UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date
of Report: October 7, 2005
(Date
of earliest event reported)
_________________________
TRANSACTION
SYSTEMS ARCHITECTS, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
0-25346
|
47-0772104
|
|
(State
or other jurisdiction
of
incorporation
|
(Commission
File
Number)
|
(I.R.S.
Employer
Identification
No.)
|
224
South 108th Avenue,
Omaha,
Nebraska 68154
(Address
of principal executive offices, including zip code)
(402)
334-5101
(Registrant’s
telephone number, including area code)
_________________________
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
Written
communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting
material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01. Entry into a Material Definitive Agreement.
On
October 7, 2005, Transaction Systems Architects, Inc. and its
subsidiaries (collectively referred to as the “Company”), entered into a
Separation Agreement and General Release with Dennis D. Jorgensen (the
“Jorgensen Separation Agreement”), an executive officer of the Company. The
Jorgensen Separation Agreement provides the terms and conditions of Mr.
Jorgensen’s termination of employment with the Company, which will be effective
October 21, 2005. Mr. Jorgensen’s last day of active service with the Company
was October 7, 2005. Pursuant to the Jorgensen Separation Agreement, which
is
attached as Exhibit 10.1 to this Current Report and incorporated herein
by this
reference, the Company will pay Mr. Jorgensen a lump sum severance compensation
payment of $104,000, as well as other compensation, including the payment
of any
bonus due to Mr. Jorgensen under the Company’s 2005 Management Incentive
Compensation Plan and sixty (60) days of outplacement services. Mr. Jorgensen
will be subject, in certain circumstances, to non-competition and
non-solicitation obligations for a period of twelve (12) months from his
termination date and he will continue to be subject to certain confidentiality
obligations.
Item
9.01. Financial Statements and Exhibits.
|
Exhibit
No.
|
Description
|
|
|
10.1
|
Separation
Agreement and General Release dated October 7, 2005 between Dennis
Jorgensen and Transaction Systems Architects, Inc. and its subsidiaries
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
|
TRANSACTION
SYSTEMS ARCHITECTS, INC.
|
||
|
Date:
October
12,
2005
|
By:
|
/s/
Dennis P. Byrnes
|
|
Dennis
P. Byrnes
Senior
Vice President
|
||
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
|
10.1
|
Separation
Agreement and General Release dated October 7, 2005 between Dennis
Jorgensen and Transaction Systems Architects, Inc. and its subsidiaries
|
Exhibit
10.1
SEPARATION
AGREEMENT AND GENERAL RELEASE
IT
IS HEREBY AGREED by and between Dennis Jorgensen (“Jorgensen”) and Transaction
Systems Architects, Inc. and its subsidiaries, including but not limited to
Intranet (collectively, “TSA”), in consideration for the mutual promises
contained herein, as follows:
| 1. |
Jorgensen’s
employment with TSA will terminate effective October 21, 2005, and
Jorgensen will receive base salary earned through that date and accrued
benefits. Jorgensen’s last day of active service will be October 7,
2005.
|
| 2. |
TSA
will pay Jorgensen in accordance with its normal pay practices, upon
the
expiration of the seven-day revocation period described in paragraph
16, a
lump sum equal to One Hundred and Four Thousand Dollars ($104,000.00),
less legally required and voluntarily authorized deductions. This
amount
is in addition to any money and other benefits Jorgensen would receive
in
the event of Jorgensen's voluntary separation from TSA, and Jorgensen
acknowledges that this amount constitutes severance pay offered to
him by
TSA freely and without obligation in consideration for this Separation
Agreement and General Release (the “Agreement”), including a release of
all claims for age discrimination pursuant to the Age Discrimination
in
Employment Act and any state or local age discrimination
laws.
|
| 3. |
TSA
will also make available to Jorgensen at TSA’s cost, for a period of up to
sixty (60) days following Jorgensen’s effective termination date,
outplacement services through Lee Hecht Harrison, provided that Jorgensen
signs this Agreement and that he commences use of the outplacement
services within thirty (30) days thereafter. To commence use of the
outplacement services, Jorgensen should contact Amanda Jurek at
.
|
| 4. |
Except
as provided herein, this Agreement shall expressly and unconditionally
supersede and render void any and all claims, rights, title or interest
in
or with respect to any employee compensation or benefit to which
Jorgensen
may have been entitled by virtue of his employment with TSA, excluding
claims relating to social security, workers’ compensation, or unemployment
insurance benefits.
|
| 5. |
Jorgensen
hereby releases and discharges TSA, its directors, officers, employees,
agents or successors of and from any demand or claim, of whatever
kind or
nature, whether known or unknown, arising out of his employment with
or
separation from TSA, including, but not limited to (i) claims Jorgensen
may have under any federal, state or local labor, employment,
discrimination, human rights, civil rights, wage/hour, pension, or
tort
law, statute, order, rule, regulation or public policy, including
but not
limited to, those arising under the Age Discrimination in Employment
Act,
the Older Workers Benefit Protection Act, the National Labor Relations
Act, the Fair Labor Standards Act, the Occupational Safety and Health
Act
of 1970, the Americans With Disabilities Act of 1990, the Civil Rights
Acts of 1964 and 1991, the Civil Rights Act of 1866, the Employee
Retirement Income Security Act of 1974, the Rehabilitation Act of
1973,
the Family and Medical Leave Act of 1993, the Equal Pay Act of 1963,
the
Massachusetts Fair Employment Practices Act, the Massachusetts Payment
of
Wages Statute, Chapters 149 through 154 of the Massachusetts General
Laws,
the Illinois Human Rights Act, and the Illinois Wage Payment and
Collection Act, (ii) those arising under common law, including but
not
limited to claims or suits for intentional interference with contractual
relations, breach of the implied covenant of good faith and fair
dealing,
breach of contract, wrongful termination, negligent supervision,
negligence, intentional and negligent infliction of emotional distress,
defamation, false imprisonment, libel and slander and (iii) claims
arising
under any other local, state or federal law or regulation as of the
date
this Agreement is signed. Jorgensen does not waive claims that may
arise
after the date this Agreement is executed and which are based upon
TSA’s
acts or omissions after that date.
|
| 6. |
Jorgensen
understands and agrees that this Agreement does not constitute any
admission by TSA that any action taken with respect to Jorgensen
was
unlawful or wrongful, or that such action constituted a breach of
contract
or violated any federal or state law, policy, rule or
regulation.
|
| 7. |
Jorgensen
agrees to promptly return to TSA all property belonging to TSA, including,
but not limited to, credit cards, keys, security cards and any other
documents and confidential information belonging to
TSA.
|
| 8. |
Jorgensen
agrees that he will not disparage or make negative statements about
TSA or
any of its officers, directors, agents, employees, successors or
assigns.
TSA agrees that its officers and directors will not make, or cause
or
encourage others to make, disparaging or negative statements about
Jorgensen.
|
| 9. |
Jorgensen
understands and agrees that he may not use or disclose any proprietary
information of TSA including, but not limited to product and service
information, financial and pricing information, data processing and
communication information, marketing and business plans and other
know-how
and trade secrets regarding the business of TSA, all of which are
valuable
to TSA and constitutes confidential information. The confidentiality
agreement dated November 19, 1998 is, and shall continue to be in
full
force and effect and is hereby ratified and confirmed in all respects.
A
copy of this agreement is attached hereto as Exhibit
A.
|
| 10. |
Jorgensen
agrees that while employed by the Company, he has had contact with
and has
become aware of TSA’s customers and the representatives of those
customers, their names and addresses, specific customer needs and
requirements, and leads and references to prospective customers,
and that
Jorgensen has benefited and added to TSA’s goodwill with its customers and
in the marketplace generally. Jorgensen further agrees that loss
of such
customers will cause TSA significant and irreparable harm. Accordingly,
Jorgensen agrees that, for twelve (12) months after the cessation
of his
employment with TSA, he will not solicit, contact, call upon, accept
orders from, or attempt to communicate with any customer or prospective
customer of TSA for the purpose of providing any products or services
substantially similar to those Jorgensen provided while employed
with TSA.
This restriction shall apply only to any customer or prospective
customer
of TSA with whom Jorgensen had contact or about whom Jorgensen learned
confidential information during the last twelve (12) months of Jorgensen’s
employment with TSA. For the purpose of this section, “contact” means
interaction between Jorgensen and the customer, or prospective customer
which takes place to further the business relationship, or making
sales to
or performing services for the customer, or prospective customer
on behalf
of TSA.
|
| 11. |
Jorgensen
acknowledges and agrees that solely as a result of employment with
TSA, he
has come into contact with and has acquired confidential information
regarding some of TSA’s employees, consultants, contractors, or agents
(for purposes of this section, collectively referred to as “worker”).
Accordingly, for twelve (12) months after his cessation of employment
with
TSA, Jorgensen will not recruit, hire, or attempt to recruit or hire,
directly or by assisting others, any other worker of TSA with whom
Jorgensen had contact or about whom Jorgensen learned confidential
information during his last twelve (12) months of employment with
TSA. For
the purposes of this section, “contact” means any interaction whatsoever
between Jorgensen and the other
worker.
|
| 12. |
Jorgensen
agrees not to disclose the existence or contents of this Agreement,
unless
required by law. This restriction will not apply to disclosure by
Jorgensen to members of Jorgensen’s immediate family or to Jorgensen’s
legal, tax or financial advisors; provided that Jorgensen advises
them of
this provision and Jorgensen agrees to use Jorgensen’s best efforts to
protect against any further disclosure by these
persons.
|
| 13. |
Jorgensen
agrees further that if he breaches the provisions of paragraphs 7,
8, 9,
10, 11 or 12, TSA may bring an action in a court of competent jurisdiction
and recover as liquidated damages the payment made to him pursuant
to
Paragraph 2 of this Agreement and its attorneys’
fees.
|
| 14. |
TSA
provides only neutral reference responses to inquiries for employment,
which include a verification of past employment, dates and location
of
employment and positions held.
|
| 15. |
Jorgensen
agrees to cooperate with TSA in investigating, preparing or testifying
with respect to any threatened or pending claim, action or proceeding,
whether investigative, administrative, civil or criminal, involving
or
affecting TSA. Jorgensen will receive no additional compensation
for his
time, but will be reimbursed for his reasonable expenses in connection
with these activities in accordance with TSA's expense reimbursement
policies and procedures.
|
| 16. |
Jorgensen
acknowledges further that he has been advised by this Agreement:
(a) that
he should consult with an attorney of his choice prior to executing
this
Agreement; (b) that he has up to forty five (45) days in which to
consider
and accept this Agreement from the time he received it on October
7, 2005;
and (c) that he will have up to seven (7) days following execution
of this
Agreement in which to revoke this Agreement by delivering written
notice
of such revocation to Amanda Jurek. Attached as Exhibit B are further
details on the eligibility for this separation program. Jorgensen
further
acknowledges that by entering into this Agreement, he understands
all of
the provisions thereof and its binding legal effect, that he is
voluntarily entering into this Agreement, and that TSA has made no
promises to Jorgensen other than those contained in this
Agreement.
|
| 17. |
In
the event that any provision of this Agreement is deemed unenforceable,
Jorgensen agrees that a court of competent jurisdiction shall have
jurisdiction to reform such provision to the extent necessary to
cause it
to be enforceable to the maximum extent permitted by law. The provisions
in this Agreement are severable, and if any provision is determined
to be
prohibited or unenforceable in any jurisdiction, the remaining provisions
shall nevertheless be binding and enforceable. This Agreement shall
be
governed by and interpreted in accordance with the laws of the State
of
Massachusetts without regard to principles of conflicts of
law.
|
| 18. |
Except
as set forth in Exhibit C attached hereto and as noted in the following
sentence, this Agreement constitutes the entire agreement between
the
parties with respect to the subject matter of this Agreement and
fully
supersedes any and all prior agreements or understandings between
the
parties. This Agreement is supplemental to, and does not supersede,
any
non-solicitation, non-compete, non-disclosure, or confidentiality
agreement that Jorgensen may have signed while employed by TSA. Such
agreements survive and remain in force following the execution of
this
Agreement.
|
Dated
this 7th day of
October , 2005.
/s/ Dennis
Jorgensen
Dennis
Jorgensen
Transaction
Systems Architects, Inc.
By:
/s/ Les
Real
Les
Real
V.P.,
Global Human Resources
EXHIBIT
A
APPLIED
COMMUNICATIONS, INC.
EMPLOYEE
INVENTION AND CONFIDENTIAL INFORMATION
AGREEMENT
With
DENNIS
D. JORGENSEN
(Employee
Name)
In
consideration of my employment and/or continued employment by APPLIED
COMMUNICATIONS, INC. (hereinafter “ACI”), I hereby agree as
follows:
The
intent of this agreement (the “Agreement”) is to provide protection, security,
and safeguards to ACI, “Corporate Affiliates” of ACI (which shall mean any
entity controlling, controlled by or under common control with ACI) and their
customers, and to prevent the improper release and distribution of their
respective proprietary information and products. In addition it is intended
to
protect the ownership of ACI, its Corporate Affiliates and/or their customers,
in and to inventions developed by employees while employed by ACI. This
Agreement is not intended to prevent an employee from developing inventions
or
patentable items, nor is this Agreement intended to restrict or prevent future
employment.
I
agree that all “Creative Property” shall be the sole and exclusive property of
ACI. “Creative Property”, as used herein, shall mean all inventions, trademarks,
patents, industrial designs (design patents), topographies, concepts,
discoveries, developments, creations and ideas including, but not limited
to,
all processes, machines, computer software, computer firmware, improvements
thereto and know-how related thereto, whether patentable or not, made or
conceived by me, (a) either alone or jointly with others, in the performance
of
my employment with ACI or (b) with the use of ACI’s time, equipment, material,
supplies, facilities or (c) containing or utilizing trade secret information,
or
other private or confidential information acquired by me during the term
of my
employment and related to the business of ACI or its Corporate Affiliates
or
their actual processes, research or development. I agree, at the request
of ACI
and in the form and manner prescribed by it, to assign to ACI all my rights,
title and interest in and to all Creative Property.
I
agree that all “Writings”, including all rights therein shall be the sole and
exclusive property of ACI. “Writings”, as used herein, shall mean the tangible
expression of information relating in any manner to Creative Property or
to the
research, development, sales, marketing, manufacturing, or other business
activities of ACI or it Corporate Affiliates including, but not limited to
blueprints, designs, diagrams, documents, notes, notebooks, flow charts,
specifications, manuals, reports, photographs, photomasks, computer software,
and computer firmware, prepared by me, (a) either alone or jointly with others,
in the performance of my employment with ACI or (b) with the use of ACI’s time,
equipment, material, supplies, facilities or (c) containing or utilizing
trade
secret information or other private or confidential information acquired
by me
during the term of my employment and related to the business of ACI or its
Corporate Affiliates or their actual processes, research or development.
I
agree, at the request of ACI and in the form and manner prescribed by it,
to
assign to ACI all my rights, title and interest in and to all Writings. I
hereby
waive in whole any moral rights I may have in the Writings and any part or
parts
thereof.
I
further agree that every document, record, or notation in my possession or
control which contains Creative Property, Writings or other information not
readily available to persons not employed by ACI or its Corporate Affiliates
shall remain the exclusive property of ACI or its Corporate Affiliates and
said
records shall be delivered to ACI upon termination of my
employment.
I
acknowledge that ACI’s and its Corporate Affiliates’ software products and all
related technical data, information, documents and/or materials or any direct
product thereof (collectively, “software or Technical Data) are subject to
export control under the U.S. Export Administration Regulations, and agree
that
I will not export, re-export, divert, or transfer Software or Technical Data,
directly or indirectly, from the United States or disclose such Software
or
Technical Data to any person who is not a United States resident or national
without the prior written approval of ACI and obtaining any applicable and
required license for the U.S. Government.
I
further agree not to divulge or disclose, at any time during my employment
or
after my employment, directly or indirectly, to any unauthorized person,
firm or
corporation, without ACI’s prior written permission, any Creative Product,
Writing or other information regarding ACI’s or its Corporate Affiliates’
Creative Products, Writings, or inventions, designs and methods, systems,
software programs, trade secrets, customer information, strategic or financial
information, or any other information of ACI’s or its Corporate Affiliates’ not
generally available to the public, which I acquire during my employment with
ACI, unless required to do so by court order.
I
understand that ACI is a wholly-owned subsidiary of Transaction Systems
Architects, Inc. (“TSA”) of Omaha, Nebraska. I recognize that my obligations of
confidentiality and non-disclosure, as set forth above, expressly include
all
information not generally available to the public concerning TSA and its
business, affairs and plans. I further acknowledge that U.S. securities laws
prohibit me form purchasing, selling, or otherwise trading in TSA’s securities
while in possession of material information concerning TSA which has not
been
generally disclosed to the investing public. I further acknowledge that U.S.
securities laws prohibit me from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person is likely to trade in TSA’s securities. During the course of my
employment with ACI, I agree not to purchase, sell or otherwise trade in
TSA’s
securities while in possession of material information concerning TSA which
has
not yet been disclosed to the investing public, not to disclose any such
information to any other person under circumstances in which it is reasonably
foreseeable that such person is likely to trade in TSA’s
securities.
I
acknowledge and agree that my failure to abide by the terms of this Agreement
can be the basis for disciplinary action or constitute cause for termination
of
employment. The terms and provisions of this Agreement shall be binding upon
my
heirs, administrators, or other legal representatives or assigns and shall
inure
to the benefit of AIC, its Corporate Affiliates and their successors, and
assigns. I understand and acknowledge that ACI may assign this Agreement,
either
in its entirety or severally, from time to time, with respect to any Creative
Products or Writings covered hereby and may give or grant to any assigned
or
assignees the right to enforce same with respect to the Creative Product(s)
or
Writing(s) assigned.
The
Agreement shall not terminate by reason of the termination of my employment
nor
may it be modified, released or abandoned except by written instrument properly
executed by ACI. This Agreement shall supersede any and all prior agreements
regarding this subject matter between the parties hereto.
IN
WITNESS WHEREOF, I have signed this Agreement this 19
of
November
,
1998.
/s/
Dennis D. Jorgensen
/s/ Illegible_________________________________
Signature
of Employee Signature
of Witness
EXHIBIT
B
Transaction
Systems Architects, Inc. and its subsidiaries (collectively, “TSA”) hereby
informs you that the consideration recited in the Separation Agreement and
General Release (the “Agreement”) is being offered as part of an employment
separation program (the “Program”). To be eligible for the Program an individual
must be an employee of TSA. To be selected for the Program, an individual must
be an employee of TSA whose employment will be terminated by October 21,
2005.
"TSA
further informs you of the job titles and ages of all employees selected for
the
Program, and the job titles and ages of all employees in the same job
classifications, not selected for the Program."
|
Title
|
Age
of Affected
|
Age
of Non Affected
|
|
Sales
Consultant
|
49
|
|
|
Engineer
|
37
|
Twenty
age 20 - 30
Twenty
Five, age 31 - 40
Eight
age 41 - 50
Six
age 51 - 60
|
|
V.P.,
U.S. Sales
|
51
|
|
|
Sr.
Manager, Project Management
|
44
|
|
|
V.P.,
Worldwide Sales & Support
|
55
|
|
|
Sr.
V.P., Americas
|
47
|
|
|
Business
Development Manager
|
59
|
47
|
|
President
& CEO
|
57
|
|
|
CIO
|
55
|
|
|
Sr.
Quality Assurance Engineer
|
52
|
One
age 20 - 30
One
age 31 - 40
Two
age 41 - 50
Four
51 - 60
|
|
Sr.
Manager, Contracts Administration
|
45
|
EXHIBIT
C
To
Jorgensen Separation Agreement and General Release
The
parties to the Separation Agreement and General Release acknowledge that
Jorgensen, while employed by TSA, was a participant in various benefit or
compensation plans offered by TSA, including but not limited to one or more
stock option plans, a 401(k) plan, and a Management Incentive Compensation
(“MIC”) plan (collectively “Plans”). TSA agrees that Jorgensen will receive the
rights and benefits available to him under those Plans as a separated employee,
consistent with the terms of those Plans, and that nothing in the Separation
Agreement and General Release is intended to modify or contravene the terms
of
those Plans, or otherwise interfere with or limit Jorgensen’s rights, as a
separated employee, to benefits or compensation under those Plans. Jorgensen
acknowledges that he has received a copy of each of the Plans, or, if he has
not, a copy of each of the Plans will be provided to him by TSA upon
request.