Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (“ Agreement ”) is entered into as of
January 7, 2009 (the “ Effective Date ”)
between ACI Worldwide, Inc., a Delaware corporation formerly
known as Transaction Systems Architects, Inc. (the “
Company ”), and Philip G. Heasley (“
Executive ”), and supersedes in its entirety that
certain Employment Agreement dated as of March 5, 2005, and
amended by the First Amendment thereto dated as of
September 5, 2007, pertaining to the terms of the employment
of Executive by the Company.
RECITALS:
WHEREAS, Executive has served as the
President and Chief Executive Officer of the Company since
March 5, 2005 (the “Initial Employment Date”), and
Executive desires to continue to serve as the President and Chief
Executive Officer of the Company;
WHEREAS, the Company shall employ
Executive on the terms and conditions set forth in this Agreement,
and Executive shall be retained and employed by the Company to
perform such services under the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Certain Definitions
. Certain words or phrases with
initial capital letters not otherwise defined herein shall have the
meanings set forth in Section 8 hereof.
2.
Employment
. The Company shall employ
Executive, and Executive accepts employment with the Company, upon
the terms and conditions set forth in this Agreement for the period
beginning on the Effective Date and ending as provided in
Section 5 hereof (the “ Employment Period
”).
3.
Position and Duties
.
(a)
During the Employment Period,
Executive shall serve as the President and Chief Executive Officer
of the Company and shall have the normal duties, responsibilities
and authority of an executive serving in such position, subject to
the power of the Board of Directors of the Company (the “
Board ”) to provide oversight and direction with
respect to such duties, responsibilities and authority, either
generally or in specific instances and consistent with such
position. So long as Executive is the President and Chief Executive
Officer of the Company, the Board will nominate Executive to serve
as a member of the Board.
(b)
Executive shall report to the
Board.
(c)
During the Employment Period,
Executive shall devote Executive’s best efforts and
Executive’s full business time and attention (except for
permitted vacation periods and reasonable periods of illness or
other incapacity) to the business and affairs of the Company, its
subsidiaries and affiliates. Executive shall perform
Executive’s duties and responsibilities to the best of
Executive’s abilities in a diligent, trustworthy,
business-like and efficient manner. During the Employment Period,
Executive may not serve as a director or a principal of another
company without the Board’s prior consent.
(d)
Executive shall perform
Executive’s duties and responsibilities principally in the
metropolitan area of the Company’s headquarters.
(e)
Executive has acquired through
purchase on the NASDAQ National Market System at least 100,000
shares (the “ Threshold Ownership ”) of the
Company’s common stock. Executive shall at all times
during the Initial Employment Period (as defined in Section 5
below) continue to meet the Threshold Ownership.
4.
Compensation and
Benefits.
(a)
Salary . The Company agrees to pay Executive a salary
during the Employment Period in installments based on the
Company’s payroll practices as may be in effect from time to
time. Executive’s salary during the Initial Employment Period
(as defined in Section 5) shall be at the rate of $575,000 per
year (“ Base Salary ”). For any renewal periods
as set forth in Section 5(b) below, the amount of the
Executive’s Base Salary will be mutually agreed to by the
Board and Executive. Notwithstanding the foregoing, the Board may
decrease Executive’s Base Salary only if, as a result of a
reasonable business judgement of the Board, there is an
across-the-board salary reduction for all executive level
management employees of the Company. If there is any modification
to the Base Salary as defined herein, “Base Salary” in
this Agreement will refer to such modified Base Salary.
(b)
Bonus . During the Initial Employment
Period, Executive will be eligible for a bonus under the
Company’s Management Incentive Compensation Plan (or any
successor plan), with a targeted annual bonus of $575,000 and with
such performance criteria as are approved by the Board for each
fiscal year. During any renewal period as set forth in
Section 5(b) below, Executive’s bonus will be
mutually agreed to by the Board and Executive.
(c)
Stock Options.
During Executive’s
employment with the Company, Executive has received certain stock
option grants. The terms and conditions for the grants are
set forth in those certain stock option agreements between the
Company and Executive as the same may be amended from time to time
by the parties.
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(d)
Expense Reimbursement
. The Company shall reimburse
Executive for all reasonable expenses incurred by Executive during
the Employment Period in the course of performing Executive’s
duties under this Agreement that are consistent with the
Company’s policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to
the Company’s requirements applicable generally with respect
to reporting and documentation of such expenses.
The Company shall reimburse Executive for the cost incurred in
maintaining a parking space in New York, New York, the amount of
which reimbursement shall be approved by the Board. The
Company shall also reimburse Executive an amount up to $18,000 for
the transportation of Executive’s household goods in
connection with Executive’s relocation to the metropolitan
area of the Company’s headquarters.
(e)
Standard Executive Benefits
Package . Executive shall
be entitled during the Employment Period to participate, on the
same basis as other executives of the Company, in the
Company’s Standard Executive Benefits Package . The
Company’s “Standard Executive Benefits Package”
means those benefits (including insurance and other benefits, but
excluding, except as hereinafter provided in Section 6, any
severance pay program or policy of the Company) for which
substantially all of the executives of the Company are from time to
time generally eligible, as determined from time to time by the
Board. Notwithstanding the foregoing, Executive shall be entitled
to four weeks of paid vacation per calendar year.
(f)
Additional
Compensation/Benefits .
Any compensation or benefits to be provided to Executive during the
Employment Period other than as set forth in this Agreement,
including, without limitation, any future grant of stock options or
other equity awards, shall be determined by the Board in its sole
discretion.
5.
Employment Period.
(a)
Except as hereinafter provided, the
Employment Period shall commence on the Effective Date and shall
continue until, and shall end upon, the sixth anniversary of the
Initial Employment Date (the “ Initial Employment
Period ”).
(b)
On the sixth anniversary of the
Initial Employment Date and on each anniversary thereafter, unless
the Employment Period shall have ended pursuant to
Section 5(c) below or the Company shall have given
Executive 30 days written notice that the extension provision in
this sentence shall not apply, the Employment Period shall be
extended for an additional year.
(c)
Notwithstanding (a) or
(b) above, the Employment Period shall end early upon the
first to occur of any of the following events:
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(i)
Executive’s death;
(ii)
the Company’s termination of
Executive’s employment on account of Disability;
(i)
the Company’s termination of
Executive’s employment for Cause (a “ Termination
for Cause ”);
(iv)
the Company’s termination of
Executive’s employment without Cause (a “
Termination without Cause ”);
(v)
Executive’s termination of
Executive’s employment for Good Reason (a “
Termination for Good Reason ”); or
(vi)
Executive’s termination of
Executive’s employment for any reason other than Good Reason
(a “ Voluntary Termination ”).
(d)
Notwithstanding anything herein to
the contrary, this Agreement and the Employment Period hereunder
shall terminate immediately upon the occurrence of the
“Effective Date” defined in that certain Change In
Control Employment Agreement between the Company and Executive
dated September 5, 2008, or any change in control employment
agreement that supersedes and replaces that agreement (the
“Change In Control Employment Agreement”).
Thereafter, Executive’s employment with the Company shall be
governed by the terms and conditions of the Change In Control
Employment Agreement.
6.
Post-Employment Period
Payments .
(a)
At the end of the Employment Period
for any reason, Executive shall cease to have any rights to salary,
bonus, expense reimbursements or other benefits and Executive shall
be entitled to (i) any Base Salary which has accrued but is
unpaid, any reimbursable expenses which have been incurred but are
unpaid, and any unexpired vacation days which have accrued under
the Company’s vacation policy but are unused, as of the end
of the Employment Period, (ii) any plan benefits which by
their terms extend beyond termination of Executive’s
employment (but only to the extent provided in any such benefit
plan in which Executive has participated as an employee of the
Company and excluding, except as hereinafter provided in
Section 6, any severance pay program or policy of the Company)
and (iii) any benefits to which Executive is entitled under
Part 6 of Subtitle B of Title I of the Employee Retirement
Income Security Act of 1974, as amended (“ COBRA
”). In addition, Executive shall be entitled to the
additional benefits and amounts described in the succeeding
subsections of this Section 6, in the circumstances described
in such subsections.
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(b)
If the Employment Period ends
pursuant to Section 5 hereof on account of Executive’s
death, Disability or Voluntary Termination, or on account of a
Termination for Cause, the Company shall make no further payments
to Executive except as contemplated in subsection
(a) above.
(c)
If the Employment Period ends early
pursuant to Section 5 hereof on account of a Termination
without Cause or a Termination for Good Reason, Executive shall be
entitled to the following:
(i)
a lump sum payment equal to
Executive’s bonus for the quarter in which the Employment
Period ends; provided, however , that if such Termination
without Cause or Termination for Good Reason occurs at any time
during fiscal year 2005, this Section 6(c) shall not
apply and Executive shall not be entitled to any portion of the
bonus for fiscal year 2005;
(ii)
a lump sum payment equal to two
times the sum of (A) Executive’s Base Salary at the time
of such termination, plus (B) the Bonus Amount in effect at
the time of such termination; and
(iii)
Executive shall be entitled to
continue to participate, on the same basis as active employees
participate in such plans, in the Company’s medical and
dental plans until the earlier of (A) Executive’s
eligibility for any such coverage under another employer’s or
any other medical or dental insurance plans or (B) two years
from the date of termination of Executive’s employment (the
“Benefit Continuation Period”) but only to the extent
that Executive makes a payment to the Company in an amount equal to
the monthly premium payments (both the employee and employer
portion) required to maintain such coverage on the first day of
each calendar month commencing with the first calendar month
following the date of termination of Executive’s employment
and the Company shall reimburse Executive on an after-tax basis for
the amount of such premiums, if any, in excess of any employee
contributions necessary to maintain such coverage for the Benefit
Continuation Period and such reimbursement shall comply with the
Reimbursement Rules set forth below. Executive agrees that the
period of coverage under such plans (or the period of reimbursement
if participation is barred) shall count against the plans’
obligation to provide continuation coverage pursuant to
COBRA.
Notwithstanding any other provision
to the contrary in this Section 6(c), the medical and dental
plan benefits provided pursuant to Section 6(c)(iii) that
are not non-taxable medical benefits within the meaning of Treasury
Regulation Section 1.409A-1(a)(5) shall be treated as
follows (the “Reimbursement Rules”): (i) the
amount of such benefits provided during one taxable year shall not
affect the amount of such benefits provided in any other taxable
year, except that to the
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extent such benefits consist of the
reimbursement of expenses referred to in
Section 105(b) of the Code, a limitation may be imposed
on the amount of such reimbursements over some or all of the
Benefit Continuation Period, as described in Treasury Regulation
Section 1.409A-3(i)(1)(iv)(B), (ii) to the extent that
any such benefits consist of reimbursement of eligible expenses,
such reimbursement must be made on or before the last day of the
calendar year following the calendar year in which the expense was
incurred, and (iii) no such benefit may be liquidated or
exchanged for another benefit.
(d)
Subject to the delay of certain
payments pursuant to Section 20 of this Agreement, the Company
shall make all payments required to be made pursuant to this
Section 6 within seventy-five (75) days of the end of the
Employment Period; provided , however , no payments
shall be made under Section 6(c), and all such payments and
benefits shall be forfeited, if Executive fails to sign and return
a Release Agreement to the Company within seventy-five (75) days
after the end of the Employment Period or revokes such Release
Agreement within the time period provided therein.
(e)
Except as provided in
Section 6(c)(iii) above, Executive shall not be required
to mitigate the amount of any payment or benefit provided for in
this Agreement by seeking other employment or otherwise.
(f)
Notwithstanding any other provision
of this Agreement, no payment will be made pursuant to this
Agreement if Executive is entitled to, and receives, payments or
other benefits pursuant to the Change in Control
Agreement.
7.
Competitive Activity:
Confidentiality: Nonsolicitation .
(a)
Acknowledgements and
Agreements . Executive
hereby acknowledges and agrees that in the performance of
Executive’s duties to the Company during the Employment
Period, Executive will be brought into frequent contact, either in
person, by telephone or through the mails, with existing and
potential customers of the Company. Executive also agrees that
trade secrets and confidential information of the Company, more
fully described in Section 7(j) of this Agreement, gained
by Executive during Executive’s association with the Company,
have been developed by the Company through substantial expenditures
of time, effort and money and constitute valuable and unique
property of the Company. Executive further understands and agrees
that the foregoing makes it necessary for the protection of the
business of the Company that Executive not compete with the Company
during the Employment Period and not compete with the Company for a
reasonable period thereafter, as further provided in the following
subsections.
(b)
Covenants During the Employment
Period . During the
Employment Period, Executive will not compete with the Company
anywhere within the United States.
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In accordance with this restriction,
but without limiting its terms, during the Employment Period,
Executive will not:
(i)
enter into or engage in any business
which competes with the business of the Company;
(ii)
solicit customers, business,
patronage or orders for, or sell, any products and services in
competition with, or for any business that competes with, the
business of the Company;
(iii)
divert, entice or otherwise take
away any customers, business, patronage or orders of the Company or
attempt to do so; or
(iv)
promote or assist, financially or
otherwise, any person, firm, association, partnership, corporation
or other entity engaged in any business which competes with the
business of the Company.
(c)
Covenants Following
Termination . For a
period of one year following the termination of Executive’s
employment for any reason, Executive will not:
(i)
enter into or engage in any business
which competes with the Company’s business within the
Restricted Territory (as defined in Section 7(g));
(ii)
solicit customers, business,
patronage or orders for, or sell, any products and services in
competition with, or for any business, wherever located, that
competes with, the Company’s business within the Restricted
Territory;
(iii)
divert, entice or otherwise take
away any customers, business, patronage or orders of the Company
within the Restricted Territory, or attempt to do so; or
(iv)
promote or assist, financially or
otherwise, any person, firm, association, partnership, corporation
or other entity engaged in any business which competes with the
Company’s business within the Restricted
Territory.
(d)
Indirect Competition
. For the purposes of Sections
7(b) and 7(c), but without limitation thereof, Executive will
be in violation thereof if Executive engages in any or all of the
activities set forth therein directly as an individual on
Executive’s own account, or indirectly as a partner, joint
venturer, employee, agent, salesperson, consultant, officer and/or
director of any firm, association, partnership, corporation or
other entity, or as a stockholder of any corporation or the owner
of the interests in any other entity, in which Executive or
Executive’s spouse, child or parent owns, directly or
indirectly, individually or in the
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aggregate, more than five percent
(5%) of the outstanding stock or other ownership
interests.
(e)
The Company
. For purposes of this
Section 7, the Company shall include any and all direct and
indirect subsidiary, parent, affiliated, or related companies of
the Company.
(f)
The Company’s
Business . For the
purposes of Sections 7(b), 7(c), 7(k) and 7(1), the
Company’s business is defined to be the development and sale
of software products that facilitate electronic payments, as
further described in any and all manufacturing, marketing and sales
manuals and materials of the Company as the same may be altered,
amended, supplemented or otherwise changed from time to time, or of
any other products or services substantially similar to or readily
suitable for any such described products and services.
(g)
Restricted Territory
. For the purposes of
Section 7(c), the Restricted Territory shall be defined as and
limited to:
(i)
the geographic area(s) within a
100 mile radius of any and all Company location(s) in, to, or
for which Executive worked, to which Executive was assigned or had
any responsibility (either direct or supervisory) at the time of
termination of Executive’s employment and at any time during
the one (1) year period prior to such termination;
and
(ii)
all of the specific customer
accounts, whether within or outside of the geographic area
described in (i) above, with which Executive had any contact
or for which Executive had any responsibility (either direct or
supervisory) at the time of termination of Executive’s
employment and at any time during the one (1) year period
prior to such termination.
(h)
Extension . If it shall be judicially determined that
Executive has violated any of Executive’s obligations under
Section 7(c), then the period applicable to each obligation
that Executive shall have been determined to have violated shall
automatically be extended by a period of time equal in length to
the period during which such violation(s) occurred.
(i)
Non-Solicitation
. For a period of two years
following the termination of Executive’s employment
for
