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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 .
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(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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(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.
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(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)
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