EXHIBIT 10.50
NOVA CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement (the "Agreement") is entered into
as of the 6th day of May, 1999, by and between NOVA Corporation (the "Company")
and XXXXXX XXXXXXXXXXX (the "Optionee").
W I T N E S S E T H:
WHEREAS, on October 30, 1998, the Board of Directors of the Company
authorized the grant of an option to purchase 375,000 shares of common stock of
the Company (the "10/98 Grant") to Optionee under the terms of the NOVA
Corporation 1996 Employees Stock Incentive Plan (the "1996 Plan");
WHEREAS, during 1998, Optionee had previously received an option to
purchase 100,000 shares of the Company's common stock;
WHEREAS, the terms of the 1996 Plan provide that no more than 200,000
shares of the Company's common stock may be made subject to aggregate stock
options granted during a calendar year to any one individual, so the 10/98 Grant
was in violation of the terms of the 1996 Plan;
WHEREAS, the Board of Directors has amended the 10/98 Grant to provide that
Optionee shall receive an option to purchase 100,000 shares of the Company's
common stock under the terms of the 1996 Plan;
WHEREAS, the Company wishes to grant to Optionee a non-incentive stock
option for the remaining 275,000 options at the same exercise price, and subject
to the same vesting schedule, as the 10/98 Grant, to reward Optionee for his
efforts on behalf of the Company and to encourage his continued loyalty and
diligence;
WHEREAS, the Company desires to grant this option outside any stock option
plan of the Company; and
WHEREAS, to further the interests of the Company and Optionee, the parties
hereto have set forth the terms of such option in writing in this Agreement;
NOW, THEREFORE, for and in consideration of the premises and mutual
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as follows:
1. Grant of Option. Effective as of May 6, 1999, the Company hereby
grants to Optionee a non-incentive stock option. Under that option and subject
to the terms and conditions set forth herein, Optionee shall have the right to
purchase 275,000 shares of the common stock of the Company (the "Common Stock");
such 275,000 shares hereinafter are referred to as the "Optioned Shares", and
this option hereinafter is referred to as the "Option". The Option is intended
to be a nonqualified option, and is not issued under any stock option plan of
the Company; notwithstanding, any capitalized terms used
but not defined herein shall have the meanings of such terms as defined in the
1996 Plan.
2. Option Price. The price per share for each of the Optioned Shares
shall be $22.9375 (the "Option Price").
3. Exercise of Option.
(a) General. The Option may be exercised by Optionee's delivery to
the Secretary of the Company of a written notice of exercise executed by
Optionee (the "Notice of Exercise"). The Notice of Exercise shall be
substantially in the form set forth as Exhibit A, attached hereto and made a
part hereof, and shall identify the Option and the number of Optioned Shares
that are being exercised.
(b) Beginning of Exercise Period. The Option first shall become
exercisable (i.e., vested) according to the following schedule; provided, if
Optionee ceases to be an employee of the Company, his rights with regard to all
non-vested Options under this schedule shall cease immediately:
(i) As of October 30, 1999, Optionee shall have the right to
exercise 25% of the Optioned Shares;
(ii) As of October 30, 2000, Optionee shall have the right to
exercise an additional 25% of the Optioned Shares;
(iii) As of October 30, 2001, Optionee shall have the right to
exercise an additional 25% of the Optioned Shares;
(iv) As of October 30, 2002, Optionee shall have the right to
exercise the remainder of the Optioned Shares.
Notwithstanding the foregoing, the Option shall become 100% vested immediately
upon the death or Disability of Optionee or upon a Change of Control of the
Company.
(c) Partial Exercise. Optionee may exercise the Option for less than
the full number of exercisable Optioned Shares, but such exercise may not be
made for less than 50 shares or the total remaining shares subject to the
Option, if less than 50 shares.
4. Termination of Option. Notwithstanding any provisions to the contrary
herein, the Option shall not be exercisable either in whole or in part after the
earliest of:
(a) Ten years from the date of grant;
(b) The date that is immediately prior to the first anniversary of the
date on which Optionee dies (i) while employed by the Company, (ii) within the
three-month period that begins on the date on which Optionee ceases to be an
employee of the Company for any reason other than death or Disability or (iii)
within the one-year period that begins on the date on which Optionee ceases to
be an employee of the Company due to Disability;
(c) The date of expiration of the one-year period that begins on the
date on which Optionee ceases to be an employee of the Company due to
Disability; provided, if Optionee dies during such one-year period, the terms of
subsection (b) shall control;
(d) The date of expiration of the three-month period that begins on
the date on
which Optionee ceases to be an employee of the Company for any reason other than
death or Disability; provided, if Optionee dies during such three-month period,
the terms of subsection (b) shall control;
(e) The date on which the Company gives notice (or is deemed to have
given notice) to Optionee of his termination of employment for Cause.
5. Option Non-Transferable. The Option shall not be transferable by
Optionee other than by will or by the laws of descent and distribution except
(i) by transfer to a Beneficiary upon the death of the Optionee, or (ii) by
transfer from the Optionee to a spouse, lineal ascendant or lineal descendant of
the Optionee or a spouse of a lineal ascendant or descendant of the Optionee
(but only to the extent that such transfer would not cause this Option to lose
an exemption from the provisions of Section 16 of the 1934 Act in accordance
with Rule 16b-3(a)(2) or the corresponding provisions, if any, of subsequent
regulations under Section 16 of the 1934 Act), and any purported transfer (other
than as excepted above) shall be null and void. After the death of the Optionee
and upon the death of the Optionee's Beneficiary, the Option may be transferred
by will or by the laws of descent and distribution. During the lifetime of
Optionee, the Option shall be exercisable only by Optionee (or, if he becomes
disabled or otherwise incapacitated, by the guardian of his property or his duly
appointed attorney-in-fact), and shall not be assignable or transferable by
Optionee and, subject to Section 6 hereof, no other person shall acquire any
rights in the Option.
6. Death of Optionee and Transfer of Option. In the event of the death of
Optionee while in the employ of the Company, within a period of one year after
the termination of his employment with the Company due to Disability, or within
a three-month period after the employee ceases to be an employee of the Company
for any reason other than for Cause, all or any of the unexercised portion of
the Option owned by the deceased Optionee may be exercised by Optionee's
Beneficiary at any time prior to the first anniversary of the date of the death
of Optionee, but in no event later than the date as of which such Option expires
pursuant to Section 4 hereof. Such exercise shall be effected in accordance
with the terms hereof as if such Beneficiary was Optionee herein. The Optionee
agrees that the following individual shall initially be his Beneficiary:
Name: Xxxxxxxx X. Xxxxxxxxxxx
Address: 000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
The selection of a beneficiary by the Optionee and any subsequent modification
of the Optionee's Beneficiary shall be made pursuant to the terms and provisions
of the 1996 Plan, as if this Option had been issued under such 1996 Plan.
7. Medium and Time of Payment of Option Price.
(a) General. The Option Price shall be payable by Optionee (or his
Beneficiary in accordance with Section 6 hereof) upon exercise of the Option and
shall be paid in cash, in shares of the Common Stock (or by instructing the
Company to retain shares of Common Stock as payment), in other property or
services acceptable to the Company and allowed under applicable law, or any
combination thereof.
(b) Payment in Shares of the Common Stock. If Optionee pays all or
part of the Option Price with shares of the Common Stock, the following
conditions shall apply:
Nonqualified Stock Option Agreement -- Page 3
(i) Optionee shall deliver to the Secretary of the Company a
certificate or certificates for shares of the Common Stock duly endorsed
for transfer to the Company with signature guaranteed by a member firm of a
national stock exchange or by a national or state bank (or guaranteed or
notarized in such other manner as the Company may require);
(ii) Optionee must have held any shares of the Common Stock used
to pay the Option Price for at least six months prior to the date such
payment is made;
(iii) Such shares shall be valued on the basis of the Fair
Market Value of the Common Stock on the date of exercise, as determined
pursuant to the terms of the Plan as if this Option had been granted
thereunder; and
(iv) The value of such Common Stock shall be less than or equal
to the Option Price. If Optionee delivers Common Stock with a value that
is less than the Option Price, then Optionee shall pay the balance of the
Option Price in a form allowed under subsection (a) above.
In addition to the payment of the Option Price, Optionee also shall pay in cash
(or have withheld from his normal pay) an amount equal to, or by instructing the
Company to retain Common Stock upon the exercise of the Option with a Fair
Market Value equal to, the amount, if any, which the Company at the time of
exercise is required to withhold under the income tax and FICA withholding
provisions of the Internal Revenue Code of 1986, as amended, and of the income
tax laws of the state of Optionee's residence.
8. Agreement of Optionee. Optionee acknowledges and understands that
certain restrictions may apply with respect to shares of the Common Stock
acquired by him pursuant to his exercise of the Option (including restrictions
on resale applicable to "affiliates" under Rule 144 of the Securities Act of
1933, as amended, and restrictions on resale applicable to shares of the Common
Stock that have not been registered under the Securities Act of 1933, as
amended, and applicable state securities laws). Optionee hereby agrees to
execute such documents and take such actions as the Company may require with
respect to state and federal securities laws and any restrictions on the resale
of such shares which may pertain.
9. Delivery of Stock Certificates. As promptly as administratively
practical after the date of exercise of the Option and the receipt by the
Company of full payment therefor, the Company shall deliver to Optionee a stock
certificate representing the shares of the Common Stock acquired by Optionee
pursuant to his exercise of the Option. Alternatively, the Company may deliver
the shares to the Optionee by electronic transfer.
10. Notices. All notices or other communications hereunder shall be in
writing and shall be effective (i) when personally delivered by courier
(including overnight carriers) or otherwise to the party to be given such notice
or other communication or (ii) on the third business day following the date
deposited in the United States mail if such notice or other communication is
sent by certified or registered mail with return receipt requested and postage
thereon fully prepaid. The addresses for such notices shall be as follows:
If to the Company:
NOVA Corporation
Attention: Corporate Secretary
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Nonqualified Stock Option Agreement -- Page 4
If to Optionee:
Xxxxxx Xxxxxxxxxxx
000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Any party hereto, by notice of the other party hereunder, may change its address
for receipt of notices hereunder.
11. Other Terms and Conditions. In addition to the terms and conditions
set forth herein, except as otherwise expressly provided herein, the Option is
subject to and governed by the other terms and conditions set forth in the Plan
as if this Option had been issued thereunder. The Plan is hereby incorporated
by reference.
12. Miscellaneous.
(a) The granting of the Option and the execution of this Agreement
shall not give Optionee any rights to similar grants in future years or any
right to be retained in the employ of the Company or to interfere in any way
with the right of the Company to terminate Optionee's employment at any time.
(b) Unless and except as otherwise specifically provided in this
Agreement, Optionee shall have no rights of a shareholder with respect to any
shares covered by the Option until the date of issuance of a stock certificate
to him for such shares.
(c) If any term, provision, covenant or restriction contained in this
Agreement is held by a court or a federal regulatory agency of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions contained in this Agreement shall remain
in full force and effect, and shall in no way be affected, impaired or
invalidated. If for any reason such court or regulatory agency determines that
this Agreement will not permit Optionee to acquire the full number of Optioned
Shares as provided in Section 1 hereof, it is the express intention of the
Company to allow Optionee to acquire such lesser number of shares as may be
permissible without any amendment or modification hereof.
(d) This Agreement shall be construed and enforced in accordance with
the laws of Georgia.
(e) This Agreement contains the entire understanding among the parties
and supersedes any prior understanding and agreements between them representing
the subject matter hereof. There are no representations, agreements,
arrangements or understandings, oral or written, between and among the parties
hereto relating to the subject matter hereof which are not fully expressed
herein.
(f) Section and other headings contained in this Agreement are for
reference purposes only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof.
Nonqualified Stock Option Agreement -- Page 5
(g) This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which shall constitute one
agreement, and the signatures of any party or any counterpart shall be deemed to
be a signature to, and may be appended to, any other counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the first date written above.
NOVA CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Title: Sr. Vice President and
General Counsel
OPTIONEE:
/s/ Xxxxxx Xxxxxxxxxxx
----------------------
XXXXXX XXXXXXXXXXX
Nonqualified Stock Option Agreement -- Page 6
EXHIBIT A
NOVA CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
NOTICE OF EXERCISE
This Notice of Exercise is given pursuant to the terms of the Nonqualified
Stock Option Agreement, dated __________________, _______, between NOVA
Corporation (the "Company") and the undersigned Optionee (the "Agreement"),
which Agreement represents Nonqualified Stock Option No. ________ and which is
made a part hereof and incorporated herein by reference.
EXERCISE OF OPTION. Optionee hereby exercises his option to purchase
_______ of his Optioned Shares. Optionee hereby delivers, together with this
written statement of exercise, the full Option Price with respect to the
exercised Optioned Shares, which consists of:
[COMPLETE ONLY ONE]
[ ] cash in the total amount of $_________________.
[ ] _________ shares of the Company's Common Stock.
[ ] cash in the total amount of $_________________ and
_________ shares of the Company's Common Stock.
[ ] other (specify): _________________________________
ACKNOWLEDGMENT. Optionee hereby acknowledges that, to the extent he is an
"affiliate" of the Company (as that term is defined in Rule 144 promulgated
under the Securities Act of 1933, as amended) or to the extent that the Optioned
Shares have not been registered under the Securities Act of 1933, as amended, or
applicable state securities laws, any shares of the Company's Common Stock
acquired by him as a result of his exercise of the Option pursuant to this
Notice are subject to, and the certificates representing such shares shall be
legended to reflect, certain trading restrictions under applicable securities
laws (including particularly the Securities and Exchange Commission's Rule 144),
and Optionee hereby agrees to comply with all such restrictions and to execute
such documents or take such other actions as the Company may require in
connection with such restrictions.
Executed this ______ day of _________________, _________.
OPTIONEE:
---------------------------------------
Xxxxxx Xxxxxxxxxxx
NOVA Corporation hereby acknowledges receipt of this Notice of Exercise and
receipt of payment in the form and amount indicated above, all on this _____ day
of ________________, _______.
NOVA CORPORATION
By:
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Title:
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Nonqualified Stock Option Agreement -- Page 7
