitted to the Company as a Non-Voting Member. The
Transferee has no voting or consent rights whatsoever or any other right to
participate in the management of the Company.
2. The Transferee is bound by all of the provisions and restrictions of the
Limited Liability Company Agreement of the Company, as such agreement is amended
from time to time (including, without limitation, the restrictions on transfer
contained therein).
3. To the extent applicable to individuals, the Transferee makes the
representations set forth in Section 2.06 of the Company's Limited Liability
Company Agreement.
4. The Transferee has executed and delivered a separate agreement of even
date herewith that relates to the vesting of the Units transferred hereby and
other matters. The Transferee will have no rights to allocations and
distributions with respect to such Units (except with respect to the
Transferee's capital account upon the liquidation and winding up of the Company)
unless and until such Units vest under the terms of such separate agreement.
WITNESS the execution hereof by the undersigned.
Total System Services, Inc. Transferee:
By: ___________________________ ________________________________
Name: ___________________________ Effective Date: June 12, 2000
Title: ___________________________ Number of Units: ________________
