Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of September 4, 2001 is made by
and among Tokheim Corporation, an Indiana Corporation (the "Corporation") and
Mr. Xxxx Xxxxxxxx (the "Executive").
Recitals
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A. The Corporation desires to employ the Executive as the President and
Chief Executive Officer of the Corporation, and to enter into this Employment
Agreement as of September 4, 2001 embodying the terms of such relationship.
B. The Executive is willing to be employed as the President and Chief
Executive Officer of the Corporation on the terms set forth herein.
Agreement
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Now, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and for other good and valuable consideration, the
Corporation and the Executive hereby agree as follows:
1. Definitions
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1.1 "Affiliate" means any person or entity of any kind
effectively controlling, effectively controlled by or under
common control with the Corporation.
1.2 "Board" means the Board of Directors of the Corporation.
1.3 "Cause" means (a) the Executive is convicted for a felony
involving moral turpitude, (b) the Executive commits a
willful act intending to materially enrich himself at the
expense of the Corporation or any Affiliate, or (c) the
Executive, in carrying out his duties and responsibilities
under this Agreement, (i) is guilty of gross neglect, or
(ii) voluntarily engaged in conduct which, in either case,
results, or is reasonably likely to result, in material
economic or reputational harm to the Corporation and/or any
Affiliate, unless such conduct described in (ii) was
reasonably believed by the Executive in good faith to be in
in the best interest of the Corporation.
1.4 "Disability" means the Executive's inability to render the
services required hereunder by reason of a physical or
mental disability for a period of six consecutive months, as
determined by the written medical opinion of an independent
medical physician reasonably
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acceptable to the Executive and the Corporation; provided the
Executive will not be considered disabled until the expiration of
the six-month period.
1.5 "Subsidiary" means a corporation or other entity of which the
Corporation owns 80% or more of the issued and outstanding stock
or other equity securities.
2. Employment. Subject to the terms and provisions set forth in this
Agreement, the Corporation during the Term of Employment agrees to employ the
Executive as the President and Chief Executive Officer of the Corporation, and
the Executive hereby accepts such employment. During the Terms of Employment,
the Corporation shall use its reasonable best efforts to cause the Executive to
be a director of the Corporation.
3. Term of Employment. The Term of Employment under this Agreement shall
commence as of September 4, 2001 (the "Commencement Date") and shall continue
unless earlier terminated by the Corporation or the Executive under Section 6 of
this Agreement.
4. Positions, Responsibilities and Duties.
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4.1 Positions and Duties. During the Term of Employment, the
Executive shall be employed and shall serve as the President and
Chief Executive Officer of the Corporation, with such duties,
responsibilities, and authority as are commensurate with such
positions, as determined from time to time by the Board. The
Executive shall serve under the direction and supervision of the
Board, and shall report to the Board. Notwithstanding the above,
the Executive shall not be required to perform any duties and
responsibilities which would result in a non-compliance with or
violation of any applicable law.
4.2 Attention to Duties and Responsibilities. During the Term of
Employment, the Executive shall devote his full business time to
the business and affairs of the Corporation and the Executive
shall use his best efforts, ability and fidelity to perform
faithfully and efficiently the duties and responsibilities
contemplated by this Agreement; provided, however, that the
Executive shall be allowed, to the extent such activities do not
substantially interfere with the performance by the Executive of
his duties and responsibilities hereunder, to (a) manage the
Executive's personal affairs, and (b) (i) serve on boards or
committees of civic or charitable organizations or trade
associations, and (ii) serve on the board of directors of no more
than one corporation, provided, however, that the Executive
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shall request and gain approval from the Board in writing of any such
corporate directorship under Section 4.2(b)(ii) and, if requested by
the Board, that any such directorship does not detract from the
Executive's performance of his duties and responsibilities under this
agreement.
5. Compensation and Other Benefits.
5.1 Base Salary. During the Term of Employment, the Executive shall
receive a base salary of $375,000 per annum ("Base Salary") payable in
accordance with the Corporation's normal payroll practices. Such Base
Salary shall be reviewed annually on or about each annual anniversary
of the Commencement Date for increase at the sole discretion of the
Board, but the Base Salary may not be less than $375,000. Such Base
Salary as so increased shall then constitute the Executive's "Base
Salary" for purposes of this Agreement.
5.2 Annual Bonus. During the Term of Employment, the Executive shall be
eligible to receive an annual bonus payment (the "Annual Bonus") with
a target of 75% of the Base Salary, but may range from 0-150% of the
target payout, and will be based upon the achievement of specified
performance goals established annually by the Board and the Executive.
The pro rata Annual Bonus for fiscal year 2001 shall be $70,312.50 and
shall be paid on 3/1/02. Except for the pro rata fiscal year 2001
Annual Bonus, the determination and awarding of any Annual Bonus shall
be in the sole discretion of the Board.
5.3 Sign-On Bonus. A maximum sign-on Bonus of $130,000 will be available
to the Executive as follows:
5.3.1 Within 30 days of receipt of documentation of the $25,000 loan
made to the Executive by his previous employer, the Corporation
shall pay the Executive $25,000; and
5.3.2 The Corporation shall pay to the Executive $105,000 on December
1, 2001.
5.4 EBITDA Profit Incentive. The EBITDA improvement incentive
("Incentive") will be paid, if earned, to the Executive annually
beginning in FY2002 and continuing annually thereafter. The Incentive
will be paid in the following fiscal year, within 60 days after
receipt of audited financial statements. For purposes of this
Agreement, "EBITDA" means the earnings before interest, taxes,
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depreciation, and amortization of the Corporation (determined on
a consolidated basis) but excluding extraordinary items, as
determined by the Corporation's regular outside auditors and as
reflected in the Corporation's audited financial statements. The
amount of Incentive earned shall be determined as follows:
5.4.1 Beginning in FY2002, and continuing annually thereafter
(referred to as the "Base Year"), the difference between the
EBITDA of the Base Year and the prior fiscal year shall be
determined (the "Improvement").
5.4.2 The Incentive shall be payable only if the Improvement is
$5,000,000 or more.
5.4.3 The Incentive shall be determined as follows:
5.4.3.1 If the Improvement is equal to or greater than
$5,000,000 but less than $10,000,000, then the
Incentive shall be equal to 8% of the Improvement;
5.4.3.2 If the Improvement is equal to or greater than
$10,000,000 but less than $20,000,000, then the
Incentive shall be equal to 10% of the Improvement;
and
5.4.3.3 If the Improvement is equal to or greater than
$20,000,000, then the Incentive shall be equal to 12%
of the Improvement.
The determination of and the payment of the Incentive may be
illustrated by the following examples:
1. In FY2002 the EBITDA is $7,000,000 and in the FY2001 the
EBITDA is $1,000,000. The Improvement is $6,000,000. The
Incentive payment paid to the Executive in 2003, within 60 days
after the release of the FY2002 audited financial statements, is
equal to 8% times $6,000,000 or $480,000.
2. On June 1, 2004, the Executive is terminated without Cause.
The FY2004 EBITDA is $20,000,000 and the FY2003 EBITDA is
$9,000,000. The Improvement is $11,000,000. The Incentive payment
paid to the Executive in 2005, within 60 days after the release
of the FY2004 audited financial statements, is equal to 50% times
10% times $11,000,000 or $550,000.
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5.5 Incentive, Retirement, and Savings Plans. During the Term of
Employment and to the extent eligible, the Executive shall
participate in all incentive, pension, retirement, savings and
other employee benefit plans and programs, if any, maintained
from time to time by the Corporation for the benefit of senior
executives and other employees of the Corporation.
5.6 Welfare Benefit Plans. During the Term of Employment and to the
extent eligible, the Executive, the Executive's spouse, if any,
and their eligible dependents, if any, shall participate in and
be covered by all the welfare benefit plans and programs, if any,
maintained by the Corporation for the benefit of senior
executives and other employees of the Corporation; provided,
however, the Corporation shall provide health insurance for the
Executive, his spouse, and dependents. The Corporation shall
provide the executive with term life insurance having a death
benefit equal to one time Base Salary.
5.7 Executive Stock Option Program. The Executive and the Corporation
agree that working with the Compensation Committee, a reasonable
Executive Stock Option Program will be developed.
5.8 Expense Reimbursement. During the Term of Employment, the
Executive shall be entitled to receive prompt reimbursement for
all expenses incurred by the Executive in performing his duties
and responsibilities hereunder in accordance with the policies
and procedures of the Corporation as in effect at the time the
expense was incurred, as the same may be changed from time to
time. In addition, the Corporation shall reimburse Executive for
his relocation and temporary living expenses.
5.9 Vacation and Fringe Benefits. During the Term of Employment, and
effective upon execution of this Agreement, the Executive shall
be entitled to an annual four (4) weeks paid vacation at such
times which do not materially interfere with the performance of
the Executive's duties hereunder. In addition, during the Term of
Employment, the Executive shall be entitled to payment of
initiation fees and dues and the annual or monthly fees or dues
for a membership in one country club (selected by the Executive
and approved by the Board).
6. Termination.
6.1 Termination Due to Death or Disability. Upon 15 days prior
written notice to the Executive, the Corporation may terminate
the Executive's employment hereunder due to Disability. In the
event of
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the Executive's death or a termination of the Executive's
employment by either the Corporation or the Executive due to
Disability, the Term of Employment shall thereupon end and the
Executive, his estate or other legal representative, as the case
may be, shall only be entitled to:
(a) Base Salary up to and including the date of termination;
(b) Any prior fiscal year Annual Bonus actually earned, but not
yet paid as of the date of termination and a pro rata
portion of an Annual Bonus for the fiscal year in which such
death or Disability termination occurs (provided that the
awarding of a bonus is in the sole discretion of the Board);
(c) Reimbursement for all expenses (under Section 5.7) incurred
as of the date of termination, but not yet paid as of the
date of termination;
(d) Any earned but unpaid (EBITDA) Incentive and a pro rata
amount of the Incentive for the year in which such death or
Disability termination occurs; and
(e) Any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable
plans and programs, if any, of the Corporation or any
Subsidiary.
6.2 Termination by the Corporation for Cause. The Corporation may
terminate the Executive's employment hereunder for Cause, as
provided below. If the Corporation terminates the Executive's
employment hereunder for Cause, the Term of Employment shall
thereupon end as set forth below and the Executive shall only be
entitled to:
(a) Base Salary up to and including the date of termination;
(b) Any prior fiscal year Annual Bonus actually awarded, but not
yet paid as of the date of termination;
(c) Reimbursement for all expenses (under Section 5.7) incurred
as of the date of termination, but not yet paid as of the
date of termination; and
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(d) Any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable
plans and programs, if any, of the Corporation or any
Subsidiary.
In each case, the existence of Cause must be confirmed by a
majority of the Board prior to any termination therefor. In
the event of such a confirmation, the Corporation shall
notify the Executive that the Corporation intends to
terminate the Executive's employment for Cause under this
Section 6.2 (the "Confirmation Notice"). The Confirmation
Notice shall specify the problems, upon the basis of which
the majority of the Board has so confirmed the existence of
Cause. If the Executive notifies the Corporation in writing
that he disagrees with the Board's confirmation of Cause,
(the "Opportunity Notice") within five (5) days after the
Executive has received the Confirmation Notice, then the
Executive shall first have a thirty (30) day opportunity to
cure and correct the allegations only with respect to
matters referred to in Section 1.3(c). If the Executive
cures and corrects these problems, then the Executive's
employment shall continue. If after the expiration of such
thirty (30) day period the Board again confirms the
existence of Cause and concludes that the Executive did not
cure and correct the problems, then the Executive, along
with legal counsel selected by the Executive, if any, shall
be provided one opportunity to meet with the Board (or a
sufficient quorum thereof) to discuss such problems. Such
opportunity to meet shall be fixed and shall occur on a date
selected by the Board (such date be not less than five (5)
nor more than fifteen (15) days after the Corporation
receives the Opportunity Notice from the Executive). Such
meeting shall take place at the principal offices of the
Corporation. During the period commencing on the date the
Corporation receives the Opportunity Notice and ending on
the date next succeeding the date on which such meeting
between the Board (or a sufficient quorum thereof) and the
Executive is scheduled to occur, the Executive shall be
suspended with pay from his employment with the Corporation
and the Board may, during such suspension period, reasonably
limit the Executive's access to the principal offices of the
Corporation or any of its assets. If the Board properly sets
the date of such meeting and does not rescind its
confirmation at such meeting or if the Executive fails to
attend such meeting for any reason, the Executive's
employment by the Corporation shall, immediately upon the
closing of such meeting, be terminated, but subject to the
ability of the Executive to challenge the existence of Cause
and challenge whether the Executive has cured and corrected
the alleged problems. If the Executive does not respond in
writing to the Confirmation Notice in the manner and within
the time deadline specified in this Section 6.2, the
Executive's
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employment with the Corporation shall, on the sixth day
after the receipt by the Executive of the Confirmation
Notice, be terminated. Nothing in this Section shall be
deemed to limit or restrict the ability of the Executive to
dispute and challenge the existence of Cause and whether
the Executive has cured and corrected allegations of Cause
pursuant to the provisions of Section 7.
6.3 Termination Without Cause. Upon 15 days prior written notice
to the Executive, the Corporation may terminate the
Executive's employment hereunder without Cause. If the
Corporation terminates the Executive's employment hereunder
without Cause (other than due to death, Disability) the Term
of Employment shall thereupon end and the Executive shall
only be entitled to:
(a) Base Salary continuation at the rate in effect (as
provided in Section 5.1 of this Agreement) on the date
of termination for an eighteen-month period commencing
on such date of termination, or, if the Board so
determines in its sole discretion and in lieu of such
eighteen-month salary continuation, a lump sum payment
equal to such Base Salary continuation amount, such
lump sum payable within thirty days after the date of
termination;
(b) Any prior fiscal year Annual Bonus actually earned, but
not yet paid as of the date of termination and a pro
rata portion of an Annual Bonus for the year in which
the Executive is terminated (provided that the awarding
of a bonus is in the sole discretion of the Board);
(c) Reimbursement for all expenses (under Section 5.8)
incurred as of the date of termination, but not yet
paid as of the date of termination;
(d) Continuation of the welfare benefits of the Executive,
including without limitation health insurance for the
Executive, his spouse, and his dependents, at the
expense of the Corporation, and at the level in effect
as provided for by Section 5.6 of this Agreement on the
date of termination for the eighteen month period
commencing on the date of termination.
(e) Any earned but unpaid (EBITDA) Incentive and a pro rata
amount of the Incentive for the year in which the
termination occurs; and
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(f) Any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plan
or programs, if any, of the Corporation or any Subsidiary.
6.4 Voluntary Termination. A Voluntary Termination shall entitle the
Executive only to all of the rights and benefits which the Executive
would be entitled in the event of a termination of his employment by
the Corporation for Cause. A "Voluntary Termination" shall mean a
termination of employment by the Executive on his own initiative other
than termination due to death or Disability and other than
termination for Good Reason as provided below.
6.5 No Mitigation; No Offset. In the event of any termination of
employment under this Section 6, the Executive shall be under no
obligation to seek other employment and there shall be no offset
against any amounts due the Executive under this Agreement on account
of any remuneration attributable to any subsequent employment that the
Executive may obtain. Any amounts due under this Section 6 are in the
nature of severance payment, or liquidated damages, or both, and are
not in the nature of a penalty.
6.6 Notice of Termination. Any termination of the Executive's employment
under this Section 6 requiring advance written notice shall be
communicated by a notice of termination to the other party hereto
given in accordance with Section 10.3 of this Agreement (the "Notice
of Termination").
6.7 Statements by the Executive. Subject to the requirements of any
applicable securities or other laws, the Executive agrees that during
and after the Term of Employment, he shall not at any time make any
statement or representation, written or oral, which the Executive
knows is false and will materially and adversely affect the
reputation or goodwill of the Corporation or Subsidiary.
6.8 Termination by Executive for Good Reason. If the Executive voluntarily
terminates his employment for Good Reason, then such termination shall
be deemed to be a termination by the Corporation without Cause, and
the Executive shall have all the rights set forth in Section 6.3. For
purpose of this Agreement, Good Reason means the occurrence of the
following:
6.8.1 The Executive is not elected to the Board of Directors within 60
days of the date of this Agreement, or if so elected, the
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Executive is subsequently removed from the Board or not
re-elected.
7. Resolution of Disputes. With the exception of proceedings for
equitable relief brought pursuant to Section 8.4 of this Agreement
or otherwise, any disputes arising under or in connection with this
Agreement, including, without limitation, any assertion by any party
hereto that the other party has breached any provision of this
Agreement, shall be resolved by arbitration, to be held in Fort Xxxxx,
Indiana, in accordance with the rules and procedures of the American
Arbitration Association. The obligation of the Corporation and the
Executive under this Section 7 shall survive the termination for any
reason of the Term of Employment (whether such termination is by the
Corporation, by the Executive or upon the expiration of the Term of
Employment).
8. Confidential Information and Noncompetition.
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8.1 Confidential Information. The Executive shall not, during the
Term of Employment and at any time thereafter, without the prior
express written consent of the Board, directly or indirectly, use
any Confidential Information (as defined below) in any way, or
divulge, disclose or make available or accessible any
Confidential Information to any person, firm, partnership,
corporation, trust or any other entity (other than in connection
with the performance by Executive of his duties and
responsibilities under this Agreement). The Executive shall also
immediately notify the Board if he becomes aware of any
unauthorized use or disclosure of any Confidential Information by
any third party, and the Executive agrees to cooperate fully in
any attempts or efforts by the Corporation or any Affiliate to
obtain any relief or remedy in respect of such unauthorized use
or disclosure. The Executive agrees that he shall not make any
copies of any kind of any document, computer software or other
writing or recording containing any Confidential Information
without the prior approval of the Board (other than when required
to do so in good faith to perform the Executive's duties and
responsibilities under this Agreement or when required to do so
by a lawful order of a court of competent jurisdiction). Upon
written request by the Corporation, and after termination of his
employment, the Executive shall also proffer to the Board's
designee, and without retaining any copies, notes or excerpts
thereof, all memoranda, computer disks or other media, computer
programs, diaries, notes, records, data, customer or client
lists, marketing plans and strategies, and any other documents
consisting of or containing any Confidential Information that are
in the
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Executive's actual possession or which are subject to his control
at such time. In addition, the Executive shall at all times use
his best efforts carefully to safeguard any Confidential
Information in the Executive's possession or under his control.
For purposes of this Agreement, "Confidential Information" shall
mean all information respecting the business and activities of
the Corporation and/or any Subsidiary, including, without
limitation, the terms and provisions of this Agreement, the
clients, customers, suppliers, employees, consultants, computer
or other files, projects, products, computer disks or other
media, computer hardware of computer software programs, marketing
plans, financial information, methodologies, know-how, processes,
practices, approaches, projections, forecasts, formats, systems,
data gathering methods and/or strategies of the Corporation
and/or any Subsidiary. Notwithstanding the immediately preceding
sentence, Confidential Information shall not include any
information that is, or becomes, generally available to the
public (unless such availability occurs as a result of the
Executive's breach of any portion of this Section 8.1 or any
other obligation the Executive owes to the Corporation and/or any
Affiliate) or information which is available from a third party
not under any duty of confidentiality to the Corporation.
8.2 Noncompetition. The Executive, if his employment with the
Corporation is terminated by the Corporation for any reason or by
the Executive voluntarily, shall not, during the Term of
Employment and for 18 months after the date of termination,
directly or indirectly (a) engage, without the prior express
written consent of the Corporation, in any business or activity,
whether as an employee, consultant, partner, principal, agent,
representative, stockholder or in any other individual, corporate
or representative capacity, or render any services or provide any
advice to any business, activity, person or entity, if such
business, activity, service, person or entity, directly or
indirectly, competes in any material manner with any product,
service or other business of the Corporation of any Subsidiary
engaged in, or which is in production, distribution or
development, as of the date of termination, and/or
(b) meaningfully assist, help or otherwise support, without the
prior express written consent of the Corporation, any person,
business, corporation, partnership or other entity or activity,
whether as an employee, consultant, partner, principal, agent,
representative, stockholder of in any other individual, corporate
or representative capacity, to create, commence or otherwise
initiate, or to develop, enhance or otherwise further, any
business or activity if such business or activity directly or
indirectly, competes (or is reasonably likely to compete)
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in any manner with any significant business or activity of the
Corporation of any Subsidiary.
8.3 Nonsolicitation. The Executive, if his employment with the
Corporation is terminated by the Corporation for any reason,
shall not, directly or indirectly, during the Term of Employment
and for 18 months after the date of termination (a) take any
action to solicit or divert any business (or potential business)
or clients or customers (or potential clients or potential
customers) away from the Corporation or any Subsidiary,
(b) induce customers, potential customers, clients, potential
clients, suppliers, agents or other persons under contract or
otherwise associated or doing business with the Corporation or
any Affiliate to terminate, reduce or alter any such association
of business or business with or from the Corporation or any
Subsidiary, and/or (c) induce any person in the employment of the
Corporation or any Subsidiary or any consultant to the
Corporation or any Subsidiary to (i) terminate such employment,
or consulting arrangement, (ii) accept employment, or enter into
any consulting arrangement, with anyone other than the
Corporation or any Subsidiary, and/or (iii) interfere with the
customers, suppliers, or clients of the Corporation or any
Subsidiary in any manner or the business of the Corporation or
any Subsidiary in any manner. For purposes of this Section 8.3, a
"potential client" or a "potential customer" shall mean a person
or entity that the Corporation or any Subsidiary (A), as of the
date the Executive's employment terminates, is, or will be in the
reasonably foreseeable future, soliciting or considering
soliciting (or has targeted for solicitation, or will be so
targeting in the reasonably foreseeable future), and/or (B) has,
at any time or from time to time, within the 12 month period
prior to the date of the Executive's employment terminates, been
soliciting for or in respect of any current, actively pending or
contemplated produce lines, businesses, or services offered by
the Corporation or any Affiliate, including, without limitation,
any licensing arrangements, manufacturing arrangements, and/or
distribution arrangements (the "Products"), and "potential
business" shall mean any current or reasonably foreseeable
commercial activity or any current or reasonably foreseeable
commercial opportunities associated in any way with the Products.
8.4 Injunctive Relief. The Executive acknowledges and agrees that the
Corporation will have no adequate remedy at law, and would be
irreparably harmed, if the Executive breaches or threatens to
breach any of the provisions of this Section 8 of this Agreement.
The Executive agrees that the Corporation shall be entitled to
equitable and/or injunctive relief to prevent any breach or
threatened breach of
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this Section 8, and to specific performance of each of the
terms of such Section in addition to any other legal and
equitable remedies that the Corporation may have. The
Executive further agrees that he shall not, in any equity
proceeding relating to the enforcement of the terms of this
Section 8, raise the defense that the Corporation has an
adequate remedy at law.
8.5 Special Severability. The terms and provisions of this
Section 8 are intended to be separate and divisible
provisions and if, for any reason, any one or more of them
is held to be invalid or unenforceable, neither the validity
nor the enforceability of any other provision of this
Agreement shall thereby be affected. It is the intention of
the parties to this Agreement that the potential
restrictions on the Executive's future employment imposed
by this Section 8 be reasonable in both duration and
geographic scope and in all other respects. If for any
reason any court of competent jurisdiction shall find any
provisions of this Section 8 unreasonable in duration or
geographic scope or otherwise, the Executive and the
Corporation agree that the restrictions and prohibitions
contained herein shall be effective to the fullest extent
allowed under applicable law in such jurisdiction.
9. Successors.
9.1 The Executive. This Agreement is personal to the Executive
and, without the prior express written consent of the
Corporation, shall not be assignable by the Executive,
except that the Executive's rights to receive any
compensation or benefits under this Agreement may be
transferred or disposed of pursuant to testamentary
disposition, interstate succession or pursuant to a
qualified domestic relations order. This Agreement shall
inure to the benefit of and be enforceable by the
Executive's heirs, beneficiaries and/or legal
representatives.
9.2 The Corporation. This agreement shall inure to the benefit
of and be binding upon the Corporation and its successors
and assigns.
10.0 Miscellaneous.
10.1 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Indiana, without regard to principles of conflict of law.
10.2 Amendments/Waiver. This Agreement may not be amended waives,
or modified otherwise than by a written agreement executed
by the
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parties to this Agreement or their respective successors and
legal representatives. No waiver by any party to this
Agreement of any breach of any term, provision or condition
of this Agreement by the other party shall be deemed a
waiver of a similar or dissimilar condition or provision at
the same time, or any prior or subsequent time.
10.3 Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand-delivery to
the other party, by facsimile transmission, by overnight
courier, or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxx Xxxxxxxx
If to the Corporation:
Tokheim Corporation
ATTN: General Counsel
00000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Or to such other address as either party shall have
furnished to the other in writing in accordance herewith.
Notices and communications shall be effective when actually
received by the addressee.
10.4 Withholding. The Corporation may withhold from any amounts
payable under this Agreement such taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
10.5 Severability. The invalidity or unenforceability of any
provision of this agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
10.6 Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
10.7 Entire Agreements. This Agreement contains the entire
agreement between the parties to this Agreement concerning
the subject matter hereof and supersedes all prior
agreements, understandings,
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discussions, negotiations and undertakings, whether written
or oral, between the parties with respect thereto,
including, but not limited to, the Original Employment
Agreement and the Option Agreement.
10.8 Representation. The Executive represents and warrants that
the performance of the Executive's duties and obligations
under this Agreement will not violate any agreement between
the Executive and any other person, firm, partnership,
corporation, or organization.
10.9 Survivorship. The respective rights and obligations of the
parties to this Agreement shall survive any termination of
this Agreement or the Executive's employment hereunder for
any reason to the extent necessary to the intended
preservation of such rights and obligations.
10.10 Indemnification. To the fullest extent permitted by law, the
Corporation shall indemnify and hold the Executive harmless
with respect to claims, suits, judgments, investigations,
and proceedings (including all reasonable attorneys fees)
arising out of or related to the Executive's status or
activities as an employee, officer or director of the
Corporation or any Affiliate or Subsidiary, provided that
indemnification is conditioned upon the Executive having
acted in good faith with respect to the events giving rise
to the claim for indemnification. This Section 10.10 does
not limit the rights the Executive may have under the
Corporation's Bylaws or Articles of Incorporation or under
law.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and
the Corporation has caused this Agreement to be executed in its name on its
behalf, all as of the day and year first above written.
TOKHEIM CORPORATION
By: /s/ W.E. Xxxxxxx, Jr.
-------------------------------------
Name: W.E. Xxxxxxx, Jr.
TItle: Director--Tokheim Comp
Committee Chair
/s/ Xxxx Xxxxxxxx
-------------------------------------
Xxxx Xxxxxxxx
15
