Exhibit 10.47
AMENDMENT NO. 1
TO AMENDED AND
RESTATED
EMPLOYEE CONFIDENTIAL
INFORMATION
AND NONCOMPETITION
AGREEMENT
This Amendment No. 1
(“Amendment”) to that certain Amended and Restated
Employee Confidential Information and Noncompetition Agreement
dated May 4, 2007 (the “Agreement”) by and between
Robert O. Carr (the “Employee”) and Heartland Payment
Systems, Inc., a Delaware corporation (collectively with any and
all current and future subsidiary and/or affiliate companies, the
“Company”) is entered into effective May 11, 2009
by and between the Employee and the Company. Capitalized terms used
but not defined herein shall have the meanings ascribed to them in
the Agreement.
RECITALS
WHEREAS, the Compensation Committee
of the Board of Directors (the “Board”) of the Company
awarded the Employee certain stock options and restricted stock
units (collectively, the “Awards”) in order to
incentivize and retain the Employee; and
WHEREAS, a condition to the
Employee’s receipt of, and in consideration for, the Awards,
the Employee and the Company agreed to enter into this Amendment to
extend certain of the Employee’s noncompetition and
nonsolicitation covenants in the circumstances described below;
and
WHEREAS, the parties now desire to
amend certain terms and conditions of the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the
parties to the Agreement agree as follows:
1. Section 2(a) of the
Agreement shall be deleted and replaced in its entirety by the
following:
“(a) In consideration of the
covenants by Employee contained below, in the event of a
termination of Employee’s employment by action of the Company
other than for Cause or Disability, the Employee will receive
severance pay, in an amount equal to the base salary that would
have been paid for a period of twenty four (24) months payable
in accordance with the Company’s regular payroll practices,
plus medical benefits for such period; provided, however, that in
the event of a Change in Control (as defined below) the Employee
will receive severance pay, in an amount equal to the base salary
that would have been paid for a period of twelve (12) months
following the Employee’s termination after a Change in
Control by action of the Company other than for Cause or Disability
payable in accordance with the Company’s regular payroll
practices, plus medical benefits for such period; provided further
that the Employee shall not be eligible to receive such severance
pay unless such termination of employment occurs after the
ninetieth (90th) day of the Employee’s employment by the
Company. Medical benefit continuation during such severance period
shall be counted against the benefit continuation period required
under COBRA.”
2. A new Section 2(f) shall be added to the
Agreement as follows:
“(f) “Change in
Control” shall mean the occurrence of any of the following
events:
(i) the sale, exchange, lease or
other disposition, in one or a series of related transactions, of
all or substantially all of the assets of the Company to a
“person” or “group” (as such terms are
defined or described in Sections 3(a)(9), 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”));
(ii) any person or group is or
becomes the “Beneficial Owner” (as such term is Rule
13d-3 of the Exchange Act), directly or indirectly, of more than
50% of the total voting power of the voting stock of the Company
(or any successor to all or substantially all of the assets of the
Company or
