EXHIBIT (C)(9)
DH TECHNOLOGY, INC.
EMPLOYMENT AGREEMENT
This Agreement is entered into as of , by and among DH
Technology, Inc. (the "Company"), Axiohm SA (the "Acquiror") and Xxxxx Xxxxxxx
(the "Employee").
WHEREAS, the Company is proposing to enter into a negotiated business
combination with the Acquiror and a subsidiary of the Acquiror which will
result in the Acquiror becoming a wholly-owned subsidiary of the Company (the
"Transaction"); and
WHEREAS, the Acquiror and the Company desire to retain the Employee on a
full-time basis in the capacity of [title] of the Company following the
Transaction, and the Employee desires to accept such employment; and
WHEREAS the parties desire and agree to enter into an employment
relationship by means of this Agreement;
NOW THEREFORE in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually covenanted and
agreed by and among the parties as follows:
1. CONDITION PRECEDENT. This Agreement shall become effective upon the
closing of the Transaction (the "Effective Date") and shall supersede any
prior agreement or understanding between the Employee and the Company relating
to the Employee's employment by the Company. Prior to the Effective Date, this
Agreement shall be of no force or effect.
2. POSITION AND DUTIES. The Employee shall be employed, as of the Effective
Date, as [title] of the Company, reporting to the Chief Executive Officer of
the Company and assuming and discharging such responsibilities as are
commensurate with the Employee's position. In performing his basic duties, the
Employee shall work at his present location, although the Employee
acknowledges that frequent travel may be necessary in carrying out his duties
hereunder. The Employee shall perform his duties faithfully and to the best of
his ability and shall devote his full business time and effort to the
performance of his duties hereunder; provided, however, that the foregoing
shall not preclude the Employee from engaging in civic, charitable or
religious activities, from devoting a reasonable amount of time to private
investments, or from being employed by, rendering services to or serving on
the boards of directors of other entities, so long as such activities,
employment and/or service do not materially interfere or conflict with his
responsibilities to the Company.
3. EMPLOYMENT RELATIONSHIP. The Company and the Employee acknowledge that
the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason,
the Employee shall not be entitled to any payments, benefits, damages, awards
or compensation other than as provided by this Agreement, or as may otherwise
be available in accordance with the Company's established employee plans and
policies at the time of termination.
4. COMPENSATION.
(A) BASE SALARY. For all services to be rendered by the Employee pursuant to
this Agreement, the Employee shall receive a minimum annual base salary of
$ , payable monthly in accordance with the Company's normal payroll
practices, increased from time to time by the Board of the Company (the
"Board") consistent with past practices.
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(B) BONUS. Beginning with the Company's current fiscal year, and for each
fiscal year thereafter during the term of this Agreement, the Employee shall
be eligible to receive a target bonus of $ based on performance of the
Company as set forth in the Company's annual operating plan established by the
Chief Executive Officer of the Company and the Board (the "Target Bonus").
(C) OPTION. Within six (6) months after the closing of the Transaction, the
Company shall grant an option to the Employee for a number of shares of the
Company's Common Stock to be determined by the Compensation Committee of the
Company's Board (the "Shares"), at a per Share purchase price equal to the
then current fair market value of a Share, pursuant to the Company's 1992
Stock Plan (the "1992 Plan") and standard form of stock option agreement.
Subject to the terms of the 1992 Plan, fifty percent (50%) of the Shares shall
vest on the date twenty-four (24) months after the date of grant, and an
additional twenty-five percent (25%) of the Shares shall vest at the end of
each year thereafter.
(D) AUTOMOBILE ALLOWANCE. During the term of this Agreement, the Company
shall provide the Employee with a automobile allowance of not less than $
per month. The Employee agrees to have available for business use a four-door
automobile suitable for customers and clients.
5. OTHER BENEFITS. The Employee shall be entitled to participate in the
employee benefit plans and programs of the Company, if any, to the extent that
his position, tenure, salary, age, health and other qualifications make his
eligible to participate in such plans or programs, subject to the rules and
regulations applicable thereto. The Company reserves the right to cancel or
change the benefit plans and programs it offers to its employees at any time.
6. EXPENSES. The Company shall reimburse the Employee for reasonable travel,
entertainment or other expenses incurred by the Employee in the furtherance of
or in connection with the performance of the Employee's duties hereunder, in
accordance with the Company's expense reimbursement policy as in effect from
time to time.
7. TERMINATION.
(A) INVOLUNTARY TERMINATION. If the Employee's employment with the Company
terminates in an Involuntary Termination, then, subject to Section 9: (i) the
Employee shall be entitled to receive a severance payment equal to two times
the Employee's Current Compensation (one times the Employee's Current
Compensation if such Termination occurs after the first anniversary of the
Effective Date); and (ii) the vesting and exercisability of all outstanding
stock options that were granted to the Employee by the Company prior to the
Effective Date shall accelerate in full. Any severance payments to which the
Employee is entitled pursuant to this Section 7(a) shall be paid to the
Employee in a lump sum within fifteen (15) days of the Employee's Involuntary
Termination.
(B) DISABILITY. If the Employee's employment with the Company terminates as
a result of Disability, the Company shall make available to the Employee and
the Employee's spouse and dependents group health, life and other similar
insurance plans substantially comparable to the group health, life and other
similar insurance plans in which the Employee or such dependents participated
on the date of such termination (the "Company Coverage"). The Company Coverage
shall be at the Company's expense for twenty-four (24) months following such
termination. In addition, the Employee's stock options shall vest in full as
provided in clause (ii) of Section 7(a) above.
(C) DEATH. In the event of the Employee's death, this Agreement, to the
extent it has not already terminated, shall terminate on the last day of the
calendar month of the Employee's death. In addition (i) the Employee's estate
or beneficiaries shall be eligible for those benefits (if any) as may then be
established under the Company's severance and benefits plans and policies
existing at the time of the Employee's death, and (ii) the Employee's stock
options shall vest in full as provided in clause (ii) of Section 7(a) above.
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(D) OTHER TERMINATION. If the Employee's employment terminates other than in
an Involuntary Termination, or upon the Employee's Death or Disability, then
the Employee shall not be entitled to receive severance or other benefits
pursuant to this Agreement, but may be eligible for those benefits (if any) as
may then be established under the Company's severance and benefits plans and
policies existing at the time of such termination.
8. DEFINITIONS.
(A) CAUSE. "Cause" shall mean the occurrence of any one or more of the
following: (i) the Employee's conviction by, or entry of a plea of guilty or
nolo contendere in, a court of final jurisdiction for any crime which
constitutes a felony in the jurisdiction involved (other than a felony traffic
offense), which felony materially injures the Company; (ii) the Employee's
misappropriation of funds or commission of a material act of fraud, whether
prior or subsequent to the date hereof, upon the Company; (iii) gross
negligence by the Employee in the scope of the Employee's services to the
Company; (iv) a willful breach by the Employee of a material provision of this
Agreement; or (v) a willful failure of the Employee to substantially perform
his duties hereunder. Notwithstanding the foregoing, the Employee shall not be
deemed to have been terminated for Cause without (i) reasonable notice to the
Employee setting forth the reasons for Company's intention to terminate for
Cause, and (ii) an opportunity for the Employee, together with his counsel, if
any, to be heard before the Board.
(B) CURRENT COMPENSATION. "Current Compensation" shall mean an amount equal
to the greater of (i) the Employee's base salary and bonus earned in the
fiscal year immediately preceding the current fiscal year; or (ii) the
Employee's annual base salary for, and any bonus earned at any time during,
the current fiscal year.
(C) INVOLUNTARY TERMINATION. "Involuntary Termination" shall mean (i)
without the Employee's express written consent, a reduction of the Employee's
duties, position or responsibilities relative to the Employee's duties,
position or responsibilities in effect immediately prior to such reduction, or
the removal of the Employee from such position, duties and responsibilities,
unless the Employee is provided with comparable duties, position and
responsibilities; (ii) without the Employee's express written consent, a
reduction of the facilities and perquisites (including office space and
location) available to the Employee immediately prior to such reduction; (iii)
a reduction by the Company of the Employee's base salary or Target Bonus (as
set forth in Section 4) in effect immediately prior to such reduction; (iv) a
reduction by the Company in the kind or level of employee benefits to which
the Employee is entitled immediately prior to such reduction with the result
that the Employee's overall benefits package is significantly reduced; (v)
without the Employee's express written consent, the relocation of the Employee
to a facility or a location more than thirty-five (35) miles from his current
location; (vi) any purported termination of the Employee by the Company which
is not effected for Cause or for which the grounds relied upon are not valid;
or (vii) the failure of the Acquiror or the Company to obtain the assumption
of this Agreement by any successors contemplated in Section 11 below.
9. GOLDEN PARACHUTE EXCISE TAX.
(A) BENEFITS CAP. In the event that the benefits under this Agreement, when
aggregated with any other payments or benefits received by the Employee, or to
be received by the Employee, would (i) constitute "parachute payments" within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), and (ii) but for this provision, would be subject to the excise
tax imposed by Section 4999 of the Code or any similar or successor provision,
then the Employee's benefits shall be reduced to such lesser amount or degree
as would result in no portion of such benefits being subject to the excise tax
under Section 4999 of the Code.
(B) DETERMINATION. Unless the Company and the Employee otherwise agree in
writing, any determination required under this Section shall be made in
writing by the Company's primary independent public accounting firm (the
"Accountants"), whose determination shall be conclusive and binding upon the
Employee and the Company for all purposes. For purposes of making the
calculations required by this Section, the Accountants
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may make reasonable assumptions and approximations concerning applicable taxes
and may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code. The Company and the
Employee shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make its determination
under this Section. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this
Section.
10. RIGHT TO ADVICE OF COUNSEL. The Employee acknowledges that he has had
the right to consult with counsel and is fully aware of his rights and
obligations under this Agreement.
11. SUCCESSORS.
(A) COMPANY'S SUCCESSORS. Any successor to the Acquiror or the Company
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Acquiror's or the Company's business and/or assets shall assume the
obligations under this Agreement and agree expressly to perform the
obligations under this Agreement in the same manner and to the same extent as
the Acquiror or the Company would be required to perform such obligations in
the absence of a succession. For all purposes under this Agreement, the term
"Acquiror" or "Company," as applicable, shall include any successor to the
Acquiror's or the Company's business and/or assets which executes and delivers
the assumption agreement described in this subsection (a) or which becomes
bound by the terms of this Agreement by operation of law.
(B) EMPLOYEE'S SUCCESSORS. Without the written consent of the Acquiror and
the Company, the Employee shall not assign or transfer this Agreement or any
right or obligation under this Agreement to any other person or entity.
Notwithstanding the foregoing, the terms of this Agreement and all rights of
the Employee hereunder shall inure to the benefit of, and be enforceable by,
the Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
12. NOTICE CLAUSE.
(A) MANNER. Any notice hereby required or permitted to be given shall be
sufficiently given if in writing and upon mailing by registered or certified
mail, postage prepaid, to either party at the address of such party or such
other address as shall have been designated by written notice by such party to
the other party.
(B) EFFECTIVENESS. Any notice or other communication required or permitted
to be given under this Agreement will be deemed given on the day when
delivered in person, or the third business day after the day on which such
notice was mailed in accordance with Section 12(a).
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal substantive laws, but not the choice of law
rules, of the state of California.
14. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement, or any terms hereof, shall not affect the validity or
enforceability of any other provision or term of this Agreement.
15. INTEGRATION. This Agreement represents the entire agreement and
understanding between the parties as to the subject matter herein and
supersedes all prior or contemporaneous agreements whether written or oral. No
waiver, alteration, or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
16. TAXES. All payments made pursuant to this Agreement shall be subject to
withholding of applicable income and employment taxes.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Acquiror and the Company by their duly authorized officers, as of
the day and year first above written.
DH Technology, Inc.
By: _________________________________
Title: ______________________________
AXIOHM SA
By: _________________________________
Title: ______________________________
Employee:
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Name
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