EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this 4th day of April
1997 by and among ▇▇▇▇ ▇. ▇▇▇▇▇ (hereinafter referred to as "Employee") and NOVA
INFORMATION SYSTEMS, INC., 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 date hereof (the "Employment Commencement Date") and ending
two (2) years thereafter (the "Initial Term"), unless Employee's employment by
NOVA is sooner terminated or automatically renewed pursuant to the terms of this
Agreement (Employee's employment by NOVA pursuant to the terms of this Agreement
shall hereinafter be referred to as "Employment").
(a) Employee agrees to such Employment on the terms and conditions herein
set forth and agrees to devote his reasonable best efforts to his
duties under this Agreement and to perform such duties diligently and
efficiently and in accordance with the directions of NOVA's Board of
Directors.
(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 Thousand Dollars ($200,000)("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 Corporation) (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 monthly in arrears or 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 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 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 life
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insurance plans established, offered, or adopted from time to time by
NOVA for the benefit of its employees and/or executive officers.
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(c) Disability Insurance. Employee shall be entitled to participate in
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any disability insurance plans established, offered, or adopted from
time to time by NOVA for the benefit of its employees and/or executive
officers.
(d) Vacations, Holidays. Employee shall be entitled to at least four (4)
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weeks of paid vacation each year and all holidays observed by NOVA.
(e) Stock Option Plans. Employee shall be eligible for participation in
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any Stock Option Plan 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.
(g) Terms and Provisions of Plans Control. Notwithstanding any provisions
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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, on a
monthly basis, for all out-of-pocket business expenses incurred by him in the
performance of his duties hereunder, provided that Employee shall first document
and substantiate said business expenses in the manner generally required by NOVA
under its policies and procedures.
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
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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 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (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
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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, case for
any reason constitute at least a majority thereof, unless the election
of 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, this Agreement and/or
Employee's Employment may not be terminated.
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:
(i) NOVA shall pay Employee an aggregate amount in cash equal to two
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
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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 Employee, and including notice by NOVA pursuant to
Section 6(g) that it does not intend to renew this Agreement)
(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 Severance Period (or,
at the election of NOVA, 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.
(b) 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 9 and 10 below.
(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.
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(d) 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".
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 that
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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
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,
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and suppliers used to service such merchants, associate banks and ISOs.
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:
(i) (aa) compete with NOVA in providing credit card and debit card
transaction processing services within the Territory or (bb)
otherwise advise, consult, 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;
(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 contact 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 contact with such merchant,
associate bank, ISO, customer or associate 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, as the case may be.
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
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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 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
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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.
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:
▇▇▇▇ ▇ ▇▇▇▇▇
_______________________________
_______________________________
_______________________________
(ii) If to NOVA, to:
NOVA Information Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Financial Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
19. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof. It may not be changed orally
but only by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification, extension, or discharge is sought.
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
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above shown.
"EMPLOYEE":
BY:__________________________________
"NOVA":
NOVA INFORMATION SYSTEMS, INC.
By:__________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Financial Officer
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