EXHIBIT 10.9
SENIOR MANAGEMENT
FISERV,
INC.
EMPLOYEE NON-QUALIFIED STOCK
OPTION AGREEMENT
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Employee/Optionee: [FIRST NAME][LAST
NAME]
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Date:
[DATE]
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Number of Shares of Common Stock
Subject To This Agreement: [SHARES]
Pursuant to the Fiserv, Inc. Stock
Option and Restricted Stock Plan (the “Plan”), the
Compensation Committee of the Board of Directors (the
“Committee”) of Fiserv, Inc. (the
“Company”) has granted to you on this date an option
(the “Option”) to purchase the number of shares of the
Company’s Common Stock, $.01 par value (the “Common
Stock”), set forth above. Such number of shares (as such may
be adjusted as described in Section 9(a) below) is herein
referred to as the “Option Shares”. The terms and
conditions of the Option are set out below.
The Option is intended to be (and
will be treated as) a “non-qualified stock option” for
Federal income tax purposes. The Option will not be treated either
by you or the Company as an “incentive stock option”,
as defined in Section 422 of the Internal Revenue Code of
1986, as amended (the “Code”).
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1.
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Date of
Grant . This Option
is granted to you on the date first above written (the “Date
of Grant”).
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2.
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Termination of Option
. Your right to exercise this Option
(and to purchase 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 Date of Grant, or (b) the date
provided in Section 6 hereof.
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3.
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Option
Price . The purchase
price to be paid upon the exercise of this Option will be
[PRICE] per share, being at least equal to the fair
market value of such shares on the date hereof.
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4.
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Provisions Relating to Exercise
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(a)
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Commencing on
[ VESTING DATE] you will become entitled to exercise
this Option with respect to 20% of the Option Shares. Commencing on
each of the four succeeding anniversaries of [VESTING
DATE] , you will become entitled to exercise this Option
with respect to an additional 20% of the Option Shares.
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(b)
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Once you become
entitled to exercise any part of this Option (and purchase Option
Shares) as provided in Section 4(a) hereof, that right will
continue until the date on which this Option expires and terminates
pursuant to Section 2 hereof. The right to purchase Option
Shares under this Option is cumulative, so that if the full number
of Option Shares purchasable in a period shall not be 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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SENIOR MANAGEMENT
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(c)
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The Committee,
in its sole discretion, may at any time accelerate the time at
which this Option first becomes exercisable by you with respect to
any Option Shares.
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(d)
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Notwithstanding
any other provision in this Option Agreement, you agree that during
the term of your employment with the Company or any Subsidiary, 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)
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contact any of
the clients of any Fiserv Group Company (or 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)
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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)
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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)
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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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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 this 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
SENIOR MANAGEMENT
performance, with respect to any
actual or threatened breach by you of any said covenants and your
right to exercise this 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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(e)
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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 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 Shares
pursuant to all or any part of this Option shall cause such
exercise, payment or delivery to be rescinded. Notwithstanding the
foregoing, the remedies and damages available to the Company in the
event of a failure to comply with the provisions of
Section 4(d) are not limited by this Section 4(e). The
Company will notify you in writing of any such rescission within 24
months after such exercise, payment or delivery. Within 10 days
after receiving such notice from the Company, you will pay to the
Company, as a result of the rescinded exercise, payment or delivery
of Option Shares, an amount equal to the difference between the
fair market value of such Option Shares on the date of exercise and
the amount you paid to obtain such Option Shares.
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5.
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Exercise
of Option . To
exercise the Option, you must complete the transaction through our
administrative agent’s website at
www.netbenefits.fidelity.com or call their toll free number at
1-800-544-9354 or contact the Company at its then principal office
(presently 255 Fiserv Drive, Brookfield, WI 53045, Attn: Corporate
Finance), specifying the number of Option Shares being purchased as
a result of such exercise, together with payment of the full option
price for the Option Shares being purchased. Payment of the option
price must be made in accordance with the Plan. In no event may a
fraction of a share be exercised or acquired.
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6.
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Termination of Employment
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(a)
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In the event
that you are no longer a full-time employee of either the Company
or any Subsidiary of the Company for any reason, including that the
Subsidiary ceases to be a Subsidiary, this Option may be exercised
to the same extent that
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