EXHIBIT 10J
EMPLOYMENT AGREEMENT
THIS AGREEMENT is between Intermec Corporation, a Washington corporation
(the "Corporation"), and Xxxxxxx Xxxxxxx (the "Executive"), and dated this 18th
day of May, 1995 (the "Effective Date").
WHEREAS, the Corporation wishes to retain the services of the Executive for
a certain period of time;
WHEREAS, the Executive wishes to enter into and remain in the employ of the
Corporation during such period.
NOW, THEREFORE, the parties hereby agree as follows:
1. EMPLOYMENT PERIOD. The Corporation hereby agrees to engage and
continue the Executive in its employ, and the Executive hereby agrees to remain
in the employ of the Corporation, for the period commencing on the Effective
Date of this Agreement and ending on February 28, 1997 (the "Employment
Period").
2. DUTIES. During the Employment Period, the Executive shall perform
such managerial duties and responsibilities of the Corporation as may be
assigned to him by the Board of Directors of the Corporation or by any superior
officer of the Corporation. During the Employment Period, the Executive shall
accept such office or offices to which he may be elected by the Board of
Directors of the Corporation.
3. BASE SALARY. During the Employment Period, the Corporation shall pay
the Executive a base salary of $250,000. per annum, payable in bi-weekly
installments.
4. BENEFITS. In addition to the salary provided by Section 3, the
Executive shall be entitled to participate in the Corporation's life insurance
plan, disability, plan, medical and dental, health and accident and other
benefits and prerequisites reasonably comparable to those applicable to other
officers of the Corporation. The Corporation recognizes that the Executive was
previously employed by the Corporation and will recognize that previous
employment in calculating seniority or time in service if either is relevant to
any of the benefits described in the first sentence of this Section 4. The
Executive shall be entitled to four (4) weeks vacation per calendar year and to
such personal and sick leave as may be established by Corporation policy for
officers of the Corporation.
5. HIRING BONUS. The Executive will receive a Hiring Bonus of $50,000.,
payable within thirty (30) days of the Effective Date.
6. EXECUTIVE FLEX BENEFIT. The Executive will receive an Executive Flex
Benefit of $7,500 per calendar year, pro-rated for any calendar year in which
the Executive is not employed for the full year.
7. PERFORMANCE BONUS. The Executive will receive a Performance Bonus for
each fiscal year during any part of which he is employed, such Performance Bonus
to be pro-rated to reflect that portion of the year in which he was employed.
The maximum bonus payable for any fiscal year will be 100% of the base salary
payable for that fiscal year (or the pro-rated portion thereof), with the
performance goals and targets to be mutually-agreed by the Corporation and the
Executive no later than June 23, 1995. The Performance Bonus plan must be
approved in writing by the Executive Vice President for Industrial Automation
Systems of Western Atlas Inc.
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In the event that the Corporation and the Executive are not able to reach
agreement on the terms of the Performance Bonus plan by June 23, 1995, the
Corporation may, at its sole option, terminate this Agreement without further
obligation to the Executive, except that in such an event of termination by the
Corporation the parties agree that any Consultant Agreement which was in effect
on May 17, 1995 will be reinstated and will continue to be observed as if it had
not been terminated. Further, any Hiring Bonus which had been received by the
Executive will be returned by the Executive to the Corporation within thirty
(30) days of such a termination of this Agreement.
8. COMPANY CAR. The Corporation will provide an automobile for the
Executive's use and will be responsible for the ordinary expenses of operating
and maintaining such automobile during the period of the Executive's employment,
provided that the Corporation will not be responsible for any damages to persons
or property except to the extent such is covered by the Corporation's automobile
liability insurance. The automobile furnished will be consistent with those
provided to the presidents of other operating divisions of Western Atlas Inc.
9. FSSP. The Executive will be eligible to participate in the
Corporation's FSSP retirement and savings plan to the extent allowed and under
the conditions set out in the plan.
10. CONSULTANT AGREEMENT. The parties agree that the Consultant Agreement
between the Executive and the Corporation dated the 15th of July, 1994, as
amended on September 5, 1994, will be terminated by the parties, effective May
18, 1995. The Executive will receive any compensation due under that Consultant
Agreement through the end of May, 1995. The parties further agree that at the
end of the Employment Period they will enter into a new Consultant
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Agreement with terms substantially similar to those of the Consultant Agreement
described above in this Section 10, except that the new agreement will be for a
period of one year, with a basic compensation rate of $2,500 per day for the
first three days in any calendar month, $1,500 for any additional days in any
calendar month, and a minimum monthly payment of $7,500.
11. COMPETITION; CONFIDENTIAL INFORMATION. The Executive and the
Corporation recognize that, due to the nature of his association with the
Corporation, the Executive has had access to and has acquired, will have access
to and will acquire, and has assisted in and may assist in developing,
confidential and proprietary information relating to the business and operation
of the Corporation and its affiliates. The Executive acknowledges that such
information has been and will continue to be of central importance to the
business of the Corporation and its affiliates and that disclosure of it to
others or to use by others could cause substantial loss to the Corporation. The
Executive and the Corporation also recognize than an important part of the
Executive's duties will be to develop good will or the Corporation through his
personal contact with others having business relationships with the Corporation
and its affiliates, and that there is a danger that this good will, a
proprietary asset of the Corporation and its affiliates, may follow the
Executive if and when his relationship with the Corporation is terminated. In
consideration of the benefits and compensation to be received by the Executive
under this Agreement, the Executive accordingly agrees as follows:
11.1. NON-COMPETITION. From the date of this Agreement and until the
earlier of the end of one year after the end of the Employment Period or six
months after the end of any Severance Period resulting from a termination under
Paragraph 12.2, the Executive will not, directly or indirectly, either
individually or as owner, partner, agent, employee, consultant or
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otherwise, except for the account of and on behalf of the Corporation or its
affiliates, engage in any activity competitive with the business of the
Corporation or its affiliates. However, nothing in this Section 11 shall be
construed to prevent the Executive from owning, as an investment, up to 1% of a
class of equity securities issued by any competitor of the Corporation that is
publicly traded and registered under Section 12 of the Securities Exchange Act
of 1934.
11.2. CONFIDENTIAL INFORMATION. The Executive will not disclose any
confidential information of the Corporation or its affiliates which is now known
to him or which hereafter may become known to him as a result of his employment
or association with the Corporation or its affiliates and shall not at any time
directly or indirectly disclosure any such information to any person, firm or
corporation, or use the same in any way other than in connection with the
business of the Corporation or its affiliates during and at all times after the
expiration of the Employment Period.
11.3. CORPORATION'S REMEDIES FOR BREACH. It is recognized that
damages in the event of breach of this Section 11 by the Executive would be
difficult, if not impossible, to ascertain, and it is therefore agreed that the
Corporation, in addition to and without limiting any other remedy or night it
may have, shall have the right to an injunction or other equitable relief in any
court of competent jurisdiction, enjoining any such breach, and the Executive
hereby waives any and all defenses he may have on the ground of lack of
jurisdiction or competence of the court to grant such an injunction or other
equitable relief. The existence of this right shall not preclude the
Corporation from pursuing any other rights and remedies at law or in equity
which the Corporation may have.
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11.4. BREACH OF THIS SECTION 11. The Executive agrees that there
shall be no obligation on the part of the Corporation to provide any further
payments or benefits (other than benefits or payments already earned or accrued)
described in Sections 3 through 8 if, between the date of this Agreement and the
end of the Employment Period, the Executive shall breach the provisions of this
Section 11.
12. TERMINATION.
12.1. PERFORMANCE AND TERMINATION - EMPLOYMENT PERIOD. Subject to the
performance of the covenants and agreements made by the Corporation herein, the
Executive will perform his duties during the Employment Period in good faith and
will observe faithfully the covenants and agreements made by him herein. The
Executive shall not be discharged during the Employment Period except for
substantial and serious cause involving dishonesty, moral turpitude, or material
breach of express obligations of this Agreement within the control of the
Executive. The discharge of the Executive for reasons other than those
specified in the preceding sentence shall be deemed to be a discharge without
justifiable cause. No breach or default by the Executive shall be deemed to
have occurred hereunder unless written notice thereof shall have been given by
the Corporation to the Executive and the Executive shall have failed to cure the
breach or default within 30 days after he receives the notice.
12.2. EXECUTIVE'S REMEDIES FOR TERMINATION. During the Employment
Period, if the Corporation shall terminate the Executive (other than for causes
provided in Paragraph 12. 1), then the Executive shall nevertheless, for the
period which begins at the date of such termination and ends at February 28,
1997 (the "Severance Period"), continue to receive the salary, a bonus
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(equal to the target bonus in effect at the time of the termination, to the
extent the relevant target has been achieved) and the other compensation and
employee benefits that the Corporation has in Sections 3 through 8 agreed to pay
and to provide for the Executive, in each case in the amount of kind and at the
time provided for in Sections 3 through 8. The parties agree that, because
there can be no exact measure of the damage which would occur to the Executive
as a result of a breach by the Corporation, the foregoing payments and benefits
shall be deemed to constitute liquidated damages and not a penalty for the
Corporation's breach, and the Corporation agrees that the Executive shall not be
required to mitigate his damages and the Corporation shall not be entitled to
any offset for amounts payable by other employers or otherwise earned by the
Executive during the remaining term of the Employment Period, provided however
the Corporation shall not be obligated to continue benefits such as life
insurance, disability insurance, medical and dental, health and accident
coverage to the extent the Executive receives such benefits from another
employer. Executive agrees to promptly inform the Corporation as to the receipt
of such benefits during the Severance Period.
13. EFFECT OF DEATH OR DISABILITY.
The death or disability of the Executive shall have no effect on the
Corporation's obligation to continue to make payments of salary and bonuses, and
benefits (to the extent such are for the benefit of the Executive's spouse
and/or dependents) for the remaining term of the Severance Period, provided
however that the amount of such payments shall be reduced, but not below zero,
by any amounts received by the Executive and his personal representative or his
heirs pursuant to life insurance or disability plans maintained or provided by
the Corporation.
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14. WAIVERS.
The waiver by either party of a breach of the other party of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
15. NOTICES.
Any notices, requests, demands and other communications provided for by
this Agreement shall be sufficient if in writing and if personally served, or
sent by registered or certified mail to Executive at the last address he has
filed in writing with the Corporation or, in the case of the Corporation, at its
principal executive offices.
16. NON-ALIENATION.
The Executive shall not have any right to pledge, hypothecate, anticipate
or in any way create a lien upon any amounts provided under this Agreement, and
no benefits payable hereunder shall be assignable in anticipation of payment
either by voluntary or involuntary acts, or by operation of law.
17. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Washington.
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18. AMENDMENTS.
This Agreement may not be changed, waived or discharged orally, but only by
an instrument in writing, signed by the party against which enforcement of
such change, waiver or discharge is sought.
19. SUCCESSORS.
This Agreement shall extend to and be binding upon the Corporation, its
successors and assigns. For purposes of this Agreement, unless the context
otherwise requires, references herein to the Corporation shall include its
subsidiaries and affiliated persons.
20. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain in
full force and effect.
21. HEADINGS.
The headings of the paragraphs in this Agreement are solely for convenience
or reference and shall not control the meaning or interpretation of any
provision of this Agreement.
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IN WITNESS WHEREOF, the parties have signed and delivered this Agreement as
of the date first above written, which is agreed to be the Effective Date of
this Agreement.
INTERMEC CORPORATION EXECUTIVE
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Xxxx X. Xxxxxx Xxxxxxx Xxxxxxx
Vice President
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AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This Amendment No. 1, effective the 28th day of February 1997, is made to that
certain Employment Agreement between Intermec Corporation and Xxxxxxx Xxxxxxx,
dated the 18th day of May, 1995 (hereinafter called the "Agreement").
WHEREAS, the parties to the Agreement wish to extend the Employment Period
described in the Agreement from February 28, 1997 to February 28, 1998.
NOW THEREFORE, by mutual agreement of the parties, the Agreement is hereby
amended as follows:
1. TERM OF AGREEMENT:
The date "February 28, 1997" which appears in numbered Paragraphs 1,
EMPLOYMENT PERIOD, and 12.2, EXECUTIVE'S REMEDIES FOR TERMINATION, is hereby
changed to read "February 28, 1998."
2. COMPENSATION:
The base salary set forth in numbered Paragraph 3, BASE PAY, shall be
$300,000 for the period of March 1, 1997 through February 28, 1998. All
references to "Hiring Bonus," contained in the Agreement are deleted.
3. PERFORMANCE BONUS:
Numbered Paragraph 7, PERFORMANCE BONUS, is deleted and replaced with the
following:
7. PERFORMANCE BONUS: The Executive is eligible to receive a Performance
Bonus for each fiscal year starting January 1, 1997 during any part of
which he is employed, such Performance Bonus to be pro-rated to reflect
that portion of the year in which he was employed. The maximum bonus
payable for any given fiscal year shall be 125% of base salary payable for
that fiscal year (or the prorated portion thereof, provided however, that
any such Performance Bonus is subject to the provisions of the Western
Atlas Inc., 1995 Incentive Compensation Plan.
4. OTHER TERMS AND CONDITIONS:
Except as modified herein all other terms and conditions of the Agreement
shall remain in full force and effect as originally written.
IN WITNESS WHEREOF, the parties hereto have signed and delivered this Amendment
No. 1 as of the date first written above.
INTERMEC CORPORATION EXECUTIVE
By: By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Title: ________________________
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