-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, Yaw1kh6Rlw9yuO34EGZY4nyyfgmhKZUV/WosU7ZiRX9sKnn9ywFGw23obQTM6mCc 3MnQxpip+fY3lBRF5kytpw== 0000911916-94-000018.txt : 19940207 0000911916-94-000018.hdr.sgml : 19940207 ACCESSION NUMBER: 0000911916-94-000018 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19940204 19940223 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOKHEIM CORP CENTRAL INDEX KEY: 0000098559 STANDARD INDUSTRIAL CLASSIFICATION: 3580 IRS NUMBER: 350712500 STATE OF INCORPORATION: IN FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: S-8 SEC ACT: 33 SEC FILE NUMBER: 033-52167 FILM NUMBER: 94504684 BUSINESS ADDRESS: STREET 1: P O BOX 360 CITY: FORT WAYNE STATE: IN ZIP: 46801-0360 BUSINESS PHONE: 2194232552 S-8 1 REGISTRATION STATEMENT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Registration No.____________ AMENDMENT NUMBER ONE TO FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Indiana TOKHEIM CORPORATION 35-0712500 (State of (Exact name of registrant as (I.R.S. Employer Incorporation) specified in its charter) I.D. No.) 10501 Corporate Drive Fort Wayne, Indiana 46845 (219) 423-2552 (Address of Principal Executive Offices) TOKHEIM CORPORATION 1992 STOCK INCENTIVE PLAN (Full Title of the Plan) Norman L. Roelke 10501 Corporate Drive Fort Wayne, Indiana 46845 (219) 423-2552 (Name, Address and Telephone Number of Agent for Service) Approximate date of commencement of proposed sale to the public: as soon thereafter as practicable after filing this Registration Statement CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed each class maximum maximum of securities Amount offering aggregate Amount of to be to be price per offering registration registered registered share price fee Common Stock 400,000 No par value shares $14.375 $5,750,000 $1,983.00
This document constitutes part of a prospectus covering securities that have been registered under the Securities Act of 1933. The amount to be registered is based upon the maximum number of shares of Registrant's Common Stock which may be issued under the option plan covered by this Registration Statement. The proposed maximum offering price per share is estimated for purposes of calculating the registration fee based upon fluctuating market prices pursuant to Rule 457(c). The calculation is based upon the unweighted average of the high and low prices of the Registrant's Common Stock on February 3, 1994, $14.500 and $14.250, respectively, as reported by the New York Stock Exchange. The amount of registration fee is calculated as .00034483 of the proposed maximum aggregate offering price. STATEMENT TO PARTICIPANTS OF THE TOKHEIM CORPORATION 1992 STOCK INCENTIVE PLAN PERTAINING TO DOCUMENTS INCORPORATED BY REFERENCE AND AVAILABLE TO PARTICIPANTS As a participant in the Tokheim Corporation 1992 Stock Incentive Plan, the Company undertakes to make available to you, without charge, upon written or oral request, copies of the following documents: (a) The Company's latest Annual Report on Form 10-K for the year ended November 30, 1992, the Amendment to said Annual Report on Form 10-K, filed on May 28, 1993, and the Amendment to said Annual Report on Form 10-K, filed on September 20, 1993, filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"); (b) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Company's latest Annual Report referenced above; (c) Any description of the Company's common stock which is contained in the Company's original Registration Statement filed with the Securities and Exchange Commission, under the Exchange Act with respect to such stock, including amendments or reports filed for the purpose of updating such description; and (d) Any other documents required to be delivered to participants pursuant to Rule 428(b) of the Securities Act of 1933, including the Information Regarding the Tokheim Corporation 1992 Stock Incentive Plan delivered to participants and constituting Part I of this Registration Statement. Any request for such documents should be made to Norman L. Roelke, Assistant Secretary and Corporation Counsel, Tokheim Corporation, 10501 Corporate Drive, Fort Wayne, Indiana 46825. Mr. Roelke's telephone number is (219) 423-2442, Extension 2221. Dated: February 4, 1994 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The Company incorporates by reference into this Registration Statement the following documents: (a) The Company's latest Annual Report on Form 10-K, as amended, and filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"); (b) All other reports filed by the Company pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Company's latest Annual Report referenced above; and (c) Any description of the Company's common stock which is contained in the Company's original Registration Statement filed with the Securities and Exchange Commission under the Exchange Act with respect to such stock, including amendments or reports filed for the purpose of updating such descriptions. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in the Registration Statement and to be part thereof from the date of filing of such documents. Item 4. Description of Securities. Not Applicable. Item 5. Interests of Named Experts and Counsel. Not Applicable. Item 6. Indemnification of Directors and Officers. Indiana Code Section 23-1-37-1 et seq. grants to each corporation organized under the laws of the State of Indiana, the right, privilege and power to indemnify any director, officer, employee or agent of such corporation, or such party who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against liability incurred by him in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, if his conduct was in good faith and he reasonably believed that, in the case of conduct in his capacity with the corporation, that his conduct was in the corporation's best interests, and in all other cases, that his conduct was at least not opposed to its best interests. In the case of a criminal proceeding, however, the corporation may indemnify such an individual if he either had reasonable cause to believe his conduct was lawful, or had no reasonable cause to believe his conduct was unlawful. Additionally, unless limited by its articles of incorporation, an Indiana corporation must indemnify officers and directors who are wholly successful, on the merits or otherwise, in the defense of any proceeding to which such director or officer was a party because that director or officer is or was a director or officer of the corporation against reasonable expenses incurred by that director or officer in connection with the proceeding. This statutory provision for indemnification does not exclude any of the rights to indemnification or advances for expenses that such a person may have under the corporation's articles of incorporation or by-laws, a resolution of the board of directors or of the stockholders, or any other authorization, whenever adopted, after notice, by a majority vote of all of the voting shares then issued and outstanding. The Company's Articles of Incorporation provide for the indemnification as afforded by Indiana statutory law described above. The Articles of Incorporation of the Company also provide a specific method of determining whether an applicant for such indemnification is entitled thereto. Also in accordance with Indiana law, the Articles of Incorporation provide that the Company may advance expenses incurred by a person eligible for such indemnification prior to the final disposition of any proceedings upon receipt of an undertaking by or on behalf or the recipient of such an advance to repay such amount unless he is ultimately determined to be entitled to such indemnification. The Company has in effect a policy of insurance indemnifying it against certain liabilities to its directors and officers, and indemnifying its directors and officers against certain liabilities incurred by them, all within specific limits. The Company pays all premiums on such insurance policies. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. The list of exhibits is incorporated herein by reference to the Index to Exhibits at page 8. Item 9. Undertakings. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus to each employee to whom the prospectus is sent or given a copy of the registrant's annual report to stockholders for its last fiscal year, unless such employee otherwise has received a copy of such report, in which case the registrant shall state in the prospectus that it will promptly furnish, without charge, a copy of such report on written request of the employee. If the last fiscal year of the registrant has ended within 120 days prior to the use of the prospectus, the annual report of the registrant for the preceding fiscal year may be so delivered, but within such 120 day period the annual report for the last fiscal year will be furnished to each such employee. The undersigned registrant hereby undertakes to transmit or cause to be transmitted to all employees participating in the plan who do not otherwise receive such material as stockholders of the registrant, at the time and in the manner such material is sent to its stockholders, copies of all reports, proxy statements and other communications distributed to its stockholders generally. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Wayne, State of Indiana, on the 31st day of January, 1994. TOKEHIM CORPORATION By: /s/ Douglas K. Pinner Douglas K. Pinner President Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date /s/ Robert M. Akin, III Director January 31, 1994 Robert M. Akin, III ___________________________ Director January __, 1994 Walter S. Ainsworth ___________________________ Director January __, 1994 James K. Baker ___________________________ Director January __, 1994 Bernard D. Cooper /s/ Gerald H. Frieling, Jr. Director January 31, 1994 Gerald H. Frieling, Jr. /s/ Bob F. Jesse, Sr. Director January 31, 1994 Bob F. Jesse, Sr. /s/ Winfred M. Phillips Director January 31, 1994 Winfred M. Phillips /s/ Douglas K. Pinner Director January 31, 1994 Douglas K. Pinner ___________________________ Director January __, 1994 Ian M. Rolland /s/ James T. Smith Director January 31, 1994 James T. Smith INDEX TO EXHIBITS The following Exhibits accompany or are incorporated in this Registration Statement pursuant to Item 601 of Regulation S-K. Assigned Exhibit No. Sequential (Based on Page No. at Exhibit Description which Exhibit Table No.) of Exhibit is Located 4 Tokheim Corporation _____ 1992 Stock Incentive Plan 5 Opinion of Counsel re legality _____ 23 Consent of Counsel (contained in _____ Exhibit 5, above) 24 Consent of Accountants _____ (incorporated by reference to the Consent of Accountants appearing as a part of Financial Statements at Item 14 of the Company's Amended Annual Report on Form 10-K/A, filed on September 22, 1993) EX-99 2 1992 STOCK INCENTIVE PLAN TOKHEIM CORPORATION 1992 STOCK INCENTIVE PLAN Section 1 General 1.1 Effective Date and Purpose. Tokheim Corporation, an Indiana corporation, ("Tokheim") has established the TOKHEIM CORPORATION 1992 STOCK INCENTIVE PLAN (the "Plan") effective as of December 15, 1992, (the "Effective Date"), subject to approval of the Plan at the next Annual Meeting of Tokheim Shareholders by the holders of a majority of the shares of Tokheim stock entitled to vote at that meeting. The purpose of the Plan is to promote the long-term financial performance of Tokheim by (a) attracting and retaining executive and other key employees of Tokheim and its Subsidiaries (as defined in subsection 2.1) who possess outstanding abilities with incentive compensation opportunities which are competitive with those of other similar corporations; (b) motivating such employees to further the long-range goals of Tokheim; and (c) furthering the identity of interests of participating employees and Tokheim shareholders through opportunities for increased management ownership of Tokheim common stock. 1.2 Plan Administration. The Plan shall be administered by the Committee (as described below). In addition to those rights, duties and powers vested in the Committee by other provisions of the Plan, the Committee shall have sole authority to: (a) determine the employees of Tokheim and Subsidiaries to whom options shall be granted, when such options shall be granted, and the number of shares and the terms upon which such options shall be granted; (b) interpret the provisions of the Plan; (c) adopt, amend and rescind rules and regulations for the administration of the Plan; (d) impose such limitations, restrictions and conditions upon grants and awards under the Plan as it shall deem appropriate; and (e) make all other determinations deemed by it to be necessary or advisable for the administration of the Plan; provided, that the Committee shall exercise its authority in accordance with the provisions of the Plan. The Committee may not exercise its authority at any time that it has fewer than two members. The Committee may meet by telephonic connection. The Committee shall exercise its authority only by a majority vote of its members at a meeting or by a writing without a meeting. At any date, the members of the Committee shall be those members of the Compensation Committee of the Board of Directors of Tokheim who are Disinterested Persons; that is, those members who have not, during the one year prior to service on the Committee, or during such service, been granted or awarded equity securities pursuant to this Plan or any other plan of the Company or any of its affiliates. From time to time the Board may increase the size of the Committee and appoint additional members thereof, remove members, and appoint new members in substitution, but in all events such new members shall be Disinterested Persons. 1.3 Shares Available. The sum of the number of shares of Tokheim common stock for which Incentive Stock Options ("ISOs") and Non-Qualified Stock Options ("NQSOs") (both as defined in subsection 3.1) may be granted may not exceed 350,000. If all or a portion of an ISO or NQSO expires or is terminated without having been exercised in full and without having been surrendered to exercise any related Stock Appreciation Right ("SAR") (as defined in subsection 4.1) then the number of shares which are forfeited or not purchased shall again be available for purposes of making grants under this Plan. The shares of Tokheim common stock delivered pursuant to the Plan shall be authorized but unissued shares or reacquired shares held by Tokheim as treasury shares (including shares purchased in the open market). In the event of a merger, consolidation, reorganization, recapitalization, stock dividend, stock split or other similar change in the corporate structure or capitalization of Tokheim which affects the Tokheim common stock, appropriate adjustment, as determined by the Board of Directors of Tokheim (or its successor), shall be made with respect to the number and kinds of shares (or other securities) which may thereafter be awarded or by subject to options under the Plan. Agreements evidencing grants and awards under the Plan shall be subject to and shall provide for appropriate adjustments, as determined by the Board of Directors of Tokheim (or its successor) in the event of such changes in the corporate structure or capitalization of Tokheim occurring after the date of grant or award. 1.4 Term, Amendment and Termination of Plan. Grants and awards may not be made under the Plan after the earlier of December 14, 2002, or the termination date of the Plan. The Board of Directors of Tokheim may amend or terminate the Plan at any time except that, without the approval of the holders of a majority of Tokheim stock entitled to vote at a duly held meeting of such shareholders, the Board may not: (a) increase the number of shares of common stock which may be issued under the Plan, except as provided in subsection 1.3; (b) reduce the minimum option price under any stock option, except as provided in subsection 1.3; (c) increase the maximum period during which Incentive Stock Options, Non-Qualified Stock Options and Stock Appreciation Rights may be exercised; (d) extend the term of the Plan; and (e) amend the standards for participation described in Section 2. In addition, the Committee may amend or modify any outstanding option in any manner to the extent that the Committee would have had the authority to initially grant such options as so modified or amended, including without limitation, to change the date or dates as of which an option becomes exercisable. Provided, no modification shall be permitted where such modification would be considered as the granting of a new option. Amendment or termination of the Plan shall not affect the validity of terms of any grant or award previously made to a Participant in any way which is adverse to the Participant without the consent of the Participant. 1.5 Compliance with Applicable Law. The Committee may postpone any exercise of an ISO, NQSO or SAR for such time as the Committee in its discretion may deem necessary in order to permit Tokheim (a) to effect or maintain registration of the Plan or common stock issuable pursuant to the Plan under the Securities Act of 1933, as amended, or the securities laws of any applicable jurisdiction; (b) to take any action necessary to comply with restrictions or regulations incident to the maintenance of a public market for Tokheim common stock; or (c) to determine that no action referred to in (a) or (b) above needs to be taken. Tokheim shall not be obligated to issue shares upon exercise of an ISO, NQSO or SAR in violation of any law, regulation or rule of a stock exchange. Any such postponement shall not extend the term of an ISO, NQSO or SAR. Neither Tokheim nor its directors or officers shall have any obligation or liability to any Participant (or successor in interest) because of the loss of rights under any grant or award under the Plan due to postponements pursuant to this subsection. 1.6 Withholding Taxes. Tokheim and its Subsidiaries shall have the right to deduct from any cash payment made pursuant to the Plan the amount of any tax required by law to be withheld from that payment. Tokheim and its Subsidiaries shall have the right to require payment, in cash or in equivalent value in Tokheim common stock, from any person entitled to receive Tokheim common stock pursuant to the Plan, of the amount of any tax required by law to be withheld with respect to that stock prior to its delivery. Section 2 Plan Participation 2.1 Participation Designations. The Committee may, at any time, designate any officer or key employee of Tokheim or of a Subsidiary to be a Participant. For purposes of the Plan, the term "Subsidiary" means any corporation of which, at any date, Tokheim owns directly, or indirectly through an unbroken chain of subsidiary corporations, stock possession 50 percent or more of the total combined voting power of all classes of stock of that corporation. 2.2 Participation is Not a Contract of Employment. The Plan does not constitute a contract of employment. Participating in the Plan does not give any employee the right to be retained in the employ of Tokheim or a Subsidiary and does not limit in any way the right of Tokheim or a Subsidiary to change the duties or responsibilities of any employee. Section 3 Stock Options 3.1 Grantees. The Committee may, at any time, designate a Participant to receive an Incentive Stock Option or Non-Qualified Stock Option (each as defined below) whether or not the Participant has previously received a grant under the Plan. For purposes of the Plan, the term "Incentive Stock Option" means an option to purchase Tokheim common stock which meets the requirements of section 422 of the Internal Revenue Code of 1954, as amended (the "Code") and the term "Non-Qualified Stock Option" means an option to purchase Tokheim common stock which is not an Incentive Stock Option. Each ISO and NQSO granted under the Plan shall be evidenced by an agreement between the Participant and Tokheim. The provisions of each agreement shall be determined by the Committee in accordance with the provisions of the Plan. A Participant shall not have any rights of a shareholder of Tokheim common stock with respect to shares subject to an ISO or NQSO until such shares are purchased upon exercise of the option. 3.2 Number of Shares Optioned and Option Price. The Committee shall, subject to the limitations of subsection 1.3 and this Section 3, determine the number of shares of Tokheim common stock which may be purchased and the option price of each share on exercise of each ISO and NQSO granted under the Plan. To the extent that the aggregate Fair Market Value of stock with respect to which ISOs are exercisable for the first time by any Participant during any calendar year exceeds $100,000, such options shall be treated as NQSOs. The foregoing limitation shall be applied by taking options into account in the order in which they were granted. Provided, in the event and to the extent limits on the maximum number of shares for which ISOs may be granted under Section 422 shall be increased, the maximum number of shares or amount for which ISOs may be granted under this Plan and other plans shall be similarly increased. The option price of each share under an ISO or NQSO shall not be less than 100 percent of the Fair Market Value of a share of Tokheim common stock on the date the option is granted. For purposes of the Plan, the term "Fair Market Value" means the unweighted mean of the high and low prices of a share of Tokheim Common Stock, on the first date that the stock was so traded which next precedes the date as of which the determination is being made, as reported by the New York Stock Exchange. 3.3 Exercise of Options and Payments. Each ISO and NQSO shall become exercisable in full at such time, or in such portions at such times, as the Committee determines, subject to the following provisions of this subsection 3.3. No ISO or NQSO granted to a Participant shall be exercisable prior to the first anniversary of the date that the Option was granted except, in the discretion of the Committee, if the Participant's employment with Tokheim and all of its Subsidiaries terminates by reason of death, Disability (as defined in section 37(c)(3) of the Code) or retirement (as described in subsection 3.4(d)). During any period that an ISO or NQSO is exercisable, it may be exercised by delivering a written notice to Tokheim at its principal office by registered or certified mail, or in person or by facsimile, stating the number of shares with respect to which the Option is being exercised and specifying a date not less than five nor more than 15 days after the receipt of such notice on which the shares will be taken up and payment made therefore. Payment may be made in (a) cash or (b) in the event the Committee does not prohibit such an exchange, in shares of Tokheim common stock with an aggregate Fair Market Value on the date of exercise equal to the purchase price, or in any combination of cash and such shares. 3.4 Termination of Options. Each ISO and NQSO shall terminate and not be exercisable after the date determined by the Committee, which date shall not be later than the earliest of (a) the tenth anniversary of the date that the option was granted; (b) the date the Participant's employment with Tokheim and all Subsidiaries terminates for reasons other than described in (c) or (d) next following; (c) the first anniversary of the date the Participant's employment with Tokheim and all Subsidiaries terminates on account of death or Disability; or (d) the first anniversary of the Participant's retirement, as approved by the Committee, from employment by Tokheim or a Subsidiary. Exercise of an option pursuant to Section 3.4(d) more than three (3) months after termination of employment shall not qualify for ISO tax treatment in the hands of the Participant. 3.5 Transferability. Each ISO and NQSO granted to a Participant may not be transferred by the Participant except by will or the laws of descent and distribution, and may be exercisable during the Participant's lifetime only by the Participant. 3.6 Change in Control. Notwithstanding any provision to the contrary contained herein, or contrary limitations imposed upon an option by the Committee, any stock option granted pursuant to the Plan shall, in the case of a change in control ("Change in Control"), as hereinafter defined, become fully exercisable as to all shares of stock from and after the date of such Change in Control and shall, subject to the provisions of Section 3.4(a), above, remain exercisable for a period of three (3) months following the employee's termination of employment with the Tokheim, if said termination occurs within six (6) months after the date of the Change in Control. The term "Change in Control" shall mean a Change in Control of a nature such that (1) it would be required to be reported by a person or entity subject to the reporting requirements of Section 14(a) of the Securities Exchange Act of 1934, or successor provisions thereto, as in effect on the date hereof, (2) a "person" or "group" (as those terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934), is or becomes the "beneficial owner" (as defined in Rule 13(d)-3 issued under the Securities Exchange Act), directly or indirectly, of securities of Tokheim, representing in excess of thirty percent (30%) of the voting securities of Tokheim, then outstanding, followed by the election by said person or group of one or more representatives to the Board of Directors of Tokheim; (3) a person or group, as hereinabove defined, is or becomes the beneficial owner, directly or indirectly, of securities of Tokheim, representing in excess of fifty percent (50%) of the voting securities of Tokheim, then outstanding, whether or not followed by the election by said person or group of one or more representatives to the Board of Directors of Tokheim; or (4) any other event, including but not limited to those set forth in paragraphs (1) through (3) above, which shall have the effect of placing control of the business and affairs of Tokheim, in a person or group as hereinabove defined, other than or different from the present stockholders of Tokheim. Provided, no Change in Control shall be deemed to have occurred for purposes of this Plan if a majority of the members of the Board of Directors of Tokheim approves the events which would otherwise constitute a change of control within thirty (30) days thereof. Section 4 Stock Appreciation Rights 4.1 Grantees. The Committee may, at the time a stock option is granted under Section 3 to a Participant or at any time thereafter, designate that Participant to be granted, in conjunction with that stock option, a Stock Appreciation Right (as defined below). No Stock Appreciation Right may be granted in conjunction with a previously granted ISO without the written consent of the affected Participant. For purpose of the Plan, the term "Stock Appreciation Right" means a right to surrender all or a portion of a stock option and receive, in exchange, payment of an amount no greater than the excess of the Fair Market Value (as defined in subsection 3.2) of one or more shares of Tokheim common stock determined on the date the right is exercised over the Fair Market Value of the same number of shares of Tokheim common stock determined on the date the related stock option was granted. Each SAR granted under the Plan shall be evidenced by an agreement between the Participant and Tokheim. The provisions of each agreement shall be determined by the Committee in accordance with the provisions of the Plan. 4.2 Terms of SARs. The Committee shall determine the number of shares of Tokheim common stock and the percentage (not more than 100 percent) or maximum amount of the increase in Fair Market Value of those shares over the relevant period upon which payment of each SAR at exercise shall be based. Each SAR may be exercisable at any date with respect to no more than the number of shares for which the related stock option is exercisable on that date. Each SAR issued in conjunction with an ISO may be exercisable only when there has been an increase in Fair Market Value of the shares over the relevant period. If a Participant to whom an SAR has been granted is subject to Section 16 of the Securities Exchange Act of 1934, as amended, the Committee may, at any time, impose such conditions and limitations upon such SAR as the Committee deems necessary or desirable for the Participant to comply with or obtain an exemption from such Section 16 and applicable rules and regulations. The terms of an SAR may include such other conditions and limitations upon exercise as the Committee deems desirable. 4.3 Exercise of SARs and Payment. During any period that SAR is exercisable, it may be exercised by delivering a written notice to Tokheim at its principal office by registered or certified mail, or in person, which specifies the extent to which the SAR is being exercised. Payment to the Participant shall be made as soon as practicable after exercise of the SAR and may be made in cash, in shares of Tokheim common stock with an aggregate Fair Market Value on the date of exercise equal to the amount to be paid, or in any combination of cash and such shares. Upon exercise of an SAR, the right to exercise the related stock option shall automatically be terminated to the same extent that the SAR was exercised. 4.4 Termination of SARs. Each SAR shall terminate and not be exercisable after the same date that the related stock option terminates. 4.5 Transferability. Each SAR granted to a Participant may not be transferred by the Participant except together with the related stock option and except by will or the laws of descent and distribution, and may be exercisable during the Participant's lifetime only by the Participant. Section 5 Restricted Stock Awards 5.1 Grantees. The Committee may, at any time, designate a Participant to receive a Restricted Stock Award (as defined below) whether or not the Participant has previously received an award under the Plan. For purposes of the Plan, the term Restricted Stock Award ("RSA") means the right to receive, at specified times and subject to specified conditions, shares of Tokheim common stock which may bear such restrictions and/or restrictive endorsements as the Committee determines. Each RSA shall be evidenced by an agreement between the Participant and Tokheim. The provisions of each agreement shall be determined by the Committee in accordance with the provisions of the Plan. 5.2 Grants of Restricted Stock Awards. The sum of the number of shares of Tokheim common stock from which RSA's may be granted may not exceed 50,000. The Committee shall, subject to the foregoing limitation, determine the number of shares of Tokheim common stock which may be awarded, and the conditions which must be met for award and delivery of the shares to the Participant under each RSA granted under the Plan. An RSA may provide, in the discretion of the Committee, for the issuance of the shares which may be awarded under the RSA in the name of the Participant subject to the following restrictions: (a) the shares may not be sold, transferred, pledged or otherwise assigned or encumbered by the Participant except by will or the laws of descent and distribution; (b) each stock certificate shall be registered in the name of the Participant and deposited with the Secretary of Tokheim, until all conditions upon final issuance shall have been satisfied; (c) dividends paid on the shares shall be paid to the Participant at such times and under such conditions as the Committee shall determine; and (d) the shares and dividends which have not been distributed to the Participant shall be subject to forfeiture in accordance with subsection 5.4 Subject to the foregoing restrictions, the Participant shall have all of the rights of a holder of Tokheim common stock with respect to the shares issued to him or her under this subsection 5.2 5.3 Distribution of Shares. Subject to the provisions of subsection 5.4, each RSA shall provide for the distribution of the awarded shares of Tokheim common stock free of all restrictions to the Participant or, in the event of the Participant's death, the person or persons to whom the RSA was transferred by will or the laws of descent and distribution. Distribution shall be provided for at such time or times during the period beginning on the first anniversary and ending on the tenth anniversary of the date of grant of the RSA as the Committee shall determine; except that, in the discretion of the Committee, distribution may be provided for prior to the first anniversary if the Participant's employment with Tokheim and all Subsidiaries terminates on account of death, Disability, or retirement (as described in subsection 3.4(d)). Notwithstanding anything to the contrary contained in this Section 5, in the event of a Change in Control, as previously defined, the restrictions imposed hereunder shall lapse with respect to all RSAs. 5.4 Forfeiture. Each RSA shall provide that Participant shall forfeit all rights under the RSA, all shares of Tokheim common stock issued pursuant to the RSA which had not been distributed to the Participant free of all restrictions, and all undistributed amounts credited to the Participant with respect to dividends paid on Tokheim common stock pursuant to the RSA if: (a) the Participant's employment with Tokheim and all Subsidiaries terminates for any reason other than death, Disability, retirement (as described in subsection 3.4(d)), or other reasons determined by the Committee which should not cause forfeiture; or (b) the conditions, if any, specified in the RSA are not fully satisfied within the prescribed time. EX-5 3 OPINION LETTER February 4, 1994 Tokheim Corporation P.O. Box 360 Fort Wayne, Indiana 46801-0360 Re: Shares to be Issued Pursuant to Tokheim Corporation 1992 Stock Incentive Plan and Registered on Form S-8 Dear Sirs: We have acted as counsel to Tokheim Corporation, an Indiana corporation (the "Company"), in connection with registration of the Company's 1992 Stock Incentive Plan and shares of the Company's Common Stock to be issued upon exercise of options thereunder, as reflected by the Company's Registration Statement on Form S-8 being filed with the Securities and Exchange Commission. This opinion is prepared and submitted pursuant to Item 601 of Regulation S-K. As to various factual matters relevant to our opinion, we have relied upon inquiries made by us to officers of the Company. This opinion is governed by and shall be interpreted in accordance with the Legal Opinion Accord (the "Accord") of the ABA Section of Business Law (1991). As a consequence, it is subject to a number of qualifications, exceptions, definitions, limitations on coverage and other limitations, all as described in the Accord, and this opinion should be read in conjunction therewith. The law covered by the opinions expressed herein is limited to the laws of the State of Indiana. Based upon the foregoing, and subject to the qualifications and exceptions set forth herein, we are of the opinion that the shares of Common Stock of the Company to be issued upon exercise of options under the Company's 1992 Stock Incentive Plan will be, at such time as the exercise price is paid therefor, legally issued, fully paid and nonassessable. We hereby consent to the filing of this opinion, or copies thereof, as an Exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, BAKER & DANIELS -----END PRIVACY-ENHANCED MESSAGE-----