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EXHIBIT
10.4
FISERV,
INC.
2007 OMNIBUS INCENTIVE
PLAN
FORM OF
NON-QUALIFIED STOCK OPTION
AGREEMENT
(NON-EMPLOYEE
DIRECTOR)
Optionee: [ First Name ] [
Last Name ]
Grant Date: [ Grant Date
]
Exercise Price: [ Exercise Price
]
Number of Shares Subject to the Option:
[ Number of Shares ]
Pursuant to the Fiserv, Inc.
2007 Omnibus Incentive Plan (the “Plan”), the Board of
Directors of Fiserv, Inc. (the “Company”) has granted
to you an Option, the terms and conditions of which are set out
below and in the Plan. Any capitalized term used in this Stock
Option Agreement (this “Agreement”) without definition
has the meaning set forth in the Plan. In the event of a conflict
between the terms of this Agreement and the terms of the Plan, the
terms of the Plan shall govern.
| 1. |
Date of Grant; Type of Option . The Option
is granted to you on the date set forth above (the “Grant
Date”). As a “non-qualified stock option,” the
Option will not be treated by you or the Company as an
“incentive stock option,” as defined in
Section 422 of the Code. |
| 2. |
Termination of Option . Your right to
exercise the Option (and to purchase the Shares subject to the
Option (the “Option Shares”)) shall expire and
terminate in all events on the earlier of (a) the close of
business on the tenth anniversary of the Grant Date or (b) the
date upon which exercise is no longer permitted as provided in
Section 6 hereof. |
| 3. |
Option Price . The purchase price to be
paid upon the exercise of the Option is the exercise price per
Option Share set forth above. |
| 4. |
Provisions Relating to Exercise
. |
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(a) |
The Option vests and becomes exercisable with respect to 20% of
the Option Shares on each anniversary of the Grant Date until the
Option is fully vested and exercisable. |
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(b) |
Once you become entitled to exercise any part of the Option
(and to purchase Option Shares) as provided in Section 4(a)
hereof, that right will continue until the date on which the Option
expires and terminates pursuant to Section 2 hereof. The right
to purchase Option Shares under the Option is cumulative, so that
if the full number of Option Shares purchasable in a period is not
purchased, the balance may be purchased at any time or from time to
time thereafter during the term of the Option. |
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(c) |
The Board, in its sole discretion, may at any time accelerate
the time at which the Option becomes exercisable by you with
respect to the Option Shares. |
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(d) |
Notwithstanding any other provision in this Agreement, you
agree that while you are a Director, and for a period of 12 months
thereafter, you will not, directly or indirectly, on your behalf or
on behalf of any other individual, association or entity, as agent
or otherwise: |
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(i) |
contact any of the clients of any Fiserv Group Company (as
hereinafter defined) for whom you directly performed any services
or had any direct business contact for the purpose of soliciting
business or inducing such client to acquire any product or service
that at any time during the term of this Agreement is provided or
under development by the Fiserv Group Company for whom you directly
performed any services from any entity other than a Fiserv Group
Company; |
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(ii) |
contact any of the clients or prospective clients of any Fiserv
Group Company whose identity or other client specific information
you discovered or gained access to as a result of your access to
any Fiserv Group Company’s confidential information for the
purpose of soliciting or inducing any of such clients or
prospective clients to acquire any project or service that at any
time during the term of this Agreement is provided or under
development by the Fiserv Group Company to whose confidential
information you had access from any entity other than a Fiserv
Group Company; |
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(iii) |
use any Fiserv Group Company’s confidential information
to solicit, influence or encourage any clients or potential clients
of any Fiserv Group Company to divert or direct their business to
you or any other person, association or entity by or with whom you
are employed, associated, engaged as agent or otherwise affiliated;
or |
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(iv) |
encourage, induce or entice any employee of any Fiserv Group
Company with access to or possession of confidential information of
any Fiserv Group Company to leave any Fiserv Group Company’s
employment where it is reasonably likely that such employee will
use such confidential information to solicit, influence or
encourage clients or potential clients of such Fiserv Group Company
to divert or direct their business to you or any other person,
association or entity by or with whom such employee will become
employed, associated, engaged as agent or otherwise
affiliated. |
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(e) |
You expressly acknowledge that damages alone may not be an
adequate remedy for any breach by you of the covenants or
agreements set forth in Section 4(d) and that the Company, in
addition to any other remedies it may have, shall be entitled to
seek injunctive relief, including specific performance, with
respect to any actual or threatened breach by you of any said
covenants and your right to exercise the Option shall terminate
immediately. “Fiserv Group Company” means the Company
and any “affiliate” company (within the meaning of Rule
405 under the Securities Act of 1933). |
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(f) |
The Company
may cancel, rescind, suspend, withhold or otherwise limit or
restrict any unexpired, unpaid or deferred part of the Option at
any time if you are not in compliance with all applicable
provisions of this Agreement and the Plan, or if you engage in any
of the
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activities listed in
Section 4(d). In addition, failure to comply with the
provisions of Section 4(d) prior to and during the 12 months
after any exercise, payment or delivery of Option
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