Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") made as of the
1st day of August, 2002 by and between SYMBOL TECHNOLOGIES,
INC., a Delaware corporation (the "Corporation"), and Xxxxxxx
Xxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Corporation desires to employ the
Executive and the Executive desires to be employed by the
Corporation in the manner and on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and
of the mutual and dependent agreements and covenants set forth
herein, the parties hereto agree as follows:
1. EMPLOYMENT
The Corporation hereby agrees to employ the Executive
as its Vice Chairman and Chief Executive Officer, and the
Executive hereby agrees to accept such employment and render
services to the Corporation and its subsidiaries, divisions and
affiliates for the period and on the terms and conditions set
forth in this Agreement.
2. TERM
The Executive's employment under this Agreement shall
be for a term of five (5) years commencing as of August 1, 2002
and ending July 31, 2007; provided, however, that the term of
the Executive's actual employment hereunder shall at all times
be subject to earlier termination in accordance with the
provisions of section 12 hereof.
3. DUTIES
(a) So long as the Executive's employment under this
Agreement shall continue, the Executive shall, subject to
periods of illness, vacation and other excused absences, devote
his entire business time, attention, and energies to the affairs
of the Corporation and its subsidiaries, divisions and
affiliates, use his best efforts to promote its and their best
interests and perform such executive duties as may be assigned
to him by the Board of Directors of the Corporation; provided,
however, that such executive duties shall be consistent with the
position of Vice-Chairman and Chief Executive Officer of the
Corporation as such position exists as of the date hereof.
(b) So long as the Executive's employment under this
Agreement shall continue, the Executive shall, if elected or
appointed, serve as an executive officer and/or director of the
Corporation and of any subsidiary, division or affiliate of the
Corporation and shall hold, without any compensation other than
that provided for in this Agreement, the offices in the
Corporation and in any such subsidiary, division or affiliate to
which he may, at any time or from time to time, be elected or
appointed.
(c) The Executive shall be eligible to take, in
addition to holidays recognized by the Corporation, four (4)
weeks per annum of vacation.
4. COMPENSATION
(a) The Corporation hereby agrees to pay to the
Executive, and the Executive hereby agrees to accept
compensation for services rendered under this Agreement, a base
salary at the rate of seven hundred and fifty thousand dollars
($750,000) per annum payable at such intervals as the
Corporation customarily pays the salaries of its executive
officers. Effective July 1, 2003 and July 1, 2005, the
Executive and the Corporation shall negotiate, in good faith,
with respect to increasing said base salary for additional two
year periods in an amount mutually satisfactory to the
Corporation and the Executive.
(b) In addition to the base salary provided for in
subsection 4(a) above, the Executive shall participate in the
Corporation's Executive Bonus Plan as may be amended from time
to time and thereby be entitled to receive an annual bonus for
each fiscal year during the term of this Agreement in the
amounts determined pursuant to such plan. The target amount of
the Executive's bonus under said plan shall be 100% of his base
salary actually earned in each fiscal year, provided that the
Executive shall have the possibility, if target goals are
exceeded to an extent specified in the annual bonus plan, of
earning an annual bonus equal to 200% of his base salary.
Payment of any bonuses to which Executive may be entitled, as
provided herein, shall be paid to the Executive no later than
ninety (90) days after the completion of each respective fiscal
year.
(c) During the term of this Agreement, the Executive
shall participate in the Corporation's Executive Retirement Plan
as in effect on the date of this Agreement and as it may
hereafter be amended to improve benefits thereunder. The
Executive acknowledges that he has previously been provided with
a copy of said plan.
(d) In addition to the foregoing, it is hereby agreed
that the Corporation shall, at its sole expense, provide and the
Executive shall be entitled to receive, during his employment
hereunder, the employee fringe benefits provided by the
Corporation, from time to time, to its executive officers,
including, but not limited to, benefits relating to life,
medical and disability insurance, and participation in the
Corporation's Section 401(k) Plan; provided, however, that as
used in this Agreement, the term "employee fringe benefits"
shall not include any salary or other bonus plan, except as set
forth in this Agreement.
(e) Pursuant to a certain agreement, dated as of June
20, 1999, entered into between the Corporation and the Xxxxxxx
Xxxxxxx Irrevocable Trust UAD 11/01/98, it is an obligation of
this Trust to reimburse the Corporation for all insurance
premiums it paid in connection with any policies owned by the
Trust. However, if the Corporation's interest in any policy is
purchased through a promissory note issued by the Trust, then
the Executive personally guarantees full payment of such debt.
5. AUTOMOBILE
During the period of the Executive's employment under
this Agreement, the Corporation shall make available to the
Executive the business and personal use of an automobile, with a
lease allotment of up to $1,000 per month as well as pay the
Executive's gasoline, maintenance and insurance expenses
associated with such automobile.
6. EXPENSES; OPTIONS
(a) The Corporation shall pay or reimburse the
Executive for all reasonable travel and other expenses incurred
or paid by him in connection with the performance of his duties
under this Agreement, upon presentation to the Corporation of
expense statements or vouchers and such other supporting
documentation as it may, from time to time, reasonably require;
provided however that the maximum amount available for such
expenses may, at any time or from time to time, be fixed in
advance by the Board of Directors of the Corporation.
(b) All outstanding options to purchase shares of
Common Stock of the Corporation now held by the Executive or
hereafter awarded to the Executive during the term of this
Agreement shall vest regardless of any conditions precedent to
the vesting of such options (such as passage of time) if and
when there is a "change in control of the Corporation" as
hereafter defined. As used in this Agreement, a "change in
control of the Corporation" shall mean a change in control of a
nature that would be required to be reported in response to Item
1 of Form 8-K promulgated under the Securities Exchange Act of
1934, as amended, (the "Exchange Act"); provided, that, without
limitation, such a change in control shall be deemed to have
occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than the Corporation
or any "person" who on the date hereof is a director or officer
of the Corporation, is or becomes the "beneficial owner", (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 25% or
more of the combined voting power of the Corporation's then
outstanding securities and the Corporation's Board of Directors,
after having been advised that such ownership level has been
reached, does not, within fifteen (15) business days, adopt a
resolution approving the acquisition of that level of securities
ownership by such person; or (ii) during any period of two
consecutive years during the term of this Agreement, individuals
who at the beginning of such period constitute the Board of
Directors cease for any reason to constitute at least majority
thereof, unless the election of each director who was not a
director at the beginning of such period has been approved in
advance by directors representing at least two-thirds of the
directors then in office who were directors at the beginning of
the period.
(c) In addition to any rights to indemnification and
advancement of expenses that the Executive may have under the
Corporation's By-laws, the Executive shall be entitled at all
times to the benefit of the maximum indemnification and
advancement of expenses permissible from time to time under the
laws of the State of Delaware.
(d) The Corporation and/or any of its subsidiaries,
divisions or affiliates may, from time to time, apply for and
obtain, for its or their benefit and at its or their sole
expense, key man life, health, accident, disability, or other
insurance upon the Executive, in any amounts that it or they may
deem necessary or desirable to protect its or their respective
interests, and the Executive agrees to cooperate with and assist
the Corporation or such subsidiary, division or affiliate in
obtaining any and all such insurance by submitting to all
reasonable medical examinations, if any, and by filling out,
executing, and delivering any and all such applications and
other instruments as may reasonably be necessary.
7. INVENTIONS
(a) The Executive agrees to and hereby does assign to
the Corporation or any subsidiary, affiliate or division of the
Corporation designated by the Corporation, all his right, title
and interest throughout the world in and to all ideas, methods,
developments, products, inventions, processes, improvements,
modifications, techniques, designs and/or concepts relating
directly or indirectly to the Business of the Corporation (as
defined in subsection 10(e) below), whether patentable or
unpatentable, which the Executive may conceive and/or develop
during his employment by the Corporation (whether pursuant to
this Agreement or otherwise) and during the twenty-four (24)
month period following the termination of his employment,
whether or not conceived and/or developed at the request of the
Corporation or any subsidiary, affiliate or division (the
"Inventions"); provided, however, that if the Corporation or
such subsidiary, affiliate or division determines that it will
not use any such Invention or that it will license or transfer
any such Invention to an unaffiliated third party, then it will
negotiate in good faith with the Executive, if the Executive so
requests, with respect to a transfer or license of such
Invention to the Executive.
(b) The Executive further agrees to promptly
communicate and disclose to the Corporation any and all such
Inventions as well as, upon the Corporation's request, any other
knowledge or information which he may possess or obtain relating
to any such Inventions.
(c) In furtherance of the foregoing, the Executive
agrees that at the request of the Corporation, and at its
expense, he will make or cooperate in the making of applications
for letters patent of the United States or elsewhere and will
execute such other agreements, documents or instruments which
the Corporation may reasonably consider necessary to transfer to
and vest in the Corporation or any subsidiary, affiliate or
division, all right, title and interest in such Inventions, and
all applications for any letters patent issued in respect of any
of the foregoing.
(d) The Executive shall assist, upon request, in
locating writings and other physical evidence of the making of
the Inventions and provide unrecorded information relating to
them and give testimony in any proceeding in which any of the
Inventions or any application or patent directed thereto may be
involved, provided that reasonable compensation shall be paid
the Executive for such services and the Executive shall be
reimbursed for any expenses incurred by him in connection
therewith, except that during such period of time as the
Executive is employed by the Corporation, the Corporation shall
not be obligated to compensate the Executive beyond that
provided under the terms of this Agreement. The Corporation
shall give the Executive reasonable notice should it require
such services, and, to the extent reasonably feasible, the
Corporation shall use its best efforts to request such
assistance at times and places as will least interfere with any
other employment of the Executive.
(e) At the expense of the Corporation, the Executive
shall assign to the Corporation all his interest in
copyrightable material which he produces, composes, or writes,
individually or in collaboration with others, which arises out
of work performed by him on behalf of the Corporation, and shall
sign all papers and do all other acts necessary to assist the
Corporation to obtain copyrights on such material in any and all
jurisdictions.
8. CONFIDENTIAL INFORMATION
The Executive hereby acknowledges that, in the course
of his employment by the Corporation he will have access to
secret and confidential information, which relates to or affects
all aspects of the business and affairs of the Corporation and
its subsidiaries, affiliates and divisions, and which are not
available to the general public ("Confidential Information").
Without limiting the generality of the foregoing, Confidential
Information shall include information relating to inventions
(including, without limitations, Inventions), developments,
specifications, technical and engineering data, information
concerning the filing or pendency of patent applications,
business ideas, trade secrets, products under development,
production methods and processes, sources of supply, marketing
plans, and the names of customers or prospective customers or of
persons who have or shall have traded or dealt with the
Corporation. Accordingly, the Executive agrees that he will
not, at any time, during or after this Agreement terminates,
without the express written consent of the Corporation, directly
or indirectly, disclose or furnish, or negligently permit to be
disclosed or furnished, any Confidential Information to any
person, firm, corporation or other entity except in performance
of his duties hereunder.
9. CONFIDENTIAL MATERIALS
The Executive hereby acknowledges and agrees that any
and all models, prototypes, notes, memoranda, notebooks,
drawings, records, plans, documents or other material in
physical form which contain or embody Confidential Information
and/or information relating to Inventions and/or information
relating to the business and affairs of the Corporation, its
subsidiaries, affiliates and divisions and/or the substance
thereof, whether created or prepared by the Executive or by
others ("Confidential Materials"), which are in the Executive's
possession or under his control, are the sole property of the
Corporation. Accordingly, the Executive hereby agrees that,
upon the termination of his employment with the Corporation,
whether pursuant to this Agreement or otherwise, or at the
Corporation's earlier request, the Executive shall return to the
Corporation all Confidential Materials and all copies thereof in
his possession or under his control and shall not retain any
copies of Confidential Materials.
10. NON-COMPETITION
(a) The Executive agrees that he shall not, so long
as he shall be employed by the Corporation in any capacity
(whether pursuant to this Agreement or otherwise), without the
express written consent of the Corporation, directly or
indirectly, own, manage, operate, control or participate in the
ownership, management, operation or control or be employed by or
connected in any manner with any business, firm or corporation
which is engaged in any business activity competitive with the
Business of the Corporation or any subsidiary, affiliate or
division of the Corporation (as defined in Section 10(e) below).
(b) The Executive agrees that for a period of twenty
four (24) months commencing on the effective date of the
termination of his employment, whether such termination is
pursuant to the terms of this Agreement or otherwise, he shall
not, without the express written consent of the Corporation,
directly or indirectly, own, manage, operate, control, or
participate in the ownership, management, operation or control,
or be employed by any business, firm or corporation which is
engaged in any business activity competitive with the Business
of the Corporation or any subsidiary, affiliate, or division of
the Corporation (as defined in Section 10(e) below).
(c) During the term of this Agreement and for twenty
four (24) months commencing on the effective date of the
termination of his employment, whether such termination is
pursuant to the term of this Agreement or otherwise, the
Executive shall not, directly or indirectly, solicit, divert or
take away in whole or in part any customers or prospective
customers of the Corporation who were solicited or serviced
directly or indirectly by Executive or by anyone directly or
indirectly under Executive's supervision or with whom Executive
had any business relationship within the two (2) year period
prior to the termination of Executive's employment. The
Executive also agrees that during such period, he will not
directly or indirectly attempt to recruit or solicit or aid in
the recruitment or solicitation of any person who at the time of
such recruitment or solicitation (or within the six month period
prior thereto) is or was an employee, independent contractor or
consultant of the Corporation to terminate his or her employment
or relationship with the Corporation for the purpose of working
for the Executive, any competitor of the Corporation or any
other entity; nor shall Executive employ any such employee,
independent contractor or consultant.
(d) Anything to the contrary herein notwithstanding,
the provisions of this section shall not be deemed violated by
the purchase and/or ownership by the Executive of shares of any
class of equity securities (or options, warrants or rights to
acquire such securities, or any securities convertible into such
securities) representing (together with any securities which
would be acquired upon the exercise of any such options,
warrants or rights or upon the conversion of any other security
convertible into such securities) the lesser of (i) 1% or less
of the outstanding shares of any such class of equity securities
of any issuer whose securities are listed on a national
securities exchange or traded on NASDAQ, the National Quotation
Bureau Incorporated or any similar organization or (ii)
securities having a market value of less than $100,000 at the
time of purchase; provided, however, that the Executive shall
not be otherwise connected with or active in the business of the
issuers described in this subsection 10(d).
(e) "Business of the Corporation" shall mean any
business in which the Corporation and its subsidiaries,
affiliates and divisions are actively engaged, or are actively
or demonstrably planning to engage in, during the period of the
Executive's employment (whether pursuant to this Agreement or
otherwise) and at the time of termination thereof.
11. REMEDY FOR BREACH
The Executive hereby acknowledges that in the event of
any breach or threatened breach by him of any of the provisions
of sections 7, 8, 9 or 10 of this Agreement, the Corporation
would have no adequate remedy at law and could suffer
substantial and irreparable damage. Accordingly, the Executive
hereby agrees that, in such event, the Corporation shall be
entitled, without necessity of proving damages, and
notwithstanding any election by the Corporation to claim
damages, to obtain a temporary and/or permanent injunction to
restrain any such breach or threatened breach or to obtain
specific performance of any of such provisions, all without
prejudice to any and all other remedies which the Corporation
may have at law or in equity.
12. TERMINATION
(a) This Agreement and the employment of the
Executive by the Corporation shall terminate upon the earliest
of the dates specified below:
(i) the close of business on the date as of
which the term of the Executive's employment hereunder has
terminated as provided in Section 2 hereof; provided, however,
that such term is not extended by any other agreement between
the Executive and the Corporation; or
(ii) the close of business on the date of the
death of the Executive; or
(iii) the close of business on the effective
date of the voluntary termination by the Executive of his
employment with the Corporation; or
(iv) the close of business on the fourteenth
(14th) day following the date on which the Corporation provides
the Executive with written notice of its intention to terminate
the Employment of the Executive for "cause" (as defined in
subsection 12(b)(1) below), which notice shall set forth the
basis for such termination; provided, however, within the first
(7) days of this period a representative of the Board of
Directors of the Corporation shall meet with the Executive and
discuss in detail the reasons for the Executive's termination
and permit the Executive (if the representative deems it
possible) to cure the refusal to perform, gross negligence or
willful misconduct asserted as the occurrence of such cause or,
at the Executive's request, permit him to resign without the
Corporation's making any public disclosure of the basis of the
Corporation's action (provided, however, that for purposes of
this Agreement any such resignation shall still be deemed to be
a termination for "cause" (as provided herein)), provided
further the Corporation shall not purport to terminate the
Executive's employment for "cause" unless there exists clear and
convincing evidence of the existence of such "cause" pursuant to
the criteria set forth in subsection 12(b)(1) below;
(v) the close of business on the last day of the
month in which the Board of Directors of the Corporation elects
to terminate the Executive's employment following and as a
result of the inability of the Executive, by reason of physical
or mental disability, for six (6) months within any twelve (12)
month period during the term of this Agreement, to render
services of the character contemplated by this Agreement.
(b) (1) For purposes of this Agreement, the term
"cause" shall mean a determination made in good faith by vote of
a majority of the members of the Board of Directors of the
Corporation then holding office (other than the Executive if he
shall then be a director) that one of the following conditions
exists or one of the following events has occurred;
(i) indictment of the Executive for a criminal
offense; or
(ii) the intentional refusal by the Executive
to perform such service as may legally and reasonably be
delegated or assigned to him, consistent with his position, by
the Chief Executive Office of the Corporation; or
(iii) willful misconduct or gross negligence
on his part in connection with the performance of such duties.
(c) (1) In the event of the termination of the
Executive's employment prior to August 1, 2004, for any reason
other than due to (i) his death or disability as provided in
subsection 12(a)(ii) or (v); (ii) his voluntary termination of
his employment with the Corporation pursuant to subsection
12(a)(iii); or his termination for cause as provided in
subsection 12(a)(iv), the Executive shall be paid an amount
equal to his annual base salary and the bonus actually earned by
him during the last completed fiscal year immediately preceding
any such termination. Said amount shall be paid within ninety
(90) days after such termination. In addition, Executive shall
be paid, one (1) year after such termination, an amount equal to
his annual base salary immediately preceding any such
termination, and his target bonus.
(2) Except as otherwise provided in
subsection 12(c)(1) above, in the event of the termination of
the Executive's employment for any reason other than due to (i)
his death or disability as provided in subsection 12(a)(ii) or
12 (a)(v); (ii) his voluntary termination of his employment from
the Corporation pursuant to subsection 12(a)(iii); or (iii) his
termination for cause as provided in subsection 12(a)(iv), the
Executive shall be paid at the time of such termination an
amount equal to the annual base salary and the bonus actually
earned by him during the last completed fiscal year immediately
preceding any such termination, or the payments and benefits to
which Executive would otherwise be entitled under the terms of
the Corporation's Severance Pay Plan then in effect, whichever
is greater.
(3) In the event Executive is eligible for
payment of his annual base salary and target or actual bonus,
whichever is applicable, pursuant to subsection 12(c)(1) or (2)
above, the Corporation shall, to the extent that the Executive's
continued participation is possible under the normal terms and
provisions of such plans and programs, continue to provide the
Executive, at the Corporation's sole expense, for one year after
the termination of his employment, with all of the employee
fringe benefits he was entitled to receive immediately prior to
the termination of his employment including but not limited to
life, health, and disability insurance and the use of the
automobile referred to in Section 5 (but the Executive shall not
be credited with an additional year of service in the Executive
Retirement Plan). In the event of any termination without cause
by the Corporation pursuant to section 12(c)(1) or (2), the
Corporation shall give the Executive at least 14 days' notice of
such proposed termination prior to the date his employment
termination shall be effective. The Executive shall not be
required to mitigate the amount of any payments provided for in
this subsection 12(c) by seeking other employment, nor shall
amounts payable under this subsection 12(c) be reduced as a
result of his obtaining other employment or otherwise being
compensated by any other employer following termination of his
employment with the Corporation.
(d) All the payments as set forth in subsection
12(c)(1) or (2) are contingent upon the Executive's signing at
the time of employment termination the Corporation's standard
waiver and release agreement.
13. NO CONFLICTING AGREEMENTS
In order to induce the Corporation to enter into this
Agreement and to employ the Executive on the terms and
conditions set forth herein, the Executive hereby represents and
warrants that he is not a party to or bound by any agreement,
arrangement or understanding, written or otherwise, which
prohibits or in any manner restricts his ability to enter into
and fulfill his obligations under this Agreement, to be employed
by and serve as an executive of the Corporation. The parties
acknowledge and agree that the Executive shall not use or
disclose, or be permitted to use or disclose, any confidential
or proprietary information belonging to any prior employer in
connection with his performance of services to the Corporation
under this Agreement.
14. MISCELLANEOUS
(a) This Agreement shall become effective as of the
date hereof and, from and after that time, shall extend to and
be binding upon the Executive, his personal representative or
representatives and testate or intestate distributees, and upon
the Corporation, its successors and assigns; and the term
"Corporation," as used herein, shall include successors and
assigns.
(b) Nothing contained in this Agreement shall be
deemed to involve the creation by the Corporation of a trust for
the benefit of, or the establishment by the Corporation of any
other form of fiduciary relationship with the Executive, his
beneficiaries or any of their respective legal representatives
or distributees. To the extent that any person shall acquire
the right to receive any payments from the Corporation
hereunder, such right shall be no greater than the right of any
unsecured general creditor of the Corporation.
(c) Any notice required or permitted by this
Agreement shall be given by registered or certified mail, return
receipt requested, addressed to the Corporation at its then
principal office or to the Executive at his residence address,
or to either party at such other address or addresses as it or
he may from time to time specify for the purpose in a notice
similarly given to the other party.
(d) This Agreement shall be construed and enforced in
accordance with the laws of the State of New York. Any dispute
or controversy arising under or in connection with this
Agreement, including, any claims for employment discrimination
under any federal, state, or local civil rights law, shall be
settled exclusively by binding arbitration in Suffolk County of
the state of New York and shall proceed under the rules then
prevailing of the Judicial Arbitration and Mediation Service
("JAMS"). The dispute shall be referred to a single arbitrator
to be mutually agreed to by the parties. If an arbitrator
cannot be agreed upon within sixty (60) days of a demand for
arbitration by either party, the dispute shall be referred to a
single arbitrator appointed by JAMS. Any award determined by an
arbitrator must be in accordance with the terms of this
Agreement and shall be final and binding upon the parties.
Judgment upon any award made in such arbitration may be entered
and enforced in any court of competent jurisdiction. The
Corporation and the Executive waive any right of appeal with
respect to any judgment entered on an arbitrator's award in any
court having jurisdiction. In the event that it is necessary
for any party hereto to incur legal expenses in defending its or
his rights hereunder, including but not limited to rights to
reimbursement of legal fees and expenses under this sentence,
the losing party shall reimburse the winning party for all
reasonable legal fees and expenses incurred by him or it as a
result thereof.
(e) Except as stated otherwise herein, this
instrument contains the entire agreement of the parties relating
to the subject matter hereof, and there are no agreements,
representations or warranties not herein set forth. No
modification of this Agreement shall be valid unless in writing
and signed by the Corporation and the Executive. A waiver of
the breach of any term or condition of this Agreement shall not
be deemed to constitute a waiver or any subsequent breach of the
same or any other term or condition.
(f) If any provision of this Agreement shall be held
invalid, such invalidity shall not affect any other provision of
this Agreement not held so invalid, and all other such
provisions shall remain in full force and effect to the full
extent consistent with the law.
IN WITNESS WHEREOF, the parties hereto have duly
executed and delivered this Agreement as of the day and year
first above written.
SYMBOL TECHNOLOGIES, INC.
By: /s/Xxxxxxx X. Xxxxxxx
ATTEST:
/s/Xxxxxx Xxxxxx
/s/Xxxxxxx Xxxxxxx
EXECUTIVE
