Without Prejudice Resignation Agreement (the "Agreement")
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Whereas, Symbol Technologies, Inc. ("Symbol") is the subject of a number of
investigations being conducted into its accounting policies and practices;
Whereas Xxxxxxx Xxxxxxx ("Xxxxxxx") has been General Counsel of Symbol since
September 1990 and has held other executive positions with Symbol;
Whereas the conduct of Xxxxxxx and others while at Symbol is being investigated
by a number of entities;
Whereas Xxxxxxx and Symbol entered into an Employment Agreement dated December
15, 2000 (the "Employment Agreement");
Whereas Xxxxxxx is willing at Symbol's request to resign all his positions with
Symbol and its affiliates and subsidiaries subject to the terms of this
Agreement;
Whereas Symbol and Xxxxxxx are in the process of negotiating the terms and
conditions of his resignation, and expect that such negotiations cannot be
completed immediately;
Whereas the parties wish to have Xxxxxxx'x resignation become effective
immediately without prejudice to: i) any of Xxxxxxx'x rights under the
Employment Agreement; and ii) any of Symbol's claims or defenses against
Xxxxxxx:
Now, therefore, Symbol and Xxxxxxx, in consideration of the mutual promises,
covenants and agreements set forth herein, the sufficiency of which is hereby
acknowledged, agree as follows:
1. Xxxxxxx hereby resigns any and all of his positions and employment with
Symbol and its affiliates and subsidiaries, effective June 30, 2003.
2. Neither the entering into of this Agreement, nor anything in this Agreement
shall affect, enlarge, waive or prejudice any right, remedy, claim or
defense Xxxxxxx has against Symbol under the Employment Agreement.
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3. Neither the entering into of this Agreement, nor anything in this Agreement
shall affect, enlarge, waive or prejudice any right, remedy, claim or
defense Symbol has against Xxxxxxx.
4. While the parties are negotiating the terms and conditions of Xxxxxxx'x
resignation, Xxxxxxx shall be available to consult with Symbol primarily on
various existing commercial litigations concerning Symbol, including
without limitation Lemelson, HHP, and Proxim. Xxxxxxx shall not be retained
in connection with corporate governance matters. Symbol hereby agrees to
pay Xxxxxxx $475 per hour for such consulting work. Symbol may terminate
this arrangement at any time.
5. Symbol agrees to provide Xxxxxxx payment for any accrued, unused vacation.
6. Xxxxxxx is not forfeiting any rights under the Company's stock option plans
(the "Plans") with respect to stock options awarded and vested prior to the
effective date of this Agreement. Xxxxxxx may exercise any vested options
during the period provided under the generally applicable abeyance program
following the effective date of the registration statement for any vested
options issued under the 2001 Employee Stock Option Plan, and during the
period provided under the generally applicable abeyance program after the
date the Company becomes current with its financials with the United States
Securities and Exchange Commission for vested options issued under other
plans.
7. From and after the date of this Agreement, Xxxxxxx shall work from his
residence unless he is requested by Symbol upon reasonable notice to attend
a meeting at Symbol's premises. Symbol shall reimburse Xxxxxxx for all
reasonable out of pocket expenses incurred at Symbol's request.
8. This Agreement shall not operate as an admission of liability by either
Symbol or Xxxxxxx, and neither Symbol nor Xxxxxxx acknowledges that the
other has a valid claim against it. Symbol denies any liability to Xxxxxxx,
and Xxxxxxx denies any liability to Symbol.
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9. This Agreement shall not be offered into evidence, used or referred to in
any legal action or proceeding, except to enforce its terms, or for the
purpose of establishing, if the matter is contested, the provisions set
forth herein.
10. Any communication to Symbol in connection with this agreement shall be
addressed as follows and delivered by confirmed facsimile transmission with
a copy sent by first class mail to:
C/O General Counsel
Symbol Technologies, Inc.
Symbol Technologies - Corporate Headquarters
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
-and-
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Any communication to Xxxxxxx in connection with this Agreement shall be
addressed as follows and delivered by confirmed facsimile transmission with a
copy sent by first class mail to:
Xxxxxxx Xxxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxxx Xxx, XX 00000
-and-
Xxxx Xxxxx, Esq.
O'Melveny & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Either Symbol or Xxxxxxx may, by written notice to the other, change the
representatives or the addresses to which communications should by sent.
11. The provisions of this Agreement shall be binding on the successors,
executors and assigns of both Symbol and Xxxxxxx, including but not limited
to any acquirer of the business or assets of Symbol.
12. This Agreement contains the full and complete agreement of the parties
hereto with respect to the subject matter contained herein and may not be
altered or amended except in a writing executed by representatives of both
Symbol and Xxxxxxx.
13. This Agreement shall be construed and interpreted in accordance with the
laws of the State of New York without regard to the application of its
principles of conflicts of laws. Any dispute or controversy arising under
or in connection with this Agreement 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 American Arbitration
Association (AAA). The dispute shall be referred to a single arbitrator if
such arbitration is mutually agreeable to the parties within twenty (20)
days of the demand for arbitration, otherwise to a single arbitrator
appointed by the AAA upon application by either party. 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, the
losing party shall reimburse the winning party for all reasonable legal
fees and expenses incurred by him or it as a result thereof.
14. In entering into this agreement, the parties represent that they have each
been represented by counsel of their choice in the negotiation and drafting
of this Agreement. Accordingly,
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this Agreement shall not be strictly construed against any party on the
ground that the rules for the construction of contracts require resolution
of any ambiguity against the party drafting the document. The parties
further represent that the terms and conditions of this Agreement have been
read and explained to them by their attorneys, and that those terms are
fully understood and voluntarily accepted by them.
15. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but also which together shall constitute one
and the same instrument.
16. The effective date of this Agreement is June 30, 2003.
/s/Xxxxxxx Xxxxxxx
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Dated: July 3, 2003 Xxxxxxx Xxxxxxx
SYMBOL TECHNOLOGIES, INC.
Dated: July 6, 2003 By: /s/Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Chief Executive Officer
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