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 (Date of earliest event reported): June 13, 2013 (June 11, 2013)
ACI WORLDWIDE, 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.) |
| 3520 Kraft Rd, Suite 300 Naples, FL 34105 | ||
| (Address of principal executive offices) (Zip Code) | ||
Registrant’s telephone number, including area code: (239) 403-4600
N/A
(Former Name or Former Address, if Changed Since Last Report)
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 (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On June 11, 2013, at the 2013 Annual Meeting of Stockholders of ACI Worldwide, Inc. (the “Company”), the Company’s stockholders approved the ACI Worldwide, Inc. 2013 Management Incentive Compensation Plan (the “Plan”). For a description of the terms and conditions of the Plan, see “Summary Description of the 2013 MIC Plan” under “Proposal 4 – Approval of the Adoption of the 2013 Executive Management Incentive Compensation Plan” in the Company’s Proxy Statement filed with the Securities and Exchange Commission on April 29, 2013 (the “2013 Proxy Statement”), which description is incorporated herein by reference. This description of the Plan does not purport to be complete and is qualified in its entirety by reference to the Plan, which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On June 11, 2013, the Company filed the 2013 Amended and Restated Certificate of Incorporation of ACI Worldwide, Inc. (the “2013 Restated Certificate”) with the Secretary of State of Delaware. The 2013 Restated Certificate became effective upon filing. The Company included a proposal in the 2013 Proxy Statement seeking stockholder approval to amend and restate the Certificate of Incorporation to increase the number of shares of common stock the Company is authorized to issue from 70,000,000 to 140,000,000. The Company’s stockholders approved the 2013 Restated Certificate at the Company’s 2013 Annual Meeting of Stockholders. A copy the 2013 Restated Certificate as filed with the Secretary of State of Delaware is attached hereto as Exhibit 3.1 and incorporated herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
The Company held its 2013 Annual Meeting of Stockholders on June 11, 2013. At that Annual Meeting, the stockholders voted on the following five proposals which are further described in the 2013 Proxy Statement.
Proposal 1: The stockholders elected each of the following seven nominees to the Board of Directors to hold office until the 2014 Annual Meeting of Stockholders.
| Nominee | Votes For | Votes Withheld/Abstentions | Broker Non-Votes | |||
| John D. Curtis |
35,355,262 | 728,278 | 1,774,889 | |||
| Philip G. Heasley |
35,670,579 | 412,961 | 1,774,889 | |||
| James C. McGroddy |
35,674,970 | 408,570 | 1,774,889 | |||
| Harlan F. Seymour |
35,212,012 | 871,528 | 1,774,889 | |||
| John M. Shay, Jr. |
35,674,540 | 409,000 | 1,774,889 | |||
| John E. Stokely |
35,357,448 | 726,092 | 1,774,889 | |||
| Jan H. Suwinski |
35,675,800 | 407,740 | 1,774,889 |
Proposal 2: The stockholders ratified the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2013.
| Votes For | Votes Against | Abstentions | ||
| 37,695,274 |
32,666 | 130,489 |
Proposal 3: The stockholders approved, on an advisory basis, the executive compensation as described in the 2013 Proxy Statement.
| Votes For | Votes Against | Abstentions | Broker Non-Votes | |||
| 33,487,456 |
2,467,207 | 128,877 | 1,774,889 |
Proposal 4: The stockholders approved the ACI Worldwide, Inc. 2013 Executive Management Incentive Compensation Plan.
| Votes For | Votes Against | Abstentions | Broker Non-Votes | |||
| 35,310,365 |
641,329 | 131,846 | 1,774,889 |
Proposal 5: The stockholders approved the 2013 Amended and Restated Certificate of Incorporation of ACI Worldwide, Inc.
| Votes For | Votes Against | Abstentions | Broker Non-Votes | |||
| 27,023,737 |
8,934,827 | 124,976 | 1,774,889 |
| Item 8.01 | Other Events. |
On June 12, 2013, Philip G. Heasley, President and Chief Executive Officer and a director of the Company, entered into a Rule 10b5-1 plan with a broker to sell shares of the Company’s common stock that may be acquired upon Mr. Heasley’s exercise of previously granted Company stock options which would, if not exercised, expire in accordance with their terms on March 9, 2015. Any sales pursuant to the Rule 10b5-1 plan will be reported, as applicable, in appropriate filings with the Securities and Exchange Commission. The plan is intended to comply with the provisions of Rule 10b5-1 under the Securities Exchange Act of 1934, which permits corporate insiders to establish pre-arranged plans to transact in a company’s securities subject to certain conditions. Using these plans, individuals may diversify their investment portfolios over a period of time and manage the exercise of stock options and the sale of shares. The Company disclaims any obligation to report Rule 10b5-1 plans that may be adopted by other Company personnel.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| 3.1 | 2013 Amended and Restated Certificate of Incorporation of ACI Worldwide, Inc. | |
| 10.1 | ACI Worldwide, Inc. 2013 Executive Management Incentive Compensation Plan (incorporated by reference to Annex A to the Company’s Proxy Statement dated April 29, 2013, and filed with the Securities and Exchange Commission on April 29, 2013) | |
SIGNATURES
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 hereunto duly authorized.
| ACI WORLDWIDE, INC. | ||||||
| Dated: June 13, 2013 |
By: | /s/ Dennis P. Byrnes | ||||
| Dennis P. Byrnes | ||||||
| Executive Vice President, Chief Administrative Officer, General Counsel and Secretary | ||||||
INDEX TO EXHIBITS
| Exhibit No. |
Description | |
| 3.1 | 2013 Amended and Restated Certificate of Incorporation of ACI Worldwide, Inc. | |
| 10.1 | ACI Worldwide, Inc. 2013 Executive Management Incentive Compensation Plan (incorporated by reference to Annex A to the Company’s Proxy Statement dated April 29, 2013, and filed with the Securities and Exchange Commission on April 29, 2013) | |
Exhibit 3.1
ACI WORLDWIDE, INC.
2013 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
ACI Worldwide, Inc., a Delaware corporation, hereby certifies as follows:
1. The name of the corporation is ACI Worldwide, Inc. The corporation was originally incorporated as ACI Holding, Inc. The date of filing of the corporation’s original Certificate of Incorporation with the Secretary of State of the State of Delaware was November 2, 1993.
2. The 2013 Amended and Restated Certificate of Incorporation of the corporation attached hereto as Exhibit 1, which is incorporated herein by this reference, and which restates, integrates and further amends the provisions of the Certificate of Incorporation of the corporation as may have been previously amended or supplemented, has been duly adopted by the corporation’s Board of Directors and by the holders of a majority of the outstanding stock in accordance with Sections 242 and 245 of the Delaware General Corporation Law.
In Witness Whereof, said corporation has caused this 2013 Amended and Restated Certificate of Incorporation to be signed by its duly authorized officer and the foregoing facts stated herein are true and correct.
Dated: June 11, 2013.
| ACI Worldwide, Inc. | ||
| By: | /s/ Dennis P. Byrnes | |
| Dennis P. Byrnes, | ||
| Executive Vice President, Chief Administrative | ||
| Officer, General Counsel and Secretary | ||
EXHIBIT 1
2013 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ACI WORLDWIDE, INC.
ARTICLE I
The name of the corporation (which is hereinafter called the “Corporation”) is:
ACI WORLDWIDE, INC.
ARTICLE II
The address of the registered office in Delaware is 160 Greentree Drive, Ste. 101, Dover, Kent County, Delaware 19904, and the name of the registered agent is National Registered Agents, Inc.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as amended (the “DGCL”).
ARTICLE IV
Section 1. Authorized Capital Stock. The Corporation is authorized to issue two classes of capital stock, designated Common Stock and Preferred Stock. The total number of shares of capital stock that the Corporation is authorized to issue is 145,000,000 shares, consisting of 140,000,000 shares of Common Stock, par value $0.005 per share, and 5,000,000 shares of Preferred Stock, par value $0.01 per share.
Preferred Stock. The Preferred Stock may be issued in one or more series. The Board of Directors of the Corporation (the “Board”) is hereby authorized to issue the shares of Preferred Stock in such series and to fix from time to time before issuance the number of shares to be included in any such series and the designation, relative powers, preferences, rights and qualifications, limitations or restrictions of such series. The authority of the Board with respect to each such series will include, without limiting the generality of the foregoing, the determination of any or all of the following:
(a) the number of shares of any series and the designation to distinguish the shares of such series from the shares of all other series;
(b) the voting powers, if any, and whether such voting powers are full or limited in such series;
(c) the redemption provisions, if any, applicable to such series, including the redemption price or prices to be paid;
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(d) whether dividends, if any, will be cumulative or noncumulative, the dividend rate of such series, and the dates and preferences of dividends on such series;
(e) the rights of such series upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Corporation;
(f) the provisions, if any, pursuant to which the shares of such series are convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock, or any other security, of the Corporation or any other corporation or other entity and the rates or other determinants of conversion or exchange applicable thereto;
(g) the right, if any, to subscribe for or to purchase any securities of the Corporation or any other corporation or other entity;
(h) the provisions, if any, of a sinking fund applicable to such series; and
(i) any other relative, participating, optional or other special powers, preferences or rights and qualifications, limitations or restrictions thereof;
all as may be determined from time to time by the Board and stated or expressed in the resolution or resolutions providing for the issuance of such Preferred Stock (collectively, a “Preferred Stock Designation”).
Section 2. Common Stock. Subject to the rights of the holders of any series of Preferred Stock, the holders of Common Stock will be entitled to one vote on each matter submitted to a vote at a meeting of stockholders for each share of Common Stock held of record by such holder as of the record date for such meeting.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
The Board may make, amend, and repeal the Bylaws of the Corporation. Any Bylaw made by the Board under the powers conferred hereby may be amended or repealed by the Board (except as specified in any such Bylaw so made or amended) or by the stockholders in the manner provided in the Bylaws of the Corporation. The Corporation may in its Bylaws confer powers upon the Board in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board by applicable law.
ARTICLE VII
At any annual meeting or special meeting of stockholders of the Corporation, only such business will be conducted or considered as has been brought before such meeting in the manner provided in the Bylaws of the Corporation. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least a majority of all classes of Voting Stock issued and outstanding, voting as a single class, will be required to amend or repeal, or adopt any provision inconsistent with, this ARTICLE VII. For the purposes of this Certificate of Incorporation, “Voting Stock” means stock of the Corporation of all classes or series entitled to vote generally in the election of Directors.
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ARTICLE VIII
Section 1. Election of Directors. Election of Directors of the Corporation need not be by written ballot unless requested by the Chairman or by the holders of a majority of the Voting Stock present in person or represented by proxy at a meeting of the stockholders at which Directors are to be elected. If authorized by the Board, such requirement of written ballot shall be satisfied by a ballot submitted by electronic transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder or proxy holder.
Section 2. Nomination of Director Candidates. Advance notice of stockholder nominations for the election of Directors must be given in the manner provided in the Bylaws of the Corporation.
Section 3. Newly Created Directorships and Vacancies. Subject to the rights, if any, of the holders of any series of Preferred Stock to elect additional Directors under circumstances specified in a Preferred Stock Designation, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board resulting from death, resignation, disqualification, removal, or other cause will be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board, or by a sole remaining Director. Any Director elected in accordance with the preceding sentence will hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director’s successor has been elected and qualified. No decrease in the number of Directors constituting the Board may shorten the term of any incumbent Director.
Section 4. Amendment, Repeal, Etc. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least a majority of all classes of Voting Stock issued and outstanding, voting as a single class, is required to amend or repeal, or adopt any provision inconsistent with, this ARTICLE VIII. The vote on amendment or repeal of, or on the adoption of any provision inconsistent with, this ARTICLE VIII must be by written ballot.
ARTICLE IX
To the full extent permitted by the DGCL or any other applicable law currently or hereafter in effect, no Director of the Corporation will be personally liable to the Corporation or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a Director of the Corporation. Any repeal or modification of this ARTICLE IX will not adversely affect any right or protection of a Director of the Corporation existing prior to such repeal or modification.
ARTICLE X
Section 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another company or of a partnership, joint venture, trust or other enterprise, including service with respect to an
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employee benefit plan (an “Indemnitee”), whether the basis of such Proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent permitted or required by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this ARTICLE X with respect to Proceedings to enforce rights to indemnification, the Corporation shall indemnify any such Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
Section 2. Right to Advancement of Expenses. The right to indemnification conferred in Section 1 of this ARTICLE X shall include the right to be paid by the Corporation the expenses (including, without limitation, attorneys’ fees and expenses) incurred in defending any such Proceeding in advance of its final disposition (an “Advancement of Expenses”); provided, however, that, if the DGCL so requires, an Advancement of Expenses incurred by an Indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (an “Undertaking”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “Final Adjudication”) that such Indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise. The rights to indemnification and to the Advancement of Expenses conferred in Sections 1 and 2 of this ARTICLE X shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.
Section 3. Right of Indemnitee to Bring Suit. If a claim under Section 1 or 2 of this ARTICLE X is not paid in full by the Corporation within 60 calendar days after a written claim has been received by the Corporation, except in the case of a claim for an Advancement of Expenses, in which case the applicable period shall be 20 calendar days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an Advancement of Expenses) it shall be a defense that, and (ii) any suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Corporation shall be entitled to recover such expenses upon a Final Adjudication that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel or stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee,
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be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an Advancement of Expenses hereunder, or brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such Advancement of Expenses, under this ARTICLE X or otherwise shall be on the Corporation.
Section 4. Non-Exclusivity of Rights. The rights to indemnification and to the Advancement of Expenses conferred in this ARTICLE X shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation or Bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise.
Section 5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section 6. Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the Advancement of Expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this ARTICLE X with respect to the indemnification and Advancement of Expenses of directors and officers of the Corporation.
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