EXHIBIT 10.22
SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into this 25th day of
April, 2005 by and between Symbol Technologies, Inc. ("Symbol" or the "Company")
and Xxxxxxx Xxxxxxx ("Xxxxxxx").
WHEREAS, the Company and Xxxxxxx believe that they have claims against
one another;
WHEREAS, the Company and Xxxxxxx deny liability for all such claims;
WHEREAS, the Company and Xxxxxxx wish to resolve and settle all
remaining issues between them;
WHEREAS, the Company's Board of Directors, being fully informed of the
facts and circumstances, has determined in the exercise of its reasonable
business judgment that this settlement is fair and reasonable and in the best
interests of the Company; and
NOW, THEREFORE, in consideration of the mutual undertakings set forth
herein and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties stipulate and agree as follows:
1. Releases
x. Xxxxxxx, on behalf of himself as well as his family partnerships,
family members, family trusts, attorneys, representatives, heirs, executors,
administrators, predecessors successors and assigns, in consideration of the
matters described in this Agreement, does hereby, remise, release, acquit and
forever discharge the Company and its parents, subsidiaries, affiliates and
divisions, and their respective current and former owners, partners, officers,
directors, representatives, agents, employees, and attorneys (including but not
limited to Xxxxxxx Berlin Shereff Xxxxxxxx, LLP and Dechert LLP), as well as the
heirs, executors, administrators, predecessors, successors, and assigns of an),
of them (the "Company Releasees"), of and from
any and all manner of claims, causes of action, suits, debts, dues, accounts,
bonds, covenants, contracts, agreements, indemnitees, judgments, severance and
demands whatsoever in law or in equity, whether such claims, causes or action,
suits, debts, dues, accounts, bonds, covenants, contracts, agreements,
judgments, indemnitees, severance and demands be presently known or unknown,
suspected or unsuspected, and whether they be directly, indirectly, nominally or
beneficially, possessed or claimed by any of them, which Xxxxxxx has had, now
has, or which he, his heirs, executors, administrators, successors or assigns,
or any of them, hereafter can, shall or may have against the Company Releasees,
for or by reason of any cause, matter or thing whatsoever, from the beginning of
the world to this date, including any claims for indemnification, advancement,
severance, retirement payments, or any other payment of any kind by Symbol,
including (without limitation) any claim for payment from Symbol or anyone else
related to Symbol's Executive Retirement Plan ("SERP") for Xxxxxxx, all except
as described in paragraph 2 herein.
b. The Company, on behalf of itself and its owners, partners,
directors, officers, agents, attorneys, representatives, employees, parents and
subsidiaries, divisions, affiliates, successors and assigns in consideration of
the matters described in this Agreement, does hereby, as of the Effective Date,
remise, release, acquit and forever discharge Xxxxxxx and his heirs, family
partnerships, family members, family trusts, executors, administrators, agents,
employees, attorneys, representatives, predecessors, successors, and assigns of
any of them (the "Xxxxxxx Releasees"), of and from any and all manner of claims,
causes of action, suits, debts, dues, accounts, bonds, covenants, contracts,
agreements, judgments, and demands whatsoever in law or in equity, whether such
claims, causes or action, suits, debts, dues, accounts, bonds, covenants,
contracts, agreements, judgments and demands be presently known or unknown,
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suspected or unsuspected, and whether they be directly, indirectly, nominally or
beneficially, possessed or claimed by any of them, which the Company has had,
now has, or which its successors or assigns, or any of them, hereafter can,
shall or may have against the Xxxxxxx Releasees, for or by reason of any cause,
matter or thing whatsoever, from the beginning of the world to this date (all
such claims constituting the "Xxxxxxx Released Claims"), except for claims
arising out of a breach of this Agreement. Nothing herein shall be deemed to
release any claim that Symbol may have against any person or entity other than
the Xxxxxxx Releasees, including other former or current directors, officers or
employees of the Company, or the Company's former auditors. In addition, nothing
herein shall limit or preclude the Company from seeking to obtain all or a
portion of the funds forfeited by Xxxxxxx to the Department of Justice in
connection with case number 04 CR 00519 (LDW).
c. Without limiting the scope and effect of the foregoing release,
Xxxxxxx expressly waives and forfeits any past, present or future rights or
claims to indemnification and advancement by the Company, its affiliates and
insurers under any contract, the Company's by-laws and certificate of
incorporation and the laws of Delaware and New York with regard to any matters.
It is the intention of the parties that should a claim be asserted against
Xxxxxxx in the future that might otherwise give rise to a claim for advancement,
indemnification, contribution or other claim or payment of any kind, Xxxxxxx has
waived any such claim or fight.
d. Without limiting the scope and effect of the foregoing release,
Xxxxxxx expressly waives any rights or claims to payment under or related in any
way to his SERP or employment contracts with the Company.
e. Without limiting the scope and effect of the foregoing release, the
Company expressly waives any rights or claims to be repaid money advanced to
Xxxxxxx for his
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legal expenses, including the fees referred to below in paragraph 2, and for
bonuses paid (and the value of stock options awarded) to Xxxxxxx during the
course of his employment.
2. Payment of Fees
Notwithstanding any of the above provisions, and as consideration for
the promises made by Xxxxxxx herein, Symbol agrees to remit $243,635 (the
"Payment") to O'Melveny & Xxxxx, LLP, via wire transfer or check payable to
O'Melveny & Xxxxxx, LLP, within five (5) business days of the execution of this
Agreement in payment of certain attorneys' fees.
3. Anti-Disparagement
Xxxxxxx and the Company agree that, for a period of five (5) years,
neither will make or cause to be made, directly or indirectly, in any public
medium or forum, any disparaging comments or communications about the other,
including anonymously through any medium. Xxxxxxx and the Company agree that,
specifically with respect to any internet communications including through
internet chat rooms, blogs, websites or other internet postings, the prohibition
against disparaging comments described above shall be for a period often (10)
years. Nothing herein shall limit or preclude each party from providing
complete, truthful and accurate information, opinions and assessments to any
government official, tribunal or judge, or in any government interview or
testimony.
4. Miscellaneous
a. This Agreement sets forth the entire understanding of the parties
with respect to the subject matter hereof, and may be modified only by a written
instrument duly executed by each party.
b. Each of the parties hereto agrees that any claim arising under
this Agreement in favor of, or against, any party may be asserted and filed only
in any federal or state court located in the State of New York; and each of the
parties agrees to submit to the
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jurisdiction of the federal or state courts located in the State of New York in
any action or proceedings arising out of or relating to this Agreement.
c. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, assigns,
transferees, heirs and executors.
d. Each of the parties hereto represents and warrants that it has
full authority to enter this Agreement and perform the duties assumed hereunder,
and that the persons signing this Agreement on behalf of each party have the
authority to bind that party.
e. This Agreement may be executed in counterparts, which, taken
together, shall constitute the Agreement.
f. This Agreement shall be governed by the laws of the State of New
York, without giving effect to conflicts of law principles.
g. The section headings contained in this Agreement are solely for
the purpose of reference, are not part of the Agreement of the parties and shall
not in any way affect the meaning or interpretation of this Agreement.
h. Each of the parties represents that it entered into this
Agreement voluntarily after receiving advice from the counsel of its choice.
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IN WITNESS WHEREOF, Symbol Technologies, Inc. and Xxxxxxx Xxxxxxx have
signed and acknowledged this Settlement Agreement as of the clay and year
written above.
SYMBOL TECHNOLOGIES, INC.
By : /s/ Xxxxx Xxxx
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Name : Xxxxx Xxxx
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Title : SVP, General Counsel and Secretary
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/s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
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