EXHIBIT 10.51
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective as of this
22nd day of February 2001, (the "Effective Date") by and between Xxxxxx X.
Xxxxxx (hereinafter referred to as "Employee") and NOVA Corporation, a Georgia
corporation ("NOVA").
W I T N E S S E T H :
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WHEREAS, NOVA, 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, Employee currently serves as the President of NOVA Information
Systems, Inc. and as Executive Vice President and Chief Information Officer of
NOVA pursuant to an Employment Agreement between Employee and NOVA effective
February 15, 1999, (the "Prior Agreement");
WHEREAS, NOVA, or its assigns, will continue to engage in the Business
throughout the United States (the "Territory");
WHEREAS, NOVA and Employee desire to terminate the Prior Agreement, which
termination shall be contemporaneous with the effectiveness of this Agreement;
WHEREAS, NOVA desires that Employee continue to work for NOVA, and Employee
desires to continue said employment, all as contemplated herein;
NOW, THEREFORE, for and in consideration of her continued employment by
NOVA pursuant to this Agreement, the NOVA Confidential Information and Trade
Secrets (as hereafter defined) furnished to Employee by NOVA in order that she
may continue to perform her duties under this Agreement, the mutual covenants
and agreements herein contained, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Employment of Employee. NOVA hereby employs Employee for a period
beginning as of the Effective Date 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 her reasonable best efforts to her
duties under this Agreement and to perform such duties diligently and
efficiently and in accordance with the directions of NOVA's Chief Executive
Officer.
(b) During the term of Employee's Employment, Employee shall serve as
President of NOVA Information Systems, Inc. and as Senior Executive Vice
President of NOVA. Employee shall be responsible primarily for such duties
as are assigned to her, from time to time, by NOVA's Chief
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Executive Officer, which in any event shall be such duties as are customary
for an officer in that positions.
(c) Employee shall devote substantially all of her business time,
attention, and energies to NOVA's Business, shall act at all times in the
best interests of NOVA, and shall not during the term of her Employment be
engaged in any other business activity, whether or not such business is
pursued for gain, profit, or other pecuniary advantage, or permit such
personal interests as she may have to interfere with the performance of her
duties hereunder. Notwithstanding the foregoing, Employee may participate
in industry, civic and charitable activities so long as such activities do
not materially interfere with the performance of her duties hereunder.
2. Compensation. During the term of Employee's Employment and in
accordance with the terms hereof, NOVA shall pay or otherwise provide to
Employee the following compensation:
(a) Employee's annual salary during the term of her Employment shall
be Three Hundred Sixty Thousand and No/100 Dollars ($360,000) ("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 her dependents shall be entitled
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to 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.
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(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
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in 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 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
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of 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
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take 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 her
dependents, either by excluding Employee and/or her dependents explicitly
by name or by modifying provisions generally applicable to all employees
and dependents so that only Employee and/or her dependents would be
affected.
(h) Vesting of Rights. Upon the occurrence of a "Change in Control"
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(as defined in Section 7(f)) 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 that are not vested on the date of occurrence of
such an event, as well as any Deferred Compensation Plan balance that is
not vested on the date of occurrence of such an event, shall become vested
and exercisable immediately (collectively, the "Vested Rights"). As
provided under the applicable plan or agreement, Employee shall have the
right to exercise any or all of the Vested Rights.
4. Personnel Policies. Employee shall conduct herself at all times
in a businesslike and professional manner as appropriate for a person in her
position and shall represent NOVA in all respects 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 her in the performance of her duties hereunder, provided that
Employee shall first document and substantiate said business expenses in the
manner generally required by NOVA under its policies and procedures.
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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 her duties under this Agreement diligently and in accordance with
the directions of NOVA; (iii) Employee's willful, intentional, or grossly
negligent failure to comply with the decisions or policies of NOVA; or
(iv) final conviction of Employee of a felony; provided, however, that in
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the 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
her 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 her 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 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
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Breach"), and NOVA fails to cure said Responsibilities Breach within the
Notice Period; provided, however, that with respect only to breaches that
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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, that NOVA continues to diligently use its best
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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 her 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
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
her 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), and any other benefits required to be provided to Employee and her
dependents under contract and applicable law:
(i) NOVA shall pay Employee in cash an amount equal to her
"Annual Base Compensation" (as defined in Section 7(f)) multiplied by
two (2) (the "Severance Payment"). The Severance Payment shall be paid
in twenty-four (24) equal monthly installments, 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:
(A) 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 Employee the Severance
Payment in one lump sum within thirty (30) days of the
Termination Date.
(B) if, within the two-year period immediately following
a Change in Control of NOVA, Employee's Employment is terminated
by Employee pursuant to Section 6(f), because Employee "quits" or
voluntarily terminates her employment or this Agreement expires
following notice of non-renewal by Employee pursuant to
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Section 6(h), such a termination shall not be deemed to be a
Termination Exclusion for purposes of this Section 7.
Accordingly, NOVA shall pay Employee an amount equal to her
Annual Base Compensation multiplied by two (2), and NOVA shall
pay Employee this Severance Payment in one lump sum within
thirty (30) days of the Termination Date; provided, however, in
such a case, (i) Employee will not be paid any Supplemental
Payment and (ii) Employee will not be entitled to her Bonus
Compensation if such a terminating event occurs prior to the
date when any accrued Bonus Compensation would be paid to
Employee (even if she was employed for the entire calendar year
upon which such Bonus Compensation would be calculated).
(C) in the event Employee is terminated for Cause pursuant
to the terms of Section 6(b), such event shall be governed by
Section 7(b) hereof even if such Termination Date is within two
(2) years after a Change in Control of NOVA.
(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 1/st/ 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 the NOVA
Corporation Deferred Compensation Plan (the "Deferred Compensation
Plan"), the Deferred Compensation Plan Administrative Committee will
exercise its sole option and sole discretion pursuant to Sections 7.02
and 9.02 of the Deferred Compensation Plan, and will determine that
Employee shall become fully vested immediately in all of her Deferred
Compensation Plan accounts as of the Termination Date.
(iv) 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 right to exercise any or all of such rights.
Further, in the event Employee's Employment is terminated for whatever
reason (other than termination for "Cause" pursuant to Section 6(b))
within two (2) years after a Change in Control of NOVA, Employee shall
have the continuing
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right to exercise the "Qualified Options" (as defined in Section
7(f)(iv)), at any time prior to the date which is one (1) year after
the Termination Date, in accordance with their original terms (without
regard to any provision thereof requiring earlier expiration upon
termination of employment).
(v) 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 her 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 her 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.
Except as provided in Section 7(a)(i)(B), 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.
(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 her accrued but unpaid Base Salary through the Termination Date, and
any other benefits required to be provided to Employee and her dependents
under contract and applicable law. Employee will not be entitled to her
Bonus Compensation if Employee's Employment is terminated as a result of
one of the Termination Exclusions prior to the date when any earned Bonus
Compensation would be paid to Employee. In such a case, Employee shall not
be entitled to any portion of her Bonus Compensation upon such termination
of employment even if she was employed for the entire calendar year upon
which such Bonus Compensation would be calculated.
(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
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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) Gross-Up Payment.
(i) Anything in this Agreement to the contrary notwithstanding,
in the event it shall be determined that any payment or distribution
by or on behalf of NOVA to or for the benefit of Employee as a result
of a "Change in Control" or as otherwise payable under Sections 3(h)
or 7(a) (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined
without regard to any additional payments required under this Section
7(e) (a "Payment")) would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any interest or penalties are incurred by Employee with
respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as
the "Excise Tax"), then Employee shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that,
after payment by Employee of all taxes upon the Gross-Up Payment (such
taxes including, without limitation, any income taxes and Excise Tax
imposed upon the Gross-Up Payment, and any interest or penalties
imposed with respect to such taxes), Employee retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payment.
(ii) Subject to the provisions of Section 7(e)(iii), all
determinations required to be made under this Section 7, including
whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at
such determination, shall be made by a nationally recognized
accounting firm or law firm selected by Employee and reasonably
acceptable to NOVA (the "Tax Firm"); provided, however, that the Tax
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Firm shall not determine that no Excise Tax is payable by Employee
unless it delivers to Employee a written opinion (the "Accounting
Opinion") that failure to pay the Excise Tax and to report the Excise
Tax and the payments potentially subject thereto on or with Employee's
applicable federal income tax return will not result in the imposition
of an
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accuracy-related or other penalty on Employee. All fees and expenses
of the Tax Firm shall be borne solely by NOVA. Within fifteen (15)
business days of the receipt of notice from Employee that there has
been a Payment, the Tax Firm shall make all determinations required
under this Section 7, shall provide to NOVA and Employee a written
report setting forth such determinations, together with detailed
supporting calculations, and, if the Tax Firm determines that no
Excise Tax is payable, shall deliver the Accounting Opinion to
Employee. Any Gross-Up Payment, as determined pursuant to this Section
7, shall be paid by NOVA to Employee within fifteen (15) days of the
receipt of the Tax Firm's determination. Subject to the remainder of
this Section, any determination by the Tax Firm shall be binding upon
NOVA and Employee; provided, however, that Employee shall only be
bound to the extent that the determinations of the Tax Firm hereunder,
including the determinations made in the Accounting Opinion, are
reasonable and reasonably supported by applicable law. As a result of
the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Tax Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by NOVA
should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that it is
ultimately determined in accordance with the procedures set forth in
Section 7(e)(iii) that Employee is required to make a payment of any
Excise Tax, the Tax Firm shall reasonably determine the amount of the
Underpayment that has occurred and any such Underpayment shall be
promptly paid by NOVA to or for the benefit of Employee. In
determining the reasonableness of Tax Firm's determinations hereunder,
and the effect thereof, NOVA and Employee shall be provided a
reasonable opportunity to review such determinations with Tax Firm and
their respective tax counsel, if separate from the Tax Firm. Tax
Firm's determinations hereunder, and the Accounting Opinion, shall not
be deemed reasonable until Employee's reasonable objections and
comments thereto have been satisfactorily accommodated by Tax Firm.
(iii) Employee shall notify NOVA in writing of any claims by the
Internal Revenue Service that, if successful, would require the
payment by NOVA of the Gross-Up Payment. Such notification shall be
given as soon as practicable, but no later than thirty (30) calendar
days after Employee actually receives notice in writing of such claim,
and shall apprise NOVA of the nature of such claim and the date on
which such claim is requested to be paid; provided, however, that the
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failure of Employee to notify NOVA of such claim (or to provide any
required information with respect thereto) shall not affect any rights
granted to Employee under this Section except to the extent that NOVA
is materially prejudiced in the defense of such claim as a direct
result of such failure. Employee shall not pay such claim prior to
the expiration of the thirty (30) day period following the date on
which he gives such notice to NOVA (or such shorter period ending on
the date that any payment of taxes with respect to such claim is due).
If NOVA notifies Employee in writing prior to the expiration of such
period that it desires to contest such claim, Employee shall do all of
the following:
(A) give NOVA any information reasonably requested by NOVA
relating to such claim;
(B) take such action in connection with contesting such claim as
NOVA shall reasonably request in writing from time to time,
including, without limitation, accepting legal
representation with respect to such claim by an attorney
selected by NOVA and reasonably acceptable to Employee;
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(C) cooperate with NOVA in good faith in order effectively to
contest such claim;
(D) if NOVA elects not to assume and control the defense of such
claim, permit NOVA to participate in any proceedings
relating to such claim; provided, however, that NOVA shall
bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Employee
harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and
payment of costs and expenses. Without limiting the
foregoing provisions of this Section 7, NOVA shall have the
right, at its sole option, to assume the defense of and
control all proceedings in connection with such contest, in
which case it may pursue or forego any and all
administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such
claim and may either direct Employee to pay the tax claimed
and xxx for a refund or contest the claim in any permissible
manner, and Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts,
as NOVA shall determine; provided, however, that if NOVA
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directs Employee to pay such claim and xxx for a refund,
NOVA shall advance the amount of such payment to Employee,
on an interest-free basis and shall indemnify and hold
Employee harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or
with respect to any imputed income with respect to such
advance; and further provided that any extension of the
statute of limitations relating to payment of taxes for the
taxable year of Employee with respect to which such
contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, NOVA's right to assume
the defense of and control the contest shall be limited to
issues with respect to which a Gross-Up Payment would be
payable hereunder and Employee shall be entitled to settle
or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.
(iv) If, after the receipt by Employee of an amount advanced by
NOVA pursuant to this Section 7(e), Employee becomes entitled to
receive any refund with respect to such claim, Employee shall (subject
to NOVA's complying with the requirements of Section 7(e)(iii))
promptly pay to NOVA the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto).
If, after the receipt by Employee of an amount advanced by NOVA
pursuant to Section 7(e)(iii), a determination is made that Employee
is not entitled to a refund with respect to such claim and NOVA does
not notify Employee in writing of its intent to contest such denial of
refund prior to the expiration of thirty (30) days after such
determination, then such advance shall, to the extent of such denial,
be forgiven and shall not be required to be repaid and the amount of
forgiven advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
(f) For purposes of this Agreement, the following terms shall be
defined as follows:
(i) "Change in Control" shall mean:
10
(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 (i) NOVA, if NOVA remains a publicly-
traded company, or (ii) the ultimate parent company, if
NOVA becomes a direct or indirect subsidiary of another
company.
(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).
Notwithstanding the foregoing definition, a leverage buyout
transaction whereby NOVA becomes a privately-held company
and the management of NOVA obtains an equity interest in
NOVA or its successor as part of such transaction shall not
constitute a Change in Control for purposes of this
Agreement.
(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 of Employee 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
11
the election of the directors of NOVA, as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act).
(iv) "Qualified Options" shall meanall stock options, restricted
stock, and other similar rights (a) granted to Employee prior to the
date hereof (whether vested or unvested), that entitle Employee to
acquire NOVA Stock for a price per share equal to or greater than
$17.92; or (b) granted to Employee on or after the date of this
Agreement.
8. Products, Notes, Records and Software. Employee acknowledges and
agrees that all memoranda, notes, records and other documents and computer
software created, developed, compiled, or used by Employee or made available to
her during the term of her Employment concerning or relative to the Business,
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 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
12
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 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
-----------------------------
that because of her Employment, she 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 her Employment, Employee shall keep NOVA
Confidential Information confidential, and Employee shall not use NOVA
Confidential Information for any reason other than on behalf of NOVA
pursuant to, and in strict compliance with, the terms of this Agreement.
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 her Employment or the exercise of her duties under this
Agreement, provided that such source lawfully obtained such
information and is not bound by a confidentiality agreement with NOVA;
or
(iii) is required by law to be disclosed.
(c) Trade Secrets. Employee acknowledges and agrees that because of
-------------
her Employment, she will have access to "trade secrets" (as defined in the
Uniform Trade Secrets Act, O.C.G.A. (S) 10-1-760, et seq. (the "Uniform
-- ---
Trade Secrets Act")) of NOVA ("Trade Secrets"). Nothing in this Agreement
is intended to alter the applicable law and remedies with respect to
information meeting the definition of "trade secrets" under the Uniform
Trade Secrets Act, which law and remedies shall be in addition to the
obligations and rights of the parties hereunder.
11. Covenants Not to Solicit or Compete.
13
Employee acknowledges and agrees that, because of her Employment, she does
and will continue to have access to confidential or proprietary information
concerning merchants, associate banks and ISOs of NOVA and 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. Employee agrees that during the term of her
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 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
her 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 her 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 her 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 her 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 her 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
14
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 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 her
from earning a livelihood, and place no greater restraint upon Employee
than is reasonably necessary to secure the Business and goodwill of NOVA;
(c) NOVA is relying upon the restrictions and covenants contained
herein in continuing to make available to Employee information concerning
the Business; and
(d) Employee's Employment places her in a position of confidence and
trust with NOVA and its employees, merchants, associate banks, ISOs,
customers, vendors and suppliers.
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.
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
15
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 legitimate, non-frivolous
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 legitimate, non-
frivolous 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. NOVA will not be
bound to pay any legal fees or expenses arising out of baseless, meritless or
frivolous contests brought hereunder by Employee or others. A contest will be
deemed baseless, meritless and/or frivolous if a court or other arbiter assesses
penalties or sanctions for bringing said contest, or a court or other arbiter
dismisses said contest for failure to state a colorable claim.
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. Xxxxxx
000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
(ii) If to NOVA, to:
NOVA Corporation
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx
Chief Executive Officer
With a copy (which shall not constitute notice) to:
NOVA Corporation
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
16
Attention: Xxxxxx 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, including but not limited to the Prior Agreement, which
is hereby 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.
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, 23 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. Nothing in this
Section shall be construed to reduce Employee's right to payments described in
Section 7(e).
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above shown.
"EMPLOYEE":
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
"NOVA":
NOVA Corporation
By: /s/ Xxxxxx Xxxxxxxxxxx
-----------------------
Xxxxxx Xxxxxxxxxxx
Chairman, CEO and President
18
EXHIBIT A
---------
Annual Incentive Compensation Schedule
* Payment of annual incentive compensation (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.
* The Bonus Payment will be calculated by following the steps outlined below:
(1) Determining the percentage equivalent to a fraction, the numerator of
which is Net Income and the denominator of which is Targeted Net
Income (such percentage being referred to as the "Actual/Targeted
Ratio").
(2) Values will be calculated based on (A) through (E):
(A) For each full percentage point (up to 84%) by which the
----
Actual/Targeted Ratio equals or exceeds 80%, a value of 1% will
be awarded.
(B) For each full percentage point (up to 89%) by which the
----
Actual/Targeted Ratio exceeds 84%, a value of 2% will be awarded.
(C) For each full percentage point (up to 94%) by which the
----
Actual/Targeted Ratio exceeds 89%, a value of 3% will be awarded.
(D) For each full percentage point (up to 99%) by which the
----
Actual/Targeted Ratio exceeds 94%, a value of 4% will be awarded.
(E) For each full percentage point (up to 150%) by which the
----
Actual/Targeted Ratio exceeds 100%, a value of 1% will be
awarded. (note: for this purpose, no value will be awarded for
----
equaling 100%).
(3) The sum of the values calculated in (A) through (E) (the "Bonus
Percentage") shall be multiplied by Employee's then current Base
Salary to yield the Bonus Payment.
19
Examples:
---------
. If the Actual/Targeted Ratio is 92%, the Bonus Percentage would be
29%. This is calculated by adding:
5% (1% for 80-84% of Actual/Targeted Ratio)
+ 15% (2% for 85-89% of Actual/Targeted Ratio)
+ 9% (3% for 90-92% of Actual/Targeted Ratio)
----------------------------------------------
29%
Employee's Bonus Payment would be equal to Employee's then-current
Base Salary multiplied by 29%.
. If the Actual/Targeted Ratio is 112%, the Bonus Percentage would be
62%. This is calculated by adding:
5% (1% for 80-84% of Actual/Targeted Ratio)
+ 10% (2% for 85-89% of Actual/Targeted Ratio)
+ 15% (3% for 90-94% of Actual/Targeted Ratio)
+ 20% (4% for 95-99% of Actual/Targeted Ratio)
+ 0% (0% for 100% of Actual/Targeted Ratio)
+ 12% (1% for 101-112% of Actual/Targeted Ratio)
-----------------------------------------------
62%
Employee's Bonus Payment would be equal to Employee's then-current
Base Salary multiplied by 62%.
* The foregoing notwithstanding, in order for any bonus to be payable with
respect to any calendar year, the "Revenue" (as defined below) for such
calendar year must equal or exceed 105% of the Revenue for the immediately
preceding calendar year. "Revenue" means revenue of NOVA determined in
accordance with GAAP as determined from the annual audited Financial
Statements, as adjusted to exclude non-operating items.
* Notwithstanding anything to the contrary in this Agreement, in order to
receive Bonus Compensation for any calendar year, Employee must be employed
by NOVA on the last day of such calendar year.
20
