EXHIBIT 10.12
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") made as of the 14th
day of February, 2002 by and between SYMBOL TECHNOLOGIES, INC., a
Delaware corporation (the "Corporation"), and TOMO RAZMILOVIC (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Executive and the Corporation are parties to
an Employment Agreement, dated as of July 1, 2000, (the "Prior
Employment Agreement"), setting forth the terms and conditions of
the Executive's employment by the Corporation; and
WHEREAS, the Executive has expressed a desire to retire
and end his Prior Employment Agreement; and
WHEREAS, the Corporation desires to continue to employ the
Executive and to have the Executive assist the Corporation; and
WHEREAS, the Executive desires to continue 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, the
parties hereto agree as follows:
1. Prior Employment Agreement
The Executive and the Corporation agree that the Prior
Employment Agreement will terminate upon the execution of this
Agreement and that this Agreement supersedes the Prior Employment
Agreement.
2. Employment
The Corporation hereby agrees to employ the Executive and
the Executive hereby agrees to 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. The Executive
shall render such services as, from time-to-time, may be required of
the Executive by the Chief Executive Officer as set forth in Section
4 of this Agreement.
3. Term
The Executive's employment under the Agreement shall be as
follows: from the date of the execution of this Agreement, through
and including May 6, 2002, the Executive shall remain as a full-time
employee of the Corporation. Thereafter the Executive shall be a
part-time employee for a five-year term, unless this Agreement is
terminated earlier pursuant to the provisions of Section 13 hereof.
The Executive shall be compensated for his services as a part-time
employee pursuant to Section 5 of this Agreement.
4. Duties
(a) So long as the Executive's employment under this
Agreement shall continue on a full-time basis, pursuant to Section 3
above, 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 Chief Executive Officer of
the Corporation; provided, however, that such executive duties shall
be consistent with and shall generally be similar to nature of the
services ordinarily and customarily performed by the Executive prior
to the date hereof. After May 6, 2002, the Executive shall be
available, upon reasonable notice, from time to time to consult with
the senior executive officers of the Corporation, provided such
consultation is on a part-time basis and does not preclude the
Executive from otherwise fulfilling any duties he may have to any
subsequent employer or any subsequent business interests, and that
such consultation does not require the Executive, without his
consent, to travel more than 50 miles from his home or then
principal place of employment, and during such period the Executive
shall be deemed to be a part-time employee of the Corporation. Such
duties shall include, but not be limited to, serving as an advisor
to the Chief Executive Officer, assisting in sales, marketing
activities and strategic alliances.
(b) So long as the Executive's employment under this
Agreement shall continue pursuant to Section 3 above, 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
executive 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. If the Executive is elected or
appointed to serve on the Corporation's Board of Directors during
the term hereof, the Executive shall not be entitled to receive any
fees (other than reimbursement of covered expenses) that are
provided by the Corporation to its outside Directors, as it is
contemplated that the compensation provided to Executive, pursuant
to Section 5 hereof, is designed to compensate Executive for all
services he may render to the Corporation.
5. Compensation
(a) (i) The Corporation hereby agrees to pay to the
Executive, and the Executive hereby agrees to accept, as
compensation for services rendered under this Agreement, a salary at
the rate of $38,461.53 per bi-weekly pay period ($1,000,000 on an
annualized basis) from the date hereof through and including May 6,
2002.
(ii) During the period commencing May 7, 2002
through May 6, 2007, the Executive shall be paid a salary of
$200,000 per annum, for all services rendered by him to the
Corporation. Such salary shall be payable at such intervals as the
Corporation pays the salaries of its executive officers.
(b) The Executive will not be eligible to participate in
the Corporation's Executive Retirement Plan after the date hereof.
However, the Corporation agrees to provide the Executive with his
vested retirement benefit payable under this Plan as of the date
hereof commencing at age 65 in accordance with the terms of this
Plan.
(c) In addition to the foregoing, it is hereby agreed
that: (i) during the term of this Agreement, the Corporation shall
provide and Executive shall be entitled to receive employee fringe
benefits provided by the Corporation at its sole expense, no less
favorable to the Executive than the benefits provided to him by the
Corporation as of the date of this Agreement relating to life and
disability and health insurance; and (ii) during the term of this
Agreement and continuing for the remainder of his life, Executive
and his spouse will be provided medical benefits under the current
supplemental BUPA Scheme (i.e., BUPA International Gold Scheme). In
the event Razmilovic becomes ineligible for coverage under the terms
of this Scheme, the Company will reimburse Razmilovic for any
comparable coverage he may obtain through his own efforts, up to the
amount Symbol was contributing for such coverage at the time
Razmilovic became ineligible. In addition, the Executive shall
continue to be eligible to participate in the Corporation's 401(k)
plan.
6. Automobile
During the term of this Agreement, the Corporation shall
make available to the Executive the use of an automobile, with a
lease allotment of up to $1,250 per month.
7. 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 employment 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 from
time to time, be fixed in advance by the Board of Directors of the
Corporation.
(b) Notwithstanding the then-current state of the
Corporation's By-laws, the Executive shall be entitled at all times
to the benefit of the maximum indemnification and advancement of
expenses available from time to time under the laws of the State of
Delaware.
8. Inventions
(a) The Executive agrees to and hereby does assign to
the Corporation or any subsidiary, affiliate or division of the
Corporation 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,
its subsidiaries, affiliates or divisions, whether patentable or
unpatentable, which the Executive may conceive and/or develop during
a period of thirty (30) months following the termination of his
employment (whether pursuant to this Agreement or otherwise) if such
conception and/or development during such thirty (30) month period
is a direct result of the Executive's activities while employed by
the Corporation, 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 determine 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 or 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 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 at a
higher rate for the giving of testimony than the rate established by
law for the compensation of witnesses in the court or tribunal where
the testimony is given or in the district where the testimony was
taken. 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.
9. Confidential Information
The Executive hereby acknowledges that, in the course of
his employment by the Corporation he has had and will have access to
secret and confidential information, which related to or affects all
aspects of the business and affairs of the Corporation and it
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, 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.
10. 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.
11. 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 including as a consultant, with any business which is or
may be in competition, directly or indirectly, with the business of
the Corporation or any subsidiary, affiliate or division of the
Corporation.
(b) The Executive agrees that for a period of thirty (30)
months, or the term of this Agreement, whichever period is longer,
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 or connected in nay manner including as a
consultant, with any business, firm or corporation which is engaged
in any business activity competitive with the business of the
Corporation and its subsidiaries, affiliates and divisions as such
business is conducted during the period of his employment by the
Corporation (whether pursuant to this Agreement or otherwise and at
the termination thereof). Moreover, for a period of thirty (30)
months, or the term of this Agreement, whichever period is longer,
Executive shall not directly or indirectly solicit, divert or take
away in whole or in part any clients or prospects 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)
years period prior to the termination of Executive's Prior
Employment Agreement. Executive also agrees that during the thirty
(30) month period or the term of this Agreement, whichever period is
longer, Executive will not directly or indirectly attempt to recruit
or solicit or aid in the recruitment or solicitation of any
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 Executive or any competitor of the
Corporation or any other entity.
(c) 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 convertible into such securities) 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 Quotations
Bureau Incorporated or any similar organization; provided, however,
that the Executive shall not be otherwise connected with or active
in the business of the issuers describe in this subsection 11(c).
12. 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 8, 9, 10 or 11 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.
13. 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 3 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 day following the
date on which the Corporation shall have given to the Executive
written notice of the election of its Board of Directors to
terminate his employment for "cause" (as defined in subsection (b)
of this Section 13).
(b) For purposes of this Agreement, the term "cause"
shall mean a determination 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) conviction of the Executive for a felony
offense; or
(ii) the refusal by the Executive to perform such
service as may reasonably be delegated or assigned to him,
consistent with his position, by the Chairman or the President of
the Corporation; provided that the Executive shall have thirty (30)
days to cure such asserted refusal after receiving written notice
from the Company specifying the acts or omissions constituting a
refusal to perform services; or (iii) the willful misconduct or
gross negligence on his part in connection with the performance of
such duties.
14. 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. This Agreement supercedes the Prior
Employment Agreement in all respects. Effective as of the date of
this Agreement, the Executive resigns as President and Chief
Executive Officer of the Corporation and all positions with any
subsidiaries of the Corporation.
15. 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 distributes. 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, without regard to
its conflicts of laws principles. In this connection, Executive
hereby consents to the jurisdiction of the federal courts sitting in
New York or the courts of the State of New York to resolve any
disputes arising out of interpretation or administration of this
Agreement.
(e) 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:_________________________________
By:_________________________________
ATTEST:
__________________________
