AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is made
and entered into this 1st day of September, 1999, by and between IVI Checkmate
Corp., a Delaware corporation (hereinafter, the "Company"), and Xxxx X. Xxxxxxx
(hereinafter, "Executive").
BACKGROUND
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Checkmate Electronics, Inc. and Executive entered into an Employment
Agreement dated as of January 1, 1998. This is an amendment and restatement of
that agreement to reflect the fact that Executive is now an employee of IVI
Checkmate Corp., to provide for a three year rolling employment period, and to
amend the Severance Payment as provided in Section 8(a)(i)(B) hereof.
The Company desires to engage Executive in the executive capacities set
forth herein, in accordance with the terms and conditions of this Agreement.
Executive is willing to serve as such in accordance with the terms and
conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effective Date. This Agreement is effective as of January 1, 1998 (the
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"Effective Date").
2. Employment. Executive is hereby employed on the Effective Date as
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Executive Vice President and Chief Financial Officer of the Company.
Executive's responsibilities under this Agreement shall be in accordance with
the policies and objectives established by the Board of Directors of the Company
(the "Board") and shall be consistent with the responsibilities of similarly
situated executives of comparable companies in similar lines of business. In
his capacity as Executive Vice President and Chief Financial Officer of the
Company, Executive will report directly to the President and Chief Executive
Officer of the Company.
3. Employment Period. Unless earlier terminated herein in accordance with
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Section 7 hereof, Executive's employment under this Agreement shall begin on the
Effective Date and extend for a period of three years (the "Employment Period");
provided, however, that commencing on the date one year after the Effective Date
(i.e., January 1, 1999), and on each anniversary of such date (such date and
each anniversary thereof shall be hereinafter referred to as the "Renewal
Date"), unless previously terminated, the Employment Period shall be
automatically extended so as to terminate three years from such Renewal Date,
unless at least 30 days prior to the Renewal Date the Company shall give notice
to Executive that the Employment Period shall not be so extended. Upon such
notice, the Employment Period shall terminate upon the expiration
of the then-current term, including any prior extensions. For example, as of the
date of this Amended and Restated Employment Agreement (September 1999), the
current term extends to December 31, 2001. Unless notice is given otherwise by
November 30, 1999, the term will automatically extend on January 1, 2000 to
December 31, 2002.
4. Extent of Service. During the Employment Period, and excluding any
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periods of vacation and sick leave to which Executive is entitled, Executive
agrees to devote his business time, attention, skill and efforts exclusively to
the performance of his duties hereunder; provided, however, that it shall not be
a violation of this Agreement for Executive to (i) devote reasonable periods of
time to charitable and community activities, and/or (ii) manage personal
business interests and investments, so long as such activities do not interfere
with the performance of Executive's responsibilities under this Agreement.
5. Compensation and Benefits.
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(a) Base Salary. For calendar years 1998, 1999, and 2000,
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respectively, the Company will pay to Executive a base salary in the amount of
$160,000, $175,000 and $190,000 per year ("Base Salary"), less normal
withholdings, payable in equal monthly or more frequent installments as are
customary under the Company's payroll practices from time to time. In each year
after the third year of the Employment Period, the Compensation Committee of the
Board shall review Executive's Base Salary annually and in its sole discretion,
subject to approval of the Board, may increase Executive's Base Salary from year
to year. The annual review of Executive's salary by the Board will consider,
among other things, Executive's own performance and the Company's performance.
(b) Performance Bonus. For calendar years 1998, 1999, and 2000, the
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Chairman of the Board will establish and communicate to Executive certain
objectively determinable performance objectives for each quarter. Provided the
performance objectives are met in a given calendar quarter, the Company will pay
to Executive at the end of such quarter a performance bonus (the sum of such
quarterly bonuses being referred to herein as the "Annual Bonus") in the amount
of $15,000 (for calendar quarters in 1998), $15,000 (for calendar quarters in
1999), or $16,250 (for calendar quarters in 2000). In each subsequent year of
the Employment Period, the Compensation Committee of the Board shall review
Executive's Annual Bonus and in its sole discretion, subject to approval of the
Board, may increase Executive's Annual Bonus from year to year. The annual
review of Executive's bonus by the Board will consider, among other things,
Executive's own performance and the Company's performance.
(c) Incentive, Savings and Retirement Plans. During the Employment
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Period, Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs applicable generally to
similarly situated officers of the Company and its affiliated companies, and on
the same basis as such other similarly situated officers.
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(d) Welfare Benefit Plans. During the Employment Period, Executive and
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Executive's family shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs provided
by the Company and its affiliated companies (including, without limitation,
medical, disability, life, and accidental death insurance plans and programs) to
the extent applicable generally to similarly situated officers of the Company
and its affiliated companies.
(e) Expenses. During the Employment Period, Executive shall be
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entitled to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company and its affiliated companies to the extent applicable generally to other
similarly situated officers of the Company and its affiliated companies. Without
limiting the foregoing, Executive shall be entitled to reimbursement for all
reasonable travel and out-of-pocket expenses, including reasonable operating,
maintenance and insurance costs associated with one automobile to be used in
Company business-related purposes.
(f) Fringe Benefits. During the Employment Period, Executive shall be
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entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company and its affiliated companies in effect for similarly
situated officers of the Company and its affiliated companies. Without limiting
the foregoing, Executive shall be entitled to an automobile allowance of US $700
per month.
6. Change in Control. For the purposes of this Agreement, a "Change in
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Control" shall mean:
(i) The acquisition by any individual, entity or group (within the
meaning of Sections 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
25% or more of the combined voting power of the then outstanding voting
securities of the Company (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change of Control: (A) any acquisition
by a Person who is on the Effective Date the beneficial owner of 25% or
more of the Outstanding Company Voting Securities, (B) any acquisition
directly from the Company, (C) any acquisition by the Company, (D) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or
(E) any acquisition by any corporation pursuant to a transaction which
complies with clauses (A), (B) and (C) of subsection (iii) of this
definition; or
(ii) Individuals who, as of the Effective Date, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to
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the Effective Date whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect
to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the Board; or
(iii) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless, following such
Business Combination, (A) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no Person
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 25% or more of the combined voting power of the then
outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination, and (C) at least
a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination.
Notwithstanding the above definition, the Combination Transaction shall not
be deemed a Change in Control for purposes of this Agreement; provided, however,
that any stock options held by Executive on the date of the Combination
Transaction shall be governed by the terms of the applicable stock option
agreement(s) as to accelerated vesting related to the Combination Transaction.
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7. Termination of Employment.
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(a) Death, Retirement or Disability. Executive's employment shall
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terminate automatically upon Executive's death or Retirement during the
Employment Period. For purposes of this Agreement, "Retirement" shall mean
normal retirement as defined in the Company's then-current retirement plan, or
there is no such retirement plan, "Retirement" shall mean voluntary termination
after age 65 with ten years of service. If the Company determines in good faith
that the Disability of Executive has occurred during the Employment Period
(pursuant to the definition of Disability set forth below), it may give to
Executive written notice in accordance with this Agreement of its intention to
terminate Executive's employment. In such event, Executive's employment with
the Company shall terminate effective on the 30th day after receipt of such
written notice by Executive (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, Executive shall not have returned to
full-time performance of Executive's duties. For purposes of this Agreement,
"Disability" shall mean a mental or physical disability as determined by the
Board in accordance with standards and procedures similar to those under the
Company's employee long-term disability plan, if any. At any time that the
Company does not maintain such a long-term disability plan, Disability shall
mean the inability of Executive, as determined by the Board, to substantially
perform the essential functions of his regular duties and responsibilities due
to a medically determinable physical or mental illness which has lasted (or can
reasonably be expected to last) for a period of six consecutive months.
(b) Termination by the Company. The Company may terminate Executive's
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employment during the Employment Period with or without Cause. For purposes of
this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to perform
substantially Executive's duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness, and specifically
excluding any failure by Executive, after reasonable efforts, to meet
performance expectations), after a written demand for substantial performance is
delivered to Executive by the Chief Executive Officer or the Board which
specifically identifies the manner in which such Board or the Chief Executive
Officer believes that Executive has not substantially performed Executive's
duties, or
(ii) the willful engaging by Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive's
action or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company. The termination of employment
of Executive shall not be deemed to be for Cause unless and until there shall
have been
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delivered to Executive a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of the Board of
the Company (excluding Executive, if then a director) at a meeting of such Board
called and held for such purpose (after reasonable notice is provided to
Executive and Executive is given an opportunity, together with counsel, to be
heard before such Board), finding that, in the good faith opinion of such Board,
Executive is guilty of the conduct described in subparagraph (i) or (ii) above,
and specifying the particulars thereof in detail.
(c) Termination by Executive. Executive's employment may be terminated
------------------------
by Executive for Good Reason or no reason. For purposes of this Agreement, "Good
Reason" shall mean:
(i) without the written consent of Executive, the assignment to
Executive of any duties materially inconsistent with Executive's position
(including status, offices, titles and reporting requirements), authority,
duties or responsibilities as in effect on the Effective Date, or any other
action by the Company which results in a material diminution in such position,
authority, duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by
Executive;
(ii) a reduction by the Company in Executive's Base Salary, Annual
Bonus and benefits as in effect on the Effective Date or as the same may be
increased from time to time; or
(iii) any failure by the Company to comply with and satisfy
Section 13(b) of this Agreement; or
(d) Notice of Termination. Any termination by the Company for Cause,
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or by Executive for Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with this Agreement. For purposes
of this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than 30 days after the giving
of such notice). The failure by Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason or Cause shall not waive any right of Executive or the Company,
respectively, hereunder or preclude Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing Executive's or the Company's
rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
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Executive's employment is terminated by the Company for Cause, or by Executive
for Good Reason,
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the date of receipt of the Notice of Termination or any later date specified
therein, as the case may be, (ii) if Executive's employment is terminated by the
Company other than for Cause or Disability, the Date of Termination shall be the
date on which the Company notifies Executive of such termination and (iii) if
Executive's employment is terminated by reason of death, Retirement or
Disability, the Date of Termination shall be the date of death or Retirement of
Executive or the Disability Effective Date, as the case may be.
8. Obligations of the Company upon Termination.
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(a) Termination by Executive for Good Reason; Termination by the
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Company Other Than for Cause, Death or Disability; Termination upon Expiration
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of the Employment Term. If, during the Employment Period, the Company shall
----------------------
terminate Executive's employment other than for Cause, death or Disability, or
Executive shall terminate employment for Good Reason within a period of 90 days
after the occurrence of the event giving rise to Good Reason, or if Executive's
employment terminates upon expiration of the Employment Term, then in
consideration of Executive's services rendered prior to such termination:
(i) the Company shall pay to Executive in a lump sum in cash within
30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) Executive's Base Salary through the Date of
Termination to the extent not theretofore paid, (2) the product of (x)
Executive's target Annual Bonus for the year in which the Date of
Termination occurs and (y) a fraction, the numerator of which is the number
of days in the current fiscal year through the Date of Termination, and the
denominator of which is 365, and (3) any compensation previously deferred
by Executive (together with any accrued interest or earnings thereon) and
any accrued vacation pay, in each case to the extent not theretofore paid
(the sum of the amounts described in clauses (1), (2) and (3) shall be
hereinafter referred to as the "Accrued Obligations"); and
B. the amount (the "Severance Payment") equal to the present
value (determined in accordance with Section 280G(d)(4) of the Code) of the
income stream represented by a continuation of Executive's Base Salary and
Annual Bonus as in effect on the Date of Termination for a period beginning
on the Date of Termination and ending on the date that is three years after
the Date of Termination; and
(ii) for three years after Executive's Date of Termination, or such
longer period as may be provided by the terms of the appropriate plan, program,
practice or policy, the Company shall continue benefits to Executive and/or
Executive's family at least equal to those which would have been provided to
them in accordance with the welfare plans, programs, practices and policies
described in Section 5(e) of this Agreement if Executive's employment had not
been terminated or, if more favorable to Executive, as in effect generally at
any time thereafter with respect to other peer
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executives of the Company and its affiliated companies and their families,
provided, however, that if Executive becomes re-employed with another employer
and is eligible to receive medical or other welfare benefits under another
employer provided plan, the medical and other welfare benefits described herein
shall be secondary to those provided under such other plan during such
applicable period of eligibility ("Welfare Benefits"); and
(iii) if the Date of Termination occurs within two years after a
Change in Control, then all Company stock options held by Executive on the Date
of Termination and not then vested shall become immediately vested and
exercisable as of the Date of Termination; and
(iv) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to Executive any other amounts or benefits required
to be paid or provided or which Executive is eligible to receive under any plan,
program, policy or practice or contract or agreement of the Company and its
affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
(b) Death. If Executive's employment is terminated by reason of
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Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. Accrued Obligations shall be paid to
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the date of death. With respect to the provision of Other Benefits,
the term Other Benefits as utilized in this Section 8(b) shall include, without
limitation, and Executive's estate and/or beneficiaries shall be entitled to
receive, benefits under such plans, programs, practices and policies relating to
death benefits, if any, as applicable generally to similarly situated officers
of the Company and its affiliated companies and their beneficiaries, and on the
same basis as such similarly situated officers and their beneficiaries.
(c) Disability. If Executive's employment is terminated by reason of
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Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to Executive, other than for payment of
Accrued Obligations and the timely payment or provision of Other Benefits.
Accrued Obligations shall be paid to Executive in a lump sum in cash within 30
days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 8(c) shall
include, without limitation, and Executive shall be entitled after the
Disability Effective Date to receive, disability and other benefits under such
plans, programs, practices and policies relating to disability, if any, as
applicable generally to similarly situated officers of the Company and its
affiliated companies and their families, and on the same basis as such similarly
situated officers and their families.
(d) Retirement. If Executive's employment is terminated by reason of
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Executive's Retirement during the Employment Period, this Agreement shall
terminate
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without further obligations to Executive, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to Executive in a lump sum in cash within 30 days of
the Date of Termination. With respect to the provision of Other Benefits, the
term Other Benefits as utilized in this Section 8(d) shall include, without
limitation, and Executive shall be entitled after the Date of Termination to
receive, retirement and other benefits under such plans, programs, practices and
policies relating to retirement, if any, as applicable generally to similarly
situated officers of the Company and its affiliated companies and their
families, and on the same basis as such similarly situated officers and their
families.
(e) Cause or Voluntary Termination without Good Reason. If Executive's
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employment shall be terminated for Cause during the Employment Period, or if
Executive voluntarily terminates employment during the Employment Period without
Good Reason, this Agreement shall terminate without further obligations to
Executive, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits.
9. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
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limit Executive's continuing or Checkmate Electronics, Inc. participation in any
plan, program, policy or practice provided by the Company or any of its
affiliated companies and for which Executive may qualify, nor, subject to
Section 14(d), shall anything herein limit or otherwise affect such rights as
Executive may have under any contract or agreement with the Company or any of
its affiliated companies. Amounts which are vested benefits or which Executive
is otherwise entitled to receive under any plan, policy, practice or program of
or any contract or agreement with the Company or any of its affiliated companies
at or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement except as
explicitly modified by this Agreement.
10. Limitation of Benefits in Certain Instances.
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(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any benefit, payment or distribution by the
Company to or for the benefit of Executive (whether payable or distributable
pursuant to the terms of this Agreement or otherwise) (a "Payment") would, if
paid, be subject to the excise tax imposed by Section 4999 of the Code (the
"Excise Tax"), then the Payment shall be reduced to the extent necessary of
avoid the imposition of the Excise Tax. Executive may select the Payments to be
limited or reduced.
(b) All determinations required to be made under this Section 10,
including whether an Excise Tax would otherwise be imposed and the assumptions
to be utilized in arriving at such determination, shall be made by Ernst & Young
LLP or such other certified public accounting firm as may be designated by
Executive (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and Executive within 15 business days of the
receipt of notice from Executive that a Payment is due to be made, or such
earlier time as is requested by the Company. In the event that
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the Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting a Change of Control, Executive may appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any determination by the Accounting Firm shall be binding
upon the Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Payments hereunder will
have been unnecessarily limited by this Section 10 ("Underpayment"), consistent
with the calculations required to be made hereunder. The Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
Executive.
11. Costs of Enforcement. In any action taken in good faith relating to
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the enforcement of this Agreement or any provision herein, Executive shall be
entitled to be paid any and all costs and expenses incurred by him in enforcing
or establishing his rights hereunder, including, without limitation, reasonable
attorneys' fees, whether suit be brought or not, and whether or not incurred in
trial, bankruptcy or appellate proceedings.
12. Representations and Warranties. Executive hereby represents and
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warrants to the Company that Executive is not a party to, or otherwise subject
to, any covenant not to compete with any person or entity, and Executive's
execution of this Agreement and performance of his obligations hereunder will
not violate the terms or conditions of any contract or obligation, written or
oral, between Executive and any other person or entity.
13. Assignment and Successors.
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(a) Executive. This Agreement is personal to Executive and without the
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prior written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) The Company. This Agreement shall inure to the benefit of and be
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binding upon the Company and its successors and assigns. The Company will
require any successor to all or substantially all of the business and/or assets
of the Company (whether direct or indirect, by purchase, merger, consolidation
or otherwise) 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. As used in this Agreement, "the
Company" shall mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
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14. Miscellaneous.
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(a) Waiver. Failure of either party to insist, in one or more
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instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the Checkmate Electronics, Inc.
performance of any such term or condition or of any other term or condition of
this Agreement, unless such waiver is contained in a writing signed by the party
making the waiver.
(b) Severability. If any provision or covenant, or any part thereof,
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of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
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limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this Agreement
----------------
contains the entire agreement between the Company and Executive with respect to
the subject matter hereof, and it supersedes and invalidates any previous
agreements or contracts between them which relate to the subject matter hereof.
No representations, inducements, promises or agreements, oral or otherwise,
which are not embodied herein shall be of any force or effect.
(e) Governing Law. Except to the extent preempted by federal law, and
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without regard to conflict of laws principles, the laws of the State of Georgia
shall govern this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other communications
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required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or three days after mailing if mailed, first class,
certified mail, postage prepaid:
To Company: IVI Checkmate Corp.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Chief Executive Officer
To Executive: Xxxx X. Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
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Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
----------------------------
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement; provided, however, that if, in the opinion of the
Corporation's accountants, any provision of this Agreement would preclude the
use of "pooling of interest" accounting treatment for a Change in Control
transaction that (1) would otherwise qualify for such accounting treatment, and
(2) is contingent upon qualifying for such accounting treatment, then Executive
and the Company agree to negotiate in good faith to amend this Agreement so that
it will not preclude the use of "pooling of interest" accounting treatment for
such Change in Control transaction.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amended and Restated Employment Agreement as of the date first above
written.
IVI CHECKMATE CORP.
By: /s/ L. Xxxxx Xxxxxxx
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Title: President & CEO
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EXECUTIVE:
/s/ Xxxx X. Xxxxxxx
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Xxxx X.Xxxxxxx
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