[TOKHEIM LOGO] Exhibit 10.5
EMPLOYMENT AGREEMENT
for CORPORATE OFFICERS
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of this 23rd day of
DECEMBER, 1997, by and between Tokheim Corporation, an Indiana Corporation
("Company") and XXXX X. XXXXXXXXXX ("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 is hereby acknowledged, the parties agree as
follows:
EMPLOYMENT. Company agrees to employ Employee, and the Employee agrees to
serve Company, on a full time basis in the capacity of PRESIDENT, TOKHEIM, NORTH
AMERICA, 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. DUTIES.
2.1 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 of
Directors ("Board"), any duly appointed Committee of the Board, the Chief
Executive Officer of the Company (the "Chief Executive Officer"), or such
other Executive Officers as may be designated by the Board, shall, from
time to time, direct. Company specifically retains the right to alter or
amend the position, responsibilities, duties or services to be performed by
Employee in such
manner as to it shall be deemed in the best interests of Company. 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 Company.
2.2 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 in order to apply for and
obtain letters patent of the United States and foreign countries for any
Inventions, and in order to assign and convey to Company, or to Company's
nominee the sole and exclusive right, title and interest in and to any
Inventions or any 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.
3. COMPENSATION. During the term of this Agreement, Company shall
compensate Employee for his services as follows:
3.1 Employee shall be entitled to a monthly base salary of
$20,066.67 (the "Base Salary"). Base Salary will be reviewed
periodically. Base Salary shall be payable in semi-monthly or monthly
installments, in accordance with the policy of Company at the time of
such payments.
3.2 Employee shall be eligible for such officer's bonus program
as may from time to time be made available and applicable to Employee.
Provided, however, that nothing in this Agreement shall prevent
Company, through its Board, any duly appointed Committees of the Board
or such other Executive Officers of the Company as the Board may
designate, from altering or amending the terms, eligibility, or other
provisions of the officers bonus program, or from eliminating or
adding any other bonus programs as it shall from time to time deem
appropriate and in the interests of Company.
3.3 Employee shall be granted participation in all employee
benefit plans applicable to Employee's position with Company,
including, but not limited
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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. Nothing in this Agreement shall be deemed to
alter the terms and conditions of any Plans or the policy of Company
with respect to any Plans, 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 Plans. Further, nothing in this
Agreement shall prevent Company, through its Board, any duly appointed
Committees of the Board or such other Executive Officers of the
Company as the Board may designate, from altering or amending the
terms, eligibility, or other provisions of the Plan, or from
eliminating or adding any other Plan as it shall from time to time
deem appropriate and in the interests of Company.
3.3.1 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.
4. TERMINATION. Either Company or Employee may terminate this Agreement
upon providing written notice to the other.
4.1 By the Company. In the event this Agreement is terminated with
cause (as defined below), 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.
4.1.1 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:
4.1.1.1 Employee engages in any breach of fiduciary duty,
act of dishonesty, or theft involving Company;
4.1.1.2 Employee is convicted of a felony;
4.1.1.3 Employee discloses Confidential Information in
violation of section 7 , below, or competes with Company in
violation of section 8, below;
4.1.1.4 Employee refuses or fails to carry out the duties
which may have been assigned to him; or
4.1.1.5 Employee continues to violate any written Company
policy after written notice by Company of the violation.
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4.1.2 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 in effect at the time of
the termination, payable at the same interval as his salary at the
time of the termination.
4.1.2.1 Employee shall have no obligation to mitigate
damages by seeking other employment.
4.1.2.2 The right to severance pay under this section
shall vest upon notice of termination and shall not be
affected by Employee's subsequent death or disability.
4.2 By Employee. 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.
4.3 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 permanent
disability. In the event this Agreement terminates by Employee's death or
disability, Company shall pay Employee's pro-rata Base Salary through the
termination date, and Employee shall be entitled to no severance pay.
Notwithstanding anything to the contrary, in the event this Agreement
terminates as a result of Employee's death or disability, Employee shall be
entitled to such continuing benefits as may be provided in any Plan or by
law.
5. 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 (as defined
below), 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.
6. CHANGE IN CONTROL.
6.1 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, that 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.
6.1.1 Triggering Event. For purposes of this Agreement, a
Triggering Event shall be deemed to have occurred if:
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6.1.1.1 there is a Change in Control (as defined below);
and
6.1.1.2 within 12 months after the Change in Control:
(a) Company terminates this Agreement without cause,
or
(b) (1) 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 of the Chief Executive
Officer,
(ii) a material change of Employee's job
responsibilities,
(iii) a greater than 20% reduction of
Employee's Base Salary or benefits, or
(iv) the relocation of Employee's primary
office location to a distance greater than 50
miles from the current office location.
6.1.2 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:
6.1.2.1 any "person" (as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended [the "Exchange Act"]), other than a trustee or
fiduciary holding securities under an employee benefit
plan of Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Company representing twenty
percent (20%) or more of the combined voting power of
Company's then outstanding voting securities;
6.1.2.2 there is a merger or consolidation of Company
in which Company is not the surviving corporation; or
6.1.2.3 the business or businesses of Company for
which Employee's services are principally performed is
disposed of by Company pursuant to a partial or complete
liquidation of Company, a sale of assets (including stock
of a subsidiary) of Company, or otherwise.
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6.2 Benefits. In the event this Agreement is terminated by a
Triggering Event, Employee shall be entitled to the following:
6.2.1 Severance pay in an amount equal to 299% of Employee's
"annualized includible compensation for the base period," within the
meaning of section 280(G), of the Internal Revenue Code, as amended.
Notwithstanding anything herein to the contrary, any amounts payable
pursuant to this subparagraph shall be reduced by the amount of any
disability benefits paid to Employee.
6.2.1.1 Payments under this section shall be made over 12
months in the same interval as Employee's salary as the time of
termination of this Agreement.
6.2.1.2 Employee shall have no obligation to mitigate damages
by seeking other employment.
6.2.2 Medical insurance, life insurance and disability insurance
benefits from Company on terms comparable to the benefits provided by
Company to Employee as of the date of the termination of this
Agreement for 12 months or until Employee shall begin alternative
employment.
6.2.3 Deferred Compensation. Employee, as a participant in the
Company's Deferred Compensation Plan, shall receive a payment equal
to, but not less than, the Company match said Employee received in the
year prior to the takeover, or a full year prior to Employee's
termination, whichever is later.
6.3 Notwithstanding anything herein to the contrary, in the event
Company reasonably determines that any payment or benefit provided under
this section is an "excess parachute payment" within the meaning of section
280(G) of the Internal Revenue Code, as amended, Company shall be entitled
to limit the total of all payments or compensation to Employee to the
maximum amount payable by Company that would not constitute such "excess
parachute payment."
7. 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.
7.1 Employee acknowledges his position with Company will expose
Employee to certain Confidential Information of Company; and that
Confidential Information constitutes a valuable, special and unique asset
of Company's business. Employee will not, during or at any time after the
term of his employment, disclose any Confidential Information acquired by
Employee during his employment, to any person, firm, corporation,
association, or other entity for any purpose, or use Confidential
Information for any purpose, other than for the performance of services for
Company.
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7.2 In the event of Employee's actual or threatened breach of the
provisions of this section, subject to the provisions of 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 attorney's 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
attorney's fees from Employee.
7.3 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, tape or video recording, 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.
8. 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.
8.1 Employee hereby covenants and agrees that, for the greater of 12
months after termination of this Agreement, or such time as Employee is
receiving any severance pay from Company (the "Restricted Period") Employee
will 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 will 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 activity's under this section is the entire
world.
8.2 In the event of Employee's actual or threatened breach of the
provisions of this section, subject to the provisions of 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,
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including reasonable attorney's fees. Company shall also be permitted to
pursue any other available remedies available for such breach, including
the recovery of damages, costs and attorney's fees from Employee.
8.3 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.
9. FORFEITURE OF BENEFITS. In the event Employee is breaching his
obligations under either section 7 or section 8 of this Agreement, Employee
shall forfeit all future payments or compensation payable or provided by
Company.
10. 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.
11. 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.
12. TAXES, ETC. Company may withhold from any payments or benefits
provided under this Agreement:
12.1 all federal, state, city or other taxes as required pursuant to
any law or governmental regulation or ruling; and
12.2 any amounts owed by Employee to Company for any reason at the
time of the termination of this Agreement.
13. NO ASSIGNMENT OR ALIENATION. This Agreement shall not be assignable
by Employee without Company's prior written consent; provided, however, that
nothing in this paragraph 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.
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14. 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:
14.1 Scope of Arbitration. The parties will 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.
14.2 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.
14.3 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:
14.3.1 In the event of a dispute arising out of a termination
of this Agreement, within 6 months of the date of termination;
14.3.2 In the event of a breach of section or section of this
Agreement, within 4 months after the Chief Executive Officer has
actual knowledge of the breach; or
14.3.3 In the event of any other dispute, within 3 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.
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14.4 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 and for which either party may require provisional
relief pending a decision on the merits by the arbitrator.
14.5 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.
14.6 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 10 business days within
which they may identify a mutually agreeable arbitrator. After the 10-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 14.7, below.
14.7 Arbitrator Selection. In the event the parties cannot agree upon an
arbitrator within 10 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.
14.8 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 conference with
the parties or their designated representatives concerning any matter, and to
set or modify timetables for all aspects of the arbitration proceeding.
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The arbitrator may award either party its reasonable attorney's fees and
costs, including reasonable expenses associated with production of witnesses or
proof, upon a finding that the other party (a) engaged in unreasonable delay,
(b) failed to comply with the Arbitrator's discovery order, or (c) 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.
14.9 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.
14.10 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.
14.11 The Hearing. At any hearing, the party bearing the burden of proof
according to the governing substantive law shall present its evidence first.
14.12 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.
14.13 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.
14.14 Costs. As to any disputes arising from the termination of the
Agreement, each party shall be responsible for its costs, including attorney's
fees, incurred in any arbitration, and the arbitrator shall not have authority
to include all or any portion of said costs and fees in his or her award. The
costs and fees of the arbitrator and of the AAA shall be borne equally by the
parties.
14.14.1 Notwithstanding anything herein to the contrary, Company
shall be entitled to recover its costs and attorney's fees incurred in
enforcing the provisions of section 7 and section 8.
14.15 Remedies. Subject to the provisions of section, 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.
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14.16 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.
14.17 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.
14.18 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.
15. MISCELLANEOUS.
15.1 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.
15.2 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.
15.3 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.
15.4 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.
15.5 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.
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15.6 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.
15.7 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.
15.8 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana.
15.9 Survival. The provisions and restrictions contained in
sections and shall survive the termination of this Agreement and
Employee's employment with Company.
15.10 Attorney Fees and Expenses. Except as expressly provided
in this Agreement or by statute and ordered by an arbitrator or court
in accordance with the provisions of this Agreement, no party shall be
entitled to recover from the other party the reasonable attorney's
fees, costs and expenses incurred as a result of any action to enforce
any of the rights under this Agreement.
15.11 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.
15.12 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 CORPROATION
c/o XXXXXXX XXXXXX, VICE PRESIDENT, HUMAN RESOURCES
X.X. XXX 000
XXXX XXXXX, XX 00000
If to Employee: XXXX X. XXXXXXXXXX
0000-0 XXX XXXXX XXXX
XXXX XXXXX, XX 00000
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IN WITNESS WHEREOF, the parties have entered into this Agreement the
date first written above.
COMPANY EMPLOYEE
TOKHEIM CORPORATION
/s/ XXXXXXX X. XXXXXX /s/ XXXX X. XXXXXXXXXX
---------------------------------------- -------------------------------
XXXXXXX X. XXXXXX XXXX X. XXXXXXXXXX
CHAIRMAN, PRESIDENT & CEO
/s/ XXXXXX X. XXXXXX
----------------------------------------
Attest: XXXXXX X. XXXXXX
Its: VICE PRESIDENT, SECRETARY & GENERAL COUNSEL
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