Exhibit 10.1
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First
Amendment to Employment Agreement (“ Amendment
”) is made as of September 5, 2007, by and between ACI
Worldwide, Inc., a Delaware corporation formerly known as
Transaction Systems Architects, Inc. (the “Company”),
and Philip G. Heasley (“ Executive
”).
WHEREAS, the
Company and Executive entered into that certain employment
agreement dated as of March 5, 2005 pertaining to the terms of the
employment of Executive by the Company (the “Employment
Agreement”); and
WHEREAS, the
Company and Executive desire to amend the Employment Agreement as
provided herein.
NOW, THEREFORE, in
consideration of the mutual covenants contained herein and in the
Employment Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Base Salary. Section 4(a) of the Employment Agreement is
amended by adding the following sentence at the end of that
section:
“Effective as of
July 30, 2007, Executive’s Base Salary shall be $550,000 per
year.”
2.
Employment Period.
Sections 5(a) and 5(b)
of the Employment Agreement are amended by replacing the references
therein to “fourth anniversary” with “sixth
anniversary.”
3.
Change-In-Control Agreement.
A.
The change-in-control severance compensation agreement attached to
the Employment Agreement as Exhibit B is deleted in its entirety
and replaced with the Change In Control Employment Agreement
attached hereto. References in the Employment Agreement to the
“Change-In-Control Agreement” hereinafter mean and
refer to the attached Change In Control Employment Agreement.
B.
Section 4(i) of the Employment Agreement is deleted in its
entirety.
C.
A new Section 5(d) is added to the Employment Agreement as
follows:
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 the Change-In-Control
Employment Agreement attached hereto as Exhibit B (the
“Change in Control Agreement”). Thereafter,
Ex-
ecutive’s
employment with the Company shall be governed by the terms and
conditions of the Change-In-Control Agreement.
4.
All other terms and conditions of the Employment Agreement remain
unchanged.
IN WITNESS WHEREOF
, the parties have executed this Amendment on the day and year
first above written.
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ACI Worldwide, Inc.
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Philip
G. Heasley
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By:
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/s/ Dennis P.
Byrnes
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/s/ Philip G.
Heasley
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Its:
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Senior Vice
President
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Revised Exhibit
B—Change In Control Employment Agreement
2
CHANGE IN CONTROL EMPLOYMENT
AGREEMENT
AGREEMENT, dated as of the 5 th
day of September, 2007 (this “Agreement”), by and
between ACI Worldwide, Inc., a Delaware corporation (the
“Company”), and Philip G. Heasley (the
“Executive”).
WHEREAS, the Board
of Directors of the Company (the “Board”), has
determined that it is in the best interests of the Company and its
stockholders to assure that the Company will have the continued
dedication of the Executive, notwithstanding the possibility,
threat or occurrence of a Change in Control (as defined herein).
The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change
in Control and to encourage the Executive’s full attention
and dedication to the Company in the event of any threatened or
pending Change in Control, and to provide the Executive with
compensation and benefits arrangements upon a Change in Control
that ensure that the compensation and benefits expectations of the
Executive will be satisfied and that provide the Executive with
compensation and benefits arrangements that are competitive with
those of other corporations. Therefore, in order to accomplish
these objectives, the Board has caused the Company to enter into
this Agreement.
NOW, THEREFORE, IT
IS HEREBY AGREED AS FOLLOWS:
Section
1.
Certain Definitions . (a) “Effective
Date” means the first date during the Change in Control
Period (as defined herein) on which a Change in Control occurs.
Notwithstanding anything in this Agreement to the contrary, if a
Change in Control occurs and if the Executive’s employment
with the Company is terminated within six months prior to the date
on which the Change in Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment
(1) was at the request of a third party that has taken steps
reasonably calculated to effect a Change in Control or (2)
otherwise arose in connection with or anticipation of a Change in
Control, then “Effective Date” means the date
immediately prior to the date of such termination of
employment.
(b)
“Change in Control Period” means the period commencing
on the date hereof and ending on the second anniversary of the date
hereof; provided , however , that, commencing on the
date one year after the date hereof, and on each annual anniversary
of such date (such date and each annual anniversary thereof, the
“Renewal Date”), unless previously terminated, the
Change in Control Period shall be automatically extended so as to
terminate two years from such Renewal Date, unless, at least 60
days prior to the Renewal Date, the Company shall give notice to
the Executive that the Change in Control Period shall not be so
extended.
(c)
“Affiliated Company” means any company controlled by,
controlling or under common control with the Company.
(d)
“Change in Control” means:
(1)
Any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) (a
“Person”)
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becomes the beneficial
owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (A) the then-outstanding
shares of common stock of the Company (the “Outstanding
Company Common Stock”) or (B) the combined voting power of
the then-outstanding voting securities of the Company entitled to
vote generally in the election of directors (the “Outstanding
Company Voting Securities”); provided , however
, that, for purposes of this Section 1(d), the following
acquisitions shall not constitute a Change in Control: (i) any
acquisition directly from the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
Affiliated Company or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections 1(d)(3)(A),
1(d)(3)(B) and 1(d)(3)(C);
(2)
Any time at which individuals who, as of the date hereof,
constitute the Board (the “Incumbent Board”) cease for
any reason to constitute at least a majority of the Board;
provided , however , that any individual becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Company’s stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board;
(3)
Consummation of a reorganization, merger, statutory share exchange
or consolidation or similar transaction involving the Company or
any of its subsidiaries, a sale or other disposition of all or
substantially all of the assets of the Company, or the acquisition
of assets or stock of another entity by the Company or any of its
subsidiaries (each, a “Business Combination”), in each
case unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock (or, for a
non-corporate entity, equivalent securities) and the combined
voting power of the then-outstanding voting securities entitled to
vote generally in the election of directors (or, for a
non-corporate entity, equivalent governing body), as the case may
be, of the entity resulting from such Business Combination
(including, without limitation, an entity that, as a result of such
transaction, owns the Company or all or substantially all of the
Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (B) no Person (excluding any
corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 20% or more of, respectively, the
then-outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting
power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior
to the Business Combination, and (C) at least a majority of the
members of the board of directors (or, for a non-corporate entity,
equivalent governing body) of the entity resulting from such
Business Combination were
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members of the
Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such Business
Combination; or
(4)
Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
Section
2.
Employment Period . The Company hereby agrees to
continue the Executive in its employ, subject to the terms and
conditions of this Agreement, for the period commencing on the
Effective Date and ending on the second anniversary of the
Effective Date (the “Employment Period”). The
Employment Period shall terminate upon the Executive’s
termination of employment for any reason.
Section
3.
Terms of Employment . (a) Position and Duties . (1) During the
Employment Period, (A) the Executive’s position (including
status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be at least commensurate in all
material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period
immediately preceding the Effective Date and (B) the
Executive’s services shall be performed at the office where
the Executive was employed immediately preceding the Effective Date
or at any other location less than 50 miles from such office.
(2)
During the Employment Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive
agrees to devote reasonable attention and time during normal
business hours to the business and affairs of the Company and, to
the extent necessary to discharge the responsibilities assigned to
the Executive hereunder, to use the Executive’s reasonable
best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period, it shall not be a
violation of this Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as such
activities do not significantly interfere with the performance of
the Executive’s responsibilities as an employee of the
Company in accordance with this Agreement. It is expressly
understood and agreed that, to the extent that any such activities
have been conducted by the Executive prior to the Effective Date,
the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with the
performance of the Executive’s responsibilities to the
Company.
(b)
Compensation . (1)
Base Salary . During the
Employment Period, the Executive shall receive an annual base
salary (the “Annual Base Salary”) at an annual rate at
least equal to the highest annual rate of base salary paid or
payable, including any base salary that has been earned but
deferred, to the Executive by the Company and the Affiliated
Companies in respect of the 12-month period immediately preceding
the month in which the Effective Date occurs. The Annual Base
Salary shall be paid at such intervals as the Company pays
executive salaries generally. During the Employment Period, the
Annual Base Salary shall be reviewed at least annually, beginning
no more than 12 months after the last salary increase awarded to
the Executive prior to the Effective Date. Any increase in the
Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement.
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The Annual Base Salary
shall not be reduced after any such increase and the term
“Annual Base Salary” shall refer to the Annual Base
Salary as so increased.
(2)
Annual Bonus . In addition
to the Annual Base Salary, the Executive shall be awarded, for each
fiscal year ending during the Employment Period, total annual and
quarterly bonus opportunities in cash at least equal to the
aggregate of the Executive’s target annual and quarterly
bonus opportunities for the year in which the Effective Date occurs
(the “Target Annual Bonus”) (if the Executive has not
been eligible to earn such a bonus for any period prior to the
Effective Date or no such Target Annual Bonus has been established
for the fiscal year or quarters (as applicable) in which the
Effective Date occurs, the “Target Annual Bonus” shall
mean the Executive’s most recent target annual and quarterly
bonus opportunities as in effect for the year prior to the year in
which the Effective Date occurs); provided, however, that (i) the
performance measures applicable to such target bonus opportunities
shall be comparable in terms of difficulty of achievement to the
measures in effect with respect to the Target Annual Bonus prior to
the Effective Date and (ii) in the determination of such bonuses,
the Executive shall be treated as favorably as similarly situated
executives of any acquiror of the Company. Each such annual bonus
shall be paid no later than two and a half months after the end of
the fiscal year for which the annual bonus is awarded, unless the
Executive shall elect to defer the receipt of such annual bonus
pursuant to an arrangement that meets the requirements of Section
409A of the Internal Revenue Code of 1986, as amended (the
“Code”).
(3)
Incentive, Savings and Retirement
Plans . During the Employment Period, the Executive shall
be entitled to participate in all cash incentive, equity incentive,
savings and retirement plans, practices, policies, and programs
applicable generally to other peer executives of the Company and
the Affiliated Companies, but in no event shall such plans,
practices, policies and programs provide the Executive with
incentive opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that such
distinction is applicable), savings opportunities and retirement
benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company
and the Affiliated Companies for the Executive under such plans,
practices, policies and programs as in effect at any time during
the 120-day period immediately preceding the Effective Date or, if
more favorable to the Executive, those provided generally at any
time after the Effective Date to other peer executives of the
Company and the Affiliated Companies.
(4)
Welfare Benefit Plans .
During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the
Company and the Affiliated Companies (including, without
limitation, medical, prescription, dental, disability, employee
life, group life, accidental death and travel accident insurance
plans and programs) to the extent applicable generally to other
peer executives of the Company and the Affiliated Companies, but in
no event shall such plans, practices, policies and programs provide
the Executive with benefits that are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time
during the 120-day period immediately preceding the Effective Date
or, if more favorable to the Executive,
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those provided
generally at any time after the Effective Date to other peer
executives of the Company and the Affiliated Companies.
(5)
Expenses . During the
Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the most favorable policies, practices
and procedures of the Company and the Affiliated Companies in
effect for the Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and the Affiliated
Companies.
(6)
Office and Support Staff .
During the Employment Period, the Executive shall be entitled to an
office or offices of a size and with furnishings and other
appointments, and to exclusive personal secretarial and other
assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and the Affiliated
Companies at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided generally at any time thereafter with
respect to other peer executives of the Company and the Affiliated
Companies.
(7)
Vacation . During the
Employment Period, the Executive shall be entitled to paid vacation
in accordance with the most favorable plans, policies, programs and
practices of the Company and the Affiliated Companies as in effect
for the Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and the Affiliated
Companies.
Section
4.
Termination of Employment . (a) Death or Disability . The
Executive’s employment shall terminate automatically if the
Executive dies during the Employment Period. If the Company
determines in good faith that the Disability (as defined herein) of
the Executive has occurred during the Employment Period (pursuant
to the definition of “Disability”), it may give to the
Executive written notice in accordance with Section 11(b) of its
intention to terminate the Executive’s employment. In such
event, the Executive’s employment with the Company shall
terminate effective on the 30th day after receipt of such notice by
the Executive (the “Disability Effective Date”),
provided that, within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of the
Executive’s duties. “Disability” means the
absence of the Executive from the Executive’s duties with the
Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness that is
determined to be total and permanent by a physician selected by the
Company or its insurers and acceptable to the Executive or the
Executive’s legal representative.
(b)
Cause . The Company may
terminate the Executive’s employment during the Employment
Period with or without Cause. “Cause” means:
(1)
the Executive’s conviction of, or entry of a plea of guilty
or no contest to, a felony or any lesser crime of which fraud or
dishonesty is an element,
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(2)
the Executive’s willful misconduct or willful omission of
duties (other than any such misconduct or omission resulting from
the Executive’s incapacity due to physical or mental illness
or following the Executive’s delivery of a Notice of
Termination for Good Reason) that is or could reasonably be
expected to be injurious to the Company other than in an immaterial
manner, or
(3)
the Executive’s violation of any provision of (A) the
Company’s Code of Business Conduct and Ethics, as the same
may be amended from time to time, or (B) the Company’s Code
of Ethics for the Chief Executive Officer and Senior Financial
Officers, as the same may be amended from time to time (the
“Code of Ethics”) that is, in each case, materially and
demonstrably injurious to the Company. For purposes of the
foregoing sentence, the Executive shall be deemed to be subject to
the provisions of the Code of Ethics regardless of whether the
Executive is a Senior Officer as defined in the Code of Ethics or
otherwise subject to the Code of Ethics.
For purposes of this
Section 4(b), no act, or failure to act, on the part of the
Executive shall be considered “willful” unless it is
done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive’s action or
omission was in the best interests of the Company. Any act, or
failure to act, based upon authority (A) given pursuant to a
resolution duly adopted by the Board, or if the Company is not the
ultimate parent corporation of the Affiliated Companies and is not
publicly-traded, the board of directors of the ultimate parent of
the Company (the “Applicable Board”), (B) upon the
instructions of the Chief Executive Officer of the Company ,
or (C) based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company.
The cessation of employment of the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to
the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire
membership of the Applicable Board (excluding the Executive, if the
Executive is a member of the Applicable Board) at a meeting of the
Applicable Board called and held for such purpose (after reasonable
notice is provided to the Executive and the Executive is given an
opportunity, together with counsel for the Executive, to be heard
before the Applicable Board), finding that, in the good faith
opinion of the board, the Executive is guilty of the conduct
described in Section 4(b)(1), 4(b)(2) or 4(b)(3), and specifying
the particulars thereof in detail.
(c)
Good Reason . The
Executive’s employment may be terminated by the Executive for
Good Reason or by the Executive voluntarily without Good Reason.
“Good Reason” means:
(1)
the assignment to the Executive of any duties inconsistent in any
respect with the Executive’s position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 3(a), or any other
diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and that is remedied by
the Company promptly after receipt of notice thereof given by the
Executive;
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(2)
any failure by the Company to comply with any of the provisions of
Section 3(b), other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and that is remedied by the
Company promptly after receipt of notice thereof given by the
Executive;
(3)
the Company’s requiring the Executive (i) to be based at any
office or location other than as provided in Section 3(a)(1)(B),
(ii) to be based at a location other than the principal executive
offices of the Company if the Executive was employed at such
location immediately preceding the Effective Date, or (iii) to
travel on Company business to a substantially greater extent than
required immediately prior to the Effective Date;
(4)
any purported termination by the Company of the Executive’s
employment otherwise than as expressly permitted by this Agreement;
or
(5)
any failure by the Company to comply with and satisfy Section
10(c).
The Executive’s
mental or physical incapacity following the occurrence of an event
described above in clauses (1) through (5) shall not affect the
Executive’s ability to terminate employment for Good Reason.
A termination by the Executive with Good Reason shall be effective
only if, within 180 days of the Executive’s first becoming
aware of the circumstances giving rise to Good Reason, the
Executive delivers a Notice of Termination for Good Reason by
Executive to the Company, and, to the extent such circumstances are
curable, the Company within 30 days following its receipt of such
notification has failed to
