EXHIBIT 10.1
TOLLING AGREEMENT
WHEREAS, Symbol Technologies, Inc. ("Symbol") is the subject of a number
of investigations and litigations regarding its accounting policies and
practices;
WHEREAS, Xxxxxxx Xxxxxxx ("Xxxxxxx") was General Counsel of Symbol from
September 1990 to June 30, 2003; and
WHEREAS, Symbol and Xxxxxxx believe they may have actual and/or potential
claims, cross-claims and/or counterclaims against each other;
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. This Tolling Agreement shall be deemed effective as of February 1,
2004 (the "Effective Date"). The termination date (the "Termination Date") with
respect to any party seeking to terminate this Tolling Agreement (the
"Terminating Party") shall be the earlier of the following: (i) 30 days after
the receipt by any other party of written notice from said Terminating Party
that the provisions of this Tolling Agreement are terminated; or (ii) November
1, 2004. Either party may request an extension of the Tolling Agreement for one
year beyond November 1, 2004 to November 1, 2005, by providing a writing
indicating such desire to the other party. Such extension will be effective
only if the other party so agrees in writing.
2. While this Tolling Agreement is in effect, neither Symbol nor Xxxxxxx
shall commence any action against the other or assert any cross-claim or
counterclaim against the other in any litigations or any other action.
3. The period between the Effective Date of this Tolling Agreement and
the Termination Date shall not be included in connection with the calculation
of the passage of time
for the purposes of the application of any statute of limitations, laches or
any other defense, claim or counterclaim based on the lapse of time in any
suit, cross-claim or counterclaim brought by either Symbol or Xxxxxxx against
the other, nor shall the period between the Effective Date of this Tolling
Agreement and the Termination Date be included in determining the applicability
of any defense asserted by either Symbol or Xxxxxxx to any claim, cross-claim
or counterclaim asserted by the other.
4. Nothing in this Tolling Agreement shall affect any defense
available to either Symbol or Xxxxxxx as of the Effective Date of this Tolling
Agreement, and this Tolling Agreement shall not be deemed to revive any claim
that is already barred or give rise to any rights that did not exist as of the
Effective Date of this Tolling Agreement. Nothing in this Tolling Agreement or
in the circumstances that give rise to this Tolling Agreement shall be
construed as an acknowledgement by either Symbol or Xxxxxxx that any claim has
or has not been barred by the statute of limitations, laches, or other defense
based on the lapse of time.
5. This Tolling 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.
6. This Tolling Agreement shall not be offered in evidence, used or
referred to in any legal action or proceeding, except to enforce the terms of
this Tolling Agreement or for the purpose of establishing, if the matter is
contested, the provisions set forth herein.
7. Any communication to Symbol in connection with this Tolling
Agreement shall be addressed as follows and delivered by confirmed facsimile
transmission with a copy sent by first class mail to:
2
Xxxxx Xxxx, Esq.
Symbol Technologies, Inc.
Symbol Technologies - Corporate Headquarters
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
-and-
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Any communication to Xxxxxxx in connection with this Tolling Agreement
shall be addressed as follows and delivered by confirmed facsimile transmission
with a copy sent by first class mail to:
Xxxxxxx Xxxxxxx, Esq.
00 Xxxxxx Xxxx
Xxxxxxxxxx Xxx, Xxx Xxxx 00000
-and-
Xxx Xxxxxx, Esq.
O'Melveny & Xxxxx
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Either Symbol or Xxxxxxx may, by written notice to the other, change the
representative or the addresses to which communications should be sent.
3
8. The provisions of this Tolling Agreement will 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.
9. This Tolling Agreement contains the full and complete agreement of the
parties hereto with respect to the subject matter hereof and may not be altered
or amended except in a writing executed by representatives of both Symbol and
Xxxxxxx.
10. This Tolling 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.
11. In entering into this Tolling Agreement, the parties represent that
each has been represented by counsel of his or its choice in the negotiation
and drafting of this Tolling Agreement. Accordingly, this Tolling 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
of this Tolling Agreement have been completely reviewed and explained to them
by their attorneys, and that those terms are fully understood and voluntarily
accepted by them.
12. This Tolling 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.
DATED: June 9, 2004
/s/ Xxxxxxx Xxxxxxx
--------------------------
Xxxxxxx Xxxxxxx, Esq.
4
/s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
O'Melveny & Xxxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attorneys for Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
-5-
SYMBOL TECHNOLOGIES, INC.
/S/ Xxxxx Xxxx
----------------------
Xxxxx Xxxx
Senior Vice President and General Counsel
Symbol Technologies - Corporate Headquarters
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000-0000
Tel: (000) 000-0000
XXXXXXX BERLIN SHEREFF XXXXXXXX, LLP
/S/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Attorneys for Symbol Technologies, Inc.
6
