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Exhibit 10.1.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of April 1, 1997
(the "Effective Date") at Akron, Ohio between TELXON CORPORATION ("Employer"), a
Delaware corporation with offices at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxx 00000,
and XXXXX X. XXXXXXX ("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee initially as Senior Vice
President, Global Products & Systems Development of Employer, and thereafter, in
such capacity as the Board of Directors of Employer shall direct, and Employee
desires to be so employed, upon the terms and conditions herein contained; and
WHEREAS, Employer and Employee desire to have this Agreement supersede any
and all prior agreements, oral or written, relating to the employment of
Employee by Employer.
NOW, THEREFORE, in consideration of the foregoing and in consideration of
the mutual promises and agreements contained herein, the parties hereto agree as
follows:
1. EMPLOYMENT PERIOD. Employer agrees to employ Employee, and Employee
agrees to serve Employer, for the period beginning on the Effective
Date and ending March 31, 2000, subject to earlier termination
pursuant to paragraph 4 hereof (the "Employment Period").
2. NATURE OF DUTIES.
a. Employee's duties and responsibilities shall be to serve as
Senior Vice President, Global Products & Systems Development of
Employer or in such other capacity as the Board of Directors of
Employer may at any time and from time to time in its discretion
direct, in conformity with management policies, guidelines and
directions issued by Employer. Employee shall report directly to
Xxxxx X. Brick, President and Chief Executive Officer of
Employer, or such other officer of Employer as the Board of
Directors shall direct (the "Supervisor"), and shall have general
charge and supervision of those functions and such other
responsibilities as the Supervisor shall from time to time
determine in his discretion.
b. Employee shall work exclusively for Employer on a full-time basis
in such capacity as he is to serve pursuant to paragraph 2(a),
devoting all of his time and attention during normal business
hours to Employer's business.
c. Employee shall perform his duties and responsibilities hereunder
diligently, faithfully and loyally in order to cause the proper,
efficient and successful operation of Employer's business.
3. COMPENSATION AND BENEFITS.
a. Base Salary and Expenses. As compensation for Employee's
services, Employer shall pay to Employee during the Employment
Period a salary (the "Base Salary") at the annual rate of
$225,000 for FY `98. Any salary increases for future fiscal years
will be determined by the Board of Directors of Employer or an
appropriate committee thereof (the "Board") in its discretion
based upon the recommendation of Employer's chief executive
officer (the "Chief Executive Officer"). Base salary will be
payable in arrears, in equal bi-weekly installments or at such
other interval as the Board or applicable Employer policies shall
direct. Employer shall reimburse Employee for all reasonable
out-of-pocket expenses incurred by Employee on
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Employer's behalf during the Employment Period and approved by
the Supervisor or such other officer as the Supervisor or
applicable Employer policies shall direct.
b. BONUS COMPENSATION. In addition to the Base Salary, Employee
shall, at the discretion of the Board, be eligible to receive
bonus compensation ("Bonus Compensation") with respect to the
Employment Period on such basis as shall be approved by the
Board. For FY `98, Employee shall be eligible for a potential
bonus of up to $125,000 based upon achieving goals and
achievements agreed upon by Employee and Employer's Chief
Executive Officer, subject to such approval thereof as may be
required by the Board. Bonus compensation for subsequent fiscal
years will be determined by the Board in its discretion based
upon the recommendation of the Chief Executive Officer. The Bonus
Compensation, if any, in respect to each fiscal year during the
Employment Period shall be earned and shall accrue at, and
Employee shall have no entitlement thereto (on a pro rata or any
other basis) prior to, the end of the fiscal year to which such
Bonus Compensation relates.
c. STOCK OPTIONS. During the Employment Period, Employee shall be
eligible to receive grants of stock option(s) and other awards
and benefits pursuant to such employee stock option and other
stock-based employee benefit plans as Employer may maintain from
time to time during the Employment Period with respect to
Employer executives of like stature and compensation, in such
amounts as may be determined by the Board in its discretion based
upon the recommendation of the Chief Executive Officer. In the
event that, during the Employment Period or at any time
thereafter, Employee is re-assigned by Employer to a position
carrying duties and responsibilities of lesser stature than the
position in which Employee serves as of the time during the
Employment Period that any such options or other rights or
benefits are granted or awarded to or otherwise received by
Employee (other than a re-assignment occurring as the result of
or in connection with any change in control of Employer, in which
case the provisions of the governing benefit plan applicable in
such a circumstance shall control), such options, rights and
benefits shall, to the extent unvested, unexercised or otherwise
unrealized as of the time of such re-assignment, be subject to
such reduction, cancellation and/or forfeiture as may then be
determined to be appropriate by the Board in its discretion.
d. VACATION. During the Employment Period, Employee shall be
entitled to vacation in accordance with Employer's policies.
e. HEALTH, DISABILITY, RETIREMENT AND DEATH BENEFITS. Employer shall
provide Employee with the same health, disability, retirement and
death and other fringe benefits as are generally provided to the
executive employees of Employer in accordance with such terms,
conditions and eligibility requirements as may from time to time
be established by Employer.
4. TERMINATION.
a. This Agreement shall terminate automatically upon Employee's
death.
b. Employer may terminate Employee's employment under this Agreement
at any time, upon five (5) days written notice to Employee, if
Employee becomes permanently disabled. Permanent disability shall
be determined by Employer according to the same standards
applicable to the employees of Employer generally under the
disability benefits referred to in paragraph 3(e) hereof.
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c. Employer shall have the right to terminate Employee's employment
under this Agreement at any time (i) immediately for "cause"
(which shall mean for any action or inaction of Employee which is
adverse to Employer's interests, including, without limitation,
Employee's dishonesty, grossly negligent misconduct, willful
misconduct, disloyalty, act of bad faith, neglect of duty or
material breach of this Agreement or of any Employer policy
applicable to its employees generally), or (ii) without cause
upon five (5) days written notice to Employee.
5. EFFECTS OF TERMINATION AND EXPIRATION.
a. In the event of automatic termination by reason of Employee's
death pursuant to paragraph 4(a), or by Employer by reason of
Employee's permanent disability pursuant to paragraph 4(b), all
of Employer's obligations under this Agreement shall end except
for Employer's obligations to pay Employee's Base Salary and
Bonus Compensation, if any, in each case earned and accrued but
unpaid to the date of death or permanent disability. Employee
shall also have the right to receive any payments under the death
or disability benefits, as the case may be, provided to Employee
pursuant to paragraph 3(e), if any.
b. In the event Employer exercises its right of termination other
than for cause pursuant to paragraph 4(c)(ii), or upon the
expiration of the Employment Period, all of Employer's
obligations under this Agreement shall end except for its
obligations to pay Employee's Base Salary and Bonus Compensation,
if any, in each case earned and accrued but unpaid to the date of
termination (which, for purposes of this paragraph 5(b) and
paragraph 5(c) below, shall be five (5) days after the date on
which notification is provided by Employer to Employee pursuant
to paragraph 4(c)(ii)) or at the expiration of the Employment
Period, whichever the case may be and, in the case of termination
pursuant to paragraph 4(c)(ii), Employer's obligations under
paragraph 5(c) of this Agreement.
c. In the event Employer exercises its right of termination other
than for cause pursuant to paragraph 4(c)(ii), Employer shall be
obligated to pay Employee as severance pay, for the twelve (12)
month period following the date of such termination, annualized
compensation at a rate which shall be equal to the Base Salary at
such termination date. Such payments shall be made in equal
bi-weekly installments or at such other interval as the Board or
Employer's corresponding payroll policies shall direct.
d. In the event Employer exercises its right of termination pursuant
to paragraph 4(c)(i) for cause, or Employee otherwise leaves the
employ of Employer prior to the expiration of the Employment
Period, all of Employer's obligations under this Agreement shall
end except for Employer's obligations to pay Employee's Base
Salary, if any, earned and accrued but unpaid to the date of such
termination or of the Employee otherwise leaving Employer's
employ.
6. COVENANT NOT TO COMPETE.
a. Restricted Activities--Duration. Except as otherwise consented to
or approved by Employer's Board of Directors in writing, Employee
agrees that, in addition to being operative during the Employment
Period, the provisions of paragraphs 6(a)(i) through (iii)
hereof, inclusive, shall be operative for a period of twelve (12)
months after the later of (1) the date Employee's employment with
Employer (pursuant to this Agreement or otherwise) is terminated
or otherwise ceases, or (2) the end of all severance payments, if
any, which Employer is obligated to make to Employee under
paragraph 5(c) of this Agreement or any other subsequent written
agreement between them, regardless of the time, manner or reason
for the termination or other cessation of such employment. During
such periods, Employee will not, directly or indirectly,
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acting alone or as a member of a partnership or as an owner,
director, officer, employee, manager, representative or
consultant of any corporation or other business entity:
i. Engage in any business which manufactures, sells,
distributes, services or supports products or services of a
type manufactured, sold, marketed, serviced or supported, or
in any other business in competition with or adverse to the
business that is conducted by Employer, or which Employer is
in the process of developing and in or of which Employee
participated or has knowledge, at the time of the cessation
of Employee's employment with the Employer, in the United
States, Canada or any European, Asian, Pacific Rim or other
foreign country in which Employer then or thereafter
transacts business or is making a bona fide attempt to do
so;
ii. induce, request or attempt to influence any customer or
supplier of Employer to curtail or cancel their business or
prospective business with Employer or in any way interfere
with Employer's business relationships; or
iii. induce, solicit or assist or facilitate the inducement or
solicitation by any third person of any employee, officer,
agent or representative of Employer to terminate his
respective relationship with Employer or in any way
interfere with the Employer's employee, officer, agent or
representative relationships.
b. Tolling; Relief of Obligations. In the event that Employee
breaches any provision of this paragraph 6, such violation (i)
shall toll the running of the twelve (12) month period set forth
in paragraph 6(a) from the date of commencement of such violation
until such violation ceases, and (ii) shall relieve Employer of
any obligations to Employee under this Agreement.
c. "Blue Penciling" or Modification. If either the length of time,
geographic area or scope of restricted business activity set
forth in paragraph 6(a) is deemed unreasonably restrictive or
unreasonable in any other respect in any proceeding before a
court of competent jurisdiction, Employee and Employer agree and
consent to such court's modifying or reducing such restriction(s)
with respect, but only with respect, to that jurisdiction to the
extent deemed reasonable under the circumstances then presented.
7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
a. For purposes of this Agreement, "Confidential Information" means
all information or trade secrets of any type or description
belonging to Employer which are proprietary and confidential to
Employer and which are not publicly disclosed or are only
disclosed with restrictions. Without limiting the generality of
the foregoing, Confidential Information includes: strategic and
other plans for carrying on business; cost data and other
financial information; lists of customers, employees, vendors and
business partners and alliances; manufacturing methods and
processes; product research and engineering data, drawings,
designs and schematics; computer programs, flow charts, routines,
subroutines, translators, compilers, operating systems and object
and source codes; specifications, inventions, know-how,
calculations and discoveries; any letters, papers, documents and
instruments disclosing or reflecting any of the foregoing; and
all information revealed to or acquired or created by Employee
during Employee's employment by Employer relating to any of the
foregoing or otherwise to Employer's past, current or future
business.
b. Employee acknowledges that the discharge of Employee's duties
under this Agreement will necessarily involve his access to
Confidential Information. Employee acknowledges that the
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unauthorized use by him or disclosure by him of such Confidential
Information to third parties might cause irreparable damage to
Employer and Employer's business. Accordingly, Employee agrees
that at all times after the date hereof he will not, without the
prior written consent of Employer's Board of Directors, copy,
publish, disclose, divulge to or discuss with any third party,
nor use for his own benefit or that of others any Confidential
Information, except in the normal conduct of his duties under
this Agreement, it being understood and acknowledged by Employee
that all Confidential Information created, compiled or obtained
by Employee or Employer, or furnished to Employee by any person
while Employee is associated with Employer, is and shall be and
remain Employer's exclusive property.
c. Promptly upon termination of his employment, irrespective of the
time or manner thereof or reason therefor, Employee agrees to
return and surrender to Employer all Confidential Information
copies thereof in any form which is in any manner in his control
or possession, as well as all other Employer property.
8. RIGHTS. Employee acknowledges and agrees that any procedure, design
feature, schematic, invention, improvement, development, discovery,
know-how, concept, idea or the like (whether or not patentable,
registrable under copyright or trademark laws, or otherwise
protectable under similar laws) that Employee (whether individually or
jointly with any other person or persons) has since the inception of
his employment with Employer conceived of, suggested, made, invented,
developed or implemented, or may hereafter conceive of, suggest, make,
invent, develop or implement, during the course of his service to
Employer which relates in any way to the business of Employer or to
the general industry of which Employer is a part, all physical
embodiments and manifestations thereof, and all patent rights,
copyrights and trademarks (and applications therefor) and similar
protections thereof (all of the foregoing referred to as "Work
Product") are and shall be the sole, exclusive and absolute property
of Employer. All Work Product shall be deemed to be works for hire for
the benefit of Employer, and to the extent that any Work Product may
not constitute a work for hire, Employee hereby assigns to Employer
all right, title and interest in, to and under such Work Product,
including, without limitation, the right to obtain such patents,
copyright registrations, trademark registrations or similar
protections as Employer may desire to obtain. Employee will
immediately disclose all Work Product to Employer and agrees, at
anytime, upon Employer's request and without additional compensation,
to execute any documents and otherwise to cooperate with Employer
(including, without limitation, all lawful testimony and sworn
statements or other certifications as may be appropriate) respecting
the perfection of its right, title and interest in, to and under such
Work Product and in any litigation or administrative or other
proceeding or controversy in connection therewith, all expenses
incident thereto be borne by Employer.
9. INDUCEMENT; REMEDIES INADEQUATE.
a. The covenants made by Employee in favor of Employer under
paragraphs 6, 7 and 8 of this Agreement are being executed and
delivered by Employee in consideration of Employee's employment
with Employer and Employer's obligations hereunder (including,
without limitation, the Base Salary, the Bonus Compensation and
other benefits and payments provided for herein). Employee
further acknowledges that such covenants were and have been
conditions of his employment since the inception of Employee's
employment with Employer.
b. Employee has carefully considered, and has had adequate time and
opportunity to consult with his own counsel or other advisors
regarding the nature and extent of the restrictions upon him, and
the rights and remedies conferred upon Employer, under paragraphs
6, 7 and 8 hereof, and hereby acknowledges and agrees that such
restrictions are reasonable in time, territory and
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scope, are designed to eliminate competition which otherwise
would be unfair to Employer, do not stifle the inherent skill and
experience of Employee, would not operate as a bar to Employee's
sole means of support, are fully required to protect the
legitimate interests of Employer and do not confer a benefit upon
Employer disproportionate to the detriment to Employee.
c. Employee acknowledges that the services to be rendered by him to
Employer as contemplated by this Agreement are special, unique
and of extraordinary character. Employee expressly agrees and
understand that the remedy at law for any breach by him of
paragraph 6, 7 or 8 of this Agreement will be inadequate and that
the damages flowing from such breach are not readily susceptible
to being measured in monetary terms. Accordingly, upon adequate
proof of Employee's violation of any legally enforceable
provision of paragraph 6, 7 or 8 hereof, Employer shall be
entitled to immediate injunctive relief, including, without
limitation, a temporary order restraining any threatened or
further breach. In the event any equitable proceedings are
brought to enforce any provision of paragraphs 6, 7 and 8 hereof,
Employee agrees that he will not raise in such proceedings any
defense that Employer has an adequate remedy at law, and Employee
hereby waives any such defense. Nothing in this Agreement shall
be deemed to limit Employer's remedies at law or in equity for
any breach by Employee of any of the provisions of paragraphs 6,
7 and 8 hereof which may be pursued or availed of by Employer.
Without limiting the generality of the immediately preceding
sentence, any covenant on Employee's part contained in paragraph
6, 7 or 8 hereof which may not be specifically enforceable shall
nevertheless, if breached, give rise to a cause of action for
monetary damages.
d. As used in paragraphs 6, 7 and 8 hereof and in this paragraph 9,
the term "Employer" (other than with respect to the Board of
Directors) shall include, in addition to Employer, all
subsidiaries and other affiliates of Employer, whether so related
to Employer during Employee's employment with Employer or at any
time thereafter.
e. Subject only to such time limitations as may be expressly set
forth therein, the covenants and agreements made by Employee in
paragraphs 6, 7 and 8 hereof and this paragraph 9 shall survive
full payment by Employer to Employee of the amounts to which
Employee is entitled under this Agreement, the expiration of the
Employment Period and the expiration or termination of this
Agreement.
10. ASSIGNMENT OF EMPLOYEE'S RIGHTS. In no event shall Employer be
obligated to make any payment under this Agreement to any assignee or
creditor of Employee. Prior to the time provided for the making of any
payment under this Agreement, neither Employee nor his legal
representative shall have any right by way of anticipation or
otherwise to assign or otherwise dispose of any interest under this
Agreement.
11. RIGHT OF SET-OFF. Any payments to be made to Employee under this
Agreement shall be subject to offset by Employer for any claims for
damages, liabilities or expenses which it may have against Employee.
12. EMPLOYER'S OBLIGATIONS UNFUNDED. Except as to any benefits that may be
required to be funded under any benefit plan of Employer pursuant to
law or under any other written agreement, the obligations of Employer
under this Agreement are not funded, and Employer shall be not
required to deposit in escrow or otherwise set aside any moneys in
advance of the due date for payment thereof to Employee.
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13. NOTICES. Any notice to be given hereunder by Employer to Employee
shall be deemed to be given if delivered to Employee in person, or if
mailed to Employee, by certified mail, postage prepaid, return receipt
requested, at his address last shown on the records of Employer, and
any notice to be given by Employee to Employer shall be deemed to be
given if delivered in person or by mail, postage prepaid, return
receipt requested to the President and Chief Executive Officer of
Employer at Employer's principle executive office, unless Employee or
Employer shall have duly notified the other parties in writing of a
change of address. If mailed, notice shall be deemed to have been
given when deposited in the mail as set forth above.
14. AMENDMENTS. This Agreement shall not be modified or discharged, in
whole or in part, except by an agreement in writing signed by the
parties hereto.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to Employee's employment by Employer
from and after the Effective Date. The parties are not relying on any
other representation or understanding with respect thereto, express or
implied, oral or written. This Agreement supersedes any prior
employment agreement, written or oral, between Employee and Employer.
16. CAPTIONS. The captions contained in this Agreement are for convenience
of reference only and do not affect the meaning of any terms or
provisions hereof.
17. GENDER AND NUMBER. Whenever the context may permit, any pronouns used
herein shall include the corresponding masculine, feminine and neuter
forms, and the singular form of any noun or pronoun, including any
terms defined herein, shall include the plural and vice versa.
18. BINDING EFFECT. The rights and obligations of Employer hereunder shall
inure to the benefit of, and shall be binding upon, Employer and its
respective successors and assigns, and the rights and obligations of
Employee hereunder shall inure to the benefit of, and shall be binding
upon, Employee and his heirs, personal representatives and estate.
19. SEVERABLE PROVISIONS. The provisions of this Agreement are severable,
and if any one or more provisions may be determined to be illegal or
otherwise unenforceable in any jurisdiction, in whole or in part, the
remaining provisions and any partially enforceable provision shall be
binding and enforceable to the extent enforceable in such
jurisdiction.
20. GOVERNING LAW. This Agreement shall be interpreted, construed, and
enforced in all respects in accordance with the laws of the State of
Ohio.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Effective Date.
TELXON CORPORATION EMPLOYEE
By: /s/ Xxxxx X. Brick /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Brick Xxxxx X. Xxxxxxx
President & Chief Executive Officer Senior Vice President,
Global Products &
Systems Development
