Exhibit 10.9
EMPLOYMENT AGREEMENT
for CORPORATE OFFICER
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of this 15TH day
of
JULY, 1999, by and between Tokheim Corporation, an Indiana Corporation
("Company") and XXXXXX X. XXXXXX ("Employee").
RECITALS
A. Company acknowledges and recognizes the value of Employee's services
and deems it necessary and desirable to retain Employee's full-time services.
B. Employee and Company desire to embody the terms and conditions of
Employee's employment in a written agreement, which will supersede all prior
employment agreements, whether written or oral.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
EMPLOYMENT. Company agrees to employ Employee, and Employee agrees to
serve Company, on a full time basis in the capacity of VICE PRESIDENT,
SECRETARY
& GENERAL COUNSEL, subject to the terms and conditions of this
Agreement.
1. TERM. Employee's employment shall commence on the effective date of
this Agreement and continue for an indefinite period and until such time as it
may be terminated by one or both of the parties as provided below.
2. DEFINED TERMS. For purposes of this Agreement, the following terms
shall have the following meanings, when capitalized:
"Base Monthly Rate" means the sum of (i) Employee's monthly salary payable
under Section 4.1 as of the determination date and (ii) one-twelfth of the
average bonus paid to Employee for the two fiscal years of the Company
preceding
the determination date. For purposes of Section 5, the determination
date shall
be the date on which this Agreement terminates, and, for purposes of
Section 7, the determination date shall be the date on which the Change in
Control occurs. For purposes of clause (ii) of the first sentence of this
definition, if Employee was not employed for the two full fiscal years
immediately preceding the determination date, the amount under clause (ii) shall
be one-twelfth of Employee's bonus for the fiscal year immediately preceding the
determination date.
"Board" means the Company's Board of Directors.
"Cause" has the meaning specified in Section 5.1.1.
"Change in Control" has the meaning specified in Section 7.1.2.
"Code" or "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time.
"Committee" means a duly authorized committee of the Board.
"Confidential Information" has the meaning specified in Section 8.
"Deferred Compensation Plan" means the Tokheim Corporation Deferred
Compensation Plan, as in effect on the earlier of Executive's termination of
employment or a Change in Control.
"Disabled" or "Disability" means a mental or physical illness of Employee
that prevents Employee from performing the essential functions of his position
in a satisfactory manner and that the Board determines is likely to continue
for
at least six months or the remainder of Employee's life. The Board's
determination of the existence or non-existence of Disability shall be made in
good faith based on medical evidence acceptable to the Board.
"Supplemental Executive Retirement Plan" means the Tokheim Corporation
Supplemental Executive Retirement Plan, as in effect on the earlier of
Executive's termination of employment or a Change in Control.
3. DUTIES.
3.1 During the term of this Agreement, Employee shall have such
duties and responsibilities and shall supply such services in the carrying
out of such duties and responsibilities as Company, through its Board, a
Committee, its Chief Executive Officer, or another executive officer
designated by the Board or a Committee shall from time to time direct.
Subject to the provisions of Section 7, Company retains the right to
change
the position, responsibilities, duties, or services to be performed
by Employee in such manner as it deems appropriate. During the term of
employment, Employee shall devote his best efforts and skills to the
business interests of Company and shall not engage in any commercial
enterprise or activity, either directly or indirectly, in conflict with
Company's business, or which may in any way interfere with his employment,
without the consent of the Board.
3.2 Employee agrees that, during the term of his employment, any and
all inventions and discoveries, whether or not patentable, which Employee
may conceive or make (collectively, "Inventions"), either alone or in
conjunction with others and related or in any way connected with the
business of Company, shall be the sole and exclusive property of Company.
Employee shall, without further compensation or consideration, but at the
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expense of Company, and as and when requested to do so by Company, promptly
execute and assign any and all applications, assignments, and other
instruments which Company shall deem necessary to apply for and obtain
letters patent of the United States and foreign countries for any
Inventions and to assign and convey to Company or its nominee the sole and
exclusive right, title, and interest in and to any Inventions or
applications or patents thereon. As promptly as known or possessed by
Employee, Employee shall disclose to Company all information with respect
to any Invention. Employee further agrees that, during the term of
employment, any trademarks, tradenames, service marks, trade styles, logos,
emblems, labels, slogans, and writings, whether or not copyrighted
(collectively, "Marks"), originated by Employee, alone or in conjunction
with others, and related or in any way connected with the business of
Company, shall be the sole and exclusive property of Company. Employee
shall, without further compensation or consideration, but at the expense of
Company, and as and when requested to do so by Company, take all action
necessary to register or otherwise perfect Company's interest in and to any
Marks.
4. COMPENSATION. During the term of this Agreement, Company shall
compensate Employee for his services as follows:
4.1 Employee shall be entitled to an initial monthly base salary of
$15,500. Employee's base salary shall be payable in semi-monthly or monthly
installments in accordance with the policy of Company at the time of such
payments. Employee's base salary shall be reviewed by the Board or a
Committee at least annually and, subject to the provisions of Section 7,
shall be subject to adjustment by the Board or such Committee.
4.2 Employee shall be eligible for such bonus program as may from
time to time be made available and applicable to Employee by the Board or a
Committee.
4.3 Employee shall be granted participation in all employee benefit
plans applicable to Employee's position with Company, including, but not
limited to, medical plans, disability plans, life insurance plans, savings
plans, stock option plans, the Deferred Compensation Plan, the Supplemental
Executive Retirement Plan, and such other plans as may from time to time be
made available and applicable to Employee (collectively, "Plans"),
consistent with the policies of Company and the terms and conditions of the
Plans, as in effect from time to time. Except as provided in Section 7,
nothing in this Agreement shall be deemed to alter the terms and conditions
of any Plan or the policy of Company with respect to any Plan, and nothing
in this Agreement shall be deemed to entitle Employee to any rights in any
Plan which would not otherwise be made available to Employee pursuant to
the terms, conditions, and provisions of the Plan.
4.3.1 Except as may otherwise be expressly provided, Employee
shall be granted, upon termination of this Agreement, such rights as
may be available to him pursuant to any Plan or Plans then in effect.
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5. TERMINATION. Either Company or Employee may terminate this Agreement
upon providing written notice to the other.
5.1 By the Company. In the event this Agreement is terminated with
Cause, Employee shall be entitled to no severance pay, and 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.
5.1.1 With Cause. For purposes of this Agreement, the
termination of this Agreement shall be deemed to have been made with
Cause only upon the occurrence of one or more of the following
circumstances:
5.1.1.1 Employee engages in any breach of fiduciary duty,
act of dishonesty, or theft involving Company;
5.1.1.2 Employee is convicted of a felony;
5.1.1.3 Employee discloses Confidential Information in
violation of Section 8 or competes with Company in violation
of Section 9;
5.1.1.4 Employee refuses or fails to carry out the duties
which may have been assigned to him; or
5.1.1.5 Employee continues to violate any written Company
policy after written notice by Company of the violation.
Before the Board terminates Employee's employment for Cause, it shall
provide Employee an opportunity, after reasonable notice, to appear
before the Board. To terminate Employee for Cause, the Board must
adopt a resolution terminating Employee by affirmative vote of at
least 75% of its members, after having given Employee the opportunity
to present his case to the Board. The Board's resolution must state
that the Board finds in good faith that (i) Employee is guilty of
conduct constituting Cause, specifying the details of such conduct,
and (ii), for cause described in Section 5.1.1.5, Employee failed to
cure such conduct within 30 days after receiving written notice from
Company detailing such conduct. The effective date of Employee's
termination for Cause shall be the date on which Employee receives a
copy of the resolution adopted by the Board or such later date
specified in the resolution.
5.1.2 Without Cause. In the event Company terminates this
Agreement without Cause, Employee shall be entitled to severance pay
equal to 18 months of Employee's base salary payable pursuant to
Section 4.1 in effect at the time of the termination, payable at the
same interval as his salary at the time of the termination.
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Employee shall have no obligation to mitigate damages by seeking other
employment.
5.1.3 The right to severance pay under this Section 5.1.2 shall
vest upon notice of termination and shall not be affected by
Employee's subsequent death or disability.
5.1.3.1 Employee shall also be entitled to the following
for 18 months or until Employee begins alternative
employment:
i Medical insurance, life insurance, and disability
insurance benefits from Company comparable to such
benefits provided with respect to Employee as of the
date of the termination of this Agreement.
ii Continued accrual of benefits under the Supplemental
Executive Retirement Plan, if Employee is a Participant
therein, as if Employee's employment had continued at
the Base Monthly Rate.
5.2 By Employee. Subject to Section 7, in the event Employee
terminates this Agreement, Employee shall be entitled to no severance pay
and shall be entitled only to such other rights as may be provided in this
Agreement or as may otherwise be available to him in law or equity.
5.3 Death or Disability. In the event Employee dies or becomes
permanently Disabled during the term of this Agreement or any extension of
it, this Agreement shall terminate upon the date of such death or
Disability. In the event this Agreement terminates by Employee's death or
Disability, Company shall pay Employee's pro-rata base salary under Section
4.1 through the termination date, and Employee shall be entitled to such
continuing benefits as may be provided in any plan or by law, but Employee
shall not be entitled to severance pay.
6. RETURN OF COMPANY PROPERTY. Upon termination of this Agreement for
any reason, Employee shall immediately surrender to Company, in the same
condition as existed prior to termination of this Agreement, all property of
Company in his possession or control, including Confidential Information,
computers, files, and any other property owned by Company. Employee and Company
acknowledge and agree that the damages suffered as a result of the breach of
this Section would be difficult to ascertain. Accordingly, the parties agree
that Company shall be entitled to liquidated damages in the amount of $5,000 in
the event of a breach by Employee of this Section.
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7. CHANGE IN CONTROL.
7.1 Benefits payable. Notwithstanding anything in this Agreement to
the contrary, Employee shall be entitled to the termination benefits set
forth below, if this Agreement is terminated by a "Triggering Event." The
benefits set forth below shall be in addition to any other benefits which
may have accrued to Employee during the term of employment; provided,
however, the provisions regarding direct severance pay shall be exclusive
and shall replace any other rights of Employee to direct severance payments
as set forth in Section 5.
7.1.1 Triggering Event. For purposes of this Agreement, a
Triggering Event shall be deemed to have occurred if:
7.1.1.1 there is a Change in Control; and
7.1.1.2 within 12 months after the Change in Control:
(a) Company terminates this Agreement without Cause, or
(b) (1) Company or Employee terminates this Agreement, and
(2) in combination with the Change in Control, there
has been one or more of the following:
(i) a change in the President and/or Chief
Executive Officer of Tokheim Corporation or
the principle managing corporation,
(ii) a change of Employee's job authority or
responsibilities,
(iii) a reduction of Employee's base salary
payable pursuant to Section 4.1 or a
material reduction of aggregate benefits
provided to Employee, or
(iv) the relocation of Employee's primary office
location to a distance greater than 50 miles
from the current office location.
7.1.2 Change in Control. As used in this Agreement, a "Change
in Control" shall be deemed to have occurred if there has been one or
more of the following:
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7.1.2.1 any "person" (as such term is used in Section
13(d)(3) and 14(d)(2) of the Securities Exchange Act of
1934, as amended from time to time), other than a retirement
plan sponsored by Company, becomes a beneficial owner,
directly or indirectly, of securities of Company
representing 20% or more of the combined voting power of
Company's then outstanding securities;
7.1.2.2 less than 51% of the members of the Board are
Incumbent Directors (as defined in the Company's Deferred
Compensation Plan, as in effect on the date of this
Agreement):
7.1.2.3 any corporation or group of associated persons
acting in concert, owns more than 25% of the outstanding
shares of voting stock of Company coupled with or followed
by the exercise of the voting power of such shares by the
election of two or more directors of Company in any one
election at the instance of such corporation or group;
7.1.2.4 Company becomes a party to an agreement of merger,
consolidation, or other reorganization pursuant to which
Company will be a constituent corporation, and either (i)
Company is not the surviving or resulting corporation, or
(ii) the transaction will result in less than 60% of the
outstanding voting securities of the surviving or resulting
entity being owned by former shareholders of Company;
7.1.2.5 Company becomes a party to an agreement providing
for Company's sale or other disposition of all or
substantially all of its assets to any individual,
partnership, joint venture, association, trust, corporation,
or other entity or person which is not an Affiliate (as
defined in the Company's Deferred Compensation Plan, as in
effect on the date of this Agreement);
7.1.2.6 an event that triggers the exercisability of rights
under the Company's Shareholder Rights Plan, as in effect at
the time of the Triggering Event; or
7.1.2.7 the occurrence of another event that the Board
designates a Change in Control.
7.2 Benefits. In the event this Agreement is terminated by a
Triggering Event, Employee shall be entitled to the following:
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7.2.1 A lump sum severance payment equal to Employee's Base
Monthly Rate multiplied by 24, payable within 30 days following
termination of the Agreement.
7.2.2 Employee shall also be entitled to the following for 24
months or until Employee begins alternative employment.
7.2.2.1 Medical, life, accidental death and
dismemberment, disability, pension, and split dollar life
insurance benefits from Company comparable to such benefits
with respect to Employee as of the date of the termination
of this Agreement.
7.2.2.2 Continued accrual of benefits under the
Supplemental Executive Retirement Plan as if Employee's
employment had continued at the Base Monthly Rate.
7.3 Notwithstanding any provision of this Section 7 to the contrary,
if Company reasonably determines that any payment or benefit provided
pursuant to this Section is an "excess parachute payment" within the
meaning of Code Section 280G or any successor thereof, Company may limit
the total payment or benefit to Employee to the maximum amount payable by
Company that would not constitute an "excess parachute payment."
7.4 Employee shall have the right to enforce his rights under this
Section 7 in any court with jurisdiction over the parties and matter or
pursuant to the arbitration procedures of Section 15. Company shall be
responsible for Employee's reasonable expenses and attorneys' fees in any
such court proceeding or arbitration and shall pay all costs of
arbitration relating to Employee's enforcement of his rights under this
Section.
8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. For purposes of this
Agreement, Confidential Information is defined as trade secrets (as defined in
Indiana Code 24-2-3-2, as amended), software programs, customer reports,
customer lists, vendor reports, vendor lists, and other information regarding
customers and vendors utilized by Company in the course of its business, and
any
information regarding Company's present or future business plans.
8.1 Employee acknowledges his position with Company will expose
Employee to certain Confidential Information and that Confidential
Information constitutes a valuable, special, and unique asset of Company's
business. Employee shall not, during or at any time after the term of his
employment, disclose any Confidential Information acquired by Employee
during his employment to any person, firm, corporation, association, or
other entity for any purpose, or use Confidential Information for any
purpose, other than for the performance of services for Company.
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8.2 In the event of Employee's actual or threatened breach of the
provisions of this Section, Company shall be entitled to obtain an
injunction enjoining Employee from committing such actual or threatened
breach. In the event Company obtains an injunction enjoining Employee from
violating this provision, Company shall be entitled to recover all costs
incurred in connection with the injunction, including reasonable attorneys'
fees. Company shall also be permitted to pursue any other available
remedies available for such breach or threatened breach, including the
recovery of damages, costs, and attorneys' fees from Employee.
8.3 Employee acknowledges that all Confidential Information is the
sole and exclusive property of Company. Employee shall surrender possession
of all Confidential Information, including documents, computers, software,
disks, tapes or video recordings, or any other written, recorded, or
graphic matter, however produced or reproduced, containing Confidential
Information to Company upon any suspension or termination of Employee's
employment. If, after the suspension or termination of Employee's
employment, Employee becomes aware of any Confidential Information in his
possession, Employee shall immediately surrender possession of the
Confidential Information to Company.
9. RESTRICTIVE COVENANT. For purposes of this Agreement, "Competing
Business" is defined as Gilbarco, Xxxxx, Schlumberge, Xxxxxxx, and Tatsuno, and
their respective affiliates and subsidiaries, both domestic and international,
and any other company engaged in the petroleum dispensing manufacturing
business or point of sale equipment business related to petroleum dispensing.
9.1 Employee hereby covenants and agrees that, for the greater of 18
months after termination of this Agreement, or such time as Employee is
receiving any severance pay from Company (the "Restricted Period"),
Employee shall not, directly or indirectly own, manage, operate, control,
be controlled by, participate in, be employed by, or be connected in any
manner with the ownership, management, operation, or control of any
Competing Business. Employee further covenants and agrees that he shall not
during the Restricted Period contact or attempt to contact, either directly
or indirectly, any customers of Company as they may exist at the time of
termination of Employee's employment for the purpose of soliciting such
customer's business for or on behalf of any Competing Business. Employee
specifically acknowledges and agrees that Company's business is
international in scope and that the restriction as contained in this
section is intended to cover activity by Employee both domestically and
internationally. Employee further stipulates, covenants, and agrees that a
reasonable geographic restriction, as that term is used and defined by
Indiana law, on Employee's activities under this Section is the entire
world.
9.2 In the event of Employee's actual or threatened breach of the
provisions of this Section, Company shall be entitled to obtain an
injunction enjoining Employee from committing such actual or threatened
breach. In the event Company obtains an injunction enjoining Employee from
violating this provision, Company shall be entitled to recover all
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costs incurred in connection with the injunction, including reasonable
attorneys' fees. Company shall also be permitted to pursue any other
available remedies available for such breach, including the recovery of
damages and reasonable costs and attorneys' fees from Employee.
9.3 If a court of competent jurisdiction or any arbitrator
determines that any provision or restriction in this Section is
unreasonable or unenforceable, the court or arbitrator shall modify such
restriction or provision so that the agreement then becomes an enforceable
restriction of the activities of Employee.
10. FORFEITURE OF BENEFITS. If Employee breaches his obligations under
either Section 8 or Section 9, Employee shall forfeit all future payments or
compensation payable or provided by Company, except as required pursuant to the
terms of a Plan.
11. NO CONTINUING OBLIGATION. Employee acknowledges and agrees that this
Agreement does not grant Employee the right to continue as an employee of
Company as an executive or in any other capacity.
12. NO TRUST ESTABLISHED. All payments provided under this Agreement
shall be paid in cash from the general funds of Company, and no separate or
special fund has been or shall be established, and no segregation of assets has
been or shall be made to assure payment. Employee shall have no right, title, or
interest in or to any investments or other assets which Company may acquire or
obtain to assist in meeting its obligations under this Agreement. 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 Company and Employee or any other person. The right of any
person to receive payments from Company under this Agreement shall be no
greater than the rights of a general unsecured creditor of Company.
13. WITHHOLDING. Company may withhold from any payments or benefits
provided under this Agreement:
13.1 all federal, state, city, or other taxes as required pursuant
to any law or governmental regulation or ruling; and
13.2 any amounts owed by Employee to Company for any reason at the
time of the termination of this Agreement.
14. NO ASSIGNMENT OR ALIENATION. This Agreement shall not be assignable
by Employee without Company's prior written consent; provided, however, nothing
in this Section shall preclude Employee from designating a beneficiary to
receive any benefit payable upon his death or preclude Employee's executors,
administrators, or other legal representatives of his estate from assigning any
rights hereunder to the person or persons entitled thereto. Further, except as
required by law, no right to receive payments under this Agreement shall be
subject to anticipation,
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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.
15. ARBITRATION. Employee and Company recognize and agree that the
arbitration of disputes provides mutual advantages in terms of facilitating the
fair and expeditious resolution of disputes. In consideration of these mutual
advantages, the parties agree as follows:
15.1 Limitation of Section. The provisions of this Section are
subject to and limited by the provisions of Sections 7.4, 8.2, and 9.2.
Except to the extent elected by Employee under Section 7.4, or by the
Company under Section 8.2 or 9.2, the provisions of this Section shall not
apply to any action brought pursuant to Sections 7.4, 8.2, or 9.2.
15.2 Scope of Arbitration. The parties shall submit to arbitration,
in accordance with these provisions, any and all disputes either party may
have arising from or related to this Agreement, and any other disputes
between the parties arising from or related to their employment
relationship, including but not limited to, any disputes regarding alleged
common law tort violations or violations of state or federal statutory
rights. The parties further agree that the arbitration process set forth
below shall be the exclusive means for resolving all disputes made subject
to arbitration but that no arbitrator shall have authority to determine
whether disputes fall within the scope of these arbitration provisions.
15.3 Governing Law. Employee and Company agree that the
interpretation and enforcement of the arbitration provisions of this
Agreement, including any right to appeal, shall be governed by the Indiana
Uniform Arbitration Act, I.C. 34-4-2-1, et seq.
15.4 Time Limits on Submitting Disputes. Employee and Company
acknowledge and agree that one of the objectives of this arbitration
provision is to resolve disputes expeditiously, as well as fairly, and
that it is the obligation of both parties, to those ends, to raise any
disputes subject to arbitration under this Agreement in an expeditious
manner. Accordingly, the parties agree to waive all statutes of limitations
that might otherwise be applicable, and agree further that, as to any
dispute subject to arbitration pursuant to this Agreement, notice of a
demand for arbitration must be provided to the other party:
15.4.1 In the event of a dispute arising out of a termination
of this Agreement, within six months of the date of termination;
15.4.2 In the event of a breach of Section 8 or 9, within four
months after the full Board has actual knowledge of the breach; or
15.4.3 In the event of any other dispute, within three months
after the dispute arises.
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Failure to demand arbitration on claims within these time limits is
intended to, and shall to the furthest extent permitted by law, be a waiver
and release with respect to such claims, and, in the absence of a timely
submitted written demand for arbitration, an arbitrator has no authority to
resolve the disputes or render an award.
15.5 Availability of Provisional Relief. Notwithstanding anything
herein to the contrary, nothing in this Section shall prevent Company or
Employee from obtaining injunctive relief from a court of competent
jurisdiction to enforce the obligations of Sections 8 and 9 and for which
either party may require provisional relief pending a decision on the
merits by the arbitrator.
15.6 American Arbitration Association Rules Apply as Modified
Herein. Any arbitration of disputes shall be conducted under the Model
Employment Procedures of the American Arbitration Association (AAA), as
modified in this Agreement.
15.7 Invoking Arbitration. Either party may invoke the arbitration
procedures described in this Agreement by written notice of a demand for
arbitration (an "Arbitration Notice"). An Arbitration Notice shall contain
a statement of the matter to be arbitrated in sufficient detail to
establish the timeliness of the demand. The parties shall then have ten
business days within which they may identify a mutually agreeable
arbitrator. After the ten day period has expired, the parties shall prepare
and submit to the AAA a joint submission, with each party to contribute
half of the appropriate administrative fee. In their submission to the AAA,
the parties shall either designate a mutually acceptable arbitrator or
request a panel of arbitrators from the AAA according to the procedure
described in section, below.
15.8 Arbitrator Selection. In the event the parties cannot agree
upon an arbitrator within ten business days after the Arbitration Notice
is received, their joint submission to the AAA shall request a panel of
seven arbitrators from the joint Labor and Commercial Arbitration Panels
who are practicing attorneys with professional experience in the field of
labor and/or employment law, and the parties shall attempt to select an
arbitrator from the panel according to AAA procedures. If the parties
remain unable to select an arbitrator, they shall request from AAA a panel
of three comparably qualified arbitrators from which the AAA shall reject
the least preferred candidate of each party and select the candidate with
the highest joint ranking of the parties.
In the event of the death or disability of an arbitrator, the parties
shall select a new arbitrator as provided above. The substitute arbitrator
shall have the power to determine the extent to which he or she shall act
on the record already made in arbitration.
15.9 Prehearing Procedures. Upon accepting assignment as
arbitrator, the arbitrator shall promptly conduct a preliminary hearing at
which each party shall be entitled to submit a brief statement of their
respective positions, and at which the arbitrator shall establish a
timetable for prehearing activities and the conduct of the hearing, and may
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address initial requests from the parties for prehearing disclosure of
information. At the preliminary hearing and/or thereafter, the arbitrator
shall have the discretion and authority to order, upon request or
otherwise, the prehearing disclosure of information to the parties. Such
disclosure may include, without limitation, production of requested
documents, exchange of witness lists and summaries of the testimony of
proposed witnesses, and examination by deposition of potential witnesses,
to the end that information disclosure shall be conducted in the most
expeditious and cost-effective manner possible, and shall be limited to
that which is relevant and for which each party has a substantial,
demonstrable need. The arbitrator shall further have the authority, upon
request or otherwise, to confer with the parties or their designated
representatives concerning any matter, and to set or modify timetables for
all aspects of the arbitration proceeding.
The arbitrator may award either party its reasonable attorneys' fees
and costs, including reasonable expenses associated with production of
witnesses or proof, upon a finding that the other party (i) engaged in
unreasonable delay, (ii) failed to comply with the arbitrator's discovery
order, or (iii) failed to comply with requirements of confidentiality
hereunder. The arbitrator shall also have the authority, upon request or
otherwise, to entertain and decide motions for prehearing judgment.
15.10 Stenographic Record. There shall be a stenographic record of
the arbitration hearing, unless the parties agree to record the proceedings
by other reliable means. The costs of recording the proceedings shall be
borne equally by the parties.
15.11 Location. Unless otherwise agreed by the parties, arbitration
hearings shall take place in Fort Xxxxx, Xxxxx County, Indiana at a
mutually agreeable place or, if no agreement can be reached, at a place
designated by the AAA.
15.12 The Hearing. At any hearing, the party bearing the burden of
proof according to the governing substantive law shall present its evidence
first.
15.13 Posthearing Briefs. After the close of the arbitration
hearing, and on any issue concerning prehearing procedures, the arbitrator
shall allow the parties to submit written briefs.
15.14 Confidentiality. All arbitration proceedings hereunder shall
be confidential. Neither party shall disclose any information about the
evidence produced by the other in the arbitration proceeding or about
documents produced by the other in connection with the proceeding, except
in the course of a judicial, regulatory or arbitration proceeding, or as
may be requested by governmental authority. Before making any disclosure
permitted by the preceding sentence, the party shall give the other party
reasonable written notice of the intended disclosure and an opportunity to
protect its interests. Expert witnesses and stenographic reporters shall
sign appropriate nondisclosure agreements.
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15.15 Costs. Except as otherwise expressly provided in this
Agreement, as to any disputes arising from the termination of the
Agreement, each party shall be responsible for its costs, including
attorneys' fees, incurred in any arbitration, and the arbitrator shall not
have authority to include all or any portion of said costs and fees in his
or her award. The costs and fees of the arbitrator and of the AAA shall be
borne equally by the parties.
15.15.1 Notwithstanding anything herein to the contrary, Company
shall be entitled to recover its reasonable costs and attorneys' fees
incurred in enforcing the provisions of Section 8 or Section 9,
provided that it prevails in such enforcement action.
15.15.2 Notwithstanding anything herein to the contrary,
Employee shall be entitled to recover from the Company all costs and
expenses incurred in enforcing his rights under this Agreement,
including all expenses of the arbitration and attorneys' fees and
costs, provided that he prevails in whole or in part in such
enforcement action.
15.16 Remedies. The arbitrator shall have authority to award any
remedy or relief that a federal or state court situated in the State of
Indiana could grant in conformity to applicable law.
15.17 Law Governing the Arbitrator's Award. In rendering an award,
the arbitrator shall determine the rights and obligations of the parties,
including employment discrimination issues, according to federal law and
the substantive law of the State of Indiana (excluding conflicts of laws
principles) as though the matter were before a court of law.
15.18 Written Awards and Enforcement. Any arbitration award shall be
accompanied by a written statement containing a summary of the issues in
controversy, a description of the award, and an explanation of the reasons
for the award. The parties agree that a competent court shall enter
judgment upon the award of the arbitrator, provided it is in conformity
with the terms of this Agreement.
15.19 Conflict in Procedure. If any part of this arbitration
procedure is in conflict with any mandatory requirement of applicable law,
the mandatory requirement shall govern, and the procedure set forth above
shall be reformed and construed to the maximum extent possible in
conformance with the applicable law. The procedure shall remain otherwise
unaffected and enforceable.
16. MISCELLANEOUS.
16.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and all prior negotiations and agreements,
whether written or oral, are merged into this Agreement.
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16.2 Severability. If any provision of this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other
provision or part of a provision of this Agreement; but this Agreement
shall be reformed and construed as if such provision had never been
contained in it, and any such provision shall be reformed so that it would
be valid, legal and enforceable to the maximum extent permitted.
16.3 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
counterparts collectively shall constitute one document representing the
agreement among the parties.
16.4 Binding Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the parties to this Agreement and their
respective successors and assigns.
16.5 Amendment. This Agreement may not be amended, discharged,
terminated, or changed orally; and any such proposed amendment, discharge,
termination, or change shall be in writing and signed by the party against
whom such amendment, change, discharge, or termination is sought.
16.6 Waiver of Breach. The waiver by any party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach; and no waiver shall be valid unless it is in
writing and is signed by the party against whom such waiver is sought.
16.7 Extension of Noncompete Period. The periods of time during
which Employee is prohibited from engaging in such business practices
pursuant to this Agreement shall be extended by any length of time during
which Employee is in breach of any of such covenants.
16.8 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana.
16.9 Survival. The provisions and restrictions contained in Sections
8 and 9 shall survive the termination of this Agreement and Employee's
employment with Company.
16.10 Full Disclosure. Employee acknowledges that Employee's
employment with Company is conditioned upon the execution of this
Agreement. Employee represents and acknowledges that Employee has
carefully reviewed all of the terms and conditions in this Agreement and
has been advised of Employee's right to seek independent legal counsel
prior to execution of this Agreement.
16.11 Notices. Any notice, request, or other communication required
or permitted under this Agreement shall be in writing. Notice shall be
deemed to have been given only
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if personally delivered or sent by registered or certified mail, return
receipt requested. Any notice so mailed shall be deemed given on the
postmark date. Failure or refusal to accept or receive any notice or
communication shall not affect the validity of the notice. All such notices
shall be given to the respective parties at the addresses designated below,
or to such other address as a party may designate in a like manner.
If to Company: TOKHEIM CORPORATION
c/o XXXXXXX XXXXXX, VP HUMAN RESOURCES
X.X. XXX 000
XXXX XXXXX, XX 00000
If to Employee:
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first written above.
TOKHEIM CORPORATION EMPLOYEE
/s/ XXXXXXX X. XXXXXX /s/ XXXXXX X. XXXXXX
_____________________________ ____________________________
XXXXXXX X. XXXXXX, CHAIRMAN XXXXXX X. XXXXXX
PRESIDENT & CEO
/s/ XXXXXXX X. XXXXXX
________________________________
By: XXXXXXX X. XXXXXX
Its: VICE PRESIDENT, HUMAN RESOURCES
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