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Exhibit 10.2 SEVERANCE AGREEMENT
THIS AGREEMENT is entered into as of
the date indicated on the signature page hereof, by and between
VeriFone Holdings, Inc., a Delaware corporation ("
VeriFone "), and the executive named on such
signature page (" Executive "). W I T N E S S E T
H WHEREAS, VeriFone considers the
establishment and maintenance of a sound and vital management to be
essential to protecting and enhancing the best interests of
VeriFone and its stockholders; and
WHEREAS, VeriFone recognizes the
possibility that it may experience a change in control and that
such a change of control and its possibility subjects VeriFone to
the risk of the departure or distraction of its key management; and
WHEREAS, VeriFone’s Board of
Directors has determined that it is in the best interests of
VeriFone and its stockholders to secure Executive’s continued
services and to ensure Executive’s continued dedication to
his duties; NOW, THEREFORE, for and
in consideration of the premises and the mutual covenants and
agreements herein contained, VeriFone and Executive hereby agree as
follows: 1.
Definitions . As used in this Agreement, the
following terms shall have the respective meanings set forth below:
(a) " Board "
means the Board of Directors of VeriFone.
(b) " Cause "
means (i) the commission of a felony, (ii) willful
conduct tending to bring VeriFone or any Related Entity into
substantial public disgrace or disrepute, (iii) substantial and
repeated failure to perform duties of the office held by Executive
as reasonably directed by the Board, (iv) gross negligence or
willful misconduct with respect to VeriFone or any Related Entity
or any of their customers or suppliers involving willful dishonesty
or fraud, (v) any material breach by Executive of his material
obligations under this Agreement or any material written policies
of VeriFone or any Related Entity or (vi) the
Executive’s disqualification or bar by any governmental or
self-regulatory authority from serving as an officer of VeriFone or
any Related Entity or in any of the capacities contemplated by this
Agreement. (c) " Change in
Control " means the occurrence of any one of the following
events: (i) any "person" (as such
term is defined in Section 3(a)(9) of the Securities Exchange
Act of 1934, as amended (the " Exchange Act ") and
as
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of 50% or more of
the outstanding VeriFone Voting Securities; provided ,
however , that the event described in this paragraph
(i) shall not be deemed to be a Change in Control if it occurs
by virtue of any acquisition: (A) by VeriFone or any Subsidiary,
(B) by any employee benefit plan (or related trust) sponsored
or maintained by VeriFone or any Subsidiary, (C) by any
underwriter or broker temporarily holding securities in connection
with an offering of such securities, (D) pursuant to a
Non-Qualifying Transaction (as defined in paragraph
(ii) below) or (E) pursuant to any acquisition by Executive or
any group of persons including Executive (or any entity controlled
by Executive or any group of persons including Executive);
(ii) the consummation of a merger,
consolidation, statutory share exchange or similar form of
corporate transaction involving VeriFone or any of its Subsidiaries
that requires the approval of VeriFone’s stockholders,
whether for such transaction or the issuance of securities in the
transaction (a " Business Combination "), unless
immediately following such Business Combination: (A) a
majority of the total voting power of (x) the corporation
resulting from such Business Combination (the " Surviving
Corporation "), or (y) if applicable, the ultimate
parent corporation that directly or indirectly has beneficial
ownership of at least 95% of the voting securities eligible to
elect directors of the Surviving Corporation (the " Parent
Corporation "), is represented by VeriFone Voting
Securities that were outstanding immediately prior to such Business
Combination (or, if applicable, is represented by shares into which
such VeriFone Voting Securities were converted pursuant to such
Business Combination), (B) no person (other than any employee
benefit plan (or related trust) sponsored or maintained by the
Surviving Corporation or the Parent Corporation), is or becomes the
beneficial owner, directly or indirectly, of a majority of the
total voting power of the outstanding voting securities eligible to
elect directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) and (C) a
majority of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination
were Incumbent Directors (as defined below) at the time of the
Board’s approval of the execution of the initial agreement
providing for or recommendation of the offer to stockholders
effecting such Business Combination (any Business Combination which
satisfies all of the criteria specified in (A), (B) and (C)
above shall be deemed to be a " Non-Qualifying
Transaction "); (iii) a sale
of all or substantially all of VeriFone’s assets other than
in connection with a Non-Qualifying Transaction; or
(iv) completion of a plan of complete
liquidation or dissolution of VeriFone.
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Notwithstanding the foregoing, a
Change in Control of VeriFone shall not be deemed to occur solely
because any person acquires beneficial ownership of a majority of
VeriFone Voting Securities as a result of the acquisition of
VeriFone Voting Securities by VeriFone which reduces the number of
VeriFone Voting Securities outstanding; provided ,
that if after such acquisition by VeriFone such person
becomes the beneficial owner of additional VeriFone Voting
Securities that increases the percentage of outstanding VeriFone
Voting Securities beneficially owned by such person, a Change in
Control of VeriFone shall be deemed to occur at that time.
(d) " Date of
Termination " means (i) the effective date on which
Executive’s employment by VeriFone terminates as specified in
a prior written notice by VeriFone or Executive, as the case may
be, to the other, delivered pursuant to Section 10 or
(ii) if Executive’s employment by VeriFone terminates by
reason of death or Disability, the date of Executive’s death
or termination by Disability.
(e) " Disability "
means termination of Executive’s employment by VeriFone due
to Executive’s absence from Executive’s duties on a
full-time basis for at least ninety (90) consecutive days or for
shorter periods aggregating at least one hundred twenty
(120) days during any twelve-month period as a result of
Executive’s incapacity due to documented illness, accident,
injury, physical or mental incapacity or other disability.
(f) " Fully Vest "
means (i) any stock options, stock appreciation rights or
similar rights granted under the Plan shall become fully vested and
immediately exercisable, (ii) any restricted stock, restricted
stock units and other stock-based rights granted under the Plan
will become fully vested, any restrictions applicable to such
rights shall lapse, and (iii) any performance goals applicable
to any such rights will be deemed to be fully satisfied.
(g) " Good Reason
" means, without Executive’s express written consent, the
occurrence of any of the following events during a Qualifying
Termination Period: (i) any material
and adverse change in the status, duties or responsibilities
(including titles, offices and reporting responsibilities) of
Executive that is inconsistent with Executive’s position,
status, duties and responsibilities with VeriFone immediately prior
to the commencement of such Qualifying Termination Period
(including any material and adverse diminution of such status,
duties or responsibilities); (ii) a
reduction by VeriFone in Executive’s rate of annual base
salary or annual target bonus opportunity as in effect immediately
prior to the commencement of such Qualifying Termination Period;
(iii) any requirement of VeriFone
that Executive be based anywhere more than fifty (50) miles
from the office where Executive is based at the time of the Change
in Control;
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(iv) the failure of VeriFone to
continue in effect any employee benefit plan, compensation plan,
welfare benefit plan or material fringe benefit plan in which
Executive is participating immediately prior to such Change in
Control or the taking of any action by VeriFone which would
adversely affect Executive’s participation in or reduce
Executive’s benefits under any such plan, unless Executive is
permitted to participate in other plans providing Executive with
substantially equivalent benefits in the aggregate; or
(v) any purported termination of
Executive’s employment which is not effectuated pursuant to
Section 10(b) (and which will not constitute a termination
hereunder). Any action taken in good
faith and which is remedied by VeriFone within ten (10) days
after receipt of notice thereof given by Executive shall not
constitute Good Reason. Executive’s right to terminate
employment for Good Reason shall not be affected by
Executive’s incapacity due to mental or physical illness and
Executive’s continued employment shall not constitute consent
to, or a waiver of rights with respect to, any event or condition
constituting Good Reason; provided, however, that Executive must
provide notice of termination of employment within ninety
(90) days following Executive’s knowledge of an event
constituting Good Reason or such event shall not constitute Good
Reason under this Agreement.
(h) " Incumbent
Directors " means individuals who, on the date hereof
constitute the Board, provided that any person becoming a director
subsequent to the date hereof whose election or nomination for
election was approved by a vote of a majority of the Incumbent
Directors then on the Board (either by a specific vote or by
approval of the proxy statement of VeriFone in which such person is
named as a nominee for director, without written objection to such
nomination) shall be an Incumbent Director; provided, however, that
no individual initially elected or nominated as a director of
VeriFone as a result of an actual or threatened election contest
with respect to directors or as a result of any other actual or
threatened solicitation of proxies by or on behalf of any person
other than the Board shall be deemed to be an Incumbent Director.
(i) " Plan " means
the VeriFone Holdings, Inc. 2006 Equity Incentive Plan (or any
successor or replacement stock option plan) and any Stock Option
Agreement entered into pursuant thereto.
(j) " Qualifying
Termination " means a termination of Executive’s
Employment during a Qualifying Termination Period (A) by
VeriFone other than for Cause or (B) by Executive for Good
Reason. Termination of employment on account of death, Disability
or Retirement shall not be treated as a Qualifying Termination.
(k) " Qualifying
Termination Period " means the period beginning ninety
(90) days prior to a Change in Control and ending twelve
(12) months following such Change in Control. For purposes of
determining the timing of payments and benefits to Executive
under Section 4, the date of the actual Change in Control
shall be treated as Executive’s Date of Termination under
Section 1(e), and for purposes of
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determining the amount of payments and benefits to
Executive under Section 4, the date Executive’s
employment is actually terminated shall be treated as
Executive’s "Date of Termination".
(l) " Related
Entity " means any parent or subsidiary corporation
of VeriFone or any business, corporation, partnership, limited
liability company or other entity in which VeriFone or a parent or
a subsidiary corporation holds at least a 25% ownership interest,
directly or indirectly and any other entity specifically designated
as a Related Entity by the Board.
(m) " Retirement "
means Executive’s mandatory retirement (not including any
mandatory early retirement) in accordance with VeriFone’s
retirement policy generally applicable to its salaried employees,
as in effect immediately prior to the Change in Control, or in
accordance with any retirement arrangement established with respect
to Executive with Executive’s written consent.
(n) " Subsidiary "
means any corporation or other entity in which VeriFone has a
direct or indirect ownership interest of a majority of the total
combined voting power of the then outstanding securities or
interests of
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