Heartland Payment Systems Inc--Form 8-K

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TkYfv/1rRxu9EiZyE6XDFEmwMF6oXYFcfFGtk1EJlBjKDMUaIWI/rAPPbGMuSHq7 /efrm4pS+592Q4TJ2OToyA== 0001193125-07-101993.txt : 20070504 0001193125-07-101993.hdr.sgml : 20070504 20070504073138 ACCESSION NUMBER: 0001193125-07-101993 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20070504 ITEM INFORMATION: Results of Operations and Financial Condition ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070504 DATE AS OF CHANGE: 20070504 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEARTLAND PAYMENT SYSTEMS INC CENTRAL INDEX KEY: 0001144354 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32594 FILM NUMBER: 07817790 BUSINESS ADDRESS: STREET 1: 90 NASSAU STREET, 2ND FLOOR CITY: PRINCETON STATE: NJ ZIP: 08542 BUSINESS PHONE: 6096833850 MAIL ADDRESS: STREET 1: 90 NASSAU STREET, 2ND FLOOR CITY: PRINCETON STATE: NJ ZIP: 08542 8-K 1 d8k.htm HEARTLAND PAYMENT SYSTEMS INC--FORM 8-K Heartland Payment Systems Inc--Form 8-K

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) May 4, 2007

HEARTLAND PAYMENT SYSTEMS, INC.

(Exact name of registrant as specified in its charter)

Delaware

000-51265

22-3755714

(State or other jurisdiction of

incorporation or organization)

(Commission File No)

(I.R.S. Employer

Identification Number)

90 Nassau Street, Princeton, New Jersey 08542

(Address of principal executive offices) (Zip Code)

(609) 683-3831

(Registrant’s telephone number, including area code)

(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:

¨	Written communication 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 2.02

Results of Operations and Financial Condition

The following information is furnished pursuant to Item 2.02, “Results of Operations and Financial Condition.”

On May 4, 2007, Heartland Payment Systems, Inc., a Delaware corporation (the “Company”), issued a press release announcing its financial results for the first quarter ended March 31, 2007. The information contained in this report, including Exhibit 99.1 attached hereto, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, except as shall be expressly set forth by specific reference in such filing.

On May 4, 2007, the Company conducted a previously-scheduled conference call to discuss its results of operations for the first quarter ended March 31, 2007 and to answer any questions raised by the call’s audience.

Item 5.02(e)

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

On May 4, 2007, each of Robert O. Carr, Brooks L. Terrell and Sanford C. Brown entered into an amendment and restatement of their respective employee confidential information and noncompetition agreement with the Company, which terminated and replaced their prior employee confidential information and noncompetition agreement. The prior agreement included a non-compete provision for either one year or two years, depending on the nature of such officer’s future employment; the amended agreement provides for a one year non-compete provision regardless of such officer’s future employment.

The amended and restated employee confidential information and noncompetition agreements entered into by each of Robert O. Carr, Brooks L. Terrell and Sanford C. Brown are attached as exhibits to this Form 8-K.

Item 8.01

Other Events

Cash Dividend

On May 3, 2007, the board of directors of the Company declared a quarterly cash dividend of $0.05 per share of Company’s common stock, which will be payable on June 15, 2007 to stockholders of record as of May 25, 2007. The press release announcing the cash dividend is furnished as Exhibit 99.1 to this report.

Stock Repurchase

On January 13, 2006, the board of directors of the Company authorized management to repurchase up to the lesser of (a) 1,000,000 shares of our common stock or (b) $25,000,000 worth of our common stock in the open market. On August 1, 2006, the board of directors of the Company authorized management to repurchase up to an additional 1,000,000 shares of our common stock in the open market using proceeds from the exercise of stock options. The Company repurchased an aggregate of 1,086,200 shares of our common stock during 2006 and the three months ended March 31, 2007. On May 3, 2007, the board of directors of the Company eliminated the restriction in the August 1, 2006 repurchase authorization which required the Company to use only proceeds from the issuance of stock options for repurchases and increased the total authorized number of shares to be repurchased to 2,000,000 shares. The board of directors authorized management to purchase up to 1,000,000 shares at purchase prices within management’s discretion. The Company intends to use these authorizations to repurchase shares opportunistically. The Company has no obligation to repurchase shares under the authorization, and the specific timing and amount of the stock repurchase will vary based on market conditions, securities law limitations and other factors. The stock repurchase will be executed utilizing the Company’s cash resources.

Item 9.01

Financial Statements and Exhibits

(c)

Exhibits


Exhibit Number		Description

10.37		** Amended and Restated Employee Confidential Information and Noncompetition Agreement dated May 4, 2007 entered into by Robert O. Carr with Heartland Payment Systems, Inc.

10.38		** Amended and Restated Employee Confidential Information and Noncompetition Agreement dated May 4, 2007 entered into by Sanford C. Brown with Heartland Payment Systems, Inc.

10.39		** Amended and Restated Employee Confidential Information and Noncompetition Agreement dated May 4, 2007 entered into by Brooks L. Terrell with Heartland Payment Systems, Inc.

99.1		Press Release of the Company dated May 4, 2007

**	Management contract or compensatory plan or arrangement.

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.

Dated: May 4, 2007


Heartland Payment Systems, Inc.
(Registrant)

By:		/s/ Robert H.B. Baldwin, Jr.
		Robert H.B. Baldwin, Jr.
		Chief Financial Officer

EX-10.37 2 dex1037.htm EMPLOYEE CONFIDENTIAL INFORMATION Employee Confidential Information

Exhibit 10.37

AMENDED AND RESTATED

EMPLOYEE CONFIDENTIAL INFORMATION

AND

NONCOMPETITION AGREEMENT

This Employee Confidential Information and Noncompetition Agreement is made and entered into on this 4^TH day of May, 2007, by and between Robert O. Carr, hereinafter “Employee,” and Heartland Payment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or affiliate companies, the “Company”).

WHEREAS, Employee has established an employment relationship with the Company and has received, and may continue to receive, certain benefits including stock grants and options; and

WHEREAS, by reason of employment by the Company, Employee has received, and will continue to receive, the value and advantage of confidential information and special training and skills, and the expert knowledge and experience of the contacts with other Company employees; and

WHEREAS, the future granting of stock grants and options represents an advantage to Employee and was conditioned upon Employee entering into this Agreement; and

WHEREAS, the Company and Employee are parties to that certain November 2001 Employee Confidential Information and Noncompetition Agreement (the “Old Agreement”); and

WHEREAS, the Company and Employee desire to revoke and terminate the Old Agreement and enter into this Agreement.

NOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, it is agreed as follows:

Section 1. Scope of Agreement.

(a) This contract is not a contract of employment for any particular term. Employee’s employment by the Company is at will, unless otherwise agreed by the Company and Employee in writing.

(b) Severance policies and procedures are as set forth in the Employee Policy Manual of the Company; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual, this Agreement shall govern.

Section 2. Severance and Bonuses.

(a) In consideration of the covenants by Employee contained below, in the event of a termination of Employee’s employment by action of the Company other than for Cause or Disability, the Employee will receive severance pay, in an amount equal to the base salary that would have been paid for a period of twelve (12) months payable in accordance with the Company’s regular payroll practices, plus medical benefits for such period; provided, that the Employee shall not be eligible to receive such severance pay unless such termination of employment occurs after the ninetieth (90th) day of the Employee’s employment by the Company. Medical benefit continuation during such severance period shall be counted against the benefit continuation period required under COBRA.

(b) In the event of a termination of Employee’s employment by action of the Company other than for Cause or in the event of termination of Employee’s employment by death of Employee, the Employee shall also be entitled to receive a pro rata portion (based on the number of days of Employee’s employment during the fiscal quarter in which the Employee’s employment is terminated) of any bonus payment that would have been payable to him for that fiscal quarter if the Employee had been in the employ of the Company for the full fiscal quarter. If the Employee’s compensation arrangement did not contemplate a bonus payable on a quarterly basis, but instead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then the pro rata bonus shall be computed based on the number of days of Employee’s employment during such longer fiscal period in which the Employee’s employment is terminated and the amount of the bonus payment that would have been payable to him for such longer fiscal period. No bonus will be payable to the Employee with respect to any bonus period commencing after the bonus period in which the Employee’s employment terminated.

(i) The Employee has breached the provisions of Section 4, Section 5, Section 6, or Section 7 of this Agreement in any material respect;

(ii) The Employee has been convicted of, or plead guilty or no contest to, (A) fraud, misappropriation or embezzlement in connection with the Company’s business, or (B) a felony, and has failed to submit a resignation in accordance with Section 2(f) below; or

(iii) The Employee has breached his or her duties hereunder or failed to perform his or her duties as an officer or employee of the Company, if such breach or failure has not been cured within thirty (30) days after receipt of written notice from the Company of such breach or failure.

Notwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause pursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of termination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that, after reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board of Directors of the Company, the Employee has engaged in conduct constituting Cause for termination hereunder.

(d) Disability. “Disability” means any mental or physical condition that renders the Employee unable to perform the essential functions of his position, with or without reasonable accommodation, for a period in excess of six (6) months.

(e) If the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then the Employee shall immediately tender a resignation from each and every position the Employee then holds with the Company (whether as officer, director, employee, consultant or otherwise).

Section 3. Employees’ Acknowledgments.

(a) The Employee understands and acknowledges that because of the confidential and sensitive nature of the information to which the Employee will have access during the course of his employment with the Company, any unauthorized use, disclosure or misappropriation of such information will cause irreparable damage to the Company.

(b) The Employee acknowledges that the Company has expended considerable resources to develop the confidential information and the relationships that the Company enjoys with its customers, suppliers, employees, officers and other agents, and these assets of the Company are critical to the business of the Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the inadvertent disclosure of this confidential information or the interference with these relationships and to protect the legitimate business interests of the Company and are reasonable in scope and content.

Section 4. Protection of Information.

(a) The Employee hereby covenants with Company that, throughout the term of his employment by the Company, Employee will serve Company’s best interests loyally and diligently. Throughout the course of employment by Company and thereafter,

Employee will not disclose to any person, firm, corporation or entity (except when expressly authorized in writing by Company) any information relating to Company’s business, including, without limitation, merchant application processing and credit underwriting software, merchant information systems, sales compensation and sales force automation software and systems, electronic payment transaction processing software, fraud and risk analysis systems, human resources and time and attendance information systems and software, payroll services information systems and payroll application processing software, sales policy documents, marketing communications materials, information relating to trade secrets, business methods, products, processes, procedures, development or experimental projects, suppliers, customer lists or the needs of customers or prospective customers, clients, etc., and will not use such information for his own purpose or for the purpose of any person, firm, corporation or entity except the Company.

(b) Upon termination of his employment with the Company, the Employee shall deliver promptly to the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or techniques of the Company, and all other property trade secrets and confidential information of the Company, including, but not limited to, all documents that in whole or in part contain any trade secrets or confidential information of the Company, which in any of these cases are in his possession or under his control.

Section 5. Covenant Not to Compete.

(a) During the Restricted Period (as defined below), Employee will not (i) directly or indirectly engage in any business or activity which markets, sells or is developing products or services which compete with the products or services marketed, sold or being developed by the Company at the time of such termination (such business or activity being hereinafter sometimes called a “Competing Business”), in any country, state, territory, region or other geographic area, whether in the United States or otherwise, in which, at the time the Employee becomes no longer employed by the Company, the Company transacts business or sells or markets its products or services, whether such engagement by the Employee shall be as an officer, principal, agent, director, owner, employee, partner, affiliate, consultant or other participant in any Competing Business, or (ii) assist others in engaging in any Competing Business in any manner described in the foregoing clause (i).

(b) The Employee understands that the foregoing restrictions may limit his ability to earn a livelihood in a business competitive to the business of the Company, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits in connection with the Company’s issuance of certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions which, in any event (given his education, skills and ability), the Employee does not believe would prevent him from earning a living.

(c) “Restricted Period” shall mean the period commencing on the date hereof and ending on the last day of the twelfth (12th) full calendar month following the Employee’s termination for any reason whatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary termination; provided that the Restricted Period shall be extended by any amount of time that the Employee has failed to comply with his promises contained in this Section 5 of this Agreement.

Section 6. Non Solicitation.

(a) During the period commencing on the date hereof and ending on the last day of the twelfth (12th) full calendar month following the Employee’s termination for any reason whatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary termination, Employee hereby covenants that he will not, directly or indirectly, solicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any business activity that competes with any business conducted by the Company at any time during the period of Employee’s employment with the Company, or any business planned by the Company at any time during the period of Employee’s employment with the Company or (ii) cease doing business with the Company, and Employee agrees that he will not assist any person or entity in taking any action described in the foregoing clauses (i) and (ii). For purposes of this Section 6, (A) a “Customer” of the Company means any person, corporation, partnership, trust, division, business unit, department or agency which, at the time of termination or within one year prior thereto, shall be or shall have been a customer, distributor or agent of the Company or shall be or shall have been contacted by the Company for the purpose of soliciting it to become a customer, distributor or agent of the Company; and (B) a “Supplier” of the Company means any person, corporation, partnership, trust, division, business unit, department or agency which, at the time of termination or within one year prior thereto, shall be or shall have been a supplier, vendor, manufacturer or developer for any product or service or significant component used in any product or service of the Company.

(b) During the period commencing on the date hereof and ending on the last day of the twenty-fourth (24th) full calendar month following the Employee’s termination for any reason whatsoever, including but not limited to involuntary termination (with or without Cause) and/or voluntary termination, the Employee will not, directly or indirectly, induce other employees of the Company to terminate their employment with the Company or engage in any Competing Business.

Section 7. Company Right to Inventions.

The Employee shall promptly disclose, grant and assign ownership to the Company for its sole use and benefit any and all inventions, improvements, technical information and suggestions relating in any way to the business of the Company (whether patentable or not), which he may develop, acquire, conceive or reduce to practice while employed by the Company (whether or not during usual working hours), together with all patent applications, letters patent, copyrights and reissues thereof that may at any time be granted for or upon any such invention, improvement or technical information. In connection therewith:

(a) The Employee shall without charge, but at the expense of the Company, promptly at all times hereafter execute and deliver such applications, assignments, descriptions and other instruments as may be necessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical information, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to obtain and maintain the entire right and title thereto throughout the world; and

(b) The Employee shall render to the Company at its expense (including a reasonable payment for the time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of applications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which may be declared involving any said applications, patents or copyrights and in any litigation in which the Company may be involved relating to any such patents, inventions, improvements or technical information.

Section 8. Remedies; Survival.

(a) The Employee acknowledges and understands that the provisions of this Agreement are of a special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law, and that the breach or threatened breach of the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4, Section 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief restraining him from such breach without posting any bond. Nothing herein contained shall be construed as prohibiting the Company from pursuing any other additional or alternative remedies available for any breach or threatened breach of this Agreement, including but not limited to monetary damages.

(b) Notwithstanding anything contained in the Agreement to the contrary, the provisions of Section 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of this Agreement or employment of the Employee by the Company until by their terms, such provisions are no longer operative.

Section 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.

(a) Employee represents and warrants to the Company that except for agreements set forth in Exhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any other corporation, partnership or entity relating to noncompetition with such entity or to non-disclosure of confidential and proprietary information of such entity or to other matters similar to the matters set forth in this Agreement.

(b) Employee represents, warrants and agrees that he can and will perform his duties for the Company without the unauthorized use of any confidential and/or proprietary information of others.

Section 10. General Provisions.

(a) This Agreement and any or all terms hereof may not be changed, waived, discharged, or terminated orally, but only by way of an instrument in writing executed by the Company and the Employee.

(b) This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to legal principles pertaining to conflict of laws.

(c) It is the desire and intent of the parties hereto that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more restrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and interpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such jurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall be deemed to have been revised accordingly herein.

(d) Any suit, action or proceeding arising out of or relating to this Agreement shall be brought only in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the District of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of said courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement, and Employee further waives any claim that such suit, action or proceeding is brought in an improper or inconvenient forum.

(e) If any portion of this Agreement shall be found to be invalid or contrary to public policy, the same may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the Court to enforce such provision in a manner

which is as consistent with the original intent of the provision as possible. The striking or modification by the Court of any provision shall not have the effect of invalidating the Agreement as a whole.

(f) This Agreement constitutes the entire and exclusive agreement between Employee and Company pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential information, invention and noncompetition agreements between Company and Employee and representations and understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore acquired by Company under any previous agreements.

(g) The Company may assign any of its rights under this Agreement to any successor entity to the Company, including, but not limited to, any entity formed by the Company to carry on the business of the Company.

[SIGNATURES APPEAR ON NEXT PAGE]

IN WITNESS WHEREOF, the Agreement has been executed as aforesaid.


COMPANY

HEARTLAND PAYMENT SYSTEMS, INC.

By:
Name:
Title:

EMPLOYEE:

By:
Name:		Robert O. Carr

EX-10.38 3 dex1038.htm EMPLOYEE CONFIDENTIAL INFORMATION Employee Confidential Information

Exhibit 10.38

AMENDED AND RESTATED

EMPLOYEE CONFIDENTIAL INFORMATION

AND

NONCOMPETITION AGREEMENT

This Employee Confidential Information and Noncompetition Agreement is made and entered into on this 4^TH day of May, 2007, by and between Sanford C. Brown, hereinafter “Employee,” and Heartland Payment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or affiliate companies, the “Company”).

WHEREAS, Employee has established an employment relationship with the Company and has received, and may continue to receive, certain benefits including stock grants and options; and

WHEREAS, the future granting of stock grants and options represents an advantage to Employee and was conditioned upon Employee entering into this Agreement; and

WHEREAS, the Company and Employee are parties to that certain October 2000 Employee Confidential Information and Noncompetition Agreement (the “Old Agreement”); and

WHEREAS, the Company and Employee desire to revoke and terminate the Old Agreement and enter into this Agreement.

NOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, it is agreed as follows:

Section 1. Scope of Agreement.

(a) This contract is not a contract of employment for any particular term. Employee’s employment by the Company is at will, unless otherwise agreed by the Company and Employee in writing.

Section 2. Severance and Bonuses.

(i) The Employee has breached the provisions of Section 4, Section 5, Section 6, or Section 7 of this Agreement in any material respect;

Section 3. Employees’ Acknowledgments.

Section 4. Protection of Information.

Section 5. Covenant Not to Compete.

Section 6. Non Solicitation.

Section 7. Company Right to Inventions.

Section 8. Remedies; Survival.

Section 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.

(b) Employee represents, warrants and agrees that he can and will perform his duties for the Company without the unauthorized use of any confidential and/or proprietary information of others.

Section 10. General Provisions.

(a) This Agreement and any or all terms hereof may not be changed, waived, discharged, or terminated orally, but only by way of an instrument in writing executed by the Company and the Employee.

(b) This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to legal principles pertaining to conflict of laws.

[SIGNATURES APPEAR ON NEXT PAGE]

IN WITNESS WHEREOF, the Agreement has been executed as aforesaid.


COMPANY

HEARTLAND PAYMENT SYSTEMS, INC.

By:
Name:
Title:

EMPLOYEE:

By:
Name:		Sanford C. Brown

EX-10.39 4 dex1039.htm EMPLOYEE CONFIDENTIAL INFORMATION Employee Confidential Information

Exhibit 10.39

AMENDED AND RESTATED

EMPLOYEE CONFIDENTIAL INFORMATION

AND

NONCOMPETITION AGREEMENT

This Employee Confidential Information and Noncompetition Agreement is made and entered into on this 4^TH day of May, 2007, by and between Brooks L. Terrell, hereinafter “Employee,” and Heartland Payment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or affiliate companies, the “Company”).

WHEREAS, Employee has established an employment relationship with the Company and has received, and may continue to receive, certain benefits including stock grants and options; and

WHEREAS, the future granting of stock grants and options represents an advantage to Employee and was conditioned upon Employee entering into this Agreement; and

WHEREAS, the Company and Employee are parties to that certain November 2001 Employee Confidential Information and Noncompetition Agreement (the “Old Agreement”); and

WHEREAS, the Company and Employee desire to revoke and terminate the Old Agreement and enter into this Agreement.

NOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, it is agreed as follows:

Section 1. Scope of Agreement.

(a) This contract is not a contract of employment for any particular term. Employee’s employment by the Company is at will, unless otherwise agreed by the Company and Employee in writing.

Section 2. Severance and Bonuses.

(i) The Employee has breached the provisions of Section 4, Section 5, Section 6, or Section 7 of this Agreement in any material respect;

Section 3. Employees’ Acknowledgments.

Section 4. Protection of Information.

Section 5. Covenant Not to Compete.

Section 6. Non Solicitation.

Section 7. Company Right to Inventions.

Section 8. Remedies; Survival.

Section 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.

(b) Employee represents, warrants and agrees that he can and will perform his duties for the Company without the unauthorized use of any confidential and/or proprietary information of others.

Section 10. General Provisions.

(a) This Agreement and any or all terms hereof may not be changed, waived, discharged, or terminated orally, but only by way of an instrument in writing executed by the Company and the Employee.

(b) This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to legal principles pertaining to conflict of laws.

[SIGNATURES APPEAR ON NEXT PAGE]

IN WITNESS WHEREOF, the Agreement has been executed as aforesaid.


COMPANY

HEARTLAND PAYMENT SYSTEMS, INC.

By:
Name:
Title:

EMPLOYEE:

By:
Name:		Brooks L. Terrell

EX-99.1 5 dex991.htm PRESS RELEASE Press Release

EXHIBIT 99.1

LOGO

Heartland Payment Systems Announces 56% Increase in First Quarter Net Income

Processing Volume Grows 21%, Operating Income Up 67%,

Diluted Earnings per Share Up 55%

Board Authorizes 1.1 Million Share Increase to Stock Buyback

Princeton, N.J., May 4, 2007 — Heartland Payment Systems, Inc. (NYSE: HPY), the nation’s sixth largest provider of merchant acquiring services, today announced that net income for the quarter ended March 31, 2007 increased 56% to $6.9 million from $4.4 million in the first quarter of 2006. For the first quarter, fully diluted earnings per share rose 55% to $0.17 from $0.11 in the year earlier period. Results were driven by a 67% increase in operating income, which rose to $10.7 million in the quarter from $6.4 million a year ago, as the operating margin expanded to 15.6% in the quarter from 11.4% in the first quarter of 2006. First quarter 2006 operating income and operating margin was reduced by the impact of a $2.0 million pre-tax non-recurring charge to reflect a change in estimate of the amount of accrued on-line debit interchange expense. Also, first quarter 2006 net income benefited from a pre-tax gain of $0.8 million recorded in other income resulting from a cash legal settlement.

Robert Carr, Chairman and CEO, said, “We continue to grow faster than the industry with a straightforward strategy dedicated to providing Main Street merchants with the same competitive edge enjoyed by major retailers with sophisticated internal purchasing organizations. At the heart of our success is a dedicated and motivated sales organization, which increased to 1,480 this quarter and installed a record number of new merchants in our seasonally slowest quarter. We are leveraging this growth with some of the industry’s most advanced technology. In the first quarter, 81% of new merchants installed and 71% of total transactions were on HPS Exchange. In addition, the performance of our Passport back end processing system continues to improve, with no significant added costs. As a result of the increasing efficiency of our technology investments, processing and servicing expense ratios are trending down, a key to driving further expansion in our operating margin. With the industry’s leading customer-focused sales organization and our state-of-the art processing and customer service infrastructure, we have developed a winning combination that should enable us to continue to gain market share and create value for our shareholders.”

Total revenues in the first quarter were $284.2 million, up 20% compared to $236.9 million in the first quarter of 2006. Processing volume for the three months ended March 31, 2007 increased 21% to $11.2 billion from $9.2 billion during the same period in 2006. The Company’s active merchant count rose to 144,000 at March 31, 2007, a 21% increase over the past twelve months. Same store sales at our installed base rose 3.4% during the quarter and continue to make a meaningful contribution to the Company’s growing processing volumes.

Mr. Carr continued, “Clearly, our transparent, Fair Deal pricing philosophy has enabled us to shift the merchant buying decision to a more comprehensive value proposition. The ability to add more Main Street merchants to the Heartland family enables us to leverage our efficient, end-to-end processing and servicing infrastructure, enhancing our customer relationships, thereby further strengthening our franchise and creating long-term shareholder value.”

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FULL YEAR 2007 GUIDANCE:

The Company is reaffirming 2007 full year guidance. We expect net revenue (total revenues less interchange, dues and assessments) to grow by 21% - 23%; operating income as a percentage of net revenue to be 19% - 21%; a tax rate of approximately 37%; and earnings per share of $1.00 - $1.05, which excludes $0.04 per share of after-tax SFAS No. 123R stock-based compensation expense currently anticipated for fiscal 2007.

BOARD INCREASES SHARE REPURCHASE AUTHORIZATION AND DECLARES QUARTERLY DIVIDEND

The Company also announced today that its Board of Directors has authorized a 1,100,000 share increase to the current share repurchase authorization, to a total of 2,000,000 shares. Further, the Company has been authorized to use general corporate funds for any share repurchases.

The Company also declared a quarterly dividend of $0.05 per common share. The dividend is payable to shareholders of record on May 25, 2007 and will be paid on June 15, 2007.

Conference Call:

Heartland Payment Systems, Inc. will host a conference call on May 4, 2007 at 8:30 a.m. Eastern Time to discuss financial results and business highlights. The conference call may be accessed by calling 973-633-8200 at 8:25 AM Eastern time on May 4, 2007. Please provide the operator with PIN number 8728655. The conference call will also be Web cast where it can be accessed on the investor relations portion of Heartland’s website at http://www.heartlandpaymentsystems.com.

A digital replay of the conference call will be available within two hours of the conclusion of the call and will remain available through Thursday, July 4, 2007. The number to call for the taped replay is 973-341-3080 and the conference PIN 8728655. The webcast will also be archived within two hours of the live call on the investor relations portion of the Company’s website and will remain available through Thursday, July 4, 2007.

About Heartland

Heartland Payment Systems, Inc. (HPS), a NYSE company trading under the symbol HPY, delivers credit/debit card processing and payroll solutions to over 144,000 small to medium-sized merchants throughout the United States. HPS also provides additional services to its merchants such as gift and loyalty card programs, paper check authorization, and sells and rents point-of-sale devices and supplies.

With over 1,450 sales and servicing professionals nationwide, HPS builds long-term business relationships in local sales territories, providing merchants with enhanced technology tools that assist them in more effectively operating their businesses.

Heartland processed its first transaction in 1997, and, since 2000, has grown at a compound annual rate of more than 30% to become the sixth largest merchant processor in the United States and fifteenth largest merchant processor in the world.

http://www.heartlandpaymentsystems.com

Forward-looking Statements:

This press release may contain statements of a forward-looking nature which represent our management’s beliefs and assumptions concerning future events. Forward-looking statements involve risks, uncertainties and assumptions and are based on information currently available to us. Actual results may differ materially from those expressed in the forward-looking statements due to many factors. Information concerning these factors is contained in the Company’s Securities and Exchange Commission filings. We undertake no obligation to update any forward-looking statements to reflect events or circumstances that may arise after the date of this release.

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CONTACT:

Joe Hassett or Paul Johnson

Gregory FCA

27 West Athens Ave.

Ardmore, PA 19003

Tel: 610-642-8253

Email: Heartland_ir@gregoryfca.com

Tables Follow

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Heartland Payment Systems, Inc. and Subsidiaries

Consolidated Statements of Operations

(In thousands, except per share data)

(unaudited)


	Three Months Ended March 31,
	2007			2006
Total Revenues	$	284,212		$	236,919

Costs of Services:
Interchange		205,337			172,229
Dues and assessments		10,459			8,586
Processing and servicing		31,330			28,151
Customer acquisition costs		10,391			8,172
Depreciation and amortization		1,724			1,363

Total costs of services		259,241			218,501
General and administrative		14,299			12,009

Total expenses		273,540			230,510

Income from operations		10,672			6,409

Other income (expense):
Interest income		459			254
Interest expense		(112	)		(120	)
Other, net		(95	)		814

Total other income (expense)		252			948

Income before income taxes		10,924			7,357
Provision for income taxes		4,072			2,969

Net income	$	6,852		$	4,388

Net income	$	6,852		$	4,388
Other comprehensive income, net of tax: Unrealized gains (losses) on investments		3			(3	)

Comprehensive income	$	6,855		$	4,385

Earnings per common share:
Basic	$	0.18		$	0.12
Diluted	$	0.17		$	0.11
Weighted average number of common shares outstanding:
Basic		37,507			35,128
Diluted		39,971			39,817

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Heartland Payment Systems, Inc. and Subsidiaries

Condensed Consolidated Balance Sheets

(In thousands, except share data)

(unaudited)


	March 31, 2007			December 31, 2006
Assets
Current assets:
Cash and cash equivalents	$	24,759		$	16,054
Funds held for payroll customers		23,210			16,960
Receivables, net		111,796			107,154
Investments		1,087			1,082
Inventory		2,065			2,252
Prepaid expenses		2,203			2,030
Current tax asset		16,799			19,227
Current deferred tax assets, net		670			757

Total current assets		182,589			165,516
Capitalized customer acquisition costs, net		59,186			56,705
Deferred tax assets, net		4,912			4,562
Property and equipment, net		26,721			23,135
Goodwill and intangible assets		1,747			1,757
Deposits and other assets		52			93

Total assets	$	275,207		$	251,768

Liabilities and stockholders’ equity
Current liabilities:
Due to sponsor bank	$	32,008		$	27,253
Accounts payable		17,885			16,936
Deposits held for payroll customers		23,210			16,960
Current portion of accrued buyout liability		11,781			11,519
Merchant deposits and loss reserves		7,685			8,210
Accrued expenses and other liabilities		11,224			9,649
Current portion of borrowings and financing arrangements		97			174

Total current liabilities		103,890			90,701
Reserve for unrecognized tax benefits		789			—
Long-term portion of accrued buyout liability		22,667			21,774

Total liabilities		127,346			112,475

Commitments and contingencies		—			—
Stockholders’ equity
Common Stock, $.001 par value, 100,000,000 shares authorized, 38,808,039 and 38,488,880 shares issued at March 31, 2007 and December 31, 2006; 37,699,839 and 37,405,680 shares outstanding at March 31, 2007 and December 31, 2006		38			38
Additional paid-in capital		158,722			153,997
Accumulated other comprehensive loss		(18	)		(21	)
Retained earnings		15,269			10,804
Treasury stock, at cost (1,108,200 and 1,083,200 shares at March 31, 2007 and December 31, 2006)		(26,150	)		(25,525	)

Total stockholders’ equity		147,861			139,293

Total liabilities and stockholders’ equity	$	275,207		$	251,768

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Heartland Payment Systems, Inc. and Subsidiaries

Condensed Consolidated Statements of Cash Flow

(In thousands)

(unaudited)


	Three Months Ended March 31,
	2007			2006
Cash flows from operating activities
Net income	$	6,852		$	4,388
Adjustments to reconcile net income to net cash provided by operating activities:
Amortization of capitalized customer acquisition costs		10,062			8,013
Other depreciation and amortization		2,131			1,768
Stock-based compensation		389			232
Deferred taxes		(263	)		1,223
Changes in operating assets and liabilities:
(Increase) decrease in receivables		(4,643	)		5,667
Decrease in inventory		188			247
Payment of signing bonuses, net		(9,488	)		(7,091	)
Increase in capitalized customer acquisition costs		(3,055	)		(4,541	)
(Increase) decrease in prepaid expenses		(173	)		230
Decrease in current tax asset		4,380			609
Decrease in deposits and other assets		41			—
Excess tax benefits on options exercised under SFAS No. 123R		(1,951	)		(14,517	)
Increase in reserve for unrecognized tax benefit		276			—
Increase (decrease) in due to sponsor bank		4,755			(10,221	)
Increase (decrease) in accounts payable		948			(892	)
Increase in accrued expenses and other liabilities		1,574			2,099
(Decrease) increase in merchant deposits and loss reserves		(524	)		1,640
Payouts of accrued buyout liability		(2,229	)		(3,819	)
Increase in accrued buyout liability		3,384			4,699

Net cash provided by (used in) operating activities		12,654			(10,266	)

Cash flows from investing activities
Purchase of investments		(32	)		(838	)
Maturities of investments		13			322
Increase in funds held for payroll customers		(6,233	)		(6,621	)
Increase in deposits held for payroll customers		6,251			6,630
Acquisition of business, net of cash acquired		—			(3,452	)
Purchases of property and equipment		(5,708	)		(3,536	)

Net cash used in investing activities		(5,709	)		(7,495	)

Cash flows from financing activities
Principal payments on borrowings and financing arrangements		(77	)		(57	)
Proceeds from exercise of stock options		2,385			15,152
Excess tax benefits on options exercised under SFAS No. 123R		1,951			14,517
Repurchase of common stock		(625	)		(15,890	)
Dividends paid on common stock		(1,874	)		—

Net cash provided by financing activities		1,760			13,722

Net increase (decrease) in cash and cash equivalents		8,705			(4,039	)
Cash and cash equivalents at beginning of year		16,054			8,724

Cash and cash equivalents at end of period	$	24,759		$	4,685

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