Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this “ Agreement ”) is made as of
January 4, 2007, 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 Senior Management Agreement,
dated as of July 1, 2002, as amended by the Amendment to Senior
Management Agreement, dated as of December 27, 2004 (as so amended,
the “ Senior Management Agreement ”), which
provided for among other things, the terms and conditions of
Executive’s investment in equity securities in the Company as
well as employment and compensation; 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 personal
investments, so long as such activities
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do not interfere
substantially with the performance of the Executive’s
responsibilities to the Company under this Agreement.
(b)
Salary and
Bonus . During the Employment
Period, Employer will pay Executive a base salary (the “
Annual Base Salary ”) of $700,000 per annum for the
fiscal year ending October 31, 2007, subject to adjustment in
subsequent years by the Board, upon recommendation of the
Board’s Compensation Committee (the “ Compensation
Committee ”). For the year ending October 31, 2007,
Executive shall also be eligible for an annual cash bonus of
$900,000, which will be subject to adjustment in subsequent years
at the discretion of the Compensation Committee (the “
Annual Target Bonus ”). The actual amount of
Executive’s annual cash bonus may range from 0% to 200% of
the Annual Target Bonus depending on the Company’s
performance as determined by the Compensation
Committee.
(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)
Upfront Equity Grants . On the Effective Date, the
Executive shall be granted Awards (as defined in the
Company’s 2006 Equity Incentive Plan) with the terms and
conditions set by the Board and 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, 2009. 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
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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.
(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
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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 Employment Period and
thereafter, and without in any way limiting the provisions of
Section 2(a) above, Executive will hold Third Party
Information in the strictest confidence and will not disclose to
anyone (other than personnel of the Company, Employer or their
respective Subsidiaries or Affiliates who need to know such
information in connection with their work for the Company, Employer
or their respective Subsidiaries or Affiliates) or use, except in
connection with his work for the Company, Employer or their
respective Subsidiaries or Affiliates, Third Party Information
unless expressly authorized by a member of the Board in
writing.
(d)
Use of
Information of Prior E
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