Agreement and Release of All Claims - Transaction Systems Architects Inc. and William E. Fisher
AGREEMENT AND RELEASE OF ALL CLAIMS
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(CONFIDENTIAL)
William E. Fisher ("Fisher")
and
Transaction Systems Architects, Inc. ("TSA")
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AGREEMENT AND RELEASE OF ALL CLAIMS
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The parties to this Agreement and Release of All Claims ("Agreement and
Release"), dated as of May 1, 2001, are William E. Fisher ("Fisher") and
Transaction Systems Architects, Inc., its predecessors, successors, assigns,
officers, directors, agents, attorneys, employees (current and former), and all
affiliated, parent, or subsidiary companies or divisions ("TSA").
WHEREAS, the parties to this Agreement and Release recognize that TSA has
employed Fisher as its Chief Executive Officer; that Fisher has acted as
Chairman of the Board of TSA; that Fisher and TSA wish to end these
relationships in an amicable and cooperative manner; that TSA advanced Fisher
Three Million Dollars and no cents ($3,000,000.00) in 2000 to be repaid by
Fisher to TSA unless certain conditions were met (the "Fisher Loan"); that both
Fisher and TSA desire a smooth transition in leadership; that the direct or
indirect solicitation of the employees of TSA would be highly disruptive and
detrimental to the business of TSA; that Fisher has agreed to enter into this
Agreement and Release in exchange for a severance arrangement and other good and
valuable considerations, which are in addition to any benefits Fisher may be
otherwise entitled to receive; and that TSA has agreed to enter into this
Agreement and Release in exchange for certain releases and good and valuable
considerations.
NOW, THEREFORE, in consideration of the above recitals, the parties'
desires, the mutual promises herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
A. CONSIDERATION.
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1. TSA. In exchange for and in consideration of the promises of Fisher
contained in this Agreement and Release, TSA agrees to:
(a) Forgive one-half (1/2) of the Fisher Loan, such forgiven portion
totaling One and One-Half Million Dollars and no cents ($1,500,000.00), in
appreciation of Fisher's tenure with TSA;
(b) Forgive Four Hundred and Fifty Thousand Dollars and no cents
($450,000.00) of the Fisher Loan, an amount equivalent to twenty-seven
months of Fisher's salary;
(c) Forgive Five Hundred Thousand Dollars and no cents ($500,000.00)
of the Fisher Loan, such amount to be considered a partial tax equalization
on Fisher's behalf;
(d) Allow Fisher to repay the remaining Five Hundred and Fifty
Thousand Dollars and no cents ($550,000.00) of the Fisher Loan in one lump
sum payment, due on June 1, 2002 with interest at eight percent (8.0%) per
annum pursuant to the terms of the Promissory Note attached hereto as
EXHIBIT A;
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(e) Allow Fisher three (3) years from the Effective Date of this
Agreement and Release to exercise all stock options which are vested as of
the Effective Date of this Agreement and Release and which were granted to
Fisher under the TSA 1997 Management Stock Option Plan or any similar plan
adopted by TSA, at the end of which time all of Fisher's stock options
which remain unexercised shall immediately terminate and be canceled;
(f) Refrain from making disparaging or critical statements with
respect to Fisher related to matters that arose during his employment and
during his continued twelve (12) months association with TSA as provided
herein; provided, however, that disclosures or statements made by TSA in
good faith and as deemed necessary or appropriate in connection with (i)
federal or state securities law disclosures, and/or (ii) customary
communications with analysts, shareholders, officers, or directors
regarding changes in the TSA's strategy or operations shall not be deemed
to be disparaging or critical statements hereunder;
(g) Indemnify Fisher for liabilities and expenses which relate to
claims arising during Fisher's term as an officer and director of TSA and
during the advisory services contemplated by this Agreement and Release, to
the extent provided for and not otherwise excluded under the terms of TSA's
existing directors' and officers' indemnification as provided under TSA's
Certificate of Incorporation and Bylaws; and
(h) Pay the reasonable fees and expenses of Fisher's legal counsel
incurred in connection with the negotiation and preparation of this
Agreement and Release and the Promissory Note, not to exceed a total of One
Thousand Five Hundred Dollars and no cents ($1,500.00).
The consideration set forth above generally shall become due and payable
only following the expiration of the seven (7) day period described in paragraph
I hereof and only if Fisher does not exercise Fisher's right to revoke this
Agreement and Release as set forth in paragraph I hereof.
2. FISHER. In exchange for and in consideration of the promises of TSA
contained in this Agreement and Release, Fisher agrees:
(a) Fisher will resign as Chief Executive Officer of TSA and as
Chairman of the Board for TSA, effective May 1, 2001;
(b) Fisher will repay the remaining Five Hundred and Fifty Thousand
Dollars and no cents ($550,000.00) of the Fisher Loan in one lump sum
payment, due on June 1, 2002 with interest at eight percent (8.0%) per
annum pursuant to the terms of the Promissory Note attached hereto as
EXHIBIT A;
(c) Within three (3) years of the Effective Date of this Agreement
and Release, Fisher will either exercise or forfeit all stock options which
are vested as
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of the Effective Date of this Agreement and Release and which were granted
to Fisher under the TSA 1997 Management Stock Option Plan or any similar
plan adopted by TSA, at the end of which time all of Fisher's stock options
which remain unexercised shall immediately terminate and be canceled;
(d) That all stock options which were granted to Fisher under the
TSA 1997 Management Stock Option Plan or any similar plan adopted by TSA
and which are unvested as of the Effective Date of this Agreement and
Release shall terminate and be canceled as of the Effective Date of this
Agreement and Release;
(e) Fisher will provide transition and advisory services as may be
reasonably requested by TSA during a transition period of twelve (12)
months from the date of this Agreement and Release; provided that such
transition and advisory services shall not involve an average time
commitment of more than eight (8) hours per week during such period and
during such period TSA shall reimburse Fisher for travel and other
out-of-pocket expenses reasonably incurred by Fisher on TSA's behalf
pursuant to TSA's expense reimbursement policy;
(f) For a period of two (2) years from the Effective Date of this
Agreement and Release, Fisher will not directly or indirectly (i) solicit,
induce, persuade, or endeavor to entice away from TSA any employee of TSA,
or (ii) solicit, induce, persuade, or encourage any employee of TSA to
terminate his or her employment with TSA. Fisher recognizes that TSA's
relationships with its employees are among TSA's most valuable assets and
that developing and maintaining these relationships is one of TSA's highest
priorities;
(g) For a period of three (3) years from the Effective Date of this
Agreement and Release, Fisher will not, except as specifically authorized
by TSA in writing, directly or indirectly use any Confidential Information
for his own gain or disclose or disseminate to any person any Confidential
Information. "Confidential Information" shall mean any and all information
and compilations of information relating to TSA's business that are not
generally known to the public and that were provided to Fisher while
employed or associated with TSA; and
(h) Fisher will refrain from making disparaging or critical
statements with respect to TSA related to matters that arose during his
employment and during his continued twelve (12) months association with TSA
as provided herein.
Fisher agrees that, except as otherwise provided in this Agreement and
Release, no additional payments or other consideration are appropriate or due to
him for any reason, including, but not limited to, under the terms of any
employment agreement, under the terms of the TSA Management Incentive
Compensation Plan, under the terms of any other TSA compensation, incentive or
similar plan or agreement, or as payment for any accrued vacation or other paid
days off, etc.
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Fisher agrees that he may elect at his own expense to continue to
participate (or not participate) in the TSA health care plan pursuant to COBRA
under the same terms and conditions as any other former TSA employee.
Fisher agrees that his status under and his contributions to the TSA
Deferred Compensation Plan will be treated in accordance with the terms of such
plan as applicable to persons whose employment with TSA has terminated.
Fisher agrees that any breach of this Agreement and Release on his part
shall cause any and all unpaid portions of the Fisher Loan to become due and
payable immediately; provided, however, that TSA shall first deliver written
notice of any such breach to Fisher and Fisher shall thereafter have a period of
thirty (30) days during which to cure such breach to TSA's reasonable
satisfaction. If such breach is not cured as provided in the above sentence, TSA
shall thereafter have the right to cause any and all unpaid portions of the
Fisher Loan to become due and payable immediately
B. RELEASE OF CLAIMS.
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In exchange for and in consideration of the promises and consideration set
forth in paragraph A, Fisher releases and forever discharges TSA from all claims
of any kind whatsoever now existing that in any way relate to the employment of
Fisher by or for the benefit of TSA up to the date of the execution of this
Agreement and Release. The claims released and discharged include, but are not
limited to, all claims asserted or that could have been asserted under any
federal, state, or local constitution, law, regulation, ordinance, or common law
that in any way relate to any contractual obligations; to any verbal agreements;
to employment; to discrimination or harassment in employment; to termination of
employment; and/or to retaliation with respect to employment, including, but not
limited to, the following:
1. All claims under the Age Discrimination in Employment Act, as
amended, 29 U.S.C. Section 621 et seq.;
2. All claims under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. Section 2000e et seq.;
3. All claims under the Family and Medical Leave Act, as amended,
29 U.S.C. Section 2601 et seq.;
4. All claims under the Americans with Disabilities Act, as
amended, 42 U.S.C. Section 12101 et seq.;
5. All claims under any state anti-discrimination laws;
6. All claims for breach of an express or implied contract;
7. All tort claims, including, but not limited to, retaliation for
assertion of workers' compensation rights and/or wrongful discharge in
violation of public policy;
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8. All claims under any workers' compensation law;
9. All claims regarding employee benefits, including, but not
limited to, all claims under the Employee Retirement Income Security Act;
10. All claims for wages or paid time off benefits, including all
claims under any federal or state wage payment laws, including, but not
limited to, the Fair Labor Standards Act; and
11. All claims for attorneys' fees.
In exchange for and in consideration of the promises and consideration set
forth in paragraph A, TSA releases and forever discharges Fisher from all claims
it may have against Fisher for any negligent act or omission, or any error he
made while employed other than any act which would be criminal or fraudulent in
nature, up to the date of the execution of this Agreement and Release.
C. COVENANT NOT TO SUE.
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Each party agrees not to initiate any legal, administrative, or other
proceedings against the other party hereto concerning the matters released in
paragraph B. This provision in no way limits the rights of the parties to
enforce the terms and conditions of this Agreement consistent with paragraph L
hereof.
D. DATES OF END OF EMPLOYMENT.
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Fisher's employment with TSA shall end effective May 1, 2001.
E. TAX CONSEQUENCES.
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Fisher agrees that Fisher has not relied on any advice from TSA concerning
whether payments made, consideration received or debt forgiven pursuant to this
Agreement and Release are taxable, but is relying on Fisher's own judgment under
current law and that of his advisors.
F. CONFIDENTIALITY.
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This Agreement and Release may be specifically enforced and may be used as
evidence in an action relating to the breach of this Agreement and Release, but
otherwise this Agreement and Release and the Confidential Information shall be
kept strictly confidential and shall not be disclosed to third parties, except
(1) as required by process of law, (2) Fisher may disclose this Agreement and
Release to Fisher's attorney, financial advisor, and immediate family, and (3)
TSA may disclose this Agreement and Release to individuals with a
business-related need to know.
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G. NO ADMISSION OF LIABILITY.
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The parties acknowledge and agree that the tender of this Agreement and
Release and the consideration set forth herein are not admissions of liability
or wrongdoing on behalf of either party, and both parties expressly deny any
such liability or wrongdoing.
H. CONSULTATION WITH ATTORNEY.
--------------------------
Fisher acknowledges and agrees that he has been advised in writing to
consult with an attorney prior to executing this Agreement and Release. In fact,
Fisher acknowledges that he has consulted with Virgil Johnson, Esq., regarding
this Agreement and Release.
I. TIME TO CONSIDER AND REVOKE.
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Fisher acknowledges and agrees he was given a period of at least twenty-one
(21) days during which to consider this Agreement and Release, although Fisher
may execute it at any time during those twenty-one (21) days if Fisher desires.
Fisher further acknowledges that he has been given a period of seven (7) days
following the execution of this Agreement and Release to revoke the Agreement
and Release.
J. EFFECTIVE DATE OF AGREEMENT AND RELEASE.
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This Agreement and Release shall become effective upon the expiration of
the seven (7) day period described above in paragraph I hereof (the "Effective
Date").
K. EQUITABLE REMEDIES.
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Fisher and TSA agree that it is impossible to measure in money the damages
that will accrue to TSA if Fisher uses or discloses directly or indirectly any
Confidential Information or solicits directly or indirectly any TSA employees as
described in paragraph A, that such action will result in irreparable damage to
TSA, and that, in any court of competent jurisdiction, TSA shall be entitled to
apply for and obtain an injunction restraining Fisher from any and all use or
disclosure of Confidential Information and solicitation of TSA employees. The
parties agree that TSA shall be entitled to recover its costs, expenses, and
attorneys' fees from Fisher if TSA finds it necessary to seek equitable relief
and it is successful in its action. The parties agree that Fisher shall be
entitled to recover his costs, expenses, and attorneys' fees from TSA if TSA in
not successful.
L. ARBITRATION.
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If, following the Effective Date of this Agreement and Release, any dispute
arises with regard to this Agreement and Release, Fisher's employment or
association with TSA (or the end thereof), or any other alleged obligations or
associations between the parties, such dispute shall be submitted to binding
arbitration in accordance with the rules for resolution of disputes relating to
written agreements promulgated by the American Arbitration Association.
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The parties agree that the arbitration shall take place in Omaha, Nebraska.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof.
This arbitration provision and requirement does not apply to the
Confidential Information and solicitation of employees provisions of this
Agreement and Release, which are specifically contemplated and described in
paragraphs A and F hereof.
M. SEVERABILITY OF PROVISIONS.
--------------------------
The provisions of this Agreement and Release shall be deemed severable, and
the invalidity or unenforceability of any one or more of its provisions shall
not affect the validity or enforceability of any of the other provisions.
N. WAIVER.
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Fisher or TSA's failure to exercise any of their rights under this
Agreement and Release with regard to a breach of this Agreement and Release
shall not be construed as a waiver of such breach, nor shall it prevent Fisher
or TSA from later enforcing strict compliance with any and all promises in this
Agreement and Release. The rights and remedies expressly specified in this
Agreement and Release are cumulative and not exclusive of any other rights and
remedies that either party might otherwise have against the other.
O. NO OTHER REPRESENTATIONS.
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Fisher acknowledges that no promise or agreement not expressed in this
Agreement and Release has been made; that this Agreement and Release is not
executed in reliance upon any statement or representation made by TSA or by any
person employed by or representing TSA other than the statements contained in
the Agreement and Release itself; that the terms of this Agreement and Release
are contractual and not merely recitals; and that this Agreement and Release
shall not be modified, altered, or changed except upon the express written
consent of all the parties hereto.
P. CHOICE OF LAW.
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The enforcement of this Agreement and Release shall be governed and
interpreted by and under the laws of the State of Nebraska, excluding choice of
law provisions thereunder, whether or not any party is or may hereafter be a
resident of another state.
Q. MERGER.
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This Agreement and Release shall supercede all previous and/or other
agreements of the parties of any kind.
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R. POWER AND AUTHORITY.
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TSA, by its execution below, hereby acknowledges and represents that it has
the power and authority to enter into this Agreement and Release.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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I ACKNOWLEDGE THAT I HAVE READ AND I UNDERSTAND THIS SEVERANCE AGREEMENT
AND RELEASE OF ALL CLAIMS. I ACCEPT ALL OF THE TERMS CONTAINED HEREIN AT MY
DISCRETION, KNOWINGLY AND VOLUNTARILY. I UNDERSTAND THIS CONTRACT CONTAINS A
BINDING ARBITRATION PROVISION THAT MAY BE ENFORCED BY ANY OF THE PARTIES. I
ACKNOWLEDGE THAT I CONSULTED AN ATTORNEY REGARDING THIS AGREEMENT AND RELEASE.
/s/ William E. Fisher
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William E. Fisher
Dated this 1st day of May, 2001.
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
On this 1st day of May, 2001, before me the undersigned Notary Public,
personally appeared William E. Fisher, to me known to be the person described in
and who executed the foregoing instrument, and acknowledged that he executed the
same as his own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in Omaha, Nebraska the day and year last above written.
/s/ Claudia A. Coleman
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Notary Public in and for said County and State
My term expires: March 5, 2003
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ATTORNEY APPROVAL OF AGREEMENT AND RELEASE
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The undersigned, as attorney for William E. Fisher, hereby declares that he
has read the above and foregoing Agreement and Release of All Claims and that he
discussed and explained all the terms of the Agreement and Release to William E.
Fisher. The undersigned further declares that, except as otherwise provided in
paragraph A(1) of this Agreement and Release, he does hereby waive any claim to
attorneys' fees concerning William E. Fisher in this matter with TSA and that
William E. Fisher has agreed to be fully responsible for any attorneys' fees
and/or liens of the undersigned and of any and all other attorneys who may have
represented William E. Fisher in this matter.
/s/ Virgil Johnson
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Virgil Johnson, Esq., on behalf of himself and
his firm
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APPROVED AND AGREED
Transaction Systems Architects, Inc. ("TSA")
By: /s/ Dwight Hanson
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Printed Name: Dwight Hanson
--------------------------------
Title: Chief Financial Officer
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STATE OF NEBRASKA )
) ss
COUNTY OF DOUGLAS )
Before me, the undersigned Notary Public in and for said county and state,
this day personally appeared Dwight G. Hanson, Chief Financial Officer of TSA,
personally known to me to be the person who executed the foregoing instrument on
behalf of said corporation, acknowledging his full authority to act on behalf of
said corporation.
Witness my hand and seal this 1st day of May, 2001.
/s/ Claudia A. Coleman
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Notary Public
My commission expires: March 5, 2003
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