Exhibit 10.7
EMPLOYMENT AGREEMENT
FOR CORPORATE OFFICER
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of this 15TH
day of MAY, 2000, by and between Tokheim Corporation, an Indiana
Corporation ("Company") and XXXXXX X. XXXXXXXXX ("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 EXECUTIVE VICE
PRESIDENT FINANCE AND CHIEF FINANCIAL OFFICER, 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 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 $ 27,083.34. 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, 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, or as provided for in your offer/confirmation letter
dated April 12, 2000. 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.
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.
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.
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:
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:
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.
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, Schlumberger, Bennett, 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 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,
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.
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 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.
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 his 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.
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 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 XXXXXX X. XXXXXX, VICE PRESIDENT, SECRETARY
& GENERAL COUNSEL
X.X. XXX 000
XXXX XXXXX, XX 00000
If to Employee: XXXXXX X. XXXXXXXXX
_________________________
_________________________
IN WITNESS WHEREOF, the parties have entered into this Agreement as
of the date first written above.
TOKHEIM CORPORATION EMPLOYEE
_________________________________ ______________________________
XXXXXXX X. XXXXXX XXXXXX X. XXXXXXXXX
CHAIRMAN, PRESIDENT, AND CEO
_________________________________
By: XXXXXX X. XXXXXX
Its: VICE PRESIDENT, SECRETARY
& GENERAL COUNSEL
