EXHIBIT 10.35
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this 31st day of
July 1998, to be effective as of the 1st day of March 1998 (the "Effective
Date") by and between XXXX X. XXXXX (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, Sales and
Marketing 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 his 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 he may
continue to 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 (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 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 be employed
as Executive Vice President, Sales and Marketing 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 interest 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 Thirty Thousand Dollars ($230,000)("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 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 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
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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.
(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
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in 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 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.
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(g) Terms and Provisions of Plans Control. Notwithstanding any
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provisions of this Section 3 to the contrary, Employee and his 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) 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
ever possibly be effected.
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 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 policy 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.
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 his duties under this Agreement diligently and in
accordance wit 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.
(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
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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, Sales and Marketing, 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 his sole option and his sole discretion, give
notice of his intent to terminate his Employment hereunder at any time
within ninety (90) days after a "Change in Control" (as defined below) has
occurred, and may thereafter terminate his 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 his 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.
(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 his 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 his dependents under contract and applicable law:
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(i) NOVA shall pay Employee an aggregate amount in cash equal to two
(2) times his 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 his 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 he 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 his 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 control Employee's (and his dependent's)
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 his
dependents with medical, life and disability insurance), NOVA
shall provide to Employee and his 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
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(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 Termite 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
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,
exercisable by, Employee's estate.
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 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.
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9. 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 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 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.
Employment further agrees that during the Severance Period of 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
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 his
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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.
10. COVENANTS NOT TO SOLICIT OR COMPETE.
(a) 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
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 his
Employment and continuing throughout the Severance Period of 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:
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(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 perspective
merchant, associate bank, ISO or customer) of NOVA and with whom
Employee had material contact or about whom Employee learned
material information during his 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 his 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 his 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 his 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, 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 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 his 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 he 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
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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 him 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 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 of NOVA; 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.
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
permissible under the laws and public policies of each state and jurisdiction in
which such enforcement 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 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-arbitration rules then in effect of
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.
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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:
Xxxx X Xxxxx
0000 Xxxx Xxxx, X.X.
Xxxxxxx, XX 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 April 4, 1997, 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.
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/ Xxxx Xxxxx
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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 his then current Base Salary, the following percentage (the
"Bonus Percentage") of his 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 his then current Base Salary. If Employee's Base Salary was
$100,000, Employee would receive, in addition to his 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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