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Exhibit 10.22
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of November 10, 1997, by
and between Telular Corporation, a Delaware corporation (the "Company"), and
Xxx Xxxxxxxxxx, (the "Executive");
WITNESSETH:
WHEREAS, the Company wishes to employ the Executive as its
Executive Vice President and Chief Technical Officer; and
WHEREAS, the Executive wishes to be employed in this capacity
by the Company, on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the mutual obligations set
forth herein, the parties hereto hereby agree as follows:
1. Engagement. The Company hereby agrees to employ the
Executive and the Executive hereby accepts such employment, on the terms and
conditions hereinafter set forth.
2. Term of Employment. The Executive's employment by the
Company shall commence on the date hereof (the "Effective Date"). Employment
shall be for four (4) years, subject to the provisions set forth herein. The
period of employment of the Executive by the Company is referred to herein as
the "Term".
3. Duties. During the Term, the Executive shall serve as the
Company's Executive Vice President and Chief Technical Officer and shall have
such duties and responsibilities as may be assigned to him from time to time by
the Chief Executive Officer of the Company. The Executive shall use his best
efforts and shall act in good faith in performing all duties reasonably
required to be performed under this Agreement.
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4. Availability. The Executive shall devote his entire
working time, attention and energies to the Company's business and, during the
term of this Agreement, shall not be engaged in any other business activity
without the express written approval of the Board.
5. Expenses. The Company shall reimburse the Executive,
promptly upon presentation of itemized vouchers, for all ordinary and necessary
business expenses incurred by the Executive in the performance of this duties
hereunder.
6. Compensation. As compensation for the services to be
rendered hereunder, the Company agrees as follows:
(a) The Company shall pay to the Executive an annual base
salary (the "Base Salary") which shall be at the annual rate of $200,000.00.
The Base Salary shall be paid in semi-monthly installments or in such other
installments as to which the Company and the Executive may agree. The Base
Salary will be reviewed each year on the same basis as all other salaried
employees, but may not be reduced.
(b) Performance targets shall be established by the Company
for the Executive for each fiscal quarter during which the Executive remains
employed by the Company. A bonus shall be paid to the Executive pursuant to
the Company's Senior Management Bonus Plan, based on the degree to which the
established performance targets are achieved, per the table below:
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Senior Management
Bonus Plan
% of Planned Performance % of Target Bonus
------------------------ -----------------
0 - 99.0% None
100.0% - 124.9% 100.0%
125.0% - 149.9% 150.0%
150.0% and above 200%
Executive's annual target bonus shall be $100,000.00, half of which to be paid
in cash and the other half of which to be paid in Telular Corporation Stock.
Bonuses will be payable for any fiscal quarter only if the Executive remains
employed by the Company through the last day of such fiscal quarter.
(c) The Company shall permit the Executive to participate in
such pension, 401 (k), and other employee benefit plans as are made available
to employees of the Company generally. The Executive shall be entitled to
three weeks of paid vacation per year.
7. Stock Options. Under an Option Agreement extend into in
connection herewith, the Telular Corporation is granting to the Executive an
option to purchase 250,000.00 shares under the Telular Corporation's Stock
Incentive Plan.
8. Ownership of Material Information. All right, title and
interest of every kind and nature whatsoever in and to discoveries, inventions,
improvements, patents (and applications therefor), copyrights, ideas, know-how,
laboratory notebooks, creations, properties and all other proprietary rights
arising from, or in any way related to, the Executive's employment hereunder
shall become and remain the exclusive property of the Company, and the
Executive shall have no interest therein.
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9. Trade Secrets. The Executive shall not, during the term of
this Agreement or thereafter, disclose to anyone (except to the extent
reasonably necessary for the Executive to perform his duties hereunder or as
many be required by law) any confidential information concerning the business
or affairs of the Company (or of any affiliate or subsidiary of the Company),
including by not limited to lists of customers, business plans, joint ventures,
financial or cost information, and confidential scientific and technological
information (whether of the Company or entrusted to the Company by a third
party under a confidentiality agreement or understanding) which the Executive
shall have acquired in the course of, or incident to, the performance of his
duties pursuant to the terms of this Agreement or pursuant to any prior
dealings with the Company or any affiliate or subsidiary of the Company. In
the event of a breach or threatened breach by the Executive of the provisions
of this Section 9, the Company shall be entitled to an injunction restraining
the Executive from disclosing, in whole or in part, such information or from
rendering any services to any person, firm, corporation, association or other
entity to whom such information has been disclosed or is threatened to be
disclosed. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available to the Company for such breach or
threatened breach, including the recovery of damages from the Executive.
Nothing herein shall be construed as prohibiting the Executive from disclosing
to anyone any information which is, or which becomes, available to the public
(other than by reason of a violation of this Section 9) or which is a matter of
general business knowledge or experience.
10. Termination for Cause. The Company may terminate the
employment of the Executive under this Agreement if it determines that the
Executive (a) has materially and
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substantially breached his obligations to the Company under this Agreement or
otherwise, provided that the employment of the Executive shall not be
terminated under this clause (a) unless the Executive is given notice in
writing that the conduct in question constitutes grounds for termination under
this Section 10 and the Executive is allowed at least thirty (30) days to
remedy the refusal or failure, (b) has been convicted of a felony constituting
a crime of moral turpitude (whether or not in conjunction with the performance
by the Executive of his duties under this Agreement), or (c) has through
willful misconduct or gross negligence engaged in an act or course of conduct
that causes material injury to the Company (or any affiliate or subsidiary of
the Company). Refusal by the Executive to relocate his principal place of
employment outside of Long Island, New York, shall not constitute "Cause" for
termination. If the employment of the Executive under this Agreement is
terminated under this Section 10, the Company shall give written notice to the
Executive specifying the cause of such action. Upon termination of employment
under this Section 10, the Company shall be relieved of all further obligations
under this Agreement. Notwithstanding such termination of employment, the
Executive shall continue to be bound by the provisions of Sections 8, 9, and
13.
11. Termination Without Cause.
(a) If, except as otherwise provided in Section 12, the
employment of the Executive is terminated by the Company other than for Cause
or by resignation of the Executive, or if the responsibilities and duties of
the Executive are, other than for Cause, materially diminished or changed by
the Company in a manner that materially impairs the Executive's ability to
function as the Executive Vice President and Chief Technical Officer,
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the Executive shall be entitled to receive, upon such termination, severance
payments in amounts equal to a continuation of Executive's salary for a period
of six (6) months and continuation of Company paid medical benefits for a
period of six (6) months, provided however that severance payments shall
terminate when Executive obtains other employment.
(b) Termination of employment under this Section 11 shall not
terminate the Executive's obligations under Sections 8, 9, and 13.
12. Death or Disability of the Executive. In the event that
the Executive, during the period while employed under this Agreement, shall die
or at any time become unable, due to ill-health, accident, injury or similar
cause, to carry out his duties under this Agreement, the Company may terminate
this Agreement and be relieved of all further obligations hereunder other than
for obligations arising under employment discrimination laws including but not
limited to the Americans with Disabilities Act and/or Family Medical Leave Act
and other than compensation for services provided prior to such termination,
reimbursement for expenses incurred prior to such termination, and, other than
in the case of death, payment of the severance payment specified in Section
11(a) and, in the case of disability, payment of the severance payment
specified in Section 11(a) minus the amount of any disability insurance
proceeds that the Executive is entitled to receive for the six-month period
following termination of employment by reason of disability. Termination of
employment under this Section 12 shall not terminate the Executive's
obligations under Section 8, 9, and 13.
13. Non-Competition. The Executive hereby agrees that, during
the Term and for a period of twelve (12) months following the termination of
his employment under this
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Agreement, he will not, directly or indirectly and in any way, (a) own, manage,
operate, control, be employed by, participate in, or be connected in any manner
with the ownership, management, operation or control of any business engaging
in the design, development, manufacture, marketing or distribution of fixed
wireless terminal products, (b) interfere with, solicit on behalf of another
or attempt to entice away from the Company (or any affiliate or subsidiary of
the Company) (i) any project, financing or customer that the Company (or any
affiliate or subsidiary of the Company) has under contract (including
unfulfilled purchase orders), or any letter of supply or other supplier
contract or arrangement entered into by the Company (or any affiliate or
subsidiary of the Company), and all extensions, renewals and resolicitations of
such contracts or arrangements, (ii) any contract, agreement or arrangement
that the Company (or any affiliate or subsidiary of the Company) is actively
negotiating with any other party, or (iii) any prospective business opportunity
that the Company (or any affiliate or subsidiary of the Company) has
identified, or (c) for himself or another, hire, attempt to hire, or assist in
or facilitate in any way the hiring of any employee of the Company (or any
affiliate or subsidiary of the Company), or any employee of any person, firm or
other entity, the employees of which the Company (or any affiliate or
subsidiary of the Company) has agreed not to hire or endeavor to hire. The
effective time of the limitations imposed by this Section 13 shall be extended
for the period of time equal to any period of time during which the Executive
acts in circumstances that court of competent jurisdiction finds to have
violated the terms of this Section 13.
Because of the Executive's knowledge of the Company's business,
in the event of the Executive's actual or threatened breach of the provisions
of this Section 13, the
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Company shall be entitled to, and the Executive hereby consents to, an
injunction restraining the Executive from any of the foregoing. However,
nothing herein shall be construed as prohibiting the Company from pursuing any
other available remedies for such breach or threatened breach, including the
recovery of damages from the Executive. The Executive agrees that the
provisions of this Section 13 are necessary and reasonable to protect the
Company in the conduct of its business. If any restriction contained in this
Section 13 shall be deemed to be invalid or unenforceable by reason of the
extent, duration of geographic scope thereof, then the Company shall have the
right to reduce such extent, duration, geographic scope of other provisions
thereof, and in their reduced form such restrictions shall then be enforceable
in the manner contemplated hereby.
14. Capacity. The Executive represents and warrants to the
Company that he is not now under any obligation, of a contractual nature or
otherwise, to any person, firm, corporation, association or other entity that
is inconsistent or in conflict with this Agreement or which would prevent,
limit or impair in any way the performance by him of his obligations hereunder.
15. Withholding. The Executive acknowledges that salary and
all other compensation payable under this Agreement shall be subject to
withholding for income and other applicable taxes to the extent required by law,
as determined by the Company in its reasonable judgment.
16. Indemnification. To the greatest extent permitted by
applicable law, and in a manner consistent with any procedures required by
applicable law, the Corporation shall indemnify and hold the Executive harmless
from and against any liability (including, without
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limitation, reasonable attorneys' fees) incurred by the Executive in any claim,
action, suit, or proceeding instituted or brought against the Executive as a
result of or arising out of service by the Executive as an officer, director,
trustee or employee of the Company, or of any other corporation or other entity
at the request or direction of the Company, except to the extent that such
liability is the result of the criminal action or willful misconduct on the
part of the Executive.
17. Waiver. No act, delay, omission or course of dealing on
the part of any party hereto in exercising any right, power or remedy hereunder
shall operate as, or be construed as, a waiver thereof or otherwise prejudice
such party's rights, powers and remedies under this Agreement.
18. Notice. Any and all notices referred to herein shall be
sufficient if furnished in writing and delivered by hand, by facsimile
transmission or by overnight delivery service maintaining records of receipt,
to the respective parties at the following addresses:
If to the Company: Telular Corporation
000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile #: 000-000-0000
If to the Executive: Xxx Xxxxxxxxxx
c/o Telular Corporation
000 Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile #: 000-000-0000
or to such other address or addresses as either party may from time to time
designate by notice given as aforesaid. Notices shall be effective when
delivered.
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19. Assignability. The rights and obligations contained
herein shall be binding on and inure to the benefit of the successors and
assigns of the Company. The Executive may not assign his rights or obligations
hereunder without the express written consent of the Company.
20. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
21. Completeness. This Agreement and the Option Agreement
entered into pursuant hereto set forth all, and are intended by each party to
be an integration of all, of the promises, agreements and understandings
between the parties hereto with respect to the subject matter hereof.
22. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one agreement binding on the parties hereto.
23. Severability. Each provision of this Agreement shall be
considered severable and if for any reason any provision that is not essential
to the effectuation of the basic purpose of the Agreement is determined to be
invalid or contrary to any existing or future law, such invalidity shall not
impair the operation of or affect those provisions of this Agreement that are
valid.
24. Headings; Construction. Headings contained in this
Agreement are inserted for reference and convenience only and in no way define,
limit, extend or describe the scope of this Agreement or the meaning or
construction of any of the provisions hereof. As used herein, unless the
context otherwise requires, the single shall include the plural and vice versa,
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words of any gender shall include words of any other gender, and "or" is used
in the inclusive sense.
25. Survival of Terms. If this Agreement is terminated for
any reason, the provisions of Sections 8, 9 and 13 shall survive and the
Executive and the Company, as the case may be, shall continue to be bound by
the terms thereof to the extent provided therein.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
TELULAR CORPORATION
/s/Xxx Xxxxxxxxxx By: /s/Xxxxxxx Xxxxxxx
---------------------------- ----------------------------
Xxx Xxxxxxxxxx Xxxxxxx Xxxxxxx
President and C.E.O.
