FIFTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
FIFTH
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
Fifth Amended and Restated Employment Agreement ("Agreement")
is made as of December 21, 2005, by and between Transaction Systems Architects,
Inc., a Delaware corporation, ("Employer")
and Xxxxxxx X. Xxxxxxxx ("Employee").
PRELIMINARY
STATEMENTS
A.
Employer
and Employee have entered into that certain employment agreement dated as
of
December 3, 2001 pertaining to the terms of the employment of Employee by
Employer, which agreement was amended and restated as of April 28, 2003,
December 15, 2003, September 28, 2004 and August 5, 2005 (as amended and
restated, the “Fourth
Amended and Restated Employment Agreement”).
B.
Employer
and Employee desire to amend and restate the Fourth Amended and Restated
Employment Agreement as provided herein.
AGREEMENT
The
parties to this Agreement, intending to be legally bound, agree as
follows:
1.
Employment.
Subject
to the terms and conditions of this Agreement, Employer hereby agrees to
employ
Employee, and Employee hereby accepts and agrees to such employment, upon
the
terms and conditions set forth herein and with such duties attendant to
Employee’s position as a senior executive officer of Employer and such other
duties as shall be determined by the Board of Directors of Employer (the
“Board”).
2.
Term.
The term of this Agreement, and Employee’s employment hereunder, shall commence
on December 21, 2005 and, unless earlier terminated, continue through February
28, 2006 (the “Term”).
3.
Duties.
Employee
shall, during the Term:
(a)
Execute
Duties.
Execute the duties attendant to his position as executive vice president,
or
such other position as the Board shall designate, and such additional duties
as
shall be determined and directed by the Board or the Company’s Chief Executive
Officer (“CEO”) from time to time.
(b)
Board
Service.
Unless otherwise requested by the Board, serve as a member of the Board,
subject
to nomination by the Board and election by Employer’s stockholders.
(c)
Full
Efforts and Time.
Consistent with the foregoing, Employee shall devote full business time,
energy,
and skill to the businesses of Employer, and to the promotion of Employer's
best
interests; provided,
however,
that this Agreement shall not preclude Employee from participating in the
affairs of any governmental, educational or other charitable institution,
from
engaging in professional speaking and writing activities, and from serving
as a
member of the board of directors of other corporations or entities (subject
to
the approval by the Chairman of the Board) so long as such activities do
not
unreasonably interfere with the businesses of Employer or conflict with
Employee's obligations under this Agreement.
4.
Compensation.
(a)
Base.
Employer shall pay Employee for all services to be performed by Employee
during
the Term a base salary (the "Base
Salary")
at the rate of $360,000 per year, payable in substantially equal semi-monthly
payments in accordance with Employer's customary practice for other employees,
as such practice may be determined from time to time, for
a period of time commencing on the start of the Term and ending December
31,
2005.
Thereafter, for the remainder of the Term, Employer shall have no obligation
to
pay Employee the Base Salary. The Board may increase such Base Salary in
its reasonable business judgment. The Board may decrease such Base Salary
(i) as
a result of a pro-rata across-the-board salary reduction for all executive
level
management employees of Employer, or (ii) to a rate of $180,000 per year
if the
Board or CEO directs Employee to provide transition services on less than
a
full-time basis.
(b)
Management
Incentive Compensation.
Employee’s participation in Employer’s annual Management Incentive Compensation
(“MIC”) Program ceased effective as of March 31, 2005.
(c)
Transition
Services Bonus.
If, in the Board’s and the CEO’s reasonable judgment, Employee performs the
duties contemplated under this Agreement, Employer will pay Employee a bonus
as
provided herein (a “Transition
Bonus”)
and, except as provided in Section 4(a) and 5(b), Employee shall not be entitled
to any other compensation under this Agreement. The amount of any Transition
Bonus will be determined by the CEO and the Board in their reasonable business
judgment and shall not exceed the following:
i. $125,000 in consideration of transition services provided during Employer’s third fiscal 2005 quarter;
iii. $125,000
in consideration of transition services provided during Employer’s first fiscal
2006 quarter.
Payments
under this Section 4(c) shall be made in accordance with Employer’s payroll
practices in effect from time to time and shall be made on or about the date
Employer customarily pays MIC compensation for the applicable fiscal
quarter.
(d)
Business
Expenses.
In addition to the Base Salary set forth above, Employer agrees that during
the
Term Employee shall be entitled to reimbursement by Employer for all reasonable
and documented business expenses incurred by him on Employer's behalf in
the
course of his employment hereunder in accordance with Employer's policy
concerning the same.
(e)
Board
Service.
No separate or additional compensation will be paid to Employee with respect
to
service on the Board.
(f)
Stock
Options.
Employee has received three stock option grants from the Employer's existing
stock option plans. The first grant was in the amount of 100,000 shares and
was
made on January 2, 2002. The second and third grants were in the amount of
200,000 shares each and were made February 19, 2002. The terms and conditions
for each of the grants are set forth in separate stock option agreements.
The
stock option agreements for each of the grants are attached hereto as Exhibits
B, C and D, respectively.
5.
Additional
Benefits.
(a)
Participation
in Benefit Plans.
During the Term, Employee and his dependents shall be entitled to participate
in
and receive health insurance and other benefits ("Benefit
Plans")
under Employer's Benefit Plans, whether qualified plans or non-qualified
plans,
subject to and on a basis consistent with the terms, conditions, including
eligibility requirements, and overall administration of such Benefit
Plans as
provided to similarly situated employees of Employer, as changed from
time to
time. Employee shall be entitled to a minimum of four weeks of paid vacation
and
holidays in accordance with Employer's policies in effect from time to
time for
its employees.
(b)
Continuation
of Certain Benefits.
If Employee performs the duties contemplated under this Agreement through
February 28, 2006, Employee will be entitled to continued participation in
Employer’s group health plan until the earlier of (A) the date he becomes
eligible to receive coverage and benefits under the health plan of a subsequent
employer, or (B) February 28, 2011; provided (1) if Employee is precluded
from continuing his participation in Employer’s group health plan as provided
herein, he shall be paid, in a lump sum cash payment, within 30 days following
the date it is determined he is unable to participate in the group health
plan,
an amount equal to the after-tax economic equivalent of the benefits (net
of
Employee’s contribution) provided under the plan; (2) the economic
equivalent of any benefit foregone shall be deemed to be an amount equal
to (i)
the lowest cost that would be incurred by Employee in obtaining such benefit
for
himself (including family or dependent coverage, if applicable) on an individual
basis, minus (ii) the amount Employee would reasonably have been expected
to
contribute under Employer’s group health plan; and (3) in no event shall the
lump sum cash payment contemplated by this Section 5(b) exceed $30,000. Employee
shall be eligible for group health plan continuation coverage under, and
in
accordance with, the Consolidated Omnibus Budget Reconciliation Act of 1965,
as
amended, when he ceases to be eligible for continued participation in Employer’s
group health plan.
6.
Termination.
(a)
Types
of Termination.
(i) For
Cause by Employer.
Any termination of Employee's employment by Employer for Cause (as defined
in
Exhibit A attached hereto) shall be authorized by a vote of at least a majority
of the non-employee members of the Board within 12 months of a majority of
such
non-employee members of the Board having actual knowledge of the event or
circumstances providing a basis for such termination. In the case of
clause (4) of the definition of Cause, Employee shall be given notice by
the Board specifying in detail the particular act or failure to act on which
the
Board is relying in proposing to terminate him for Cause and offering Employee
an opportunity, on a date at least 14 days after receipt of such notice,
to have
a hearing, with counsel, before a majority of the non-employee
members of
the Board, including each of the members of the Board who authorized the
termination for Cause. Employee shall not be terminated for Cause if, within
30
days after the date of Employee's hearing before the Board (or if Employee
waives a hearing, within 30 days after receiving notice of the proposed
termination), he has corrected the particular act or failure to act specified
in
the notice and by so correcting such act or failure to act he has reduced
the
economic damage his act or failure to act has allegedly caused Employer to
a
level which is no longer material or has eliminated the probability that
such
act or failure to act is likely to result in material economic damage to
Employer. No termination for Cause shall take effect until the expiration
of the
correction period described in the preceding sentence and the determination
by a
majority of the non-employee members of the Board that Employee has failed
to
correct the act or failure to act in accordance with the terms of the preceding
sentence.
Anything
herein to the contrary notwithstanding, if, following a termination of
Employee's employment by Employer for Cause based upon the conviction of
Employee for a felony involving moral turpitude such conviction is finally
overturned on appeal, Employee shall be entitled to the compensation provided
in
Sections 4(a) and 4(c) of the Severance Compensation Agreement; provided,
however,
that any such compensation shall be reduced dollar for dollar by the amount
of
any Transition Bonus paid under this Agreement. In lieu of the interest provided
in clause (iv) of the first sentence of Section 4(a) of the Severance
Compensation Agreement and the interest provided in the second sentence of
Section 4(c) of the Severance Compensation Agreement, however, the
compensation provided in Sections 4(a) and 4(c) of the Severance
Compensation Agreement shall be increased by a 10% rate of interest, compounded
annually, calculated from the date such compensation would have been paid
if
Employee's employment had been terminated without Cause.
(ii) Death,
Disability or Retirement of Employee.
If Employee's employment is terminated during the Term due to the death,
Disability (as defined below) or Retirement (as defined in Exhibit A) of
Employee, then an amount equal to Employee's Base Salary (at the rate most
recently in effect) shall be paid through the date of his death, Disability
or
Retirement, plus an amount in respect of any accrued but unused vacation
days;
provided,
however,
that if Employee's employment is terminated due to death, Disability or
Retirement subsequent to a Change in Control, then the applicable provisions
of
the Severance Compensation Agreement shall govern, provided the Severance
Compensation Agreement has not been earlier terminated.
In
addition to any other compensation provided for under this Agreement or the
Severance Compensation Agreement, Employee's beneficiaries shall also receive
any insurance benefits under the Benefit Plans to which Employee or his
beneficiaries are entitled on the date of his death or Disability. Furthermore,
if Employee’s employment is terminated during the Term due to Disability, then
Employee will be entitled to continued participation in all Benefit Plans
or
programs available to Employer’s employees generally, until the earlier of
(A) the date, or dates, he becomes eligible to receive coverage and
benefits under the plans and programs of a subsequent employer (such coverages
and benefits to be determined on a coverage-by-coverage or benefit-by-benefit
basis) or (B) two years from the Termination Date; provided (1) if Employee
is precluded from continuing his participation in any Benefit Plan or program
as
provided in the preceding sentence, he shall be paid, in a lump sum cash
payment, within 30 days following the date it is determined he is unable
to
participate in any Benefit Plan or program, the after-tax economic equivalent
of
the benefits (net of Employee’s contribution) provided under the plan or program
in which he is unable to participate for the period specified in the preceding
sentence; and (2) the economic equivalent of any benefit foregone shall be
deemed to be an amount equal to (i) the lowest cost that would be incurred
by
Employee in obtaining such benefit for himself (including family or dependent
coverage, if applicable) on an individual basis, minus (ii) the amount Employee
would reasonably have been expected to contribute under Employer’s group health
plan. Employee shall be eligible for group health plan continuation coverage
under and in accordance with the Consolidated Omnibus Budget Reconciliation
Act
of 1965, as amended, when he ceases to be eligible for continued participation
in Employer’s group health plan under this Section 6(a)(ii).
As
used in this Agreement, the term "Disability"
shall mean the inability of Employee, due to physical or mental illness,
with or
without a reasonable accommodation, to perform his duties with Employer on
a
full-time basis for six months and, within 30 days after a notice of termination
is thereafter given by Employer, Employee's failure to return to the full-time
performance of Employee's duties as set forth in Section 3.
In
the case of the Disability or Retirement of Employee, the Noncompetition
and
Confidentiality and other provisions of Sections 7 and 8 hereof shall remain
in
effect.
(iii) Without
Cause by Employer.
Employer may terminate the employment of Employee at any time without Cause
after providing Employee with 30 days' prior written notice setting forth
its
intention to do so.
(iv) Expiration
of Term.
The expiration of this Agreement is by its own term, as set forth in Section
2.
(b)
Compensation
on Termination.
Except as otherwise provided in the Severance Compensation Agreement, if
Employee is terminated for Cause, death, Disability, Retirement, or voluntarily
terminates his employment, Employee shall not be entitled to any compensation
following the date of termination as defined below (the "Termination
Date"):
(i) for
Cause by Employer - immediately upon the vote of a majority of the non-employee
Board members as provided in Section 6(a)(i);
(ii) for
death, Disability or Retirement - for death or Retirement, immediately upon
the
date of such occurrence; for Disability, immediately upon expiration of the
notice period described in Section 6(a)(ii) if Employee fails to return to
the
full-time performance of Employee's duties as set forth in Section 3;
and
(iiii) by
its own term - on the date set forth in Section 2.
(c)
Compensation
for Termination Without Cause.
Subject to the provisions of this Agreement, in the event Employee's employment
is terminated by Employer without Cause prior to February 28, 2006, Employer
shall pay to Employee an amount equal to $500,000 minus the amount of any
Transition Bonus paid prior to the Termination Date.
(d)
Change
in Control Compensation.
Subject to the provisions of this Agreement, including without limitation
Section 6(g), Employee shall be entitled to the compensation provided in
the
Severance Compensation Agreement pursuant to the terms stated in such agreement;
provided,
however,
that any compensation payable under the Severance Compensation Agreement
shall
be reduced dollar for dollar by the amount of any Transition Bonus paid prior
to
the date of any payment under the Severance Compensation Agreement.
(e)
Expiration
of Term.
Subject to the provisions of this Agreement, including without limitation
Sections 4(b), 5(b) and 6(g), if this Agreement remains in effect through
the
Term, Employee shall be entitled to the Transition Bonus and compensation
provided under Section 5(b).
(f)
Notice
of Termination.
Any termination of Employee’s employment by Employer pursuant to Section 6(a)(i)
or
6(a)(iii)
above shall be communicated by a written notice of termination to
Employee.
(g)
Conflict
in Benefits.
To the extent that Employee is entitled to severance compensation pursuant
to
the terms of that certain amended and restated severance compensation agreement
(the "Severance
Compensation Agreement")
dated as of September 28, 2004, a copy of which is attached hereto as Exhibit
E,
Employee’s entitlement to any severance compensation (including the Transition
Bonus) shall be determined under the Severance Compensation Agreement;
provided,
however,
that any compensation payable under the Severance Compensation Agreement
shall
be reduced dollar for dollar by the amount of any portion of the Transition
Bonus paid prior to the date of any payment under the Severance Compensation
Agreement. Without limiting the foregoing, the parties expressly understand
and
agree that, if Employee is entitled to compensation under the Severance
Compensation Agreement, Employee shall in no event be entitled to compensation
pursuant to Section 4(c), 5(b) , 6(c) or 6(e) of this Agreement.
7.
Noncompetition,
Noninducement, Nonsolicitation, Release.
(a)
Employee
hereby agrees that commencing on the date of this Agreement and continuing
through 180 days after the termination date (the "Non-Compete
Period"),
he shall not singly, jointly, or as a member, employee, or agent of any
partnership or as an officer, agent, employee, director or stockholder, or
investor of any other corporation or entity, or in any other capacity, which
is
engaged in a similar business to that of Employer during the period of
non-competition:
(i) solicit,
contact and/or service any person, firm, corporation, partnership, or entity
of
any kind whatsoever for purposes which are competitive to that of Employer,
and
for purposes similar to those performed by Employee for Employer, a client
of
Employer for which Employee performed service or had personal contact with
on
behalf of Employer during the last one year of Employee's employment with
Employer; provided,
that Employee shall be able to acquire and hold up to 1% of the outstanding
shares of any publicly traded stock of any company, and an unlimited percentage
of outstanding shares in the Employer, its parent, affiliates, or subsidiaries;
and
(ii) directly
or indirectly induce or attempt to induce any person who, during the term
of
Employee's employment hereunder, was an employee, representative or agent
of
Employer or any of its affiliates to terminate his employment with Employer
or
any of its affiliates, or to violate the terms of any agreement between said
employee, representative or agent and Employer or any of its
affiliates.
(b)
It
is understood and agreed by Employer and Employee that the time periods of
the
restrictions set forth in Section 7(a) of this Agreement are intended by
Employer and Employee to be extended by any time period during which Employee
violates the terms and conditions of Section 7(a). Notwithstanding anything
which could be construed to the contrary, this Section 7(b) is not intended
to
and shall not be deemed to permit Employee to violate any term or condition
of
Section 7(a).
(c)
Prior to Employer providing any compensation under Section 4(c), 5(b) or
6(c) of
this Agreement or under the Severance Compensation Agreement, Employee shall
execute, or re-execute, and deliver to Employer a release and waiver (the
“Release”)
in substantially the form attached hereto as Exhibit F, with such changes
therein and modifications thereto as Employer, in the exercise of its reasonable
judgment, may determine to be required by applicable law or rule in any
jurisdiction. Employer’s obligation to provide any compensation under Section
4(c), 5(b) or 6(c) under this Agreement, or under the Severance Compensation
Agreement is expressly conditioned on Employee’s prior execution and delivery of
the Release.
(d)
In
the event any of the provisions of this Agreement shall be held to be invalid
or
unenforceable, the remaining portions thereof shall nevertheless continue
to be
valid and enforceable as though the invalid or unenforceable parts had not
been
included herein.
(e)
Employer and Employee specifically agree that the provisions of Sections 7,
8, 9 ,10 and 15 shall survive the termination of this Agreement.
(f)
Employer and Employee agree that the provisions of this Section 7 may be
waived
in whole or in part by mutual agreement in writing by Employer and
Employee.
8.
Confidentiality.
Without
the consent of Employer, Employee will not, during his Employment or after
termination of this Agreement, (a) disclose any trade secret or proprietary
or
confidential knowledge or information of Employer or any affiliate of Employer
to any person or entity (other than to Employer or stockholders, directors,
officers or employees of Employer or representatives thereof), or (b) otherwise
make use of any such secret, knowledge or information for other than Employers
purposes, unless in the case of (a) or (b) above such secret, knowledge or
information is readily ascertainable from publicly available information.
Employee will hold confidential, on behalf of Employer as the property of
Employer, all memoranda, manuals, books, papers, letters, documents, computer
software and other similar property obtained during the course of performing
duties under this Agreement, and will return such property to Employer at
any
time upon demand by Employer and, in any event, within three calendar days
after
termination of his employment under this Agreement or after the end of the
Term.
9.
Developments.
(a)
As
used in this Agreement, the term "Employee
Developments"
shall mean all technological, financial, operating and training ideas,
processes, methods and materials, specifically including, but not limited
to,
all inventions, discoveries, improvements, devices, apparatus, designs,
practices, processes, methods, formulas, know-how, products, enhancements
and
all software, computer programs (including source code, object code,
documentation and programmer's notes) and other works of authorship, whether
or
not patentable or copyrightable, developed, written, conceived or reduced
to
practice during Employee's employment by Employer or within a period of 90
days
thereafter (i) which result from any work performed by Employee for the
Employer, or (ii) which relate to the Employer's business or research or
development of the Employer at the time Employee develops, writes, conceives
or
reduces to practice any of the foregoing, alone or with others.
(b)
Employee
shall promptly disclose all Employee Developments to the Employer and make
available to the Employer any work papers, drawings, designs, schematics,
specifications, descriptions, models, diskettes, computer tapes, source codes
or
other tangible incidents of Employee Developments. Employee agrees that all
Employee Developments shall be considered work made by Employee for the Employer
and prepared within the scope of Employee's employment and that all right,
title
and ownership interest in and to Employee Developments, including, without
limitation, copyright, trade secret, patent or other intellectual property
rights, shall exclusively vest in and be retained by the Employer, both during
and following the term of employment. Employee agrees to perform upon request
of
the Employer any acts that may be necessary or convenient during his term
of
employment or thereafter to establish, perfect, evidence, register, transfer,
assign or convey ownership of Employee Developments in or to the Employer,
to
the fullest extent possible, including without limitation, assignment to
the
Employer of all ownership, copyright, trade secret, patent and other
intellectual property rights without any further consideration.
10.
Remedies.
(a)
Employer
shall be entitled, if it elects, to enjoin any breach or threatened breach
of,
or enforce the specific performance of, the obligations of Employee under
Sections 7 and 8, without showing any actual damage or that monetary damages
would be inadequate. Any such equitable remedy will not be the sole and
exclusive remedy for any such breach, and Employer may pursue other remedies
for
such a breach.
(b)
Any
court proceeding to enforce the specific performance provisions of this
Agreement may be commenced in the federal courts located in the State of
Nebraska, or in the absence of federal jurisdiction, the state courts of
Nebraska having jurisdiction. Employer and Employee submit to the jurisdiction
of such courts and waive any objection which they may have to the pursuit
of any
such proceeding in any such court for purposes of specific performance
only.
11.
Employer
Assignment.
Employer
may assign this Agreement, provided,
however,
that in the event of such assignment by the Employer, Employer's obligations
hereunder shall be binding legal obligations and shall inure to the benefit
of
any successor.
12.
Location.
Unless
Employee and Employer otherwise agree, Employee shall reside in Omaha, Nebraska
during the Term.
13.
Benefits Unfunded.
All
rights of Employee and his spouse or other beneficiary under this Agreement
shall at all times be entirely unfunded and no provision shall at any time
be
made with respect to segregating any assets of Employer for payment of any
amounts due hereunder. Neither Employee nor his spouse or other beneficiary
shall have any interest in or rights against any specific assets of
Employer.
14.
Waiver.
No
waiver by any party at any time of any breach by any other party of, or
compliance with, any condition or provision of this Agreement to be performed
by
any other party shall be deemed a waiver of any other provisions or conditions
at the same time or at any prior or subsequent time.
15.
Applicable
Law. This
Agreement shall be construed and interpreted pursuant to the laws of the
State
of Nebraska without giving effect to the conflict of laws provisions
thereof.
16.
Entire
Agreement.
This
Agreement and the Severance Compensation Agreement contain the entire agreement
between Employer and Employee and supersede any and all previous agreements,
written or oral, between the parties relating to the subject matter hereof
and
thereof including, without limitation, the Second Amended and Restated
Employment Agreement. In the event of a conflict between the provisions of
this
Agreement and the provisions contained in the Severance Compensation Agreement,
the provisions of this Agreement shall govern. No amendment or modification
of
the terms of this Agreement shall be binding upon the parties hereto unless
reduced to writing and signed by Employer and Employee.
17.
Counterparts.
This
Agreement may be executed in counterparts and by facsimile signatures, each
of
which shall be deemed an original, and all of which taken together shall
constitute one instrument.
18.
Severability.
In
the event any provision of this Agreement is held illegal or invalid, the
remaining provisions of this Agreement shall not be affected
thereby.
19.
Notice.
Notices
under this Agreement shall be in writing and sent by registered mail, return
receipt requested, to the following addresses or to such other addresses
as the
party being notified may have previously furnished to the others by written
notice.
If
to Employer or its Board of Directors:
Transaction
Systems Architects, Inc.
Attn: Chairman
of the Board
000
Xxxxx 000xx
Xxxxxx
Xxxxx,
XX 00000
with
a copy to:
Transaction
Systems Architects, Inc.
Attn:
General Counsel
000
Xxxxx 000xx Xxxxxx
Xxxxx,
Xxxxxxxx 00000
If
to Employee:
Xxxxxxx
X. Xxxxxxxx
Regency
Lakeside Apartments
00000
Xxxxxxx Xxxxxx, Xxx. 000
Xxxxx,
XX 00000
Such
notices shall be deemed received three business days after they are so
sent.
IN
WITNESS WHEREOF,
the parties have executed this Agreement, on the day and year first above
written.
Transaction
Systems Architects, Inc.
("Employer")
By:_____________________________________
Its:_____________________________________
Xxxxxxx
X. Xxxxxxxx
("Employee")
_______________________________________
Exhibit
A - Certain Definitions
Exhibit
B - Stock Option Agreement (January 2, 2002)
Exhibit
C - Stock Option Agreement (February 19, 2002)
Exhibit
D - Stock Option Agreement (February 19, 2002)
Exhibit
E - Severance Compensation Agreement
Exhibit
F - General Release
EXHIBIT
A
CERTAIN
DEFINITIONS
Change
in Control
For
purposes of this Agreement, “Change in Control” shall have the meaning ascribed
to that term in the Severance Compensation Agreement.
Retirement
For
purposes of this Agreement, “Retirement” shall mean termination by Employer or
Employee of Employee’s employment based on Employee’s having reached age 65 or
such other age as shall have been fixed in any arrangement established pursuant
to this Agreement with Employee’s consent with respect to Employee.
Cause
For
purposes of this Agreement, “Cause” shall mean: (1) Employee’s conviction
of a felony involving moral turpitude; (2) Employee’s breach of this Agreement;
(3) Employees breach of Employer’s Code of Business Conduct and Ethics or Code
of Ethics for the Chief Executive Officer and Senior Financial Officers, as
the
same may be amended from time to time; or (4) Employee’s serious, willful
gross misconduct or willful gross neglect of duties (other
than any such neglect resulting from Employee’s incapacity due to physical or
mental illness) which has resulted, or in all probability is likely to result,
in material economic damage to the Employer. Notwithstanding the foregoing,
no
act or failure to act by Employee will constitute “Cause” under clause (4) of
this definition if Employee reasonably believed in good faith that such act
or
failure to act was in the best interest of the Employer.
EXHIBIT
B
AMENDED
AND RESTATED
STOCK
OPTION AGREEMENT
UNDER
TRANSACTION
SYSTEMS ARCHITECTS, INC.
1999
STOCK OPTION PLAN
as
amended by
the
Stockholders on February 22, 2000,
the
Board of Directors on May 5, 2000,
the
Stockholders on February 20, 2001, and
the
Stockholders on February 19, 2002
US
MASTER
XXXXXXX
X. XXXXXXXX
TABLE OF CONTENTS
Page
1. GRANT
OF NON-QUALIFIED STOCK OPTION...................................1
2. TERMS
OF
PLAN.....................................................................................1
3. EXERCISE
PRICE...................................................................................2
4. EXERCISE
OF
OPTION..........................................................................2
4.1 Time
of
Exercise of
Option........................................................2
4.2 Acceleration
of
Option................................................................3
4.3 Termination
of
Option.................................................................5
4.4 Effect
of Optionee’s Disability or Death...................................5
4.5 Limitations
on Exercise of Option.............................................6
4.6 Method
of Exercise of Option
Cash
Exercise.......................................................................6
Same-Day-Sale
Exercise....................................................6
Sell-to-Cover
Exercise.........................................................7
4.7 Parachute
Limitations................................................................7
5. TRANSFERABILITY
OF OPTIONS........................................................8
6. RIGHTS
AS
STOCKHOLDER................................................................8
7. WITHHOLDING
OF
TAXES....................................................................8
8. DISCLAIMER
OF
RIGHTS......................................................................9
9. INTERPRETATION
OF THIS OPTION AGREEMENT.........................9
10. GOVERNING
LAW................................................................................9
11. BINDING
EFFECT.................................................................................9
12. NOTICE...................................................................................................9
13. ENTIRE
AGREEMENT.......................................................................10
SIGNATURE
PAGE (TO
BE COMPLETED AND RETURNED)
AMENDED
AND RESTATED
STOCK
OPTION AGREEMENT
TRANSACTION
SYSTEMS ARCHITECTS, INC.
1999
STOCK OPTION PLAN
as
amended by
the
Stockholders on February 22, 2000,
the
Board of Directors on May 5, 2000,
the
Stockholders on February 20, 2001, and
the
Stockholders on February 19, 2002
This
Stock Option Agreement (the "Option Agreement"), which was originally made
as of
January 2, 2002 (the "Original Date of Grant"), by and between Transaction
Systems Architects, Inc., (“TSA”) a Delaware corporation (the "Corporation") and
XXXXXXX X. XXXXXXXX, an employee of the Corporation or its subsidiaries (the
"Optionee"), is amended and restated effective as of February 26,
2004.
WHEREAS,
the Board of Directors of the Corporation has duly adopted and approved the
1999
Stock Option Plan (the "Plan"), which Plan authorizes the Corporation to
grant
to eligible individuals options for the purchase of shares of the Corporation's
Class A Common Stock (the "Stock"); and
WHEREAS,
the Corporation has determined that it is desirable and in its best interests
to
grant the Optionee, pursuant to the Plan, an option to purchase a certain
number
of shares of Stock, in order to provide the Optionee with an incentive to
advance the interests of the Corporation, all according to the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto do hereby agree as follows:
1.
GRANT
OF NON-QUALIFIED STOCK OPTION
Subject
to the terms of the Plan, the Corporation hereby grants to the Optionee the
right and option (the "Option") to purchase from the Corporation, on the
terms
and subject to the conditions set forth in the Plan and in this Agreement,
100,000 (one hundred thousand) shares of Class A Common Stock. This
Option shall not constitute an incentive stock option within the meaning
of
Section 422 of the Internal Revenue Code of 1986, as amended (the
“Code”).
2.
TERMS
OF PLAN
The
Option granted pursuant to this Option Agreement is granted subject to the
terms
and conditions set forth in the Plan, a copy of which is attached to this
Option
Agreement. All terms and conditions of the Plan, as may be amended from time
to
time, are hereby incorporated into this Option Agreement by reference and
shall
be deemed to be part of this Option Agreement, without regard to whether
such
terms and conditions (including, for example, provisions relating to certain
changes in capitalization of the Corporation) are not otherwise set forth
in
this Option Agreement. In the event that there is any inconsistency between
the
provisions of this Option Agreement and of the Plan, the provisions of the
Plan
shall govern.
3.
EXERCISE
PRICE
The
Exercise Price for the shares of Stock subject to the Option granted by this
Option Agreement is $11.86 per share.
4.
EXERCISE
OF OPTION
Except
as otherwise provided herein, and subject to the provisions of the Plan
(including restrictions on the transferability of the Option and special
provisions relating to exercise or termination of the Option following the
Optionee's termination of employment, disability, death or retirement or
certain
changes in capitalization of the Corporation), the Option granted pursuant
to
this Option Agreement shall be subject to exercise as follows:
4.1
Time
of Exercise of Option
The
Optionee may exercise the Option (subject to the limitations on exercise
set
forth in this Agreement and in the Plan), in installments as
follows:
(i) Subject
to Section 4.2, no Option may be exercised during the first year from the
Original Date of Grant;
(ii) Subject
to Section 4.2, after one year from the Original Date of Grant, the Option
shall
be exercisable in respect of 33 and 1/3 percent of the number of shares
specified in Section 1 above; and
(iii) Subject
to Section 4.2, after the expiration of each of the second, and third years
from
the Original Date of Grant, the Option shall be exercisable in respect of
an
additional 33 and 1/3 percent of such shares specified in Section 1
above.
The
foregoing installments, to the extent not exercised, shall accumulate and
be
exercisable, in whole or in part, at any time and from time to time, after
becoming exercisable and prior to the termination of the Option; provided,
that
no single exercise of the Option shall be for less than 100 shares, unless
at
the time of the exercise, the maximum number of shares available for purchase
under this Option is less than 100 shares. In no event shall the Option be
exercised for a fractional share.
4.2
Acceleration
of Option.
Notwithstanding
any other provision of this Agreement to the contrary, the Option granted
hereby
shall become immediately exercisable upon the occurrence of a Change in Control
(as hereinafter defined) of the Corporation if Optionee is an employee of
the
Corporation or any of its subsidiaries on the date of the consummation of
such
Change in Control.
For
purposes of this Section 4.2, a "Change in Control" means the occurrence
of any
of the following events:
(i)
any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act) (a "Person") is or becomes the beneficial owner (within
the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more
of the
combined voting power of the then-outstanding Voting Stock of the Corporation;
provided, however, that:
(1)
for
purposes of this paragraph (i), the following acquisitions shall not constitute
a Change in Control: (A) any acquisition of Voting Stock of the Corporation
directly from the Corporation that is approved by a majority of the Incumbent
Directors, (B) any acquisition of Voting Stock of the Corporation by the
Corporation or any subsidiary of the Corporation, (C) any acquisition of
Voting
Stock of the Corporation by the trustee or other fiduciary holding securities
under any employee benefit plan (or related trust) sponsored or maintained
by
the Corporation or any subsidiary of the Corporation, and (D) any acquisition
of
Voting Stock of the Corporation by any Person pursuant to a Business Transaction
that complies with clauses (A), (B) and (C) of subparagraph (i)(3)
below;
(2)
if
any Person is or becomes the beneficial owner of 20% or more of combined
voting
power of the then-outstanding Voting Stock of the Corporation as a result
of a
transaction described in clause (A) of subparagraph (i)(1) above and such
Person
thereafter becomes the beneficial owner of any additional shares of Voting
Stock
of the Corporation representing 1% or more of the then-outstanding Voting
Stock
of the Corporation, other than in an acquisition directly from the Corporation
that is approved by a majority of the Incumbent Directors or other than as
a
result of a stock dividend, stock split or similar transaction effected by
the
Corporation in which all holders of Voting Stock are treated equally, such
subsequent acquisition shall be treated as a Change in Control;
(3)
a
Change in Control will not be deemed to have occurred if a Person is or becomes
the beneficial owner of 20% or more of the Voting Stock of the Corporation
as a
result of a reduction in the number of shares of Voting Stock of the Corporation
outstanding pursuant to a transaction or series of transactions that is approved
by a majority of the Incumbent Directors unless and until such Person thereafter
becomes the beneficial owner of any additional shares of Voting Stock of
the
Corporation representing 1% or more of the then-outstanding Voting Stock
of the
Corporation, other than as a result of a stock dividend, stock split or similar
transaction effected by the Corporation in which all holders of Voting Stock
are
treated equally; and
(4)
if
at least a majority of the Incumbent Directors determine in good faith that
a
Person has acquired beneficial ownership of 20% or more of the Voting Stock
of
the Corporation inadvertently, and such Person divests as promptly as
practicable but no later than the date, if any, set by the Incumbent Board
a
sufficient number of shares so that such Person beneficially owns less than
20%
of the Voting Stock of the Corporation, then no Change in Control shall have
occurred as a result of such Person’s acquisition; or
(ii)
a
majority of the Board ceases to be comprised of Incumbent Directors;
or
(iii)
the consummation of a reorganization, merger or consolidation, or sale or
other
disposition of all or substantially all of the assets of the Corporation
or the
acquisition of the stock or assets of another corporation, or other transaction
(each, a "Business Transaction"), unless, in each case, immediately following
such Business Transaction (A) the Voting Stock of the Corporation outstanding
immediately prior to such Business Transaction continues to represent (either
by
remaining outstanding or by being converted into Voting Stock of the surviving
entity or any parent thereof), more than 60% of the combined voting power
of the
then outstanding shares of Voting Stock of the entity resulting from such
Business Transaction (including, without limitation, an entity which as a
result
of such transaction owns the Corporation or all or substantially all of the
Corporation’s assets either directly or through one or more subsidiaries), (B)
no Person (other than the Corporation, such entity resulting from such Business
Transaction, or any employee benefit plan (or related trust) sponsored or
maintained by the Corporation, any subsidiary of the Corporation or such
entity
resulting from such Business Transaction) beneficially owns, directly or
indirectly, 20% or more of the combined voting power of the then outstanding
shares of Voting Stock of the entity resulting from such Business Transaction,
and (C) at least a majority of the members of the Board of Directors of the
entity resulting from such Business Transaction were Incumbent Directors
at the
time of the execution of the initial agreement or of the action of the Board
providing for such Business Transaction; or
(iv)
approval by the shareholders of the Corporation of a complete liquidation
or
dissolution of the Corporation, except pursuant to a Business Transaction
that
complies with clauses (A), (B) and (C) of paragraph (iii).
For
purposes of this Section 4.2, the term "Exchange Act" means the Securities
Exchange Act of 1934, as amended.
For
purposes of this Section 4.2, the term "Incumbent Directors" means the
individuals who, as of the date hereof, are Directors of the Corporation
and any
individual becoming a Director subsequent to the date hereof whose election,
nomination for election by the Corporation’s shareholders, or appointment, was
approved by a vote of at least two-thirds of the then Incumbent Directors
(either by a specific vote or by approval of the proxy statement of the
Corporation in which such person is named as a nominee for director, without
objection to such nomination); provided,
however,
that
an individual shall not be an Incumbent Director if such individual’s election
or appointment to the Board occurs as a result of an actual or threatened
election contest (as described in Rule 14a-12(c) of the Exchange Act) 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.
For
purposes of this Section 4.2, the term "Voting Stock" means securities entitled
to vote generally in the election of directors.
4.3
Termination
of Option
The
Option shall terminate upon the earlier of the expiration of a period of
(i) ten
years from the Original Date of Grant, or (ii) one month from the date of
the
Optionee's termination of employment with the Corporation or a subsidiary;
provided,
however,
that
if such termination of employment falls within the scope of one of the
provisions of the Plan providing for an extended exercise period in excess
of
one month, the Option shall terminate upon the expiration of the extended
period, as specified in such provision, after the Optionee's termination
of
employment with the Corporation or a subsidiary within which the Option is
exercisable.
4.4
Effect
of Optionee’s Disability or Death
If
the
Optionee ceases to be an Employee of the Corporation or a Subsidiary of the
Corporation by reason of Disability, the unexercised portion of any Option
held
by such Optionee at that time will become immediately vested and will be
exercisable for the shorter of one year from the date on which the Optionee
ceased to be so employed or the remaining Option term. If the Optionee does
not
exercise the Option within the time specified, such Option shall terminate.
The
Corporation shall have the authority to determine the date an Optionee ceases
to
be an Employee by reason of Disability.
If
the
Optionee dies while employed by the Corporation or a Subsidiary of the
Corporation (or dies within a period of one month after ceasing to be an
Employee for any reason other than Disability or within a period of one year
after ceasing to be an Employee by reason of Disability), the unexercised
portion of any Option held by such Optionee at the time of death will become
immediately vested and will be exercisable for the shorter of one year from
the
date of such Optionee’s death, or the remaining Option term. Such Option may be
exercised by the executor or administrator of the Optionee’s estate or by any
person or persons who shall have acquired the Option directly from the Optionee
by bequest or inheritance. If the Option is not exercised within the time
specified, such Option shall terminate.
4.5
Limitations
on Exercise of Option
Notwithstanding
the foregoing Subsections, in no event may the Option be exercised, in whole
or
in part, after ten years following the Original Date of Grant, or after the
occurrence of an event which results in termination of the Option under the
Plan.
4.6
Method
of Exercise of Option
Cash
Exercise (to exercise and retain the Shares):
Subject to the terms and conditions of this Option Agreement, the Option
may be
exercised by delivering written notice of exercise to the Corporation, at
its
principal office, addressed to the attention of Stock Option Administration,
or
to the agent/broker designated by the Corporation, which notice shall specify
the number of shares for which the Option is being exercised, and shall be
accompanied by payment in full of the Exercise Price of the shares for which
the
Option is being exercised
plus
the full amount of all applicable withholding taxes due on the Option exercise.
Payment
of the Exercise Price for the shares of Stock purchased pursuant to the exercise
of the Option shall be made either in cash or by certified check payable
to the
order of the Corporation. If the person exercising the Option is not the
Optionee, such person shall also deliver with the notice of exercise appropriate
proof of his or her right to exercise the Option, as the Corporation may
require
in its sole discretion. Promptly after exercise of the Option as provided
for
above, the Corporation shall deliver to the person exercising the Option
a
certificate or certificates for the shares of Stock being purchased.
Same-Day-Sale
Exercise (to exercise and immediately sell all the Shares):
Subject to the terms and conditions of this Option Agreement, the Option
may be
exercised by delivering written notice of exercise to the agent/broker
designated by the Corporation, which notice shall specify the number of shares
for which the Option is being exercised and irrevocable instructions to promptly
(1) sell all of the shares of Stock to be issued upon exercise and (2) remit
to
the Corporation the portion of the sale proceeds sufficient to pay the Exercise
Price for the shares of Stock purchased pursuant to the exercise of the Option
and all applicable taxes due on the Option exercise. The agent/broker shall
request issuance of the shares and immediately and concurrently sell the
shares
on the Optionee’s behalf. Payment of the Exercise Price for the shares of Stock
purchased pursuant to the exercise of the Option, any brokerage fees, transfer
fees, and all applicable taxes due on the Option exercise, shall be deducted
from the proceeds of the sale of the shares. If the person exercising the
Option
is not the Optionee, such person shall also deliver with the notice of exercise
appropriate proof of his or her right to exercise the Option, as the Corporation
may require in its sole discretion. Promptly after exercise of the Option
as
provided for above, the agent/broker shall deliver to the person exercising
the
Option the net proceeds from the sale of the shares of Stock being exercised
and
sold.
Sell-to-Cover
Exercise (to exercise and immediately sell a portion of the
Shares):
Subject to the terms and conditions of this Option Agreement, the Option
may be
exercised by delivering written notice of exercise to the agent/broker
designated by the Corporation, which notice shall specify the number of shares
for which the Option is being exercised and irrevocable instructions to promptly
(1) sell the portion (which must be a whole number) of the shares of Stock
to be
issued upon exercise sufficient to generate proceeds to pay the Exercise
Price
for the shares of Stock purchased pursuant to the exercise of the Option,
any
brokerage or transfer fees, and all applicable taxes due on the Option exercise
(collectively the “Exercise Costs”) and (2) remit to the Corporation a
sufficient portion of the sale proceeds to pay the Exercise Price for the
shares
of Stock purchased pursuant to the exercise of the Option and all applicable
taxes due on the Option exercise. The agent/broker shall request issuance
of the
shares and immediately and concurrently sell on the Optionee’s behalf only such
number of the Shares as is required to generate proceeds sufficient to pay
the
Exercise Costs. Promptly after exercise of the Option as provided for above,
the
Corporation shall deliver to the person exercising the Option a certificate
for
the shares of Stock issued upon exercise which are not sold to pay the Exercise
Costs. Promptly after exercise of the Option as provided for above, the
agent/broker shall deliver to the person exercising the Option any net proceeds
from the sale of the Shares in excess of the Exercise Costs. If the person
exercising the Option is not the Optionee, such person shall also deliver
with
the notice of exercise appropriate proof of his or her right to exercise
the
Option, as the Corporation may require in its sole discretion.
The
Option shall not be exercisable if and to the extent the Corporation determines
such exercise or method of exercise would violate applicable securities laws,
the rules and regulations of any securities exchange or quotation system
on
which the Stock is listed, or the Company’s policies and procedures. An attempt
to exercise the Option granted hereunder other than as set forth above shall
be
invalid and of no force and effect.
4.7
Parachute
Limitations
Notwithstanding
any other provision of this Option Agreement or the Plan or any other agreement,
contract or understanding heretofore or hereafter entered into by the Optionee
with the Corporation (or any subsidiary or affiliate thereof), except an
agreement, contract or understanding hereafter entered into that expressly
modifies or excludes application of this Subsection (the "Other Agreements"),
and notwithstanding any formal or informal plan or other arrangements heretofore
or hereafter adopted by the Corporation (or any such subsidiary or affiliate)
for the direct or indirect compensation of the Optionee (including groups
or
classes of participants or beneficiaries of which the Optionee is a member),
whether or not such compensation is deferred, is in cash, or is in the form
of a
benefit to or for the Optionee (an "Other Benefit Plan"), the Optionee shall
not
have any right to exercise an Option or receive any payment or other benefit
under this Option Agreement, any Other Agreement, or any Other Benefit Plan
if
such right to exercise, payment or benefit, taking into account all other
rights, payments or benefits to or for the Optionee under this Option Agreement,
all Other Agreements and all Other Benefit Plans, would cause any right,
payment
or benefit to the Optionee under this Option Agreement to be considered a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code
as then
in effect (a "Parachute Payment"). In the event that the receipt of any such
right to exercise or any other payment or benefit under this Option Agreement,
any Other Agreement or any Other Benefit Plan would cause the Optionee to
be
considered to have received a Parachute Payment under this Agreement, then
the
Optionee shall have the right, in the Optionee's sole discretion, to designate
those rights, payments or benefits under this Option Agreement, any Other
Agreements, and/or any Other Benefit Plans, which should be reduced or
eliminated so as to avoid having the right, payment or benefit to the Optionee
under this Option Agreement be deemed to be a Parachute Payment.
5.
TRANSFERABILITY
OF OPTIONS
During
the lifetime of an Optionee, only such Optionee (or, in the event of legal
incapacity or incompetency, the Optionee's guardian or legal representative)
may
exercise the Option. No Option shall be assignable or transferable by the
Optionee to whom it is granted, other than by will or the laws of descent
and
distribution.
6.
RIGHTS
AS STOCKHOLDER
Neither
the Optionee nor any executor, administrator, distributee or legatee of the
Optionee's estate shall be, or have any of the rights or privileges of, a
stockholder of the Corporation in respect of any shares of Stock issuable
hereunder unless and until such shares have been fully paid and certificates
representing such shares have been endorsed, transferred and delivered, and
the
name of the Optionee (or of such personal representative, administrator,
distributee or legatee of the Optionee's estate) has been entered as the
stockholder or record on the books of the Corporation.
7.
WITHHOLDING
OF TAXES
The
parties hereto recognize that the Corporation or a subsidiary may be obligated
to withhold federal, state and/or local income taxes and Social Security
taxes
to the extent that the Optionee realizes ordinary income in connection with
the
exercise of the Option or in connection with a disposition of any shares
of
Stock acquired by exercise of the Option. The Optionee agrees that the
Corporation or a subsidiary may withhold amounts needed to cover such taxes
from
payments otherwise due and owing to the Optionee, and also agrees that upon
demand the Optionee will promptly pay to the Corporation or a subsidiary
having
such obligation any additional amounts as may be necessary to satisfy such
withholding tax obligation. Such payment shall be made in cash or by check
payable to the order of the Corporation or a subsidiary.
8.
DISCLAIMER
OF RIGHTS
No
provision in this Option Agreement shall be construed to confer upon the
Optionee the right to be employed by the Corporation or any subsidiary, or
to
interfere in any way with the right and authority of the Corporation or any
subsidiary either to increase or decrease the compensation of the Optionee
at
any time, or to terminate any employment or other relationship between the
Optionee and the Corporation or any subsidiary.
9.
INTERPRETATION
OF THIS OPTION AGREEMENT
All
decisions and interpretations made by the Board or the Compensation Committee
thereof with regard to any question arising under the Plan or this Option
Agreement shall be binding and conclusive on the Corporation and the Optionee
and any other person entitled to exercise the Option as provided for
herein.
10.
GOVERNING
LAW
This
Option Agreement shall be governed by the laws of the State of Delaware (but
not
including the choice of law rules thereof).
11.
BINDING
EFFECT
Subject
to all restrictions provided for in this Option Agreement, the Plan, and
by
applicable law relating to assignment and transfer of this Option Agreement
and
the option provided for herein, this Option Agreement shall be binding upon
and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
12.
NOTICE
Any
notice hereunder by the Optionee to the Corporation shall be in writing and
shall be deemed duly given if mailed or delivered to the Corporation at its
principal office, addressed to the attention of Stock Plan Administration
or if
so mailed or delivered to such other address as the Corporation may hereafter
designate by notice to the Optionee. Any notice hereunder by the Corporation
to
the Optionee shall be in writing and shall be deemed duly given if mailed
or
delivered to the Optionee at the address specified below by the Optionee
for
such purpose, or if so mailed or delivered to such other address as the Optionee
may hereafter designate by written notice given to the Corporation.
13.
ENTIRE
AGREEMENT
This
Option Agreement and the Plan together constitute the entire agreement and
supersede all prior understandings and agreements, written or oral (including,
without limitation, the Stock Option Agreement between the Corporation and
Optionee dated January 2, 2002), of the parties hereto with respect to the
subject matter hereof. Except for amendments to the Plan incorporated into
this
Option Agreement by reference pursuant to Section 2 above, neither this Option
Agreement nor any term hereof may be amended, waived, discharged or terminated
except by a written instrument signed by the Corporation and the Optionee;
provided,
however,
that
the Corporation unilaterally may waive any provision hereof in writing to
the
extent that such waiver does not adversely affect the interests of the Optionee
hereunder, but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
SIGNATURE
PAGE
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amended and Restated
Option Agreement, or caused this Amended and Restated Option Agreement to
be
duly executed on their behalf, as of the day and year first above
written.
Transaction
Systems Architects, Inc.
Optionee:
By:
_________________________________________
By:
_________________________________________
Xxxxxx
X. Xxxxxx, Secretary
Xxxxxxx
X. Xxxxxxxx
ADDRESS
FOR
NOTICE TO OPTIONEE:
____________________________________________
Number
Street
Apt.
____________________________________________
City
State
Zip
Code
____________________________________________
SS#
Hire
Date
DESIGNATED
BENEFICIARY:
____________________________________________
Please
Print Last Name, First Name
MI
____________________________________________
Beneficiary’s
Street Address
____________________________________________
City
State
Zip
Code
____________________________________________
Beneficiary’s
Social Security Number
I
understand that in the event of my death, the above named beneficiary will
have
control of any unexercised options remaining in my account at that time.
If no
beneficiary is designated or if the named beneficiary does not survive
me, the
options will become part of my estate. This beneficiary designation does
NOT
apply to stock acquired by the exercise of options prior to my
death.
____________________________________________
SIGNATURE DATE
After
completing this page, please make a copy for your records and return it to
Stock
Plan Administration, Transaction Systems Architects, Inc., 000 X. 000 Xxxxxx,
Xxxxx, XX 00000
1999
Stock Option Plan - US Plan
100,000
Shares $11.86/Share
Exercise Price
January 2, 2002
EXHIBIT
C
AMENDED
AND RESTATED
STOCK
OPTION AGREEMENT
UNDER
TRANSACTION
SYSTEMS ARCHITECTS, INC.
1999
STOCK OPTION PLAN
as
amended by
the
Stockholders on February 22, 2000,
the
Board of Directors on May 5, 2000,
the
Stockholders on February 20, 2001, and
the
Stockholders on February 19, 2002
US
MASTER
XXXXXXX
X. XXXXXXXX
TABLE OF CONTENTS
Page
1. GRANT
OF NON-QUALIFIED STOCK OPTION..................................1
2. TERMS
OF
PLAN....................................................................................2
3. EXERCISE
PRICE..................................................................................2
4. EXERCISE
OF
OPTION.........................................................................2
4.1 Time
of
Exercise of
Option.......................................................2
4.2 Acceleration
of
Option...............................................................3
4.3 Termination
of
Option................................................................5
4.4 Effect
of Optionee’s Disability or Death..................................5
4.5 Limitations
on Exercise of Option............................................6
4.6 Method
of Exercise of Option
Cash
Exercise......................................................................6
Same-Day-Sale
Exercise...................................................6
Sell-to-Cover
Exercise........................................................7
4.7 Parachute
Limitations...............................................................7
5. TRANSFERABILITY
OF OPTIONS.......................................................8
6. RIGHTS
AS
STOCKHOLDER...............................................................8
7. WITHHOLDING
OF
TAXES...................................................................8
8. DISCLAIMER
OF
RIGHTS.....................................................................9
9. INTERPRETATION
OF THIS OPTION AGREEMENT........................9
10. GOVERNING
LAW...............................................................................9
11. BINDING
EFFECT...............................................................................9
12. NOTICE.................................................................................................9
13. ENTIRE
AGREEMENT.....................................................................10
SIGNATURE
PAGE (TO
BE COMPLETED AND RETURNED)
AMENDED
AND RESTATED
STOCK
OPTION AGREEMENT
TRANSACTION
SYSTEMS ARCHITECTS, INC.
1999
STOCK OPTION PLAN
as
amended by
the
Stockholders on February 22, 2000,
the
Board of Directors on May 5, 2000,
the
Stockholders on February 20, 2001, and
the
Stockholders on February 19, 2002
This
Stock Option Agreement (the "Option Agreement"), which was originally made
as of
February 19, 2002 (the “Original Date of Grant”), by and between Transaction
Systems Architects, Inc., (“TSA”) a Delaware corporation (the "Corporation") and
XXXXXXX X. XXXXXXXX, an employee of the Corporation or its subsidiaries (the
"Optionee"), is amended and restated effective as of February 26,
2004.
WHEREAS,
the Board of Directors of the Corporation has duly adopted and approved the
1999
Stock Option Plan (the "Plan"), which Plan authorizes the Corporation to
grant
to eligible individuals options for the purchase of shares of the Corporation's
Class A Common Stock (the "Stock"); and
WHEREAS,
the Corporation has determined that it is desirable and in its best interests
to
grant the Optionee, pursuant to the Plan, an option to purchase a certain
number
of shares of Stock, in order to provide the Optionee with an incentive to
advance the interests of the Corporation, all according to the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto do hereby agree as follows:
1.
GRANT
OF NON-QUALIFIED STOCK OPTION
Subject
to the terms of the Plan, the Corporation hereby grants to the Optionee the
right and option (the "Option") to purchase from the Corporation, on the
terms
and subject to the conditions set forth in the Plan and in this Agreement,
200,000 shares of Class A Common Stock. This
Option shall not constitute an incentive stock option within the meaning
of
Section 422 of the Internal Revenue Code of 1986, as amended (the
“Code”).
2.
TERMS
OF PLAN
The
Option granted pursuant to this Option Agreement is granted subject to the
terms
and conditions set forth in the Plan, a copy of which is attached to this
Option
Agreement. All terms and conditions of the Plan, as may be amended from time
to
time, are hereby incorporated into this Option Agreement by reference and
shall
be deemed to be part of this Option Agreement, without regard to whether
such
terms and conditions (including, for example, provisions relating to certain
changes in capitalization of the Corporation) are not otherwise set forth
in
this Option Agreement. In the event that there is any inconsistency between
the
provisions of this Option Agreement and of the Plan, the provisions of the
Plan
shall govern.
3.
EXERCISE
PRICE
The
Exercise Price for the shares of Stock subject to the Option granted by this
Option Agreement is $9.80 per share.
4.
EXERCISE
OF OPTION
Except
as otherwise provided herein, and subject to the provisions of the Plan
(including restrictions on the transferability of the Option and special
provisions relating to exercise or termination of the Option following the
Optionee's termination of employment, disability, death or retirement or
certain
changes in capitalization of the Corporation), the Option granted pursuant
to
this Option Agreement shall be subject to exercise as follows:
4.1
Time
of Exercise of Option
The
Optionee may exercise the Option (subject to the limitations on exercise
set
forth in this Agreement and in the Plan), in installments as
follows:
(i) Subject
to Section 4.2, no Option may be exercised during the first year from the
Original Date of Grant;
(ii) Subject
to Section 4.2, after one year from the Original Date of Grant, the Option
shall
be exercisable in respect of 33 and 1/3 percent of the number of shares
specified in Section 1 above; and
(iii) Subject
to Section 4.2, after the expiration of each of the second, and third years
from
the Original Date of Grant, the Option shall be exercisable in respect of
an
additional 33 and 1/3 percent of such shares specified in Section 1
above.
The
foregoing installments, to the extent not exercised, shall accumulate and
be
exercisable, in whole or in part, at any time and from time to time, after
becoming exercisable and prior to the termination of the Option; provided,
that
no single exercise of the Option shall be for less than 100 shares, unless
at
the time of the exercise, the maximum number of shares available for purchase
under this Option is less than 100 shares. In no event shall the Option be
exercised for a fractional share.
4.2
Acceleration
of Option.
Notwithstanding
any other provision of this Agreement to the contrary, the Option granted
hereby
shall become immediately exercisable upon the occurrence of a Change in Control
(as hereinafter defined) of the Corporation if Optionee is an employee of
the
Corporation or any of its subsidiaries on the date of the consummation of
such
Change in Control.
For
purposes of this Section 4.2, a “Change in Control” means the occurrence of any
of the following events:
(i)
any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act) (a “Person”) is or becomes the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more
of the
combined voting power of the then-outstanding Voting Stock of the Corporation;
provided, however, that:
(1)
for
purposes of this paragraph (i), the following acquisitions shall not constitute
a Change in Control: (A) any acquisition of Voting Stock of the Corporation
directly from the Corporation that is approved by a majority of the Incumbent
Directors, (B) any acquisition of Voting Stock of the Corporation by the
Corporation or any subsidiary of the Corporation, (C) any acquisition of
Voting
Stock of the Corporation by the trustee or other fiduciary holding securities
under any employee benefit plan (or related trust) sponsored or maintained
by
the Corporation or any subsidiary of the Corporation, and (D) any acquisition
of
Voting Stock of the Corporation by any Person pursuant to a Business Transaction
that complies with clauses (A), (B) and (C) of subparagraph (i)(3)
below;
(2)
if
any Person is or becomes the beneficial owner of 20% or more of combined
voting
power of the then-outstanding Voting Stock of the Corporation as a result
of a
transaction described in clause (A) of subparagraph (i)(1) above and such
Person
thereafter becomes the beneficial owner of any additional shares of Voting
Stock
of the Corporation representing 1% or more of the then-outstanding Voting
Stock
of the Corporation, other than in an acquisition directly from the Corporation
that is approved by a majority of the Incumbent Directors or other than as
a
result of a stock dividend, stock split or similar transaction effected by
the
Corporation in which all holders of Voting Stock are treated equally, such
subsequent acquisition shall be treated as a Change in Control;
(3)
a
Change in Control will not be deemed to have occurred if a Person is or becomes
the beneficial owner of 20% or more of the Voting Stock of the Corporation
as a
result of a reduction in the number of shares of Voting Stock of the Corporation
outstanding pursuant to a transaction or series of transactions that is approved
by a majority of the Incumbent Directors unless and until such Person thereafter
becomes the beneficial owner of any additional shares of Voting Stock of
the
Corporation representing 1% or more of the then-outstanding Voting Stock
of the
Corporation, other than as a result of a stock dividend, stock split or similar
transaction effected by the Corporation in which all holders of Voting Stock
are
treated equally; and
(4)
if
at least a majority of the Incumbent Directors determine in good faith that
a
Person has acquired beneficial ownership of 20% or more of the Voting Stock
of
the Corporation inadvertently, and such Person divests as promptly as
practicable but no later than the date, if any, set by the Incumbent Board
a
sufficient number of shares so that such Person beneficially owns less than
20%
of the Voting Stock of the Corporation, then no Change in Control shall have
occurred as a result of such Person’s acquisition; or
(ii)
a
majority of the Board ceases to be comprised of Incumbent Directors;
or
(iii)
the consummation of a reorganization, merger or consolidation, or sale or
other
disposition of all or substantially all of the assets of the Corporation
or the
acquisition of the stock or assets of another corporation, or other transaction
(each, a “Business Transaction”), unless, in each case, immediately following
such Business Transaction (A) the Voting Stock of the Corporation outstanding
immediately prior to such Business Transaction continues to represent (either
by
remaining outstanding or by being converted into Voting Stock of the surviving
entity or any parent thereof), more than 60% of the combined voting power
of the
then outstanding shares of Voting Stock of the entity resulting from such
Business Transaction (including, without limitation, an entity which as a
result
of such transaction owns the Corporation or all or substantially all of the
Corporation’s assets either directly or through one or more subsidiaries), (B)
no Person (other than the Corporation, such entity resulting from such Business
Transaction, or any employee benefit plan (or related trust) sponsored or
maintained by the Corporation, any subsidiary of the Corporation or such
entity
resulting from such Business Transaction) beneficially owns, directly or
indirectly, 20% or more of the combined voting power of the then outstanding
shares of Voting Stock of the entity resulting from such Business Transaction,
and (C) at least a majority of the members of the Board of Directors of the
entity resulting from such Business Transaction were Incumbent Directors
at the
time of the execution of the initial agreement or of the action of the Board
providing for such Business Transaction; or
(iv)
approval by the shareholders of the Corporation of a complete liquidation
or
dissolution of the Corporation, except pursuant to a Business Transaction
that
complies with clauses (A), (B) and (C) of paragraph (iii).
For
purposes of this Section 4.2, the term “Exchange Act” means the Securities
Exchange Act of 1934, as amended.
For
purposes of this Section 4.2, the term “Incumbent Directors” means the
individuals who, as of the date hereof, are Directors of the Corporation
and any
individual becoming a Director subsequent to the date hereof whose election,
nomination for election by the Corporation’s shareholders, or appointment, was
approved by a vote of at least two-thirds of the then Incumbent Directors
(either by a specific vote or by approval of the proxy statement of the
Corporation in which such person is named as a nominee for director, without
objection to such nomination); provided,
however,
that
an individual shall not be an Incumbent Director if such individual’s election
or appointment to the Board occurs as a result of an actual or threatened
election contest (as described in Rule 14a-12(c) of the Exchange Act) 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.
For
purposes of this Section 4.2, the term “Voting Stock” means securities entitled
to vote generally in the election of directors.
4.3
Termination
of Option
The
Option shall terminate upon the earlier of the expiration of a period of
(i) ten
years from the Original Date of Grant, or (ii) one month from the date of
the
Optionee's termination of employment with the Corporation or a subsidiary;
provided,
however,
that
if such termination of employment falls within the scope of one of the
provisions of the Plan providing for an extended exercise period in excess
of
one month, the Option shall terminate upon the expiration of the extended
period, as specified in such provision, after the Optionee's termination
of
employment with the Corporation or a subsidiary within which the Option is
exercisable.
4.4
Effect
of Optionee’s Disability or Death
If
the
Optionee ceases to be an Employee of the Corporation or a Subsidiary of the
Corporation by reason of Disability, the unexercised portion of any Option
held
by such Optionee at that time will become immediately vested and will be
exercisable for the shorter of one year from the date on which the Optionee
ceased to be so employed or the remaining Option term. If the Optionee does
not
exercise the Option within the time specified, such Option shall terminate.
The
Corporation shall have the authority to determine the date an Optionee ceases
to
be an Employee by reason of Disability.
If
the
Optionee dies while employed by the Corporation or a Subsidiary of the
Corporation (or dies within a period of one month after ceasing to be an
Employee for any reason other than Disability or within a period of one year
after ceasing to be an Employee by reason of Disability), the unexercised
portion of any Option held by such Optionee at the time of death will become
immediately vested and will be exercisable for the shorter of one year from
the
date of such Optionee’s death, or the remaining Option term. Such Option may be
exercised by the executor or administrator of the Optionee’s estate or by any
person or persons who shall have acquired the Option directly from the Optionee
by bequest or inheritance. If the Option is not exercised within the time
specified, such Option shall terminate.
4.5
Limitations
on Exercise of Option
Notwithstanding
the foregoing Subsections, in no event may the Option be exercised, in whole
or
in part, after ten years following the Original Date of Grant, or after the
occurrence of an event which results in termination of the Option under the
Plan.
4.6
Method
of Exercise of Option
Cash
Exercise (to exercise and retain the Shares):
Subject to the terms and conditions of this Option Agreement, the Option
may be
exercised by delivering written notice of exercise to the Corporation, at
its
principal office, addressed to the attention of Stock Option Administration,
or
to the agent/broker designated by the Corporation, which notice shall specify
the number of shares for which the Option is being exercised, and shall be
accompanied by payment in full of the Exercise Price of the shares for which
the
Option is being exercised
plus
the full amount of all applicable withholding taxes due on the Option exercise.
Payment
of the Exercise Price for the shares of Stock purchased pursuant to the exercise
of the Option shall be made either in cash or by certified check payable
to the
order of the Corporation. If the person exercising the Option is not the
Optionee, such person shall also deliver with the notice of exercise appropriate
proof of his or her right to exercise the Option, as the Corporation may
require
in its sole discretion. Promptly after exercise of the Option as provided
for
above, the Corporation shall deliver to the person exercising the Option
a
certificate or certificates for the shares of Stock being purchased.
Same-Day-Sale
Exercise (to exercise and immediately sell all the Shares):
Subject to the terms and conditions of this Option Agreement, the Option
may be
exercised by delivering written notice of exercise to the agent/broker
designated by the Corporation, which notice shall specify the number of shares
for which the Option is being exercised and irrevocable instructions to promptly
(1) sell all of the shares of Stock to be issued upon exercise and (2) remit
to
the Corporation the portion of the sale proceeds sufficient to pay the Exercise
Price for the shares of Stock purchased pursuant to the exercise of the Option
and all applicable taxes due on the Option exercise. The agent/broker shall
request issuance of the shares and immediately and concurrently sell the
shares
on the Optionee’s behalf. Payment of the Exercise Price for the shares of Stock
purchased pursuant to the exercise of the Option, any brokerage fees, transfer
fees, and all applicable taxes due on the Option exercise, shall be deducted
from the proceeds of the sale of the shares. If the person exercising the
Option
is not the Optionee, such person shall also deliver with the notice of exercise
appropriate proof of his or her right to exercise the Option, as the Corporation
may require in its sole discretion. Promptly after exercise of the Option
as
provided for above, the agent/broker shall deliver to the person exercising
the
Option the net proceeds from the sale of the shares of Stock being exercised
and
sold.
Sell-to-Cover
Exercise (to exercise and immediately sell a portion of the
Shares):
Subject to the terms and conditions of this Option Agreement, the Option
may be
exercised by delivering written notice of exercise to the agent/broker
designated by the Corporation, which notice shall specify the number of shares
for which the Option is being exercised and irrevocable instructions to promptly
(1) sell the portion (which must be a whole number) of the shares of Stock
to be
issued upon exercise sufficient to generate proceeds to pay the Exercise
Price
for the shares of Stock purchased pursuant to the exercise of the Option,
any
brokerage or transfer fees, and all applicable taxes due on the Option exercise
(collectively the “Exercise Costs”) and (2) remit to the Corporation a
sufficient portion of the sale proceeds to pay the Exercise Price for the
shares
of Stock purchased pursuant to the exercise of the Option and all applicable
taxes due on the Option exercise. The agent/broker shall request issuance
of the
shares and immediately and concurrently sell on the Optionee’s behalf only such
number of the Shares as is required to generate proceeds sufficient to pay
the
Exercise Costs. Promptly after exercise of the Option as provided for above,
the
Corporation shall deliver to the person exercising the Option a certificate
for
the shares of Stock issued upon exercise which are not sold to pay the Exercise
Costs. Promptly after exercise of the Option as provided for above, the
agent/broker shall deliver to the person exercising the Option any net proceeds
from the sale of the Shares in excess of the Exercise Costs. If the person
exercising the Option is not the Optionee, such person shall also deliver
with
the notice of exercise appropriate proof of his or her right to exercise
the
Option, as the Corporation may require in its sole discretion.
The
Option shall not be exercisable if and to the extent the Corporation determines
such exercise or method of exercise would violate applicable securities laws,
the rules and regulations of any securities exchange or quotation system
on
which the Stock is listed, or the Company’s policies and procedures. An attempt
to exercise the Option granted hereunder other than as set forth above shall
be
invalid and of no force and effect.
4.7
Parachute
Limitations
Notwithstanding
any other provision of this Option Agreement or the Plan or any other agreement,
contract or understanding heretofore or hereafter entered into by the Optionee
with the Corporation (or any subsidiary or affiliate thereof), except an
agreement, contract or understanding hereafter entered into that expressly
modifies or excludes application of this Subsection (the "Other Agreements"),
and notwithstanding any formal or informal plan or other arrangements heretofore
or hereafter adopted by the Corporation (or any such subsidiary or affiliate)
for the direct or indirect compensation of the Optionee (including groups
or
classes of participants or beneficiaries of which the Optionee is a member),
whether or not such compensation is deferred, is in cash, or is in the form
of a
benefit to or for the Optionee (an "Other Benefit Plan"), the Optionee shall
not
have any right to exercise an Option or receive any payment or other benefit
under this Option Agreement, any Other Agreement, or any Other Benefit Plan
if
such right to exercise, payment or benefit, taking into account all other
rights, payments or benefits to or for the Optionee under this Option Agreement,
all Other Agreements and all Other Benefit Plans, would cause any right,
payment
or benefit to the Optionee under this Option Agreement to be considered a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code
as then
in effect (a "Parachute Payment"). In the event that the receipt of any such
right to exercise or any other payment or benefit under this Option Agreement,
any Other Agreement or any Other Benefit Plan would cause the Optionee to
be
considered to have received a Parachute Payment under this Agreement, then
the
Optionee shall have the right, in the Optionee's sole discretion, to designate
those rights, payments or benefits under this Option Agreement, any Other
Agreements, and/or any Other Benefit Plans, which should be reduced or
eliminated so as to avoid having the right, payment or benefit to the Optionee
under this Option Agreement be deemed to be a Parachute Payment.
5.
TRANSFERABILITY
OF OPTIONS
During
the lifetime of an Optionee, only such Optionee (or, in the event of legal
incapacity or incompetency, the Optionee's guardian or legal representative)
may
exercise the Option. No Option shall be assignable or transferable by the
Optionee to whom it is granted, other than by will or the laws of descent
and
distribution.
6.
RIGHTS
AS STOCKHOLDER
Neither
the Optionee nor any executor, administrator, distributee or legatee of the
Optionee's estate shall be, or have any of the rights or privileges of, a
stockholder of the Corporation in respect of any shares of Stock issuable
hereunder unless and until such shares have been fully paid and certificates
representing such shares have been endorsed, transferred and delivered, and
the
name of the Optionee (or of such personal representative, administrator,
distributee or legatee of the Optionee's estate) has been entered as the
stockholder or record on the books of the Corporation.
7.
WITHHOLDING
OF TAXES
The
parties hereto recognize that the Corporation or a subsidiary may be obligated
to withhold federal, state and/or local income taxes and Social Security
taxes
to the extent that the Optionee realizes ordinary income in connection with
the
exercise of the Option or in connection with a disposition of any shares
of
Stock acquired by exercise of the Option. The Optionee agrees that the
Corporation or a subsidiary may withhold amounts needed to cover such taxes
from
payments otherwise due and owing to the Optionee, and also agrees that upon
demand the Optionee will promptly pay to the Corporation or a subsidiary
having
such obligation any additional amounts as may be necessary to satisfy such
withholding tax obligation. Such payment shall be made in cash or by check
payable to the order of the Corporation or a subsidiary.
8.
DISCLAIMER
OF RIGHTS
No
provision in this Option Agreement shall be construed to confer upon the
Optionee the right to be employed by the Corporation or any subsidiary, or
to
interfere in any way with the right and authority of the Corporation or any
subsidiary either to increase or decrease the compensation of the Optionee
at
any time, or to terminate any employment or other relationship between the
Optionee and the Corporation or any subsidiary.
9.
INTERPRETATION
OF THIS OPTION AGREEMENT
All
decisions and interpretations made by the Board or the Compensation Committee
thereof with regard to any question arising under the Plan or this Option
Agreement shall be binding and conclusive on the Corporation and the Optionee
and any other person entitled to exercise the Option as provided for
herein.
10.
GOVERNING
LAW
This
Option Agreement shall be governed by the laws of the State of Delaware (but
not
including the choice of law rules thereof).
11.
BINDING
EFFECT
Subject
to all restrictions provided for in this Option Agreement, the Plan, and
by
applicable law relating to assignment and transfer of this Option Agreement
and
the option provided for herein, this Option Agreement shall be binding upon
and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
12.
NOTICE
Any
notice hereunder by the Optionee to the Corporation shall be in writing and
shall be deemed duly given if mailed or delivered to the Corporation at its
principal office, addressed to the attention of Stock Plan Administration
or if
so mailed or delivered to such other address as the Corporation may hereafter
designate by notice to the Optionee. Any notice hereunder by the Corporation
to
the Optionee shall be in writing and shall be deemed duly given if mailed
or
delivered to the Optionee at the address specified below by the Optionee
for
such purpose, or if so mailed or delivered to such other address as the Optionee
may hereafter designate by written notice given to the Corporation.
13.
ENTIRE
AGREEMENT
This
Option Agreement and the Plan together constitute the entire agreement and
supersede all prior understandings and agreements, written or oral (including,
without limitation, the Stock Option Agreement between the Corporation and
Optionee dated February 19, 2002), of the parties hereto with respect to
the
subject matter hereof. Except for amendments to the Plan incorporated into
this
Option Agreement by reference pursuant to Section 2 above, neither this Option
Agreement nor any term hereof may be amended, waived, discharged or terminated
except by a written instrument signed by the Corporation and the Optionee;
provided,
however,
that
the Corporation unilaterally may waive any provision hereof in writing to
the
extent that such waiver does not adversely affect the interests of the Optionee
hereunder, but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
SIGNATURE
PAGE
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amended and Restated
Option Agreement, or caused this Amended and Restated Option Agreement to
be
duly executed on their behalf, as of the day and year first above
written.
Transaction
Systems Architects, Inc.
Optionee:
By:
_________________________________________
By:
_________________________________________
Xxxxxx
X. Xxxxxx, Secretary
Xxxxxxx
X. Xxxxxxxx
ADDRESS
FOR
NOTICE TO OPTIONEE:
____________________________________________
Number
Street
Apt.
____________________________________________
City
State
Zip
Code
____________________________________________
SS#
Hire
Date
DESIGNATED
BENEFICIARY:
____________________________________________
Please
Print Last Name, First Name
MI
____________________________________________
Beneficiary’s
Street Address
____________________________________________
City
State
Zip
Code
____________________________________________
Beneficiary’s
Social Security Number
I
understand that in the event of my death, the above named beneficiary
will have
control of any unexercised options remaining in my account at that
time. If no
beneficiary is designated or if the named beneficiary does not survive
me, the
options will become part of my estate. This beneficiary designation
does NOT
apply to stock acquired by the exercise of options prior to my
death.
____________________________________________
SIGNATURE DATE
After
completing this page, please make a copy for your records and return it
to
Stock
Plan Administration, Transaction Systems Architects, Inc., 000 X. 000 Xxxxxx,
Xxxxx, XX 00000
1999
Stock Option Plan - US Plan
200,000
Options $9.80/Share
Exercise Price February
19, 2002
EXHIBIT
D
AMENDED
AND RESTATED
STOCK
OPTION AGREEMENT
UNDER
TRANSACTION
SYSTEMS ARCHITECTS, INC.
1999
STOCK OPTION PLAN
as
amended by
the
Stockholders on February 22, 2000,
the
Board of Directors on May 5, 2000,
the
Stockholders on February 20, 2001, and
the
Stockholders on February 19, 2002
US
MASTER
XXXXXXX
X. XXXXXXXX
TABLE OF CONTENTS
Page
1. GRANT
OF NON-QUALIFIED STOCK OPTION..................................1
2. TERMS
OF
PLAN....................................................................................1
3. EXERCISE
PRICE..................................................................................2
4. EXERCISE
OF
OPTION.........................................................................2
4.1 Time
of
Exercise of
Option.......................................................2
4.2 Acceleration
of
Option...............................................................3
4.3 Termination
of
Option................................................................5
4.4 Effect
of Optionee’s Disability or Death..................................6
4.5 Limitations
on Exercise of Option............................................6
4.6 Method
of Exercise of Option
Cash
Exercise.......................................................................6
Same-Day-Sale
Exercise....................................................7
Sell-to-Cover
Exercise.........................................................7
4.7 Parachute
Limitations................................................................8
5. TRANSFERABILITY
OF OPTIONS........................................................8
6. RIGHTS
AS
STOCKHOLDER................................................................9
7. WITHHOLDING
OF
TAXES....................................................................9
8. DISCLAIMER
OF
RIGHTS......................................................................9
9. INTERPRETATION
OF THIS OPTION AGREEMENT.........................9
10. GOVERNING
LAW..............................................................................10
11. BINDING
EFFECT...............................................................................10
12. NOTICE.................................................................................................10
13. ENTIRE
AGREEMENT.......................................................................10
SIGNATURE
PAGE
(TO BE COMPLETED AND RETURNED)
AMENDED
AND RESTATED
STOCK
OPTION AGREEMENT
TRANSACTION
SYSTEMS ARCHITECTS, INC.
1999
STOCK OPTION PLAN
as
amended by
the
Stockholders on February 22, 2000,
the
Board of Directors on May 5, 2000,
the
Stockholders on February 20, 2001, and
the
Stockholders on February 19, 2002
This
Stock Option Agreement (the "Option Agreement"), which was originally made
as of
February 19, 2002 (the “Original Date of Grant”), by and between Transaction
Systems Architects, Inc., (“TSA”) a Delaware corporation (the "Corporation") and
XXXXXXX X. XXXXXXXX, an employee of the Corporation or its subsidiaries (the
"Optionee"), is amended and restated effective as of February 26,
2004.
WHEREAS,
the Board of Directors of the Corporation has duly adopted and approved the
1999
Stock Option Plan (the "Plan"), which Plan authorizes the Corporation to
grant
to eligible individuals options for the purchase of shares of the Corporation's
Class A Common Stock (the "Stock"); and
WHEREAS,
the Corporation has determined that it is desirable and in its best interests
to
grant the Optionee, pursuant to the Plan, an option to purchase a certain
number
of shares of Stock, in order to provide the Optionee with an incentive to
advance the interests of the Corporation, all according to the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto do hereby agree as follows:
1.
GRANT
OF NON-QUALIFIED STOCK OPTION
Subject
to the terms of the Plan, the Corporation hereby grants to the Optionee the
right and option (the "Option") to purchase from the Corporation, on the
terms
and subject to the conditions set forth in the Plan and in this Agreement,
200,000 shares of Class A Common Stock. This
Option shall not constitute an incentive stock option within the meaning
of
Section 422 of the Internal Revenue Code of 1986, as amended (the
“Code”).
2.
TERMS
OF PLAN
The
Option granted pursuant to this Option Agreement is granted subject to the
terms
and conditions set forth in the Plan, a copy of which is attached to this
Option
Agreement. All terms and conditions of the Plan, as may be amended from time
to
time, are hereby incorporated into this Option Agreement by reference and
shall
be deemed to be part of this Option Agreement, without regard to whether
such
terms and conditions (including, for example, provisions relating to certain
changes in capitalization of the Corporation) are not otherwise set forth
in
this Option Agreement. In the event that there is any inconsistency between
the
provisions of this Option Agreement and of the Plan, the provisions of the
Plan
shall govern.
3.
EXERCISE
PRICE
The
Exercise Price for the shares of Stock subject to the Option granted by this
Option Agreement is $9.80 per share.
4.
EXERCISE
OF OPTION
Except
as otherwise provided herein, and subject to the provisions of the Plan
(including restrictions on the transferability of the Option and special
provisions relating to exercise or termination of the Option following the
Optionee's termination of employment, disability, death or retirement or
certain
changes in capitalization of the Corporation), the Option granted pursuant
to
this Option Agreement shall be subject to exercise as follows:
4.1
Time
of Exercise of Option
The
Optionee may exercise the Option (subject to the limitations on exercise
set
forth in this Agreement and in the Plan), in installments as
follows:
| (i) |
Provided
that those shares subject to this Option, or any portion thereof,
do not
first become exercisable pursuant to the terms and conditions of
Subsections 4.1(ii), 4.1(iii) or 4.1(iv) herein, or Section 4.2,
those
shares subject to this Option shall become exercisable as follows:
no
Option may be exercised during the first year from the Original
Date of
Grant; after one year from the Original Date of Grant, the Option
shall be
exercisable in respect of 25 percent of the number of shares subject
to
this Option; after the expiration of each of the second, third,
and fourth
years from the Original Date of Grant, the Option shall be exercisable
in
respect of an additional 25 percent of number of the shares subject
to
this Option.
|
| (ii) |
100,000
of those shares subject to this Option shall become exercisable
on and
after November 15, 2002; provided however that the Company’s Revenues,
Cash Flow, and Contribution Margin for fiscal year ended September
30,
2002 either meet or exceed $320,000,000, $42,800,000, and $25,000,000,
respectively, and the Ending Backlog as of fiscal year ended
September 30,
2002 or exceeds $218,000,000.
|
| (iii) |
100,000
of those shares subject to this Option shall become exercisable
on and
after November 15, 2003; provided however that the Company’s Revenues,
Cash Flow, Contribution Margin, and Ending Backlog for/at fiscal
year
ended September 30, 2003 either meet or exceed the respective Revenue,
Cash-flow, Contribution Margin, and Ending Backlog targets established
by
the Board of Directors for the fiscal year ended September 30,
2003.
|
| (iv) |
If,
within 4 years of the Original Date of Grant, the average closing
bid
price of the Company’s stock is greater than $30 for any consecutive
60-day period (calendar days), all shares subject to this Option
will
become exercisable on and after the end of such 60-day
period.
|
The
foregoing installments, to the extent not exercised, shall accumulate and
be
exercisable, in whole or in part, at any time and from time to time, after
becoming exercisable and prior to the termination of the Option; provided,
that
no single exercise of the Option shall be for less than 100 shares, unless
at
the time of the exercise, the maximum number of shares available for purchase
under this Option is less than 100 shares. In no event shall the Option be
exercised for a fractional share.
4.2
Acceleration
of Option.
Notwithstanding
any other provision of this Agreement to the contrary, the Option granted
hereby
shall become immediately exercisable upon the occurrence of a Change in Control
(as hereinafter defined) of the Corporation if Optionee is an employee of
the
Corporation or any of its subsidiaries on the date of the consummation of
such
Change in Control.
For
purposes of this Section 4.2, a “Change in Control” means the occurrence of any
of the following events:
(i)
any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act) (a “Person”) is or becomes the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more
of the
combined voting power of the then-outstanding Voting Stock of the Corporation;
provided, however, that:
(1)
for
purposes of this paragraph (i), the following acquisitions shall not constitute
a Change in Control: (A) any acquisition of Voting Stock of the Corporation
directly from the Corporation that is approved by a majority of the Incumbent
Directors, (B) any acquisition of Voting Stock of the Corporation by the
Corporation or any subsidiary of the Corporation, (C) any acquisition of
Voting
Stock of the Corporation by the trustee or other fiduciary holding securities
under any employee benefit plan (or related trust) sponsored or maintained
by
the Corporation or any subsidiary of the Corporation, and (D) any acquisition
of
Voting Stock of the Corporation by any Person pursuant to a Business Transaction
that complies with clauses (A), (B) and (C) of subparagraph (i)(3)
below;
(2)
if
any Person is or becomes the beneficial owner of 20% or more of combined
voting
power of the then-outstanding Voting Stock of the Corporation as a result
of a
transaction described in clause (A) of subparagraph (i)(1) above and such
Person
thereafter becomes the beneficial owner of any additional shares of Voting
Stock
of the Corporation representing 1% or more of the then-outstanding Voting
Stock
of the Corporation, other than in an acquisition directly from the Corporation
that is approved by a majority of the Incumbent Directors or other than as
a
result of a stock dividend, stock split or similar transaction effected by
the
Corporation in which all holders of Voting Stock are treated equally, such
subsequent acquisition shall be treated as a Change in Control;
(3)
a
Change in Control will not be deemed to have occurred if a Person is or becomes
the beneficial owner of 20% or more of the Voting Stock of the Corporation
as a
result of a reduction in the number of shares of Voting Stock of the Corporation
outstanding pursuant to a transaction or series of transactions that is approved
by a majority of the Incumbent Directors unless and until such Person thereafter
becomes the beneficial owner of any additional shares of Voting Stock of
the
Corporation representing 1% or more of the then-outstanding Voting Stock
of the
Corporation, other than as a result of a stock dividend, stock split or similar
transaction effected by the Corporation in which all holders of Voting Stock
are
treated equally; and
(4)
if
at least a majority of the Incumbent Directors determine in good faith that
a
Person has acquired beneficial ownership of 20% or more of the Voting Stock
of
the Corporation inadvertently, and such Person divests as promptly as
practicable but no later than the date, if any, set by the Incumbent Board
a
sufficient number of shares so that such Person beneficially owns less than
20%
of the Voting Stock of the Corporation, then no Change in Control shall have
occurred as a result of such Person’s acquisition; or
(ii)
a
majority of the Board ceases to be comprised of Incumbent Directors;
or
(iii)
the consummation of a reorganization, merger or consolidation, or sale or
other
disposition of all or substantially all of the assets of the Corporation
or the
acquisition of the stock or assets of another corporation, or other transaction
(each, a “Business Transaction”), unless, in each case, immediately following
such Business Transaction (A) the Voting Stock of the Corporation outstanding
immediately prior to such Business Transaction continues to represent (either
by
remaining outstanding or by being converted into Voting Stock of the surviving
entity or any parent thereof), more than 60% of the combined voting power
of the
then outstanding shares of Voting Stock of the entity resulting from such
Business Transaction (including, without limitation, an entity which as a
result
of such transaction owns the Corporation or all or substantially all of the
Corporation’s assets either directly or through one or more subsidiaries), (B)
no Person (other than the Corporation, such entity resulting from such Business
Transaction, or any employee benefit plan (or related trust) sponsored or
maintained by the Corporation, any subsidiary of the Corporation or such
entity
resulting from such Business Transaction) beneficially owns, directly or
indirectly, 20% or more of the combined voting power of the then outstanding
shares of Voting Stock of the entity resulting from such Business Transaction,
and (C) at least a majority of the members of the Board of Directors of the
entity resulting from such Business Transaction were Incumbent Directors
at the
time of the execution of the initial agreement or of the action of the Board
providing for such Business Transaction; or
(iv)
approval by the shareholders of the Corporation of a complete liquidation
or
dissolution of the Corporation, except pursuant to a Business Transaction
that
complies with clauses (A), (B) and (C) of paragraph (iii).
For
purposes of this Section 4.2, the term “Exchange Act” means the Securities
Exchange Act of 1934, as amended.
For
purposes of this Section 4.2, the term “Incumbent Directors” means the
individuals who, as of the date hereof, are Directors of the Corporation
and any
individual becoming a Director subsequent to the date hereof whose election,
nomination for election by the Corporation’s shareholders, or appointment, was
approved by a vote of at least two-thirds of the then Incumbent Directors
(either by a specific vote or by approval of the proxy statement of the
Corporation in which such person is named as a nominee for director, without
objection to such nomination); provided,
however,
that
an individual shall not be an Incumbent Director if such individual’s election
or appointment to the Board occurs as a result of an actual or threatened
election contest (as described in Rule 14a-12(c) of the Exchange Act) 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.
For
purposes of this Section 4.2, the term “Voting Stock” means securities entitled
to vote generally in the election of directors.
4.3
Termination
of Option
The
Option shall terminate upon the earlier of the expiration of a period of
(i) ten
years from the Original Date of Grant, or (ii) one month from the date of
the
Optionee's termination of employment with the Corporation or a subsidiary;
provided,
however,
that
if such termination of employment falls within the scope of one of the
provisions of the Plan providing for an extended exercise period in excess
of
one month, the Option shall terminate upon the expiration of the extended
period, as specified in such provision, after the Optionee's termination
of
employment with the Corporation or a subsidiary within which the Option is
exercisable.
4.4
Effect
of Optionee’s Disability or Death
If
the
Optionee ceases to be an Employee of the Corporation or a Subsidiary of the
Corporation by reason of Disability, the unexercised portion of any Option
held
by such Optionee at that time will become immediately vested and will be
exercisable for the shorter of one year from the date on which the Optionee
ceased to be so employed or the remaining Option term. If the Optionee does
not
exercise the Option within the time specified, such Option shall terminate.
The
Corporation shall have the authority to determine the date an Optionee ceases
to
be an Employee by reason of Disability.
If
the
Optionee dies while employed by the Corporation or a Subsidiary of the
Corporation (or dies within a period of one month after ceasing to be an
Employee for any reason other than Disability or within a period of one year
after ceasing to be an Employee by reason of Disability), the unexercised
portion of any Option held by such Optionee at the time of death will become
immediately vested and will be exercisable for the shorter of one year from
the
date of such Optionee’s death, or the remaining Option term. Such Option may be
exercised by the executor or administrator of the Optionee’s estate or by any
person or persons who shall have acquired the Option directly from the Optionee
by bequest or inheritance. If the Option is not exercised within the time
specified, such Option shall terminate.
4.5
Limitations
on Exercise of Option
Notwithstanding
the foregoing Subsections, in no event may the Option be exercised, in whole
or
in part, after ten years following the Original Date of Grant, or after the
occurrence of an event which results in termination of the Option under the
Plan.
4.6
Method
of Exercise of Option
Cash
Exercise (to exercise and retain the Shares):
Subject to the terms and conditions of this Option Agreement, the Option
may be
exercised by delivering written notice of exercise to the Corporation, at
its
principal office, addressed to the attention of Stock Option Administration,
or
to the agent/broker designated by the Corporation, which notice shall specify
the number of shares for which the Option is being exercised, and shall be
accompanied by payment in full of the Exercise Price of the shares for which
the
Option is being exercised
plus
the full amount of all applicable withholding taxes due on the Option exercise.
Payment
of the Exercise Price for the shares of Stock purchased pursuant to the exercise
of the Option shall be made either in cash or by certified check payable
to the
order of the Corporation. If the person exercising the Option is not the
Optionee, such person shall also deliver with the notice of exercise appropriate
proof of his or her right to exercise the Option, as the Corporation may
require
in its sole discretion. Promptly after exercise of the Option as provided
for
above, the Corporation shall deliver to the person exercising the Option
a
certificate or certificates for the shares of Stock being purchased.
Same-Day-Sale
Exercise (to exercise and immediately sell all the Shares):
Subject to the terms and conditions of this Option Agreement, the Option
may be
exercised by delivering written notice of exercise to the agent/broker
designated by the Corporation, which notice shall specify the number of shares
for which the Option is being exercised and irrevocable instructions to promptly
(1) sell all of the shares of Stock to be issued upon exercise and (2) remit
to
the Corporation the portion of the sale proceeds sufficient to pay the Exercise
Price for the shares of Stock purchased pursuant to the exercise of the Option
and all applicable taxes due on the Option exercise. The agent/broker shall
request issuance of the shares and immediately and concurrently sell the
shares
on the Optionee’s behalf. Payment of the Exercise Price for the shares of Stock
purchased pursuant to the exercise of the Option, any brokerage fees, transfer
fees, and all applicable taxes due on the Option exercise, shall be deducted
from the proceeds of the sale of the shares. If the person exercising the
Option
is not the Optionee, such person shall also deliver with the notice of exercise
appropriate proof of his or her right to exercise the Option, as the Corporation
may require in its sole discretion. Promptly after exercise of the Option
as
provided for above, the agent/broker shall deliver to the person exercising
the
Option the net proceeds from the sale of the shares of Stock being exercised
and
sold.
Sell-to-Cover
Exercise (to exercise and immediately sell a portion of the
Shares):
Subject to the terms and conditions of this Option Agreement, the Option
may be
exercised by delivering written notice of exercise to the agent/broker
designated by the Corporation, which notice shall specify the number of shares
for which the Option is being exercised and irrevocable instructions to promptly
(1) sell the portion (which must be a whole number) of the shares of Stock
to be
issued upon exercise sufficient to generate proceeds to pay the Exercise
Price
for the shares of Stock purchased pursuant to the exercise of the Option,
any
brokerage or transfer fees, and all applicable taxes due on the Option exercise
(collectively the “Exercise Costs”) and (2) remit to the Corporation a
sufficient portion of the sale proceeds to pay the Exercise Price for the
shares
of Stock purchased pursuant to the exercise of the Option and all applicable
taxes due on the Option exercise. The agent/broker shall request issuance
of the
shares and immediately and concurrently sell on the Optionee’s behalf only such
number of the Shares as is required to generate proceeds sufficient to pay
the
Exercise Costs. Promptly after exercise of the Option as provided for above,
the
Corporation shall deliver to the person exercising the Option a certificate
for
the shares of Stock issued upon exercise which are not sold to pay the Exercise
Costs. Promptly after exercise of the Option as provided for above, the
agent/broker shall deliver to the person exercising the Option any net proceeds
from the sale of the Shares in excess of the Exercise Costs. If the person
exercising the Option is not the Optionee, such person shall also deliver
with
the notice of exercise appropriate proof of his or her right to exercise
the
Option, as the Corporation may require in its sole discretion.
The
Option shall not be exercisable if and to the extent the Corporation determines
such exercise or method of exercise would violate applicable securities laws,
the rules and regulations of any securities exchange or quotation system
on
which the Stock is listed, or the Company’s policies and procedures. An attempt
to exercise the Option granted hereunder other than as set forth above shall
be
invalid and of no force and effect.
4.7
Parachute
Limitations
Notwithstanding
any other provision of this Option Agreement or the Plan or any other agreement,
contract or understanding heretofore or hereafter entered into by the Optionee
with the Corporation (or any subsidiary or affiliate thereof), except an
agreement, contract or understanding hereafter entered into that expressly
modifies or excludes application of this Subsection (the "Other Agreements"),
and notwithstanding any formal or informal plan or other arrangements heretofore
or hereafter adopted by the Corporation (or any such subsidiary or affiliate)
for the direct or indirect compensation of the Optionee (including groups
or
classes of participants or beneficiaries of which the Optionee is a member),
whether or not such compensation is deferred, is in cash, or is in the form
of a
benefit to or for the Optionee (an "Other Benefit Plan"), the Optionee shall
not
have any right to exercise an Option or receive any payment or other benefit
under this Option Agreement, any Other Agreement, or any Other Benefit Plan
if
such right to exercise, payment or benefit, taking into account all other
rights, payments or benefits to or for the Optionee under this Option Agreement,
all Other Agreements and all Other Benefit Plans, would cause any right,
payment
or benefit to the Optionee under this Option Agreement to be considered a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code
as then
in effect (a "Parachute Payment"). In the event that the receipt of any such
right to exercise or any other payment or benefit under this Option Agreement,
any Other Agreement or any Other Benefit Plan would cause the Optionee to
be
considered to have received a Parachute Payment under this Agreement, then
the
Optionee shall have the right, in the Optionee's sole discretion, to designate
those rights, payments or benefits under this Option Agreement, any Other
Agreements, and/or any Other Benefit Plans, which should be reduced or
eliminated so as to avoid having the right, payment or benefit to the Optionee
under this Option Agreement be deemed to be a Parachute Payment.
5.
TRANSFERABILITY
OF OPTIONS
During
the lifetime of an Optionee, only such Optionee (or, in the event of legal
incapacity or incompetency, the Optionee's guardian or legal representative)
may
exercise the Option. No Option shall be assignable or transferable by the
Optionee to whom it is granted, other than by will or the laws of descent
and
distribution.
6.
RIGHTS
AS STOCKHOLDER
Neither
the Optionee nor any executor, administrator, distributee or legatee of the
Optionee's estate shall be, or have any of the rights or privileges of, a
stockholder of the Corporation in respect of any shares of Stock issuable
hereunder unless and until such shares have been fully paid and certificates
representing such shares have been endorsed, transferred and delivered, and
the
name of the Optionee (or of such personal representative, administrator,
distributee or legatee of the Optionee's estate) has been entered as the
stockholder or record on the books of the Corporation.
7.
WITHHOLDING
OF TAXES
The
parties hereto recognize that the Corporation or a subsidiary may be obligated
to withhold federal, state and/or local income taxes and Social Security
taxes
to the extent that the Optionee realizes ordinary income in connection with
the
exercise of the Option or in connection with a disposition of any shares
of
Stock acquired by exercise of the Option. The Optionee agrees that the
Corporation or a subsidiary may withhold amounts needed to cover such taxes
from
payments otherwise due and owing to the Optionee, and also agrees that upon
demand the Optionee will promptly pay to the Corporation or a subsidiary
having
such obligation any additional amounts as may be necessary to satisfy such
withholding tax obligation. Such payment shall be made in cash or by check
payable to the order of the Corporation or a subsidiary.
8.
DISCLAIMER
OF RIGHTS
No
provision in this Option Agreement shall be construed to confer upon the
Optionee the right to be employed by the Corporation or any subsidiary, or
to
interfere in any way with the right and authority of the Corporation or any
subsidiary either to increase or decrease the compensation of the Optionee
at
any time, or to terminate any employment or other relationship between the
Optionee and the Corporation or any subsidiary.
9.
INTERPRETATION
OF THIS OPTION AGREEMENT
All
decisions and interpretations made by the Board or the Compensation Committee
thereof with regard to any question arising under the Plan or this Option
Agreement shall be binding and conclusive on the Corporation and the Optionee
and any other person entitled to exercise the Option as provided for
herein.
10.
GOVERNING
LAW
This
Option Agreement shall be governed by the laws of the State of Delaware (but
not
including the choice of law rules thereof).
11.
BINDING
EFFECT
Subject
to all restrictions provided for in this Option Agreement, the Plan, and
by
applicable law relating to assignment and transfer of this Option Agreement
and
the option provided for herein, this Option Agreement shall be binding upon
and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
12.
NOTICE
Any
notice hereunder by the Optionee to the Corporation shall be in writing and
shall be deemed duly given if mailed or delivered to the Corporation at its
principal office, addressed to the attention of Stock Plan Administration
or if
so mailed or delivered to such other address as the Corporation may hereafter
designate by notice to the Optionee. Any notice hereunder by the Corporation
to
the Optionee shall be in writing and shall be deemed duly given if mailed
or
delivered to the Optionee at the address specified below by the Optionee
for
such purpose, or if so mailed or delivered to such other address as the Optionee
may hereafter designate by written notice given to the Corporation.
13.
ENTIRE
AGREEMENT
This
Option Agreement and the Plan together constitute the entire agreement and
supersede all prior understandings and agreements, written or oral (including,
without limitation, the Stock Option Agreement between the Corporation and
Optionee dated February 19, 2002), of the parties hereto with respect to
the
subject matter hereof. Except for amendments to the Plan incorporated into
this
Option Agreement by reference pursuant to Section 2 above, neither this Option
Agreement nor any term hereof may be amended, waived, discharged or terminated
except by a written instrument signed by the Corporation and the Optionee;
provided,
however,
that
the Corporation unilaterally may waive any provision hereof in writing to
the
extent that such waiver does not adversely affect the interests of the Optionee
hereunder, but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
SIGNATURE
PAGE
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amended and Restated
Option Agreement, or caused this Amended and Restated Option Agreement to
be
duly executed on their behalf, as of the day and year first above
written.
Transaction
Systems Architects, Inc.
Optionee:
By:
_________________________________________
By:
_________________________________________
Xxxxxx
X. Xxxxxx, Secretary
Xxxxxxx
X. Xxxxxxxx
ADDRESS
FOR
NOTICE TO OPTIONEE:
____________________________________________
Number
Street
Apt.
____________________________________________
City
State
Zip
Code
____________________________________________
SS#
Hire
Date
DESIGNATED
BENEFICIARY:
____________________________________________
Please
Print Last Name, First Name
MI
____________________________________________
Beneficiary’s
Street Address
____________________________________________
City
State
Zip
Code
____________________________________________
Beneficiary’s
Social Security Number
I
understand that in the event of my death, the above named beneficiary
will have
control of any unexercised options remaining in my account at that
time. If no
beneficiary is designated or if the named beneficiary does not
survive me, the
options will become part of my estate. This beneficiary designation
does NOT
apply to stock acquired by the exercise of options prior to my
death.
____________________________________________
SIGNATURE DATE
After
completing this page, please make a copy for your records and return
it
to
Stock
Plan Administration, Transaction Systems Architects, Inc., 000 X. 000
Xxxxxx,
Xxxxx, XX 00000
1999
Stock Option Plan - US Plan
200,000
Shares $
9.80/Share Exercise Price February
19, 2002
EXHIBIT
E
AMENDED
AND RESTATED
SEVERANCE
COMPENSATION AGREEMENT
SEVERANCE
COMPENSATION AGREEMENT dated as of September 28, 2004 between Transaction
Systems Architects, Inc., a Delaware corporation (the “Company”), and Xxxxxxx X.
Xxxxxxxx (the “Executive”).
WHEREAS,
the Company’s Board of Directors has determined that it is appropriate to
reinforce and encourage the continued attention and dedication of the Executive
to his assigned duties without distraction in potentially disturbing
circumstances arising from the possibility of a change in control of the
Company;
WHEREAS,
the Company and the Executive entered into a severance compensation agreement
dated as of April 28, 2003 (the “Severance Agreement”); and
WHEREAS,
the Company and the Executive have entered into that third amended and restated
employment agreement of even date herewith (as amended, the “Employment
Agreement”) and wish to amend and restate the Severance Agreement in connection
therewith.
NOW,
THEREFORE, this Agreement sets forth the severance compensation which the
Company agrees it will pay to the Executive if the Executive’s employment with
the Company terminates under certain circumstances described herein following
a
Change in Control (as defined herein) and the other benefits the Company
will
provide the Executive following a Change in Control.
| 1. |
TERM.
|
This
Agreement shall terminate, except to the extent that any obligation of the
Company hereunder remains unpaid as of such time, upon the earlier of (i)
the
appointment of a successor CEO as provided in the Employment Agreement; (ii)
the
termination of Executive’s employment for any reason prior to a Change in
Control; and (iii) three years after the date of a Change in
Control.
| 2. |
CHANGE
IN CONTROL.
|
For
purposes of this Agreement, Change in Control shall mean:
(a) the
acquisition by 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”), of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (i)
the
then-outstanding shares of common stock of the Company (the “Outstanding Company
Common Stock”) or (ii) 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
the following acquisitions shall not constitute a Change in Control: (A)
any
acquisition directly from the Company (excluding an acquisition by virtue
of the
exercise of a conversion privilege), (B) any acquisition by any employee
benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (C) any acquisition by any corporation
pursuant to a reorganization,
merger
or consolidation, if, following such reorganization, merger or consolidation,
the conditions described in sub-clauses (i), (ii) and (iii) of clause (c)
of
this Section 2 are satisfied; or
(b) if
individuals who, as of the date hereof, constitute the Board of Directors
(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 two-thirds of the directors
then constituting 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 either an actual or threatened election contest subject to Rule
14a-11
of Regulation 14A promulgated under the Exchange Act or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other
than the Board; or
(c) approval
by the stockholders of the Company of a reorganization, merger or consolidation,
unless following such reorganization, merger or consolidation (i) more than
60%
of, respectively, the then-outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately
prior
to such reorganization, merger, or consolidation in substantially the same
proportions as their ownership, immediately prior to such reorganization,
merger
or consolidation, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be (for purposes of determining
whether such percentage test is satisfied, there shall be excluded from the
number of shares and voting securities of the resulting corporation owned
by the
Company’s stockholders, but not from the total number of outstanding shares and
voting securities of the resulting corporation, any shares or voting securities
received by any such stockholder in respect of any consideration other than
shares or voting securities of the Company), (ii) no Person (excluding the
Company, any employee benefit plan (or related trust) of the Company, any
qualified employee benefit plan of such corporation resulting from such
reorganization, merger or consolidation and any Person beneficially owning,
immediately prior to such reorganization, merger or consolidation, directly
or
indirectly, 20% or more of the Outstanding Company Common Stock or Outstanding
Company Voting Securities, as the case may be) beneficially owns, directly
or
indirectly, 20% or more of, respectively, the then-outstanding shares of
common
stock of the corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then-outstanding voting
securities of such corporation entitled to vote generally in the election
of
directors and (iii) at least a majority of the members of the board of directors
of the corporation resulting from such reorganization, merger or consolidation
were members of the Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger or consolidation;
or
(d) (i)approval
by the stockholders of the Company of a complete liquidation or dissolution
of
the Company or (ii) the first to occur of (A) the sale or other disposition
(in
one transaction or a series of related transactions) of all or substantially
all
of the assets of the Company, or (B) the approval by the stockholders of
the
Company of any such sale or disposition, other than, in each case, any such
sale
or disposition to a corporation, with respect to which immediately thereafter,
(1) more than 60% of, respectively, the then-outstanding shares of common
stock
of such corporation and the combined voting power of the then-outstanding
voting
securities of such corporation entitled to vote generally in the election
of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition
in
substantially the same proportion as their ownership, immediately prior to
such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be (for purposes of
determining whether such percentage test is satisfied, there shall be excluded
from the number of shares and voting securities of the transferee corporation
owned by the Company’s stockholders, but not from the total number of
outstanding shares and voting securities of the transferee corporation, any
shares or voting securities received by any such stockholder in respect of
any
consideration other than shares or voting securities of the Company), (2)
no
Person (excluding the Company and any employee benefit plan (or related trust)
of the Company, any qualified employee benefit plan of such transferee
corporation and any Person beneficially owning, immediately prior to such
sale
or other disposition, directly or indirectly, 20% or more of the Outstanding
Company Common Stock or Outstanding Company Voting Securities, as the case
may
be) beneficially owns, directly or indirectly, 20% or more of, respectively,
the
then-outstanding shares of common stock of such transferee corporation and
the
combined voting power of the then-outstanding voting securities of such
transferee corporation entitled to vote generally in the election of directors
and (3) at least a majority of the members of the board of directors of such
transferee corporation were members of the Incumbent Board at the time of
the
execution of the initial agreement or action of the board providing for such
sale or other disposition of assets of the Company.
| 3. |
TERMINATION
FOLLOWING A CHANGE IN CONTROL.
|
(a) The
Executive shall be entitled to the compensation provided in Section 4 of
this
Agreement if all of the following conditions are satisfied:
(i) there
is a Change in Control of the Company while the Executive is still an employee
of the Company;
(ii) the
Executive’s employment with the Company is terminated within two years after the
Change in Control;
(iii) the
Executive’s termination of employment is not a result of (A) the Executive’s
death; (B) the Executive’s Disability (as defined in section 3(b) below); (C)
the Executive’s Retirement (as defined in section 3(c) below); (D) the
Executive’s termination by the Company for Cause (as defined in Section 3(d)
below); or (E) the Executive’s decision to terminate employment other than for
Good Reason (as defined in Section 3(e) below); and
(iv) the
Executive executes and delivers to the Company the Release contemplated under
the Employment Agreement.
(b) If,
as a result of the Executive’s incapacity due to physical or mental illness, the
Executive shall have been unable, with or without a reasonable accommodation,
to
perform his duties with the Company on a full-time basis for six months and
within 30 days after a Notice of Termination (as defined in Section 3(f)
below)
is thereafter given by the Company, the Executive shall not have returned
to the
full-time performance of the Executive’s duties, the Company may terminate the
Executive’s employment for “Disability”. If there is a Change in Control of the
Company while the Executive is still an employee and if the Executive’s
employment with the Company is terminated for Disability within two years
after
the Change in Control, the Executive shall be entitled to receive in a lump
sum
cash payment within five days after his Date of Termination (as defined in
section 3(g) below) the following:
(i) one
times the Base Amount (as defined in Section 4(b)(i)) determined with respect
to
the Base Period (as defined in Section 4(b)(ii)); plus
(ii) his
earned but unpaid base salary through his Date of Termination; plus
(iii) a
quarterly incentive award for the current fiscal quarter prorated through
the
Date of Termination equal to the greater of (A) the quarterly incentive award
(whether paid or payable in cash or in securities of the Company) awarded
to the
Executive with respect to the Company’s most recent fiscal quarter ending prior
to the Date of Termination or (B) the average quarterly incentive award (whether
paid or payable in cash or in securities of the Company) made to the Executive
with respect to the Company’s most recent three fiscal years ending prior to the
Date of Termination; plus
(iv) interest
on the amounts payable pursuant to clauses (i), (ii) and (iii) above calculated
from the Date of Termination until paid at a rate equal to the prime rate
as
published in The Wall Street Journal on the Date of Termination plus three
percentage points.
(c) For
purposes of this Agreement only, “Retirement” shall mean termination by the
Company or the Executive of the Executive’s employment based on the Executive’s
having reached age 65 or such other age as shall have been fixed in any
arrangement established pursuant to this Agreement with the Executive’s consent
with respect to the Executive.
(d) For
purposes of this Agreement only, “Cause” shall mean: (i) the Executive’s
conviction of a felony involving moral turpitude; (ii) the Executive’s serious,
willful gross misconduct or willful gross neglect of duties (other than any
such
neglect resulting from the Executive’s incapacity due to physical or mental
illness or any such neglect after the issuance of a Notice of Termination
by the
Executive for Good Reason, as such terms are defined in subsections (e) and
(f)
below), which, in either case, has resulted, or in all probability is likely
to
result, in material economic damage to the Company; provided no act or failure
to act by the Executive will constitute Cause under this clause (ii) if the
Executive believed in good faith that such act or failure to act was in the
best
interest of the Company; or (iii) the Executive’s violation of any provision of
the Company’s Code of Business Conduct and Ethics or the Company’ Code of Ethics
for the Chief Executive Officer and Senior Financial Officers, as the same
may
be amended from time to time.
For
purposes of this Agreement only, any termination of the Executive’s employment
by the Company for Cause shall be authorized by a vote of at least a majority
of
the non-employee members of the Board of Directors of the Company (the “Board”)
within 12 months of a majority of such non-employee members of the Board
having
actual knowledge of the event or circumstances providing a basis for such
termination. In the case of clause (ii) of the second sentence of this
subsection (d), the Executive shall be given notice by the Board specifying
in
detail the particular act or failure to act on which the Board is relying
in
proposing to terminate him for cause and offering the Executive an opportunity,
on a date at least 14 days after receipt of such notice, to have a hearing,
with
counsel, before a majority of the non-employee members of
the Board, including each of the members of the Board who authorized the
termination for Cause. The Executive shall not be terminated for Cause if,
within 30 days after the date of the Executive’s hearing before the Board (or if
the Executive waives a hearing, within 30 days after receiving notice of
the
proposed termination), he has corrected the particular act or failure to
act
specified in the notice and by so correcting such act or failure to act he
has
reduced the economic damage his act or failure to act has allegedly caused
the
Company to a level which is no longer material or has eliminated the probability
that such act or failure to act is likely to result in material economic
damage
to the Company. No termination for Cause shall take effect until the expiration
of the correction period described in the preceding sentence and the
determination by a majority of the non-employee members of the Board that
the
Executive has failed to correct the act or failure to act in accordance with
the
terms of the preceding sentence.
Anything
herein to the contrary notwithstanding, if, following a termination of the
Executive’s employment by the Company for Cause based upon the conviction of the
Executive for a felony involving moral turpitude such conviction is finally
overturned on appeal, the Executive shall be entitled to the compensation
provided in Sections 4(a) and 4(c). In lieu of the interest provided in clause
(iv) of the first sentence of Section 4(a) and the interest provided in the
second sentence of Section 4(c), however, the compensation provided in Sections
4(a) and 4(c) shall be increased by a ten percent rate of interest, compounded
annually, calculated from the date such compensation would have been paid
if the
Executive’s employment had been terminated without Cause.
(e)
For
purposes of this Agreement, “Good Reason” shall mean, after any Change in
Control and without the Executive’s express written consent, any of the
following:
(i)
a
significant diminution in the Executive’s duties and responsibilities, or the
assignment to the Executive by the Company of duties inconsistent with the
Executive’s position, duties, responsibilities or status with the Company
immediately prior to a Change in Control of the Company, or a change in the
Executive’s titles or offices as in effect immediately prior to a Change in
Control of the Company, or any removal of the Executive from or any failure
to
re-elect the Executive to
any of such positions, except in connection with the termination of his
employment for Disability, Retirement or Cause or as a result of the Executive’s
death or by the Executive other than for Good Reason;
(ii)
a
reduction by the Company in the Executive’s annual rate of base salary as in
effect on the date
hereof or as the same may be increased from time to time during the term
of this
Agreement or the Company’s failure to increase (within 12 months of the
Executive’s last increase in his annual rate of base salary) the Executive’s
annual rate of base salary after a Change in Control of the Company in an
amount
which at least equals, on a percentage basis,
the greater of (A) the average percentage increase in
the annual rate of base salary for all officers of the Company effected in
the
preceding 12 months; or (B) the Consumer Price Index as published by the
United
States Government (or, in the event such index is discontinued, any similar
index published by the United States Government as designated in good faith
by
the Executive);
(iii)
(A)
any
failure by the Company to continue in effect any benefit plan or arrangement
(including, without limitation, the life insurance, medical, dental, accident
and disability plans) in which the Executive is participating at the time
of a
Change in Control of the Company, or any other plan or arrangement providing
the
Executive with benefits that are no less favorable (hereinafter referred
to as
“Benefit Plans”), (B) the taking of any action by the Company which would
adversely affect the Executive’s participation in or materially reduce the
Executive’s benefits under any such Benefit Plan or deprive the Executive of any
material fringe benefit or perquisite of office enjoyed by the Executive
at the
time of a Change in Control of the Company, unless in the case of either
sub-clause (A) or (B) above, there is substituted a comparable plan or program
that is economically equivalent or superior, in terms of the benefit offered
to
the Executive, to the Benefit Plan being altered, reduced, affected or
ended;
(iv) (A)
any
failure by the Company to continue in effect any incentive plan or arrangement
(including, without limitation, the Company’s bonus arrangements, the
Transaction Systems Architects, Inc-. 401(k) Plan, the sales incentive plans,
and the management incentive plans) in which the Executive is participating
at
the time of a Change in Control of the Company, or any other plans or
arrangements providing him with substantially similar benefits, (hereinafter
referred to as “Incentive Plans”), (B) the taking of any action by the Company
which would adversely affect the Executive’s participation in any such Incentive
Plan or reduce the Executive’s benefits under any such Incentive Plan, unless in
the case of either sub-clause (A) or (B) above, there is substituted a
comparable plan or program that is economically equivalent or superior, in
terms
of the benefit offered to the Executive, to the Incentive Plan being altered,
reduced, affected or ended, or (C) any failure by the Company with respect
to
any fiscal year to make an award to the Executive pursuant to each such
Incentive Plan or such substituted comparable plan or program equal to or
greater than the greater of (1) the award (whether paid or payable in cash
or in
securities of the Company) made to the Executive pursuant to such Incentive
Plan
or such substituted comparable plan or program with respect to the immediately
preceding fiscal year or (2) the average annual award (whether paid or payable
in cash or in securities of the Company) made to the Executive pursuant to
such
Incentive Plan or such substituted comparable plan with respect to the prior
three fiscal years (or such lesser number of prior fiscal years that the
Executive was employed by the Company or that the Incentive Plan (together
with
any substituted comparable plan) was maintained);
(v) (A)
any
failure by the Company to continue in effect any plan or arrangement to receive
securities of the Company in which the Executive is participating at the
time of
a Change in Control of the Company, or any other plan or arrangement providing
him with substantially similar benefits, (hereinafter
referred to as “Securities Plans”), (B) the taking of any action by the Company
which would adversely affect the Executive’s participation in or materially
reduce the Executive’s benefits under any such Securities Plan, unless in the
case of either sub-clause (A) or (B) above, there is substituted a comparable
plan or program that is economically equivalent or superior, in terms of
the
benefit offered to the Executive, to the Securities Plan being altered, reduced,
affected or ended, or (C) any failure by the Company in any fiscal year to
grant
stock options, stock appreciation rights or securities awards to the Executive
pursuant to such Securities Plans with respect to an aggregate number of
securities of the Company of each kind that is equal to or greater than
the greater of (1) the aggregate number
of securities of the Company of that kind covered by
stock options, stock appreciation rights, or securities awards granted to
the
Executive pursuant to such Securities Plans in the immediately preceding
fiscal
year; or (2) the average annual aggregate number of securities of the Company
of
that kind covered by stock options, stock appreciation rights, or securities
awards granted to the Executive pursuant to such Securities Plans in the
prior
three fiscal years; and provided further the material terms and conditions
of
such stock options, stock appreciation rights, and securities awards granted
to
the Executive after the Change in Control (including, but not limited to,
the
exercise price, vesting schedule, period and methods of exercise, expiration
date, forfeiture provisions and other restrictions) are substantially similar
to
the material terms and conditions of the stock options, stock appreciation
rights, and securities awards granted to the Executive under the Securities
Plans immediately prior to the Change in Control of the Company;
(vi)
the
Executive’s relocation, at the request of the Company, more than 50 miles from
the location at which the Executive performed the Executive’s duties prior to a
Change in Control of the Company, except for required travel by the Executive
on
the Company’s business to an extent substantially consistent with the
Executive’s business travel obligations at the time of a Change in Control of
the Company;
(vii)
any
failure by the Company to provide the Executive with the number of annual
paid
vacation days to which the Executive is entitled for the year in which a
Change
in Control of the Company occurs;
(viii)
any
material breach by the Company of any provision of this Agreement;
(ix)
any
failure by the Company to obtain the assumption of this Agreement by any
successor or assign of the Company prior to such succession or
assignment;
(x)
any
failure by the Company or its successor to enter into an agreement with
the Executive that is substantially similar to this Agreement with respect
to a
Change in Control of the Company or its successor occurring thereafter;
or
(xi)
any
purported termination of the Executive’s employment by the Company pursuant to
Section 3(b), 3(c) or 3(d) above which is not effected pursuant to a Notice
of
Termination satisfying the requirements of Section 3(f) below (and, if
applicable, Section 3(d) above), and for purposes of this Agreement, no such
purported termination shall be effective.
For
purposes of this subsection (e), an isolated, immaterial, and inadvertent
action
not taken in bad faith by the Company in violation of clause (ii), (iii),
(iv),
(v) or (vii) of this subsection that is remedied by the Company promptly
after
receipt of notice thereof given by the Executive shall not be considered
Good
Reason for the Executive’s termination of employment with the Company. In the
event the Executive terminates his employment for Good Reason hereunder,
then
notwithstanding that the Executive may also retire for purposes of the Benefit
Plans, Incentive Plans or Securities Plans, the Executive shall be deemed
to
have terminated his employment for Good Reason for purposes of this
Agreement.
(f)
Any
termination of the Executive by the Company pursuant to Section 3(b), 3(c)
or
3(d) above, or by the Executive pursuant to Section 3(e) above, shall be
communicated by a Notice of Termination to the other party hereof. For purposes
of this Agreement, a “Notice of Termination” shall mean a written notice which
shall indicate those specific termination provisions in this Agreement relied
upon and which sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive’s employment under
the provision so indicated. For purposes of this Agreement, no such purported
termination by the Company shall be effective without such Notice of
Termination.
(g)
“Date
of Termination” shall mean (i) if the Executive’s employment is terminated by
the Company for Disability, 30 days after Notice of Termination is given
to the
Executive (provided that the Executive shall not have returned to the
performance of the Executive’s duties on a full-time basis during such 30-day
period), (ii) if the Executive’s employment is terminated by the Executive for
Good Reason, the date specified in the Notice of Termination, and (iii) if
the
Executive’s employment is terminated by the Company for any other reason, the
date on which a Notice of Termination is given; provided, however, that if
within 30 days after any Notice of Termination is given to the Executive
by the
Company, the Executive notifies the Company that a dispute exists concerning
the
termination, the Date of Termination shall be the date the dispute is finally
determined, whether by mutual written agreement of the parties or upon final
judgment, order or decree of a court of competent jurisdiction (the time
for
appeal therefrom having expired and no appeal having been
perfected).
4.
SEVERANCE
COMPENSATION UPON TERMINATION OF EMPLOYMENT.
(a)
If
pursuant to Section 3(a) above the Executive is entitled to the compensation
provided in this Section 4, then the Company shall pay to the Executive in
a
lump sum cash payment within five days after the Date of Termination the
following:
(i)
the
Severance Amount as defined in Section 4(b) below; plus
(ii)
his
earned but unpaid base salary through his Date of Termination; plus
(iii)
a
quarterly incentive award for the current fiscal quarter prorated through
the
Date of Termination equal to the greater of (A) the quarterly incentive award
(whether paid or payable in cash or in securities of the Company) awarded
to the
Executive with respect to the Company’s most recent fiscal quarter ending prior
to the Date of Termination or (B) the average quarterly incentive award (whether
paid or payable in cash or in securities of the Company) made to the Executive
with respect to the Company’s most recent three fiscal years ending prior to the
Date of Termination; plus
(iv)
interest
on the amounts payable pursuant to clauses (i), (ii) and (iii) above calculated
from the Date of Termination until paid at a rate equal to the prime rate
as
published in The Wall Street Journal on the Date of Termination plus three
percentage points, compounded annually.
(b)
“Severance
Amount” shall mean an amount equal to one times the Base Amount (as defined
below) determined with respect to the Base Period (as defined below); provided,
however, in no event shall the Severance Amount be less than two times the
Executive’s annual rate of base salary at the higher of the annual rate in
effect (i) immediately prior to the Date of Termination or (ii) on the date
six
months prior to the Date of Termination. For purposes of this subsection
(b):
(i) “Base
Amount” means the Executive’s average fiscal-year Compensation (as defined
below) for fiscal years of the Company in the Base Period. Such average shall
be
computed by dividing the total of the Executive’s Compensation for the Base
Period by the number of fiscal years in the Base Period. If the Executive’s Base
Period includes a portion of a fiscal year during which he was not an
employee of
the Company (or a predecessor entity or a related entity, as such terms are
defined in clause (iii) below), the Executive’s Compensation for such fiscal
year shall be annualized before determining the average fiscal-year Compensation
for the Base Period. In annualizing Compensation, the frequency with which
payments are expected to be made over a fiscal year shall be taken into account;
thus, any amount of Compensation that represents a payment that will not
be made
more often than once per fiscal year is not annualized. Set forth on Appendix
A,
which is attached hereto and made a part hereof, are three examples illustrating
the calculation of the Base Amount.
(ii) “Base
Period” means the most recent two consecutive fiscal years of the Company ending
prior to the Date of Termination. However, if the Executive was not an employee
of the Company (or a predecessor entity or a related entity, as such terms
are
defined in clause (iii) below) at any time during one of such two fiscal
years,
the Executive’s Base Period is the one fiscal year of such two-fiscal-year
period during which the Executive performed personal services for the Company
or
a predecessor entity or a related entity.
(iii) “Compensation”
means the compensation which was payable by the Company, by a predecessor
entity, or by a related entity and which was includible in the gross income
of
the Executive (or either was excludible from such gross income as “foreign
earned income” within the meaning of Section 911 of the Internal Revenue Code of
1986, as amended (the “Code”), or would have been includible in such gross
income if the Executive had been a United States citizen or resident), but
excluding the following: (A) amounts realized from the exercise of a
non-qualified stock option; and (B) amounts realized from the sale, exchange
or
other disposition of stock acquired under an incentive stock option described
in
Code Section 422 (b) or under an employee stock purchase plan described in
code
Section 423 (b). Notwithstanding the preceding sentence, Compensation shall
be
determined without regard to any compensation deferral election under any
plan,
program or arrangement, qualified or non-qualified, maintained or contributed
to
by the Company, a predecessor entity or a related entity, including but not
limited to a cash-or-deferred arrangement described in Code Section 401(k),
a
cafeteria plan described in Code Section 125 or a non-qualified deferred
compensation plan. A “predecessor entity” is any entity which, as a result of a
merger, consolidation, purchase or acquisition of property or stock, corporate
separation, or other similar business transaction transfers some or all of
its
employees to the Company or to a related entity or to a predecessor entity
of
the Company. The term “related entity” includes any entity treated as a single
employer with the Company in accordance with subsections (b), (c), (m) and
(o)
of Code Section 414.
(c) If
pursuant to Section 3(a) above the Executive is entitled to the compensation
provided in this Section 4, then the Executive will be entitled to continued
participation in all employee benefit plans or programs available to Company
employees generally in which the Executive was participating on the Date
of
Termination, such continued participation to be at Company cost and otherwise
on
the same basis as Company employees generally, until the earlier of (i) the
date, or dates, he receives equivalent coverage and benefits under the plans
and
programs of a subsequent employer (such coverages and benefits to be determined
on a coverage-by-coverage or benefit-by-benefit basis) or (ii) two years
from
the Date of Termination; provided (A) if the Executive is precluded from
continuing his participation in any employee benefit plan or program as provided
in this sentence, he shall be paid, in a lump sum cash payment, within 30
days
following the date it is determined he is unable to participate in any employee
benefit plan or program, the after-tax economic equivalent of the benefits
provided under the plan or program in which he is unable to participate for
the
period specified in this sentence, and (B) the economic equivalent of any
benefit foregone shall he deemed to be the lowest cost that would be incurred
by
the Executive in obtaining such benefit for himself (including family or
dependent coverage, if applicable) on an individual basis. The Executive
shall
be eligible for group health plan continuation coverage under and in accordance
with the Consolidated Omnibus Budget Reconciliation Act of 1965, as amended,
when he ceases to be eligible for continued participation in the Company’s group
health plan under this subsection (c).
| 5. |
NO
OBLIGATION TO MITIGATE DAMAGES; NO EFFECT ON OTHER CONTRACTUAL
RIGHTS.
|
(a) The
Executive shall not be required to mitigate damages or the amount of any
payment
provided for under this Agreement by seeking other employment or otherwise,
nor
shall the amount of any payment provided for under this Agreement be reduced
by
any compensation earned by the Executive as the result of employment by another
employer after the Date of Termination or otherwise.
(b) The
provisions of this Agreement, and any payment provided for hereunder, shall
not
reduce any amounts otherwise payable, or in any way diminish the Executive’s
existing rights,
or rights which would accrue solely as a result of the passage of time,
under any
Benefit Plan, Incentive Plan or Securities Plan, employment agreement or
other
contract, plan or agreement with or of the Company.
| 6. |
INCENTIVE
AWARDS.
|
In
the event of a Change in Control of the Company, then notwithstanding the
terms
and conditions of any Incentive Plan, the Company agrees (i) to immediately
and
fully vest all unvested awards, units, and benefits (other than options to
acquire securities of the Company or awards of securities of the Company)
which
have been awarded or allocated to the Executive under the Incentive Plans;
and
(ii) upon the exercise of such awards or units or the distribution of such
benefits, to pay all amounts due under the Incentive Plans
solely in cash.
| 7. |
CERTAIN
ADDITIONAL PAYMENTS BY THE COMPANY.
|
(a) Anything
in this Agreement to the contrary notwithstanding, in the event it shall
be
determined that any payment or distribution by the Company to or for the
benefit
of the Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 7) (a “Payment”)
would be subject to the excise tax imposed by Section 4999 of the Code or
any
interest or penalties are incurred by the Executive with respect to such
excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise Tax”), then the Executive
shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an
amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed
upon
the Payments.
(b) All
determinations required to be made under this Section 7, including whether
and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and
the assumptions to be utilized in arriving at such determination, shall be
made
by the Accounting Firm which shall provide detailed supporting calculations
both
to the Company and the Executive within 15 business days after the receipt
of
notice from the Executive that there has been a Payment, or such
earlier time
as is requested by the Company. The determination of tax liability made by
the
Accounting Firm shall be subject to review by the Executive’s tax advisor, and,
if the Executive’s tax advisor does not agree with
the determination reached by the Accounting Firm, then the Accounting Firm
and
the Executive’s tax advisor shall jointly designate a nationally recognized
public accounting firm which shall make the determination. All fees and expenses
of the accountants and tax advisors retained by both the Executive and the
Company shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 7, shall be paid by the Company to the
Executive within five days after the receipt of the determination. Any
determination by such jointly designated public accounting firm shall be
binding
upon the Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
hereunder, it is possible that Gross-Up Payments will not have been made
by the
Company that should have been made (“Underpayment”), consistent with the
calculations required to be made hereunder. In the event that the Executive
hereafter is required to make a payment of any Excise Tax, any such underpayment
shall be promptly paid by the Company to or for the benefit of the Executive.
Upon notice by the Executive of any audit or other proceeding that may result
in
a liability to the Company hereunder, the Executive shall promptly notify
the
Company of such audit or other proceeding; and the Company may, at its option,
but solely with respect to the item or items that relate to such potential
liability, choose to assume the defense of such audit or other proceeding
at its
own cost, provided that (i) the Executive shall cooperate with the Company
in
such defense and (ii) the Company will not settle such audit or other proceeding
without the consent of the Executive (such consent not to be unreasonably
withheld). The highest effective marginal tax rate (determined by taking
into
account any reduction in itemized deductions and/or exemptions attributable
to
the inclusion of the additional amounts payable under this Section 7 in the
Executive’s adjusted gross or taxable income) based upon the state and locality
where the Executive is resident at the time of payment of such amounts will
be
used for purposes of determining the federal and state income and other taxes
with respect thereto.
8. INDEMNIFICATION.
(a)
The
Company agrees to indemnify the Executive to the fullest extent permitted
by law
if the Executive is a party or threatened to be made a party to any Proceeding
(as defined below).
(b)
If
requested by the Executive, the Company shall advance (within two business
days
of such request) any and all Expenses, as defined below, relating to a
Proceeding to the Executive (an “Expense Advance”), upon the receipt of a
written undertaking by or on behalf of the Executive to repay such Expense
Advance if a judgment or other final adjudication adverse to the Executive
(as
to which all rights of appeal therefrom have been exhausted or lapsed)
establishes that the Executive is not entitled to indemnification by the
Company. Expenses shall include attorney’s fees and all other costs, charges and
expenses paid or incurred in connection with investigating, defending, being
a
witness in or participating in (including on appeal), or preparing to defend,
be
a witness in or participate in any Proceeding.
(c)
The
Company agrees to obtain a directors’ and officers’ liability insurance policy
covering the Executive and to continue and maintain such policy. The amount
of
coverage shall be reasonable in relation to the Executive’s position and
responsibilities during his employment by the Company.
(d)
This
Section 8 is a supplement to and in furtherance of the Certificate of
Incorporation and Bylaws of the Company and shall not be deemed a substitute
therefor, or diminish or abrogate any rights of the Executive
thereunder.
(e)
For
purposes of Section 8(a), the meaning of the phrase “to the fullest extent
permitted by law” shall include but not be limited to:
(i)
to
the fullest extent permitted by the provision of the Delaware General
Corporation Law (“DGCL”) that authorizes or contemplates additional
indemnification by agreement, or the corresponding provision of any amendment
to
or replacement of the DGCL, and
(ii)
to
the fullest extent authorized or permitted by any amendments to or replacements
of the DGCL adopted after the date of this Agreement that increase the extent
to
which a corporation may indemnify its officers and directors.
(f)
For
purposes of Sections 8(a) and 8(b), “Proceeding” shall mean any threatened,
pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of the Company
or otherwise and whether of a civil, criminal, administrative or investigative
nature, in which the Executive was, is or will be involved as a party or
otherwise by reason of the fact that the Executive is or was a director or
officer of the Company, by reason of any action taken by him or of any action
on
his part while acting as director or officer of the Company, or by reason
of the
fact that he is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, in each case whether or not serving in such capacity
at the time any liability or expense is incurred for which indemnification,
reimbursement, or advancement of expenses can be provided under this
Agreement.
9. SUCCESSORS.
(a)
The
Company will require any successor or assign (whether direct or indirect,
by
purchase, merger, consolidation or otherwise) to all or substantially all
of the
business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, expressly, absolutely and unconditionally
to
assume and agree to perform this Agreement in the same manner and to the
same
extent that the Company would be required to perform it if no such succession
or
assignment had taken place. Any failure of the Company to obtain such agreement
prior to the effectiveness of any such succession or assignment shall be
a
material breach of this Agreement and shall entitle the Executive to terminate
the Executive’s employment for Good Reason and receive the compensation provided
for in Section 4 hereof. As used in this Agreement, “Company” shall mean the
Company as hereinbefore defined and any successor or assign to its business
and/or assets as aforesaid which executes and delivers the agreement provided
for in this Section 9 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b)
This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal and legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Executive should die while
any amounts are still payable to him hereunder, all such amounts, unless
otherwise provided herein, shall he paid in accordance with the terms of
this
Agreement to the Executive’s devisee, legatee or other designee or, if there be
no such designee, to the Executive’s estate.
10.
NOTICE.
For
purposes of this Agreement, notices and all other communications provided
for in
this Agreement shall be in writing and shall be deemed to have been duly
given
when delivered or mailed by United States registered mail, return receipt
requested, postage prepaid, as follows:
If
to the Company:
Transaction
Systems Architects, Inc.
000
Xxxxx 000xx Xxxxxx
Xxxxx,
XX 00000
Attn:
General Counsel
If
to the Executive:
Xxxxxxx
X. Xxxxxxxx
Regency
Lakeside Apartments
00000
Xxxxxxx Xx. Xxx 000
Xxxxx,
XX 00000
or
to such other address as either party may have furnished to the other in
writing
in accordance herewith, except that notices of change of address shall be
effective only
upon receipt.
11. MISCELLANEOUS.
No
provisions of this Agreement may be modified, waived or discharged unless
such
waiver, modification or discharge is agreed to in writing signed by the
Executive and the Company. No waiver by either party hereto at any time of
any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be
deemed
a waiver of similar or dissimilar provisions or conditions at the same time
or
at any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof
have
been made by either party which are not set forth expressly in this Agreement
or
the Employment Agreement. This Agreement shall be governed by and construed
in
accordance with the laws of the State of Nebraska, without giving effect
to any
principles of conflicts of law.
12. CONFLICT
IN BENEFITS.
Except
as otherwise provided in the preceding sentences or the Employment Agreement,
this Agreement is not intended to and shall not limit or terminate any other
agreement or arrangement between the Executive and the Company presently
in
effect or hereafter entered into.
13. VALIDITY.
The
invalidity or unenforceability of any provisions of this Agreement shall
not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
14. SURVIVORSHIP.
The
respective rights and obligations of the parties hereunder shall survive
any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations and to the extent that any
performance is required following termination of this Agreement. Without
limiting the foregoing, Sections 7, 8 and 15 shall expressly survive the
termination of this Agreement.
15. LEGAL
FEES AND EXPENSES.
If
a claim or dispute arises concerning the rights of the Executive under this
Agreement, regardless of the party by whom such claim or dispute is initiated,
the Company shall, upon presentation of appropriate vouchers, pay all legal
expenses, including reasonable attorneys’ fees, court costs and ordinary and
necessary out-of-pocket costs of attorneys, billed to and payable by the
Executive or by anyone claiming under or through the Executive, in connection
with the bringing, prosecuting, arbitrating, defending, litigating, negotiating,
or settling such claim or dispute. In no event shall the Executive be required
to reimburse the Company for any of the costs of expenses incurred by the
Company relating to arbitration or litigation. Pending the outcome or resolution
of any claim or dispute, the Company shall continue payment of all amounts
due
the Executive without regard to any dispute.
16. EFFECTIVE
DATE.
This
Agreement shall become effective upon execution.
17. COUNTERPARTS.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together will constitute one and
the
same instrument.
18. NO
GUARANTEE OF EMPLOYMENT.
Neither
this Agreement nor any action taken hereunder shall be construed as giving
the
Executive the right to be retained in employment with the Company, nor shall
it
interfere with either the Company’s right to terminate the employment of the
Executive at any time or the Executive’s right to terminate his employment at
any time.
19. NO
ASSIGNMENT BY EXECUTIVE.
Except
as otherwise provided in Section 9(b), the Executive’s rights and interests
under this Agreement shall not be assignable (in law or in equity) or subject
to
any manner of alienation, sale, transfer, claims of creditors, pledge,
attachment, garnishment, levy, execution or encumbrances of any
kind.
20. WAIVER.
The
Executive’s or the Company’s failure to insist upon strict compliance with any
provision of this Agreement shall not he deemed a waiver of such provision
or
any other provision of this Agreement. Any waiver of any provision of this
Agreement shall not be deemed to be a waiver of any other provision, and
any
waiver of default in any provision of this Agreement shall not be deemed
to be a
waiver of any later default thereof or of any other provision.
21. WITHHOLDING.
All
amounts paid pursuant to this Agreement shall be subject to withholding for
taxes (federal, state,
local or otherwise) to the extent required by applicable law.
22. HEADINGS.
The
headings of this Agreement have been inserted for convenience of reference
only
and are to be ignored in the construction of the provisions hereof.
23. NUMBERS
AND GENDER.
The
use of the singular shall be interpreted to include the plural and the plural
the singular, as the context requires. The use of the masculine, feminine
or
neuter shall be interpreted to include the masculine, feminine or neuter
as the
context shall require.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
TRANSACTION
SYSTEMS
ARCHITECTS, INC.
By:
________________________________________
Title:
_______________________________________
EXECUTIVE:
___________________________________________
Xxxxxxx
X.
Xxxxxxxx
APPENDIX
A
EXAMPLE
1 - Executive was employed by the Company for 1-1/3 fiscal years preceding
the
fiscal year in which a Change in Control of the Company occurs. The Executive’s
Compensation from the Company was $30,000 for the 4-month period and $120,000
for the full fiscal year. The Executive’s Base Amount is $105,000.
Year
1: 3
x $30,000 = $90,000
Year
2: $120,000
[90,000
+ 120,000] DIVIDED BY 2 = $105,000
$105,000
is the average fiscal-year Compensation for the Base Period.
EXAMPLE
2 - Assume the same facts as in Example 1, except that the Executive also
received a $70,000 sign-on bonus when his employment with the Company commenced
at the beginning of the 4-month period. The Executive’s Base Amount is
$140,000
Year
1: [3
X $30,000] + $70,000 = $160,000
Year
2: $120,000
[160,000
+ 120,000] DIVIDED BY 2 = $140,000
Since
the sign-on bonus will not be paid more often than once per fiscal year,
the
amount of the bonus is not increased in annualizing the Executive’s Compensation
for the 4-month period.
EXAMPLE
3 - Executive was employed by the Company for the last 4 months of the fiscal
year preceding the fiscal year in which a Change in Control of the Company
occurs. The Executive’s Compensation from the Company was $30,000 for the
4-month period. The Executive’s Base Amount is $90,000.
Year
1: 3
x $30,000 = $90,000
$90,000
DIVIDED BY 1 = $90,000
$90,000
is the average fiscal-year Compensation for the Base Period.
EXHIBIT
F
GENERAL
RELEASE
This
General Release of All Claims (this “Release”)
is made and entered into as of __________, ____, by and between Transaction
Systems Architects, Inc., a Delaware corporation (“Employer”),
and Xxxxxxx X. Xxxxxxxx (“Employee”).
As used in this Release, the term “Employer”
will include Employer, and Employer’s predecessors, parents, subsidiaries,
divisions, affiliates, officers, directors, managers, stockholders, members,
employees, successors, assigns, representatives, agents, accountants, and
counsel, unless the context clearly requires otherwise.
In
consideration of the promises set forth in this Release, and for other good
and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Employee and Employer agree as follows:
1. Effectiveness
of Release.
This Release will be effective on the eighth (8th)
day after it is executed by Employee, provided that Employee has not revoked
Employee’s release as provided in Section
5(c)
below.
2. Employment
Agreement.
Employee’s employment relationship with Employer is governed by the terms and
conditions of that Fifth Amended and Restated Employment Agreement, dated as
of
December 21, 2005 (the “Agreement”),
by and between Employer and Employee, which Agreement contemplates Employee
entering into this Release as a condition to receiving certain compensation
under the Agreement or Severance Compensation Agreement (as defined in the
Agreement).
3. Compensation.
In consideration of the promises contained herein, Employer will pay to Employee
the payments set forth in, and in accordance with the terms of, Section 4(c)(i),
(ii) or (iii); 6(c) or 6(d) of the Agreement, as the case may be. Such
compensation will be in full and complete satisfaction of Employer’s obligations
under the applicable sections of the Agreement.
4. Compensation
and Benefits.
Any additional compensation and benefits described by the Agreement will be
provided to Employee in accordance with the terms of the Agreement.
5. Release.
(a) In
accordance with Section
7(c)
of the Agreement, in consideration for the promises contained herein, Employee
hereby releases and forever discharges Employer from any and all charges,
complaints, liabilities, claims, promises, agreements, controversies, damages,
causes of action, suits, or expenses of any kind or nature whatsoever, known
or
unknown, foreseen or unforeseen to the date upon which Employee executes this
Release (collectively, “Claims”),
including (but not limited to) claims arising in any way from Employee’s
employment with Employer, Employee’s service as an officer and manager of
Employer, Employee’s status as a stockholder of Employer, or Employee’s
agreements to resign Employee’s employment and other positions as provided in
the Agreement, including, without limitation, any and all alleged discrimination
or acts of discrimination that occurred or may have occurred on or before the
date upon which Employee executes this Release based upon race, color, sex,
creed, national origin, age, disability, or any other violation of any equal
employment opportunity law, ordinance, rule, regulation or order (including,
but
not limited to, Title VII of the Civil Rights Act of 1964, as amended
(“Title
VII”);
the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967,
as amended (“ADEA”)
(as further described in Section
5(c)
below); the Americans with Disabilities Act (“ADA”);
Claims under the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”);
or any other federal, state, or local laws or regulations regarding employment
discrimination or termination of employment) and any Claims for wrongful
discharge, fraud, or misrepresentation under any statute, rule, regulation,
or
under the common law.
(b) Employee
expressly waives all rights to any and all termination, severance, and
separation compensation and benefits except as may be provided in this Release
and the Agreement.
(c) Employee
acknowledges that Employer encouraged Employee to consult with an attorney
of
Employee’s choosing prior to executing this Release, and through this Release
encourages Employee to consult with Employee’s attorney with respect to possible
Claims under the ADEA and that Employee understands that the ADEA is a federal
statute that prohibits discrimination, on the basis of age, in employment,
benefits, and benefit plans. Employee wishes to waive any and all Claims under
the ADEA that Employee may have, as of the date upon which Employee executes
this Release, against Employer, and hereby waives such Claims. Employee further
understands that by signing this Release, Employee is in fact waiving, releasing
and forever giving up any Claim under the ADEA that may have existed on or
prior
to the date upon which Employee executes this Release. Employee acknowledges
that Employee is receiving consideration for Employee’s waiver of any and all
Claims under the ADEA in addition to anything of value to which Employee is
already entitled. Employee also acknowledges that he has been given a period
of
twenty-one (21) days to consider this Release, and, if executed prior to the
expiration of such 21-day period, Employee does hereby knowingly and voluntarily
waive all or part of said 21-day period. Employee also understands that Employee
has seven (7) days following the date upon which Employee executes this Release
within which to revoke the release contained in this Section 5(c)
(the “Revocation
Period”),
by providing a written notice of Employee’s revocation of the release and waiver
contained in this Section
5(c)
to Employer. The release of Claims under the ADEA contained in this Section
5(c)
does not become effective or enforceable until the Revocation Period has
expired.
(d) Notwithstanding
the foregoing, Employee does not, and will not, release, discharge or waive
any
rights to indemnification that Employee may have under the Articles of
Incorporation, Bylaws or similar constituent documents of Employer, the laws
of
the State of Delaware, any indemnification agreement between Employee and
Employer or any insurance coverage maintained by or on behalf of Employer,
nor
will Employer take any action, directly or indirectly, to encumber or adversely
affect Employee’s rights under any such indemnification arrangement. Further,
the release contained in this Section 5
will not affect any rights granted to Employee, or obligations of Employer,
under the terms of this Release, except to the extent such rights have
previously been satisfied or are satisfied pursuant to this Release, under
the
terms of the Agreement.
(e) Nothing
contained in this Release will be deemed or construed as an admission of
wrongdoing or liability on the part of Employee.
6. Miscellaneous
Provisions.
(a) Binding
on Successors; Assignment.
This Release will be binding upon and inure to the benefit of Employer and
Employee and each of their respective successors, assigns, personal and legal
representatives, executors, administrators, heirs, distributees, devisees,
and
legatees, as applicable; provided,
however,
that neither this Release nor any rights or obligations hereunder will be
assignable or otherwise subject to hypothecation by Employee (except by will
or
by operation of the laws of intestate succession) or by Employer, except that
Employer may assign this Release to any successor (whether by merger, purchase,
or otherwise) to all or substantially all of the stock, assets, or businesses
of
Employer, if such successor expressly agrees to assume the obligations of
Employer hereunder.
(b) Governing
Law.
This Release will be governed, construed, interpreted, and enforced in
accordance with the substantive laws of the State of Nebraska, without regard
to
conflicts of law principles.
(c) Severability.
Whenever possible, each provision of this Release shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Release is held to be invalid, illegal, or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality, or unenforceability shall not affect any other provision or any
other jurisdiction, but this Release shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal, or unenforceable provision
had
never been contained herein.
(d) Notices.
All communications and notices provided for in this Release will be given in
accordance with Section
19
of the Agreement.
(e) Counterparts.
This Release may be executed in several counterparts, each of which will be
deemed to be an original, but all of which together will constitute one and
the
same Release. Facsimile signatures to this Release shall have the same legal
effect as manual signatures.
(f) Entire
Agreement.
The terms of this Release and the Agreement are intended by the parties to
be
the final expression of their agreement with respect to the matters addressed
herein and therein and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Release and
the
Agreement will constitute the complete and exclusive statement of their terms
and that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding to vary the terms of this Release
or
the Agreement.
(g) Amendments;
Waivers.
This Release may not be modified, amended, or terminated except by an instrument
in writing, signed by Employee and Employer. Failure on the part of either
party
to complain of any action or omission, breach, or default on the part of the
other party, no matter how long the same may continue, will never be deemed
to
be a waiver of any rights or remedies hereunder, at law or in equity. Employee
or Employer may waive compliance by the other party with any provision of this
Release that such other party was or is obligated to comply with or perform
only
through an executed writing; provided,
however,
that such waiver will not operate as a waiver of, or estoppel with respect
to,
any other or subsequent failure.
(h) No
Inconsistent Actions; Enforcement.
The Employer and Employee will not voluntarily undertake or fail to undertake
any action or course of action that is inconsistent with the provisions or
essential intent of this Release. Furthermore, it is the intent of the parties
hereto to act in a fair and reasonable manner with respect to the interpretation
and application of the provisions of this Release. Employee acknowledges and
agrees that the remedy at law available to Employer for breach of any of
Employee’s obligations under Section 5
would be inadequate and that damages flowing from such a breach may not readily
be susceptible to being measured in monetary terms.
(i) Headings
and Section References.
The headings used in this Release are intended for convenience of reference
only
and will not in any manner amplify, limit, modify, or otherwise be used in
the
construction or interpretation of any provision of this Release. All section
references are to sections of this Release, unless otherwise noted.
(j) Authority.
The Employer represents and warrants that it and its signatory hereto are duly
authorized and empowered to execute and enter into this Release without any
further action or approval.
EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THIS RELEASE INCLUDES A COMPLETE AND
PERMANENT RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. EMPLOYEE ACKNOWLEDGES THAT
EMPLOYEE HAS READ THIS RELEASE AND THAT EMPLOYEE FULLY KNOWS, UNDERSTANDS,
AND
APPRECIATES ITS CONTENTS, AND THAT EMPLOYEE HEREBY EXECUTES THE SAME AND MAKES
THIS RELEASE AND THE AGREEMENTS PROVIDED
FOR
HEREIN VOLUNTARILY AND OF EMPLOYEE’S OWN FREE WILL.
IN
WITNESS WHEREOF,
the parties have executed and delivered this Release as of the date first set
forth above.
EMPLOYER EMPLOYEE
By:________________________________ ______________________________
Xxxxxxx
X. Xxxxxxxx
Name:_____________________________
Title:_______________________________
