Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "
Agreement ") is made as of April 8, 2009, by and among
VeriFone Holdings, Inc., a Delaware corporation (the "
Company "), VeriFone, Inc., a Delaware corporation ("
Employer "), and Douglas G. Bergeron (" Executive
").
WHEREAS THE Company, Employer and Executive are parties to that
certain Amended and Restated Employment Agreement, dated as of
January 4, 2007 (the " 2007 Employment Agreement "), which
provided for among other things, the terms and conditions of
Executive's employment and compensation with the Company through
October 31, 2009; and
WHEREAS Employer desires to continue to employ Executive on the
terms and conditions set forth herein, and Executive is also
willing to continue such employment on such terms and
conditions;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties to this agreement hereby agree as follows:
1.
Employment . Employer agrees to continue to employ Executive
and Executive agrees to accept such employment for the renewal
period beginning as of the date hereof and ending upon Executive's
separation pursuant to Section 1(e) hereof (the "
Employment Period ").
a.
Position and Duties .
i.
During the Employment Period, Executive shall serve as the Chief
Executive Officer of Employer and shall have the duties,
responsibilities and authority implied by such position, including,
without limitation, the responsibilities associated with all
aspects of the daily operations of Employer and the identification,
negotiation, completion and integration of any acquisitions made by
the Company, Employer or their Subsidiaries (as defined below),
subject to the power and authority of the Board of Directors of the
Company (the " Board ") to expand or limit such duties,
responsibilities and authority in accordance with the terms and
conditions of this Agreement.
ii.
Executive shall report to the Board, and Executive shall devote his
best efforts and his full business time and attention to the
business and affairs of the Company, Employer and their
Subsidiaries; provided that during the Employment Period the
Executive shall be entitled to (A) serve, after appropriate
consultation with the Board, on corporate, civic or charitable
boards or committees, (B) deliver lectures and fulfill speaking
engagements and (C) manage his personal and family investments, so
long as such activities do not interfere substantially with the
performance of the Executive's responsibilities to the Company and
Employer under this Agreement.
b.
Salary and Bonus . Employer will pay Executive a base salary
(the " Annual Base Salary "). The Annual Base Salary will be
set at $700,000 per annum for the fiscal year ending October 31,
2009. The Annual Base Salary will be subject to adjustment in
subsequent years by the Board, upon recommendation of the Board's
Compensation Committee (the " Compensation Committee ").
Annual bonus eligibility and any related bonus target will be
determined for each year by the Compensation Committee in its
discretion (the " Annual Bonus Target "). For the fiscal
year ending October 31, 2009, Employer and Executive have agreed
that Executive's Annual Bonus Target will be set at zero. The
actual amount of Executive's cash bonus for any fiscal year may
range from 0% to 200% of the Annual Bonus Target depending on the
Executive's performance as determined by the Compensation Committee
in its discretion. To the extent that the Compensation Committee
establishes an Annual Bonus Target that is conditioned upon the
Company's financial performance meeting targets specified by the
Compensation Committee in its discretion in any period, the
Compensation Committee may, in its discretion, include a provision
requiring that any bonus actually paid to Executive be reimbursed
to the Employer in the event or to the extent that, during a time
period established by the Compensation Committee and communicated
to the Executive at the time such incentives were established, the
Company announces a restatement of its financial results, a result
of which is that the relevant performance threshold would no longer
be met.
c.
Benefits . During the Employment Period, except as otherwise
expressly provided herein, the Executive shall be entitled to
participate in all employee benefit and other plans, practices,
policies and programs and fringe benefits on a basis no less
favorable than that provided to other executive officers of the
Company.
d.
Equity Grants . During the Employment Period, except as
otherwise determined by the Board of Directors, upon the
recommendation of the Board's Compensation Committee, Executive
will be granted Awards under the Company's Amended and Restated
Equity Incentive Plan (or any successor plan) in an amount and
under terms and conditions similar to those for the initial equity
grant described below, the amount, terms and conditions of which
will be subject to the final determination of the Board of
Directors, upon the recommendation of the Board's Compensation
Committee. On the Effective Date, the Executive shall receive an
initial equity grant in the form of stock option Awards (as defined
in the Company's Amended and Restated 2006 Equity Incentive Plan)
with the terms and conditions established by the Board of Directors
upon the recommendation of the Compensation Committee.
e.
Separation . The Employment Period will continue until (x)
Executive's resignation, Disability (as defined below) or death,
(y) the Board decides to terminate Executive's employment with or
without Cause, or (z) the term of this Agreement ends. The initial
term of this Agreement shall commence on the date hereof and,
unless earlier terminated in accordance with the terms hereof,
shall remain in full force and effect until October 31, 2012.
This Agreement shall, when six months remain in the initial term or
in a subsequent term (the " Automatic Renewal Date "),
automatically extend for an additional 12 months, unless the
Company or Employer delivers written notice to Executive of the
Company's intent not to renew prior to the Automatic Renewal
Date.
i.
Termination for Cause . If Executive's employment is
terminated by Employer for Cause (as defined below), Executive will
receive no benefits or compensation (other than unpaid Annual Base
Salary or accrued benefits, as the case may be), except as required
by law.
ii.
Termination without Cause or Resignation with Good Reason .
If Executive's employment is terminated by Employer without Cause
or Executive resigns with Good Reason, (i) Executive shall be
entitled to receive a continuation of medical benefits on
substantially the same terms as in effect at the time immediately
preceding the termination during the two-year period commencing on
the date of termination and (ii) during the one year period
commencing on the date of termination (the " Initial Severance
Period "), Employer shall pay to Executive an aggregate amount
equal to his Annual Base Salary plus the amount of bonus received
by Executive with respect to the immediately previous full fiscal
year (the " Prior Year Bonus "), payable in equal
installments on the Employer's regular salary payment dates.
Employer may (in its sole discretion) elect to extend the Initial
Severance Period for one additional one-year period (the "
Additional Severance Period ") by providing Executive
written notice of such extension no less than 60 days prior to the
last day of the Initial Severance Period and paying Executive an
additional amount equal to his Annual Base Salary plus the Prior
Year Bonus, payable in equal installments on the Employer's regular
salary payment dates. The amounts payable during the Additional
Severance Period pursuant to this Section 1(e) shall be
reduced by the amount of any compensation Executive receives with
respect to any other employment during such period. Upon request
from time to time, Executive shall furnish Employer with a true and
complete certificate specifying any such compensation earned or
received by him during such period. The Company's Board of
Directors upon recommendation of its Compensation Committee may in
its discretion extend the Initial Severance Period, either before
or concurrently with any termination of employment.
iii.
Resignation without Good Reason . If Executive resigns
without Good Reason and provides 90 days written notice prior to
termination of employment, Executive is entitled to the Annual Base
Salary and other benefits accrued through the termination date of
the Executive's employment, and no additional compensation.
iv.
Termination by Disability or Death . If Executive's
employment is terminated by the Executive's Disability or death,
Executive shall receive the Annual Base Salary through the date of
termination, and, in the case of Disability, a continuation of
medical benefits on substantially the same terms for 18 months
following the date of termination.
2.
Confidential Information .
a.
Obligation to Maintain Confidentiality . Executive
acknowledges that the information, observations and data obtained
by him during the course of his performance under this Agreement
concerning the business and affairs of the Company, Employer and
their respective Subsidiaries and Affiliates (as defined below) are
the property of the Company, Employer or such Subsidiaries and
Affiliates, including information concerning acquisition
opportunities in or reasonably related to the Company's and
Employer's business or industry of which Executive becomes aware
during the Employment Period. Therefore, Executive agrees that he
will not disclose to any unauthorized Person (as defined below) or
use for his own account any of such information, observations or
data without the Board's written consent, unless and to the extent
that the aforementioned matters, (i) become generally known to and
available for use by the public other than as a result of
Executive's acts or omissions to act, (ii) was known to
Executive prior to Executive's employment with Employer, the
Company or any of their Subsidiaries and Affiliates, or (iii) is
required to be disclosed pursuant to any applicable law or court
order. Executive agrees to deliver to the Company at a Separation,
or at any other time the Company may request in writing, all
memoranda, notes, plans, records, reports and other documents (and
copies thereof) relating to the business of the Company, Employer
and their respective Subsidiaries and Affiliates (including,
without limitation, all acquisition prospects, lists and contact
information) that he may then possess or have under his
control.
b.
Ownership of Property . Executive acknowledges that all
inventions, innovations, improvements, developments, methods,
processes, programs, designs, analyses, drawings, reports, and all
similar or related information (whether or not patentable) that
relate to the Company's, Employer's or any of their respective
Subsidiaries' or Affiliates' actual or anticipated business,
research and development, or existing or future products or
services and that are conceived, developed, contributed to, made,
or reduced to practice by Executive (either solely or jointly with
others) while employed by the Company, Employer or any of their
respective Subsidiaries or Affiliates (including any of the
foregoing that constitutes any proprietary information or records)
(" Work Product ") belong to the Company, Employer or such
Subsidiary or Affiliate and Executive hereby assigns, and agrees to
assign, all of the above Work Product to the Company, Employer or
to such Subsidiary or Affiliate. Any copyrightable work prepared in
whole or in part by Executive in the course of his work for any of
the foregoing entities shall be deemed a "work made for hire" under
the copyright laws, and the Company, Employer or such Subsidiary or
Affiliate shall own all rights therein. To the extent that any such
copyrightable work is not a "work made for hire," Executive hereby
assigns and agrees to assign to the Company, Employer or such
Subsidiary or Affiliate all right, title, and interest, including
without limitation, copyright in and to such copyrightable work.
Executive shall promptly disclose such Work Product and
copyrightable work to the Board and perform all actions reasonably
requested by the Board (whether during or after the Employment
Period) to establish and confirm the Company's, Employer's or such
Subsidiary's or Affiliate's ownership (including, without
limitation, assignments, consents, powers of attorney, and other
instruments).
c.
Third Party Information . Executive understands that the
Company, Employer and their respective Subsidiaries and Affiliates
will receive from third parties confidential or proprietary
information (" Third Party Information ") subject to a duty
on the Company's, Employer's and their respective Subsidiaries' and
Affiliates' part to maintain the confidentiality of such
information and to use it only for certain limited purposes. During
the Employm
