Exhibit 10.9
[LOGO OF TOKHEIM]
EMPLOYMENT AGREEMENT
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President and Directeur General
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of Tokheim Sofitam.
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THIS EMPLOYMENT AGREEMENT (hereinafter "Agreement"), effective this
17th day of DECEMBER, 1996, by and between TOKHEIM CORPORATION, an Indiana
corporation (hereinafter "the Company"), and JACQUES ST-DENIS (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 a 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
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be entitled to severance pay equal to twelve (12) months of the Employee's base
monthly salary. This severance, however, will end prior tothe twelve (12)
months should the Employee find other employment.
2. The Employee shall serve in the capacity of President and
Directeur General of Tokheim Sofitam.
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
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marks, logos, copyrights, patents or other matters which are properly the
property of the Company.
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
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of employment, trademarks, tradenames, service marks, trade styles, logos,
emblems, labels, slogans and writings, whether or not copyrighted, 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 Five Hundred Eighty-Three Dollars and Thirty-Four Cents
($14,583.34). 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
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eliminating or 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 which shall have the
effect of causing a change in management of the
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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
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 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
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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 Employee 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;
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
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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-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
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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 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
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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.
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
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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 or 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 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.
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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 ________________________________
Xxxxxxx X. Xxxxxx,
Chairman, President & CEO
ATTEST:
"the Company"
_____________________________
Its _________________________
_________________________________
Jacques St-Denis
President and Directeur General
of Tokheim Sofitam.
"the Employee"
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