Exhibit 10.4
EMPLOYMENT AGREEMENT
FOR VICE PRESIDENTS
THIS EMPLOYMENT AGREEMENT (hereinafter "Agreement"), dated this 22nd day of
September, 1995, by and between TOKHEIM CORPORATION, an Indiana corporation
(hereinafter "the Company"), and Xxxxx X. Xxxxxx (hereinafter "the Employee"),
which Agreement shall be deemed to replace any and all previously existing
Employment Agreements between the parties.
WHEREAS, the Company desires to employ the Employee in an executive
capacity and the Employee desires to be so employed, all upon the following
terms and conditions.
NOW, THEREFORE, in consideration of the premises hereinafter set forth, it
is mutually agreed as follows:
1. The Company agrees to employ the Employee, and the Employee agrees to
serve the Company, on a full-time basis in the capacity hereinafter designated
and upon the terms hereinafter specified. Said employment shall continue from
this date forward for an indefinite period and until such time as it may be
terminated by one or more of the parties, it being expressly recognized that
either party may terminate this Agreement, with cause, upon the giving of thirty
(30) days' written notice to the other, and in such event, the parties shall
each be entitled only to such continuing rights as may be provided in this
Agreement or as may otherwise be available to them in law or equity. In the
event Employee is terminated without cause, Employee shall be entitled to
severance pay equal to twelve (12) months of the Employee's base monthly salary.
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2. The Employee shall serve in the capacity of VP, Corporate Operations &
Planning.
The Employee shall have such duties and responsibilities and shall supply
such services in the carrying out of such duties and responsibilities as the
Company, through the Board of Directors, the duly appointed Committees of the
Board, the Chief Executive Officer of the Company or such other Executive
Officers as may be designated by the Board, shall, from time to time, direct,
and said parties shall be free to alter or amend the position, responsibilities,
duties or services to be performed by the Employee in such manner as to them
shall be deemed to be in the best interests of the Company. During the term of
employment, the Employee shall devote his best efforts and skills to the
business interests of the Company and shall not engage in any commercial
enterprise or activity, either directly or indirectly, in conflict with the
Company's business, or which may in any way interfere with his employment,
without the consent of the Company.
3. The Employee hereby recognizes the Company's proprietary rights in the
tangible and intangible property of the Company and acknowledges that
notwithstanding the relationship of employment, the Employee will not obtain or
acquire through such employment any personal property rights in any of the
property of the Company, including, but not limited to, any writings,
communications, manuals, documents, instruments, contracts, agreements, files,
literature, data technical information, know-how secrets, formulas, products,
methods, procedures, processes, devices, apparatuses, trademarks, tradenames,
trade styles, service marks, logos, copyrights, patents or other matters which
are properly the property of the Company.
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4. The Employee shall, during the term of employment, use his best efforts
and exercise his utmost diligence to protect and safeguard the confidential
information of the Company, including, but not limited to, trade secrets, know-
how, product formulas, recipes, methods, procedures, processes, devices,
apparatuses, materials or other matters which are confidential to the Company.
The Employee further agrees that he shall not, during the term of employment or
thereafter, personally use or disclose to others information which shall be
confidential to the Company, except as such use or disclosure may be required
during the course of employment with the Company or as may be consented to by
the Company.
5. The Employee agrees that during the term of his employment, any and all
inventions and discoveries, whether or not patentable, which the Employee may
conceive or make, either alone or in conjunction with others and related or in
any way connected with the business of the Company, shall be the sole and
exclusive property of the Company. The Employee shall, without further
compensation or consideration, but at the expense of the Company, and as and
when requested to do so by the Company, promptly execute and assign any and all
applications, assignments and other instruments which the Company shall deem
necessary in order to apply for and obtain letters patent of the United States
and of foreign countries for said inventions and discoveries, and in order to
assign and convey to the Company, or to the Company's nominee the sole and
exclusive right, title and interest in and to said inventions, discoveries or
any applications or patents thereon. As promptly as known or possessed by the
Employee, the Employee shall disclose to the Company all information with
respect to said inventions and discoveries. The Employee further agrees that
during the term of employment, trademarks, tradenames, service marks, trade
styles, logos, emblems, labels, slogans and writings, whether or not
copyrighted,
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originated by the Employee, alone or in conjunction with others, and related or
in any way connected with the business of the Company, shall be the sole and
exclusive property of the Company.
6. The Employee shall be entitled to compensation as follows:
A. The Employee shall be entitled to a monthly base salary of Fourteen
Thousand One Hundred Sixty Seven Dollars ($14,167.00). The Base Pay will be
reviewed annually. Such Base Pay will be payable in such semi monthly or monthly
installments as is consistent with the policy of the Company in such matters.
The Employee shall also be eligible for the officer's bonus program, a copy of
which has been supplied to the Employee.
B. The Employee shall be granted participation in all employee benefit
plans applicable to executive officers of the Company, including but not limited
to, medical plans, disability plans, life insurance plans, savings plans, stock
option plans and such other plans as may from time to time be made available and
applicable to the Employee, consistent with the policies of the Company and the
terms and conditions of such plans. Nothing herein shall be deemed to alter the
terms and conditions of such plans or the policy of the Company with respect
thereto, and nothing herein shall be deemed to entitle the Employee to any
rights therein which would not otherwise be made available to the Employee
pursuant to the implementations of such plans in accordance with the terms,
conditions and provisions set forth therein. It shall be further understood that
nothing herein shall prevent the Company, through its Board of Directors, the
duly appointed Committees of the Board or such other Executive Officers of the
Company as the Board may designate, from altering or amending any of the
aforesaid plans or eliminating or
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adding to them as they shall from time to time deem appropriate and in the
interests of the Company.
C. Except as may otherwise be expressly provided herein, the Employee
shall be granted, upon his termination from the Company, such rights as may be
available to him pursuant to any plan or plans hereinabove referred to, and, in
addition thereto, any termination benefits accorded terminated executives,
consistent with any existing policy or practice of the Company with respect to
such termination. In the event there shall be no such policy or practice with
respect to termination, then such termination benefits, if any, as may be deemed
appropriate to the Board of Directors, its duly appointed Committees or such
other Executive Officers as may be directed by the Board to act in such matters.
7. In the event there shall occur (i) a merger, consolidation or other
combination of the Company with or into any other corporation, (ii) the
acquisition, subsequent to the date of this Agreement, directly or indirectly,
by any person, entity or group of persons of ownership of the power to vote in
excess of twenty percent (20%) of the voting securities of the Company followed
by the election by said party of one or more representatives to the Board of
Directors, (iii) the acquisition, subsequent to the date of this Agreement,
directly or indirectly, by any person, entity or group of persons of ownership
of the power to vote in excess of fifty percent (50%) of the voting securities
of the Company, whether or not followed by the election by said party or parties
of one or more representatives to the Board of Directors or (iv) any other
event, including, but not limited to, the matters set forth in (i) through (iii)
above which shall have the effect of vesting effective control of the business
and affairs of the Company in a person, entity or group of persons other or
different than the present stockholders of the Company, or
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which shall have the effect of causing a change in management of the Company,
then and in that event, the right of the Company and the Employee to
unilaterally terminate this employment upon thirty (30) days' written notice as
provided in Paragraph 1 above shall continue, but shall be subject to the
following express provision: If such termination shall be initiated by the
Company within thirty-six (36) months of any of the events described in (i),
(ii), (iii) or (iv) of this Paragraph; or if such termination shall be initiated
by the employee within thirty six (36) months of any of the events described in
(i), (ii), (iii), (iv) of this Paragraph, and any one of the following also
occurs; (a) a change of the Chief Executive Officer, (b) change of job, (c)
change of salary, or (d) move of job responsibilities to a distance greater than
fifty (50) miles from the current office location, then upon the effective date
of termination, the Employee shall be entitled to the termination benefits set
forth in this Paragraph 7 in addition to any other termination rights which may
have accrued to him during his employment; provided, however, that the following
provisions with respect to direct severance pay (i.e., salary and bonus
payments) shall be exclusive and shall replace any other rights of the Employee
to direct severance payments:
A. The Employee shall be entitled to receive the greater of 299.99% of the
base salary or twice the employees total compensation at the same rate at which
it existed at the date of the event referenced in (i) through (iv) of this
Paragraph 7 above. The Employee shall further be entitled to receive as direct
severance pay, bonuses during the subsequent twenty-four (24) months on the same
dates that he would otherwise have been entitled to them had his employment
continued; provided, however, that the amount of such bonuses shall not be
contingent upon any matters arising after the date of termination, but shall on
an annual basis be equal to the average annual sum paid in bonuses to the
Employee during the last three (3) bonus periods preceding his
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termination, or the average annual bonuses of such lesser bonus periods if his
employment was for less than three (3) bonus periods prior to termination. In
the event that during any part of such twenty-four (24) month period, the
executive officer's activities involved returning the corporation to
profitability which limited bonus potential, the bonus shall be paid for such
twenty-four month period as if the company had been profitable. To the extent
the twenty-four (24) months shall expire in the middle of a bonus period, then
for such partial year, the Employer shall be entitled to that percentage of the
average annual bonus that the partial year bears to a total year, and he shall
be paid any remaining and unpaid bonus amounts due him at the expiration of said
twenty-four (24) month period. In the event the Employee is terminated within
said 36 month period, severance shall be payable in a single lump sum. In the
event the Employee shall die during any period in which payments shall be due
hereunder, the balance of any salary and bonus payments shall be paid to the
Employee's estate within six (6) months of the date of his death.
B. The Employee shall immediately be paid a lump sum amount equal to the
value of any outstanding stock options which by their terms cannot be exercised
the day following the Employee's termination of employment (the value of each
option shall be equal to the average of the high and low price of a share of
stock, as quoted on the composite transactions table covering transactions on
the New York Stock Exchange on the first date that the stock was traded on that
Exchange which next precedes the date the Employee's employment terminated minus
the stock option's exercise price). The Executive shall immediately be paid a
lump sum amount equal to the value of any unvested shares of restricted stock as
if all restrictions had been removed the day preceding the Change of Control;
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C. In addition to the continuation of his base salary and bonus as
provided above, the Employee shall further be entitled for twenty-four (24)
months following termination to receive medical insurance, life insurance and
disability insurance benefits from the Company on terms comparable to the
benefits provided by the Company to the Employee in such matters as of the date
of the event referenced in (i) through (iv) of this Paragraph 7 above; provided,
that any severance payments provided for hereinabove shall be reduced by the
amount of any disability benefits paid pursuant to this Paragraph 7B for the
period that such disability payments shall continue: and provided further, that
notwithstanding anything hereinabove set forth, any medical, life and disability
benefits shall terminate automatically at any time that the Employee shall
secure and begin alternate employment. The employee may elect in writing at the
time of severance to receive the cash value of any or all of these benefits in
lieu of coverage.
D. If the Employee shall be fifty (50) years of age or older at the time
of any termination governed by the terms of this Paragraph 7, and if the
twenty-four (24) months of continued salary and bonus shall expire prior to the
Employee's sixtieth (60th) birthday, then the Employee shall additionally be
entitled to receive his base salary and bonus from the date of expiration of the
twenty-four (24) months until the date of his sixtieth (60th) birthday at
one-half (1/2) the rate of salary and bonus payable to him during the first
twenty-four (24) months following his termination.
E. If the Employee shall be sixty-three (63) years of age or older at the
time of any termination governed by the terms of this Paragraph 7, then all
benefits provided for above shall run not for a period of twenty-four (24)
months as hereinabove set forth, but rather for that number of months occurring
between the date of termination and the date of the Employee's sixty-
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fifth (65th) birthday and all benefits otherwise running for twenty-four (24)
months shall run for that period of time.
F. It is expressly understood and agreed that if the receipt or the right
to receive all or any part of the payments contemplated by this Paragraph 7,
either alone or with other payments, which the Employee has received or has the
right to receive from the Company and which are "parachute payments" within the
meaning of Section 280G of the Internal Revenue Code, as amended, would result
in some or all of the payments contemplated by this Paragraph 7 or the parachute
payments being "excess parachute payments", as defined in Section 280G of the
Internal Revenue Code, and/or if such payments would result in the Employee
suffering an excise tax or other extraordinary tax upon the receipt thereof, the
Company shall make such additional payments to the Employee as shall be
necessary to cause the net after-tax benefit to the Employee to be the same as
would have been the case had there been no excise or extraordinary tax applied
to such payments.
G. In the event the Employee shall be required to employ counsel or bring
suit to enforce any of the terms or conditions of this Paragraph 7 and shall be
successful in securing enforcement of any of such terms and conditions, the
Employee shall be entitled to all reasonable expenses, including, but not
limited to, attorneys' fees incurred in such enforcement efforts.
8. Nothing contained herein shall be construed as conferring upon the
Employee the right to continue in the employ of the Company as an executive or
in any other capacity.
9. All payments provided under this Agreement shall be paid in cash from
the general funds of the Company and no special or separate fund shall be
established and no other
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segregation of assets shall be made to assure payment. The Employee shall have
no right, title or interest whatever in or to any investments which the Company
may make to aid the Company in meeting its obligations hereunder. Nothing
contained in this Agreement, and no action taken pursuant to its provisions,
shall create or be construed to create a trust of any kind or a fiduciary
relationship, between the Company and the Employee or any other person. To the
extent that any person acquires a right to receive payments from the Company
hereunder, such right shall be no greater than the right of an unsecured
creditor of the Company.
10. The Company may withhold from any benefits payable under this Agreement
all federal, state, city or other taxes as shall be required pursuant to any law
or governmental regulation or ruling.
11. Neither this Agreement or any right or interest hereunder shall be
assignable by the Employee, his beneficiaries or legal representatives, without
the Company's prior written consent; provided however, that nothing in this
Paragraph shall preclude the Employee from designating a beneficiary to receive
any benefit payable hereunder upon his death, or the executors, administrators
or other legal representatives of the Employee or his estate from assigning any
rights hereunder to the person or persons entitled thereunto.
12. Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, communication, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
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13. This Agreement shall be binding upon and inure to the benefit of the
Employee and the Company and their respective permitted successors and assigns.
In the event the Company merges or consolidates with or into any other
corporation or corporations or sells or otherwise transfers substantially all
its assets to another corporation, the provisions of this Agreement shall be
binding upon and inure to the benefit of the corporation surviving or resulting
from the merger or consolidation or to which such assets are sold or
transferred. All references herein to the Company refer with equal force and
effect to any corporate or other successor of the Company which acquires,
directly or indirectly, by merger, consolidation, purchase of otherwise, all or
substantially all of the assets or stock of the Company.
14. No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any
provisions of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver
shall operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
15. If, for any reason, any provisions of this Agreement is held invalid,
such invalidity shall not affect any other provision of this Agreement not held
so invalid, and each such other provision shall to the full extent consistent
with law continue in full force and effect. If any provision of this Agreement
shall be held invalid in part, such invalidity shall in no way affect the rest
of such provision not held so invalid, and the rest of such provision, together
with all other
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provisions of this Agreement, shall to the full extent consistent with law
continue in full force and effect.
16. This Agreement has been executed and delivered in the State of
Indiana, and its validity, interpretation, performance and enforcement shall be
governed by the laws of said State.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its seal to be affixed hereunto by its officers thereunto duly authorized,
and the Employee has signed this Agreement, all as of the day and year first
above written.
TOKHEIM CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
ATTEST:
/s/
-----------------------------
Its
-------------------------
"the Company"
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
VP, Corporate Operations & Planning
"the Employee"
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