FISERV, INC.
Exhibit 10.1
FISERV, INC.
RESTRICTED STOCK AGREEMENT
| Director: [FIRST NAME][LAST NAME] | Date: [DATE] |
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 Board of Directors of Fiserv, Inc. (the “Company”) has awarded you on this date the number of shares of the Company’s Common Stock, $.01 par value (the “Common Stock”), set forth above (the “Restricted Stock”). You have agreed to accept the award based on the terms and conditions are set forth below:
| 1. | Date of Award. The Restricted Stock is awarded to you on the date above (the “Award Date”). |
| 2. | Restrictions. Except as otherwise provided herein, Restricted Stock may not be sold, transferred, pledged, assigned, encumbered or otherwise alienated or hypothecated until the date of release (the “Release Date”) determined as follows: the Release Date with respect to 20% of the shares of Restricted Stock shall be the first anniversary of the Award Date; the Release Date with respect to an additional 20% of the shares of Restricted Stock shall be the second anniversary of the Award Date; the Release Date with respect to an additional 20% of the shares of Restricted Stock shall be the third anniversary of the Award Date; the Release Date with respect to an additional 20% of the shares of Restricted Stock shall be the fourth anniversary of the Award Date; and the Release Date with respect to the remaining 20% of the shares of Restricted Stock shall be the fifth anniversary of the Grant Date. The Board of Directors, in its sole discretion, may at any time accelerate the Release Date with respect to the Restricted Stock or a portion of the Restricted Stock. |
On the applicable Release Date as determined in this Section, that portion of Restricted Stock shall become free of the restrictions above and, subject to Section 4, be freely transferable by you.
| 3. | Escrow. Certificates for shares of Restricted Stock shall be issued as soon as practicable in your name, but shall be held in escrow by the Company, as escrow agent. Unless theretofore forfeited as provided herein, Restricted Stock shall cease to be held in escrow and certificates for such Stock shall be delivered to you on the applicable Release Date. |
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| 4. | Noncompetition. |
| (a) | Notwithstanding any other provision in this Agreement, you agree that while a member of the Board of Directors of the Company (“Member”), 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: |
| (i) | contact any of the clients of any Fiserv Group Company 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 any Fiserv Group Company from any entity other than a Fiserv Group Company; |
| (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 any Fiserv Group Company from any entity other than a Fiserv Group Company; |
| (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 |
| (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. |
If you violate any of the above covenants, in addition to other remedies of law, your right to this Restricted Stock shall terminate immediately.
| (b) | The Company may cancel, rescind, suspend, withhold or otherwise limit or restrict any portion of the Restricted Stock 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(a). In addition, failure to comply with the provisions of Section 4(a) prior to and during the |
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12 months after any release of Restricted Stock pursuant to all or any part of this Restricted Stock Agreement shall cause such release to be rescinded. The Company will notify you in writing of any such rescission within 24 months after such release. 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 Restricted Stock, an amount equal to the fair market value of the Restricted Stock on the applicable Release Date.
| 5. | Termination of Service. |
| (a) | In the event that you are no longer a Member for any reason, Restricted Stock will be free of restrictions to the same extent that it was free of restrictions on the date you ceased to be a Member, and the remaining Restricted Stock for which a Release Date has not occurred under Section 2 will be released from restrictions under Section 2 as follows: |
| Minimum Age When No Longer a Member | Reason No Longer A Member | Minimum Years of Service | Remaining Restricted Stock for which Restrictions Will be Released | |||
| Not applicable | Death or Disability | 6 | 100% | |||
| 62 | Any reason | 6 | 100% | |||
| All other combinations of minimum age, | 0% | |||||
| (b) | Notwithstanding the foregoing, in the event that your service as a Member is terminated for cause, all Restricted Stock for which a Release Date has not occurred under Section 2 prior to such termination shall be forfeited to the Company on the date on which such termination occurs. |
| (c) | Further, if a Change in Control of the Company occurs, the Board of Directors may, with respect to shares of Restricted Stock, (i) make provisions for the continuation of each award of Restricted Stock, (ii) reach an agreement with the acquiring or surviving entity that the acquiring or surviving entity will convert each share of Restricted Stock into shares, or fractions of a share, of stock of the acquiring or surviving entity (which shares may be subject to restrictions substantially similar to restrictions on the Restricted Stock) at least equal value (without deduction for any restrictions on such shares of Restricted Stock), determined as of the date of the transaction, or (iii) vest all awards of shares of Restricted Stock and terminate any restrictions thereon at least 30 days immediately prior to the date of the applicable transaction. The |
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Board of Directors must determine that any such modification in clause (i) or (ii) above does not have a substantial adverse economic impact on you, as determined at the time of the transaction.
| 6. | Certificate Legend. Each certificate for shares of Restricted Stock may bear the following legend: |
“THE SALE OR OTHER TRANSFER OF THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE, WHETHER VOLUNTARY, INVOLUNTARY OR BY OPERATION OF LAW, IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE FISERV, INC. STOCK OPTION AND RESTRICTED STOCK PLAN AND A RESTRICTED STOCK AGREEMENT BETWEEN FISERV, INC. AND THE REGISTERED OWNER HEREOF. A COPY OF SUCH PLAN AND SUCH AGREEMENT MAY BE OBTAINED FROM THE SECRETARY OF FISERV, INC.”
When the restrictions imposed by Sections 2 and 4 hereof terminate, you shall be entitled to have the foregoing legend removed from the certificates representing such Restricted Stock.
| 7. | Voting Rights; Dividends and Other Distributions. |
| (a) | While the Restricted Stock is subject to restrictions under Section 2 and prior to any forfeiture thereof, you may exercise full voting rights for the Restricted Stock registered in your name and held in escrow hereunder. |
| (b) | While the Restricted Stock is subject to the restrictions under Section 2 and prior to any forfeiture thereof, you shall be entitled to receive all dividends and other distributions paid with respect to the Restricted Stock. If any such dividends or distributions are paid in Stock, such shares shall be subject to the same terms, conditions and restrictions as the shares of Restricted Stock with respect to which they were paid, including the requirement that Restricted Stock be held in escrow pursuant to Section 3 hereof. |
| (c) | Subject to the provisions of this Agreement, you shall have, with respect to the Restricted Stock, all other rights of a holder of Common Stock. |
| 8. | Securities Representations. You acknowledge receipt of the Prospectus under the Registration Statement on Form S-8 (Registration No. 333-34310) filed by the Company with the Securities and Exchange Commission. You understand that if you are an officer, director, 10% shareholder or are otherwise an “affiliate” (within the meaning of Rule 405 under the Securities Act of 1933) of the Company, you may not sell or otherwise dispose of any shares acquired except pursuant to a Registration Statement meeting the requirements of the Securities Act of 1933 or an |
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exemption from the registration requirements of such Act. You represent and agree that you will comply with all applicable laws relating to the Plan and the award of Restricted Stock and the disposition of the Restricted Stock, including without limitation federal and state securities and “blue sky” laws.
| 9. | Tax Representations. You represent and warrant that you understand the Federal, state and local income tax consequences of the award of the Restricted Stock to you, the lapse of the restrictions on the Restricted Stock and the subsequent sale or other disposition of any Restricted Stock. In addition, you understand and agree that you are solely responsible for the payment of any Federal, state or local income tax imposed upon or attributable to you in connection with such lapse, sale or disposition. |
| 10. | General Provisions. |
| (a) | Neither the Plan nor this Agreement shall confer upon you any right to continue to be a Member. |
| (b) | This Agreement contains the entire agreement between the Company and you relating to the Restricted Stock and supersedes all prior agreements or understandings relating thereto. |
| (c) | This Agreement may not be amended, changed or waived other than by written instrument signed by the parties hereto. |
| (d) | If any one or more provisions of this Agreement shall be found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. |
| (e) | This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to conflict of law provisions. |
| (f) | The Company and you agree that they will both be subject to and bound by all of the terms and conditions of the Plan. The Plan Prospectus is accessible on the Company’s intranet website, Mainstreet (in the HR Policy Manual – Employee Benefits area), or a paper copy is available upon request. Any capitalized term not defined herein shall have the meaning ascribed to it 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. |
| (g) | The Restricted Stock is not transferable otherwise than by will or the laws of descent and distribution. |
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| (h) | This Agreement shall be binding upon and inure to the benefit of any successor or assign of the Company and to any heir, distributee, executor, administrator or legal representative entitled by law to your rights hereunder. |
| (i) | You understand that, under the terms of the Plan and this Agreement, the Company may cancel or rescind this Restricted Stock in certain circumstances, including, without limitation, if you violate the provisions of Section 4(a) prior to, or within 12 months after, the release of any Restricted Stock. |
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Please acknowledge acceptance of this Agreement by signing the enclosed copy of this Agreement in the space provided below and returning it promptly to Corporate Finance.
| FISERV, INC. | ||
| By: |
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| Senior Executive Vice President | ||
| Accepted and Agreed to:
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Signature of Director
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Street Address
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| City | State | Zip Code | ||
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