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
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<S> <C> <C> <C> <C>
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
</TABLE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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;
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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)
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
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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
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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.
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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
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