Exhibit 10.2
Change in Control Contract
Page 37
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT dated as of March 22, 1999 between AXIOHM TRANSACTION
SOLUTIONS, INC., a California corporation (the "Company") and Nicolas
Dourassoff, (the "Executive").
RECITALS
A. WHEREAS, the Company and Executive have agreed to conditions as outlined in
an employment letter dated March 15, 1998, (the Employment Letter):
B. It is possible that the Company from time to time will consider the
possibility of an acquisition by another company or other change of
control. The Board of Directors of the Company (the "Board") recognizes
that such consideration can be a distraction to the Executive and can cause
the Executive to consider alternative employment opportunities. The Board
has determined that it is in the best interests of the Company and its
shareholders to assure that the Company will have the continued dedication
and objectivity of the Executive, notwithstanding the possibility, threat,
or occurrence of a Change of Control (as defined below) of the Company.
C. The Board believes that it is in the best interests of the Company and its
shareholders to provide the Executive with an incentive to continue his
employment and to motivate the Executive to maximize the value of the
Company upon a Change of Control for the benefit of its shareholder.
D. The Board believes that it is imperative to provide the Executive with
certain severance benefits upon Executive's termination of employment
following a Change of Control which provides the Executive with enhanced
financial security and provides incentive and encouragement to the
Executive to remain with the Company notwithstanding the possibility of a
Change of Control.
IN CONSIDERATION of the mutual obligations and agreements contained herein
and intending to be legally bound hereby, the Executive and the Company agree as
follows:
1. TERM OF AGREEMENT
THIS AGREEMENT SHALL BECOME EFFECTIVE AS OF THE DATE SET FORTH ABOVE (THE
"EFFECTIVE DATE"), AND SHALL TERMINATE AND BE OF NO FURTHER FORCE AND EFFECT IF:
(a) A CHANGE IN CONTROL (AS DEFINED HEREIN) SHALL NOT HAVE OCCURRED WITHIN TWO
YEARS FROM THE EFFECTIVE DATE OR (b) PRIOR TO A CHANGE OF CONTROL, THE EXECUTIVE
CEASES, FOR ANY REASON, TO BE AN EMPLOYEE OF THE COMPANY, EXCEPT THAT IF THE
EXECUTIVE'S STATUS AS AN EMPLOYEE OF THE COMPANY IS TERMINATED BY THE COMPANY
PRIOR TO A CHANGE IN CONTROL AND IT IS REASONABLY DEMONSTRATED THAT SUCH
TERMINATION (i) WAS AT THE REQUEST OF A PERSON OR ENTITY WHO OR WHICH HAS TAKEN
STEPS REASONABLY CALCULATED TO EFFECT AN IMMINENT CHANGE IN CONTROL OR (ii)
OTHERWISE AROSE IN CONNECTION WITH OR IN ANTICIPATION OF AN IMMINENT CHANGE IN
CONTROL, THEN THIS AGREEMENT SHALL REMAIN EFFECTIVE.
2. EMPLOYMENT STATUS
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THE COMPANY AND THE EXECUTIVE ACKNOWLEDGE THAT THE EXECUTIVE'S EMPLOYMENT
RELATIONSHIP IS GOVERNED SOLELY BY THE EMPLOYMENT LETTER OF MARCH 15, 1998 AND
THE EXECUTION OF THE AGREEMENT DOES NOT AND IS NOT INTENDED TO GIVE THE
EXECUTIVE ANY GREATER EMPLOYMENT RIGHTS THAN ARE SET FORTH IN THE EMPLOYMENT
LETTER.
3. CERTAIN DEFINITIONS
A. "Change in Control" means the following:
(i) any "person" (as such term is used in Section 13(d) and
14(d) of the Securities and Exchange Act of 1934, as
amended) other than Xxxxxxx Xxxxx or Xxxxxx Gibier becomes
the "beneficial owner" (as defined in Rule 13d-3 under said
Act)("Beneficial Owner"), directly or indirectly, of
securities of the Company representing Thirty-Five percent
(35%), or more of the total voting power represented by the
Company's then outstanding voting securities, unless Xxxxxxx
Xxxxx and Gilles Gibier in aggregate are still beneficial
owners, directly or indirectly, of a higher percentage than
such person.
(ii) a change in the composition of the Board occurring within a
two-year period, as a result of which fewer than a majority
of the directors are Incumbent Directors. "Incumbent
Directors" shall mean directors who either (A) are directors
of the Company as of the date hereof, or (B) are elected, or
nominated for election, to the Board with the affirmative
vote of at least a majority of the Incumbent Directors at
the time of such election or nomination;
(iii) the Company's shareholders or the Company's Board of
Directors shall approve any consolidation or merger of the
Company in which the Company is not the continuing or
surviving corporation or pursuant to which the Company's
voting common shares (the "Common Shares") would be
converted to cash, securities, and/or other property, other
than a merger of the Company in which holders of Common
Shares immediately prior to the merger have the same
proportionate ownership of Common Shares of the surviving
corporation immediately after the merger as they had in the
Common Shares immediately before;
(iv) any sale, lease exchange, or other transfer (in one
transaction or a series of related transactions) of 50% of
the assets or earning power of the Company;
(v) the liquidation or dissolution of the Company.
B. GOOD REASON Executive shall have been deemed to have terminated his
employment for "Good Reason." Good Reason shall mean:
(i) without the Executive's express written consent, a material reduction
of the Executive's duties, title, authority or responsibilities, relative
to the Executive's duties, title, authority or responsibilities as in
effect immediately prior to such reduction, or the assignment to the
Executive of such reduced duties, title, authority, or responsibilities;
provided, however, that a reduction in duties, title, authority or
responsibilities solely by virtue of the Company being acquired and made
part of a larger entity (as, for example when the Chief Financial Officer
of the Company remains as such following a Change of Control and is not
made the Chief Financial Officer of the acquiring corporation) shall not
constitute "Good Reason;"
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(ii) without the Executive's express written consent, a material reduction,
without good business reasons, of the facilities and perquisites (including
office space and location) available to the Executive immediately prior to
such reduction;
(iii) a reduction by the Company in the base salary of the Executive as in
effect immediately prior to such reduction;
(iv) a material reduction by the Company in the kind or level of employee
benefits, including bonuses, to which the Executive was entitled
immediately prior to such reduction with the result that the Executive's
overall benefits package is materially reduced;
(v) the relocation of the Executive to a facility or location more than
Twenty-Five (25) miles from the Executive's then present location, without
the Executive's express written consent;
(vi) any purported termination of the Executive by the Company which is not
effected by Disability or for Cause, or any purported termination for which
the grounds relied upon are not valid;
(vii) the failure of the Company to obtain the assumption of this agreement
by any successor;
(viii) any act or set of facts or circumstances which would, under
Pennsylvania case law or statute constitute a constructive termination of
the Executive.
C. "Annual Compensation" means an amount equal to the sum of Executive's
(i) annual Company salary at the highest rate in effect in the twelve
months immediately preceding the Change of Control, and (ii) 100% of
the Executive's annual target bonus as in effect immediately prior to
the Change of Control, (iii) 100% tuition supplement, (iv) 100% of car
allowance. Annual Compensation shall not include any other severance
compensation the Executive was entitled to receive under the
Employment Letter or otherwise established plan or practice of the
Company.
D. "Cause" shall mean (i) any act of personal dishonesty taken by the
Executive in connection with his responsibilities as an employee, (ii)
Executive's conviction or (or pleas of guilty or no contest to) a
felony, (iii) a willful act by the Executive which constitutes gross
misconduct and which is injurious to the Company, or (iv) following
delivery to the Executive of a written demand for performance from the
Company which describes the basis for the Company's belief that the
Executive has not substantially performed his duties, continued
substantial violations by the Executive of the Executive's obligations
to the Company which are demonstrably willful and deliberate on the
Executive's part.
4. SEVERANCE UPON THE HAPPENING OF CERTAIN EVENTS
TERMINATION OTHER THAN FOR CAUSE: TERMINATION FOR GOOD REASON; DEATH;
PERMANENT AND TOTAL DISABILITY. If the Executive's employment (i) is
terminated by the Company other than for Cause (as defined herein), (ii) is
terminated by the Executive for Good Reason (as defined herein), (iii)
terminates due to Employee's death or "permanent and total disability" (as
such term is defined under Internal Revenue Code Section 22(e)(3) or its
successor provision), in any case within (x) Twelve (12) months following
the Change of Control (as defined herein) and (y) Twenty-Four (24) months
following the Effective Date, then the Executive shall receive the
following severance from the Company:
(1) LUMP SUM SEVERANCE PAYMENT A cash payment in an amount equal to 299%
of the Executive's Annual Compensation (as defined above). Any such
severance payment shall be paid by the Company to the Executive (or to
the Executive's successors in interest) in cash and in full, not later
than thirty (30) calendar days following the termination date. This
severance payment shall be in lieu of any other severance compensation
to which the executive was otherwise entitled.
(2) CONTINUED EXECUTIVE BENEFITS One hundred percent (100%) of
Company-paid health, dental, and vision insurance coverage at the same
level of coverage as was provided to Executive immediately prior to
the Change of Control (the "Company-Paid Coverage"). If
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such coverage included the Executive's dependents immediately prior to
the Change of Control, such dependents shall also be covered at
Company expense. Company-Paid Coverage shall continue until the
earlier of (i) a period of one (1) year from termination or (ii) the
date upon which the Executive and his dependents become covered under
another employer's group health, dental, vision, long-term disability
or life insurance plans that provide Executive and his dependents with
comparable benefits and level of coverage. For purposes of Title X of
the consolidated Budget Reconciliation Act of 1985 ("COBRA"), the date
of the "qualifying event" for the Executive and his dependents shall
be the date upon which the Company-Paid Coverage terminates.
(3) CERTAIN EXPENSES In addition to the above, as the Executive relocated
to the United States from another country, if the Executive relocates
to Europe within Twelve (12) months after termination, the Company
shall pay the reasonable expenses of such move. The expenses of the
move and any real estate commission payable upon the sale of his
residence in the U.S., if not offered by new employer.
5. CONFIDENTIALITY
The Executive acknowledges that information concerning the method and
conduct of the Company's (and any affiliate's) business, including, without
limitation, strategic and marketing plans, budgets, corporate practices and
procedures, financial statements, customer and supplier information,
formulae, formulation information, application technology, manufacturing
information, and laboratory test methods and all of the Company's (and any
affiliate's) manuals, documents, notes, letters, records, and computer
programs are the Company's (and/or the Company's affiliate's, as the case
may be), trade secrets ("Trade Secrets") and are the sole and exclusive
property of the Company (and/or the Company's affiliate's, as the case may
be). The Executive agrees that at no time during or following his
employment with the Company will he use, divulge, or pass on, directly or
through any other individual or entity, any Trade Secrets. Upon termination
of the Executive's employment with the Company, regardless of the reason
for such termination or at any other time upon the Company's request, the
Executive agrees to forthwith surrender to the Company any and all
materials in his possession or control which include or contain any such
Trade Secrets. The words "Trade Secrets" do not include information already
known to the public through no act or failure to act on the part of the
Executive, required by law to be disclosed, or which can be clearly shown
by written records to have been known by the Executive prior to his
employment with the Company.
6. SET-OFF MITIGATION
Subject to Section 4(a)(1), the Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense, or other claim, right, or action which the Company may have
against the Executive or others. In no event, shall the Executive be
obliged to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement.
7. ARBITRATION: COSTS AND EXPENSE OF ENFORCEMENT
(a) Except as otherwise provided in Section 4 hereof, any controversy or
claim arising out of or relating to this Agreement or the breach thereof
which cannot be promptly resolved by the parties shall be promptly
submitted to and settled exclusively by arbitration in the City of
Philadelphia, Pennsylvania in accordance with the laws of the Commonwealth
of Pennsylvania by three arbitrators, one of whom shall be appointed by the
Company, one by the Executive, and the third of whom shall be appointed by
the first two arbitrators. The arbitration shall be conducted in accordance
with the rules of the American Arbitration Association, except with respect
to the selection of arbitrators which shall be as
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provided in this Section 7. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
(b)In the event that it shall be necessary or desirable for the Executive
to retain legal counsel and/or incur other costs and expenses in connection
with the enforcement of any and all of his rights under this Agreement, the
Company shall pay (or the Executive shall be entitled to recover from the
Company, as the case may be) his reasonable attorney's fees and costs and
expenses in connection with the enforcement of his said rights (including
those incurred in or related to any arbitration proceedings provided for in
subsection (a) above and the enforcement of any arbitration award in
court), regardless of the final outcome, unless the arbitrators or a court
shall determine that under the circumstances recovery by the Executive of
all or apart of any such fees and costs and expenses would be unjust.
8. NOTICES
Any notices, requests, demands, and other communications provided for by
this Agreement shall be sufficient if in writing, and if hand delivered, or
if sent by registered or certified mail, if to the Executive, at the last
address he had filed in writing with the Company or if to the Company, at
its principal Executive offices. Notices, requests, etc. shall be effective
when actually received by the addressee or at such address.
9. ASSIGNMENT AND BENEFITS.
(a) This Agreement is personal to the Executive and shall not be
assignable by the Executives, by operation of law, or otherwise
without the prior written consent of the Company otherwise than by
will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive's heirs
and legal representatives.
(b) This agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns, including without limitation,
any subsidiary of the Company to which the Company may assign any of
its rights hereunder; provided, however, that no assignment of this
Agreement by the Company, by operation of law, or otherwise, shall
relieve it of its obligations hereunder except an assignment of this
Agreement to, and its assumption by, a successor pursuant to
subsection (c) below.
(c) The Company shall require any successor (whether direct or indirect,
by purchase, merger consolidation operation of law, or otherwise) to
all or substantially all of the business and/or assets of the Company
to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place, but irrespective of
any such assignment or assumption, this Agreement shall issue to the
benefit of and be binding upon such a successor. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid.
10. GOVERNING LAW
The provisions of this Agreement shall be construed in accordance with the
laws of the Commonwealth of Pennsylvania without reference to principles of
conflicts of laws.
11. ENTIRE AGREEMENT
This Agreement represents the entire agreement and understanding of the
parties with respect to the subject matter hereof, and it may not be
altered or amended except by an agreement in writing. In the event of a
conflict between the terms hereof and the terms of the employment letter,
the terms hereof shall control.
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12. NO WAIVER
The failure to insist upon strict compliance with any provision of this
Agreement by any party shall not be deemed to be a waiver of any future
noncompliance with such provision or of noncompliance with any other
provision.
13. SEVERABILITY
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain
in full force and effect.
14. WITHHOLDING
All payments made pursuant to this Agreement will be subject to withholding
of applicable income and employment taxes to the extent required by law.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year
set forth above.
COMPANY AXIOHM TRANSACTION SOLUTIONS, INC.
By:
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Print Name
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Title
EXECUTIVE ------------------------------------------
Signature
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Print Name
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