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EXHIBIT
10.5
FISERV,
INC.
2007 OMNIBUS INCENTIVE
PLAN
FORM OF
NON-QUALIFIED STOCK OPTION
AGREEMENT
(EMPLOYEE)
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
Compensation Committee (the “Committee”) of 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 7
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 the Grant Date and with respect to an
additional 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 Committee, 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. |
| 5. |
Confidential Information, Non-competition and Related
Covenants . |
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(i) |
“Fiserv” means the Company, its direct and indirect
subsidiaries, affiliated entities, successors, and
assigns. |
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(ii) |
“Confidential Information” means all trade secrets,
Innovations (as defined below), confidential or proprietary
business information and data, computer software, and database
technologies or technological information, formulae, templates,
algorithms, designs, process and systems information, processes,
intellectual property rights, marketing plans, client lists and
specifications, pricing and cost information and any other
confidential information of Fiserv or its clients, vendors or
subcontractors that relates to the business of Fiserv or to the
business of any client, vendor or subcontractor of Fiserv or any
other party with whom Fiserv agrees to hold information in
confidence, whether patentable, copyrightable or protectable as a
trade secret or not, except (A) information that is, at the
time of disclosure, in the public domain or that is subsequently
published or otherwise becomes part of the public domain through no
fault of yours; or (B) information that is disclosed by you
under order of law or governmental regulation; provided, however,
that you agree to notify Fiserv upon receipt of any request for
disclosure as soon as possible prior to any such disclosure so that
appropriate safeguards may be maintained. |
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(iii) |
“Competing Product or Service” means any product or
service that is sold in competition with, or is being developed and
that will compete with, a product or service developed,
manufactured, or sold by Fiserv. For purposes of this
Section 5, Competing Products or Services as to you are
limited to products and/or services with respect to which you
participated in the development, planning, testing, sale, marketing
or evaluation on behalf of Fiserv during any part of your
employment with Fiserv, or after the termination of your
employment, during any part of the 24 months preceding the
termination of your employment with Fiserv, or for which you
supervised one or more Fiserv employees, units, divisions or
departments in doing so. |
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(iv) |
“Competitor” means an individual, business or any
other entity or enterprise engaged or having publicly announced its
intent to engage in the sale or marketing of any Competing Product
or Service. |
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(v) |
“Innovations” means all developments, improvements,
designs, original works of authorship, formulas, processes,
software programs, databases, and trade secrets, whether or not
patentable, copyrightable or protectable as trade secrets, that
you, either by yourself or jointly with others, create, modify,
develop, or implement during the period of your employment with
Fiserv that relate in any way to Fiserv’s
business. |
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(vi) |
“Moral Rights” means any rights to claim authorship
of a work of authorship, to object to or prevent the modification
of any such work of authorship, or to withdraw from circulation or
control the publication or distribution of any such work of
authorship. |
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(vii) |
“Client” means any person, association or entity
(A) for which you directly performed services or for which you
supervised others in performing services with Fiserv, during any
part of your employment with Fiserv, or after the termination of
your employment, during any part of the 24 months preceding the
termination of your employment with Fiserv; or (B) about which
you have Confidential Information as a result of your employment
with Fiserv. |
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(viii) |
“Prospective Client” means any client with which
Fiserv was in active business discussions or negotiations at any
time during any part of your employment with Fiserv, or after the
termination of your employment, during any part of the 24 months
preceding the termination of your employment with Fiserv, in which
you participated or for which you directly performed services or
for which you supervised others in performing services with Fiserv;
or (B) about which you have Confidential Information as a
result of your employment with Fiserv. |
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(b) |
During your employment, Fiserv will provide you with
Confidential Information relating to Fiserv, its business and
clients, the disclosure or misuse of which would cause severe and
irreparable harm to Fiserv. You agree that all Confidential
Information is and shall remain the sole and absolute property of
Fiserv. Upon the termination of your employment for any reason, you
shall immediately return to Fiserv all documents and materials that
contain or constitute Confidential Information, in any form
whatsoever, including but not limited to, all copies, abstracts,
electronic versions, and summaries thereof. You further agree that,
without the written consent of the Chief Executive Officer of the
Company, or, in the case of the Chief Executive Officer of the
Company, without the written approval of the Board: |
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(i) |
You will not disclose, use, copy or duplicate, or otherwise
permit the use, disclosure, copying or duplication of any
Confidential Information of Fiserv, other than in connection with
the authorized activities conducted in the course of your
employment with Fiserv. You agree to take all reasonable steps and
precautions to prevent any unauthorized disclosure, use, copying or
duplication of Confidential Information. |
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(ii) |
All Innovations are and shall remain the sole and absolute
property of Fiserv. You will provide all assistance requested by
Fiserv, at its expense, in the preservation of its interest in any
Innovations in any country, and hereby assign and agree to assign
to Fiserv all rights, title and interest in and to all worldwide
patents, patent applications, copyrights, trade secrets and other
intellectual property rights in any Innovation. You also assign and
agree to assign to Fiserv, or where applicable, to waive, which
waiver shall inure to the benefit of Fiserv and its assigns, all
Moral Rights in any Innovation. |
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(c) |
You agree
that, without the written consent of the Chief Executive Officer of
the Company or, in the case of the Chief Executive Officer of the
Company, without the written approval of the Board, you shall not
engage in any of the conduct described in subsections (i) or
(ii), below, either directly or indirectly, or as an employee,
contractor, consultant, partner,
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officer, director or
stockholder, other than a stockholder of less than 5% of the
equities of a publicly traded corporation, or in any other capacity
for any person, firm, partnership or corporation:
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(i) |
During the time of your employment with Fiserv, you will not
(A) perform duties as or for a Competitor, Client or
Prospective Client of Fiserv’s; or (B) participate in
the inducement of or otherwise encourage Fiserv employees, clients,
or vendors to currently and/or prospectively breach, modify, or
terminate any agreement or relationship they have or had with
Fiserv; |
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(ii) |
For a period of 12 months following the termination of your
employment with Fiserv, you will not (A) perform duties
as |
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