Exhibit (e)(4)(xi)
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AGREEMENT
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AGREEMENT, made as of the 8th day of January, 1998, by and between SENSORMATIC
ELECTRONICS CORPORATION, a Delaware corporation having its principal place of
business at 000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000-0000 (hereinafter
referred to as the "Corporation"), and XXXXXX X. XXXXXXX, residing at 0000 X.X.
00xx Xxxxxxx, Xxxx Xxxxx, XX 00000 (hereinafter referred to as the "Employee");
W I T N E S S E T H:
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WHEREAS, the Employee is an officer and employee of the Corporation, and has
made, and is expected to continue to make, a significant contribution to the
performance and growth of the Corporation; and
WHEREAS, in order to best dedicate himself to his duties with the
Corporation, and to avoid the distractions and market pressures which may arise
as a result of an employment-at-will relationship, the Employee wishes to be
assured of receiving, or continuing to receive for a certain period, certain
compensation and benefits in the event of the termination of his employment
without cause by the Corporation; and
WHEREAS, the Corporation has determined that the continued services of the
Employee to the Corporation are in the best interest of the Corporation and its
stockholders, and desires to assure such continued services by agreeing to
provide the Employee certain rights as to termination compensation, subject to
certain reasonable limitations on the Employee's future employment necessary to
protect the legitimate interests of the Corporation in fair competition, and
subject to such other conditions as are set forth hereunder;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Employment at Will. The Employee shall continue to serve the Corporation as
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Vice President-Corporate Counsel and Secretary and shall serve in such other
executive capacity as may be reasonably determined by the President and the
Board of Directors and is reasonably acceptable to him. The parties acknowledge
and agree that the Employee's employment with the Corporation is not contracted
for any fixed term, but shall continue until terminated by either party, with or
without cause, by giving written notice to the other party pursuant to Section 3
hereunder. The provisions of this Agreement which are intended to apply and be
effective subsequent to such termination of employment shall survive and
continue to be enforceable.
2. Compensation.
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(a) The Employee's present base salary is $180,000 per year and the
Employee's present targeted bonus is $45,000 per year. In addition, the Employee
presently participates in or benefits from the Corporation's group medical,
dental and life insurance plans, Executive Medical Reimbursement Plan,
SensorSave and ESOP pension plans, Key Executive Supplemental Retirement Plan,
Employee Stock Purchase Plan, Stock Incentive Plan, and certain other fringe
benefit plans or policies as the Corporation makes available to or has in effect
for its executive personnel from time to time. After the date of this
Agreement, such compensation and benefits may
be increased or decreased, discontinued or modified, as determined by the
Corporation's Board of Directors or the Compensation Committee thereof, subject
to the provisions of Section 3(c)(i) below.
(b) Except as hereinafter provided, the Corporation shall pay the Employee,
for any period that this Agreement is in effect during which he is unable fully
to perform his duties because of physical or mental disability or incapacity, an
amount equal to the base salary due him for such period based on his rate of
base salary just prior to the disability, less the aggregate amount of all
income disability benefits which for such period he may receive or to which he
may be entitled under or by reason of (i) any group health insurance plan; (ii)
any applicable compulsory state disability law; (iii) the Federal Social
Security Act; (iv) any applicable workmen's compensation law or similar law; and
(v) any plan towards which the Corporation or any parent, subsidiary or
affiliate of the Corporation has contributed or for which it has made payroll
deductions, such as group accident or health policies or the Key Executive
Supplemental Retirement Plan.
3. Compensation Upon Termination.
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(a) The Employee may terminate his employment with the Corporation at any
time by giving thirty (30) days written notice to the Corporation. The
Corporation may waive any or all of this notice period. Except as provided in
Section 3(c) below, the Corporation's sole obligation to the Employee in such
event is (i) to pay the Employee's base salary to the date of termination, (ii)
to pay any non-discretionary incentive compensation which had been earned but
not yet paid for any evaluation period completed prior to the date of notice of
termination, and (iii) to complete any obligations required to be discharged
under the terms of group benefit plans. No further compensation (including,
without limitation, payment of severance compensation, discretionary bonus
compensation for any period, or incentive compensation for the current
evaluation period as of the date of notice, whether through discretionary or
targeted plans) shall be paid to the Employee, pro-rata or otherwise, and all
other benefits and perquisites (including, without limitation, stock options,
executive medical reimbursement and auto allowances) shall be canceled as of the
date of termination.
(b) The Corporation may terminate the Employee's employment with the
Corporation at any time by giving written notice to the Employee. In the event
of such termination (except for cause pursuant to Section 4 hereunder, and
subject to the Employee's continued compliance with the provisions of Sections
5, 6 and 7 below), the Employee shall be entitled to:
(i) base salary through the date of termination of his employment;
(ii) non-discretionary incentive compensation which had been earned
but not yet paid for any evaluation period completed prior to the date of
termination;
(iii) base salary, at the annualized rate in effect on the date of
termination of employment (or in the event a reduction in base salary is the
basis for a termination pursuant to Section 3(c) below, then the base salary in
effect immediately prior to such reduction), for a period of 18 months following
such termination (the "Continuation Period"), payable at the same regular
intervals as in effect prior to the termination, provided, however, that in the
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event the Employee procures full time employment at any time during the
Continuation Period, base salary payable
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hereunder shall continue to be paid only for a period equal to one-half of the
remainder of the Continuation Period;
(iv) a thirty (30) day period following termination in which the
Employee may exercise any vested stock options (all unvested options, as well as
shares of restricted stock issued under the Corporation's long-term incentive
plan/Success Sharing Program, or any subsequently adopted similar plan, shall
automatically terminate and be canceled upon the Employee's termination of
employment);
(v) participation until the end of the Continuation Period, through
Corporation-paid COBRA premiums, in medical and dental insurance coverage
equivalent to that in which he was participating on the date of the termination
of his employment (including spouse or family coverage, if applicable); provided
that the Corporation's obligations under this clause shall be reduced to the
extent that the Employee is eligible for similar coverage and benefits under the
plans and programs of a subsequent employer; and
(vi) other or additional benefits in accordance with applicable
group plans and programs of the Corporation.
Except as provided above, no further compensation (including, without
limitation, payment of discretionary bonus compensation for any period or
incentive compensation for the current evaluation period as of the date of
termination, whether through discretionary or targeted plans) shall be paid to
the Employee, pro-rata or otherwise, and all other benefits and perquisites
(including, without limitation, stock options, executive medical reimbursement
and auto allowances) shall be canceled as of the date of termination.
(c) In the event that any of the following events occur, the Employee may
terminate his employment with the Corporation by giving written notice to the
Corporation, and shall thereupon be entitled to the payments, entitlements and
benefits provided in Section 3(b) above as if the Corporation had terminated the
Employee's employment with the Corporation pursuant to Section 3(b) above.
(i) a reduction in the Employee's then current base salary, or a
reduction in the Employee's targeted bonus under a non-discretionary incentive
compensation plan not offset by a corresponding increase in base salary, or the
termination or material reduction of any employee benefit or perquisite enjoyed
by him without his permission or agreement (in each case, other than as part of
an across-the-board reduction of such compensation, benefit or perquisite
applicable to all officers of the Corporation);
(ii) a material diminution in the Employee's duties, or the
assignment to the Employee of duties, such that the remaining duties are
materially inconsistent with the duties of an officer of the Corporation; or
(iii) the failure of the Corporation to obtain the assumption in
writing of its obligation to perform this Agreement by any successor to all or
substantially all of the assets of the Corporation within 15 days after a
merger, consolidation, sale or similar transaction.
(d) In the event that the aggregate of all payments or benefits made or
provided to the Employee following a change in control of the Corporation under
this Agreement and under all other plans and programs of the Corporation (the
"Aggregate
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Payment") is determined to include an excess parachute payment, as such term is
defined in Section 280G(b)(1) of the Internal Revenue Code, the Corporation
shall pay to the Employee, prior to the time any excise tax imposed by Section
4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such
excess parachute payment, an additional amount which, after the imposition of
all income and excise taxes thereon, is equal to the Excise Tax on the excess
parachute payment. The determination of whether the Aggregate Payment includes
an excess parachute payment and, if so, the amount to be paid to the Employee
and the time of payment pursuant to this Section 3(d) shall be made by an
independent auditor (the "Auditor") jointly selected by the Corporation and the
Employee and paid by the Corporation. The Auditor shall be a nationally
recognized United States public accounting firm which has not, during the two
years preceding the date of its selection, acted in any way on behalf of the
Corporation or any affiliate thereof. If the Employee and the Corporation cannot
agree on the firm to serve as the Auditor, then the Employee and the Corporation
shall each select one accounting firm and those two firms shall jointly select
the accounting firm to serve as the Auditor.
4. Termination for Certain Causes. Notwithstanding anything to the contrary
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set forth elsewhere herein, in the event of the willful misconduct of the
Employee in the performance of his duties hereunder resulting in significant
economic harm to the Corporation or the conviction of the Employee for a felony
under federal or state law relating to the assets, business or affairs of the
Corporation or involving moral turpitude, the Employee's employment with the
Corporation may be terminated by the Corporation by written notice to the
Employee, provided that the Employee shall be given prior written notice by the
Board of Directors of the intention to terminate him for cause and the specific
grounds for such termination. The Employee shall be entitled to a hearing
before the Board before such termination becomes effective.
5. Disclosure and Assignment of Discoveries. The Employee shall (without any
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additional compensation) promptly disclose in writing to the Board of Directors
of the Corporation all ideas, formulae, programs, systems, devices, processes,
business concepts, discoveries and inventions (hereinafter referred to
collectively as "discoveries") whether or not patentable, which the Employee,
while employed by the Corporation, conceives, makes, develops, acquires or
reduces to practice, whether alone or with others and whether during or after
usual working hours, and which are related to the Corporation's business or
interests, or are used or usable by the Corporation; and the Employee hereby
transfers and assigns to the Corporation all right, title and interest in and to
said discoveries, including any and all domestic and foreign patent rights
therein and any renewals thereof. On request of the Corporation, the Employee
shall (without any additional compensation), from time to time during or after
the expiration or termination of his employment, execute such further
instruments (including, without limitation, applications for letters patent and
assignments thereof) and do all such other acts and things as may be deemed
necessary or desirable by the Corporation to protect and/or enforce its rights
in respect of said discoveries. All expenses of filing or prosecuting any patent
applications shall be borne by the Corporation, but the Employee shall cooperate
in filing and/or prosecuting any such applications.
6. Confidentiality. The Employee agrees that all patent rights, inventions,
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technical information and know-how and trade secrets relating to the
Corporation's electronic security systems and any other products in development
or marketed by the Corporation, any information relating thereto, and any other
information relating to the business or interests of the Corporation which he
knows or should know, is regarded as confidential and valuable by the
Corporation (whether or not any of the
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foregoing information is actually novel or unique or is actually known to
others), made available to the Employee by the Corporation or acquired by the
Employee from the Corporation, other than that which legally and legitimately is
or becomes of general public knowledge or passes into the public domain from
authorized sources other than the Employee, will be held in confidence and will
not be divulged (or caused or permitted to be divulged) by the Employee, without
the prior written consent of the Corporation, to any person or entity, except to
responsible officers and employees of the Corporation and other responsible
persons who are in a contractual or fiduciary relationship with the Corporation
or who have a need for such information for purposes in the interest of the
Corporation or otherwise in the course of carrying out his duties hereunder and
except when required to disclose such information by a court of law, by any
governmental agency having supervisory authority over the business of the
Company or by any administrative or legislative body (including a committee
thereof) with the apparent jurisdiction to order him to divulge, disclose or
make accessible such information. The Employee further agrees that his
obligations of secrecy and confidentiality under this Section 6 shall survive
any termination of this Agreement unless specifically waived in writing by the
Corporation and, in the event of any such termination, the Employee shall never
use or market, nor disclose to others nor assist others in using or marketing,
any of the information or property rights of the Corporation referred to in this
Section 6, other than that which legally and legitimately is or becomes of
general public knowledge or passes into the public domain from authorized
sources other than the Employee.
7. Non-Competition. In order to protect the legitimate business interests of
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the Corporation, such as, without limitation, in its trade secrets, confidential
and professional information, substantial relationships with existing and
prospective customers, and investments in extraordinary and specialized
training, the Employee shall not, directly or indirectly:
(a) engage in the business of manufacturing, leasing, selling,
maintaining, or servicing, anywhere in the world, anti-shoplifting, theft
detection, inventory/asset control, closed circuit television, access control,
article surveillance devices or other products which are similar to or purport
to accomplish results similar to the Corporation's electronic article
surveillance, closed circuit television and access control systems and other
products being developed or marketed by the Corporation during the Employee's
employment with the Corporation;
(b) render any services as an officer, director, employee, partner,
consultant or otherwise to, or have any interest as a stockholder, partner,
lender or otherwise in, any entity which is so engaged;
(c) solicit or attempt to solicit business of any customers of the
Corporation for products or services the same or similar to those offered, sold,
produced or under development by the Corporation during the Employee's
employment with the Corporation;
(d) solicit or attempt to solicit for any business endeavor any employee
of the Corporation;
(e) accept any orders for products or services or any other business from
any customers of the Corporation for products or services the same or similar to
those offered, sold, produced or under development by the Corporation during the
Employee's employment with the Corporation; or
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(f) hire or retain as a consultant - or render any services as an officer,
director, employee, partner, consultant or otherwise to, or have any interest as
a stockholder, partner, lender or otherwise in, any entity which hires or
retains as a consultant - any person which, within six (6) months prior to the
date of such hiring or retention, had been employed by the Corporation in a
sales, marketing, managerial or professional (e.g. accounting, engineering,
legal) capacity;
during the term of the Employee's employment with the Corporation and for a
period of eighteen (18) months from and after the date of termination of such
employment, or for such lesser area or lesser period as may be determined by a
court of law or equity to be a reasonable limitation on the competitive activity
of the Employee, it being understood and agreed by the parties hereto that this
provision is reasonably necessary to protect the patent rights, inventions,
technical information and know-how, trademarks and the good will and reputation
of the Corporation. For the purpose of this Section 7, the term "Corporation"
shall include any and all affiliates of the Corporation in existence from time
to time. Notwithstanding anything to the contrary contained in this Section 7,
the provisions hereof shall not prevent the Employee from purchasing or owning
up to two (2%) percent of the voting securities of any corporation, the stock of
which is publicly traded.
8. Termination of Benefits and Injunctive Relief. In the event of a breach or
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threatened breach by the Employee of any of the provisions of Sections 5, 6 and
7, the Corporation shall be entitled, if it shall so elect, to (a) terminate any
remaining benefits (including any unpaid severance payments or unexercised
options) otherwise due or outstanding pursuant to Section 3, and/or (b) except
in the case of a breach or threatened breach of Section 7(e) or (f), institute
legal proceedings to obtain damages or to enforce the specific performance of
such provisions by the Employee and to enjoin the Employee from any further
violation of such provisions and to exercise such remedies cumulatively or in
conjunction with all other rights and remedies provided by law. The Employee
acknowledges, however, that the remedies at law for any breach or threatened
breach by him of such provisions may be inadequate and that the Corporation
shall be entitled to injunctive relief against him in the event of any breach or
threatened breach.
9. Entire Agreement. This Agreement supersedes all prior agreements and
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understandings between the parties pertaining to the subject matter hereof
(other than the plans and policies referred to in Sections 2 hereof and any
other agreements or understandings pertaining thereto) and may not be changed or
terminated orally, and no change, termination or attempted waiver of any of the
provisions hereof shall be binding unless in writing and signed by the party
against whom the same is sought to be enforced; provided, however, that the
Employee's compensation and/or benefits may be increased at any time by the
Corporation without in any way affecting any of the other terms and conditions
of this Agreement, which in all other respects shall remain in full force and
effect.
10. Successors and Assigns. Neither party shall have the right to assign
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this personal Agreement, or any rights or obligations hereunder, without the
consent of the other party, provided, however, that upon the sale of all or
substantially all of the assets, business and goodwill of the Corporation to
another corporation, or upon the merger or consolidation of the Corporation with
another corporation, this Agreement shall inure to the benefit of, and be
binding upon, both the Employee and the corporation purchasing such assets,
business and goodwill, or surviving such merger or consolidation, as the case
may be, in the same manner and to the same extent as though such other
corporation were the Corporation. In the event of a sale, merger
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or consolidation described in the preceding sentence, the Corporation shall take
whatever action it legally can in order to cause such other corporation to
expressly assume the liabilities, obligations and duties of the Corporation
hereunder. Subject to the foregoing, this Agreement shall inure to the benefit
of, and bind, the parties hereto and their legal representatives, heirs,
successors and assigns.
11. Governing Law. This Agreement is made and executed and shall be governed
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by the laws of the State of Florida, without giving effect to choice of law
principles.
12. Indemnification.
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(a) The Corporation agrees that if the Employee is made a party, or is
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he is or was a director, officer, or employee of the Corporation or is
or was serving at the request of the Corporation as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is the Employee's alleged action in
an official capacity while serving as a director, officer, member, employee or
agent, the Employee shall be indemnified and held harmless by the Corporation to
the fullest extent legally permitted or authorized by the Corporation's
certificate of incorporation or bylaws or resolutions of the Company's Board of
Directors or, if greater, by the laws of the State of Delaware against all cost,
expense, liability and loss (including, without limitation, attorney's fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by the Employee in connection
therewith, and such indemnification shall continue as to the Employee even if he
has ceased to be a director, officer, member, employee or agent of the
Corporation or other entity and shall inure to the benefit of the Employee's
heirs, executors and administrators. The Corporation shall advance to the
Employee all reasonable costs and expenses incurred by him in connection with a
Proceeding within 20 days after receipt by the Corporation of a written request
for such advance. Such request shall include an undertaking by the Employee to
repay the amount of such advance if it shall ultimately be determined that he is
not entitled to be indemnified against such costs and expenses.
(b) Neither the failure of the Corporation (including its board of
directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any Proceeding concerning payment of
amounts claimed by the Employee under Section 12(a) above that indemnification
of the Employee is proper because he has met the applicable standard of conduct,
nor a determination by the Corporation (including its board of directors,
independent legal counsel or stockholders) that the Employee has not met such
applicable standard of conduct, shall create a presumption that the Employee has
not met the applicable standard of conduct.
(c) The Corporation agrees to continue and maintain a directors and
officers' liability insurance policy covering the Employee to the extent the
Corporation provides such coverage for its other executive officers.
13. Representation. The Corporation represents and warrants that it is fully
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authorized and empowered by action of the Board of Directors to enter into this
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Agreement and that the performance of its obligations under this Agreement will
not violate any agreement between it and any other person, firm or organization.
14. Severability. In the event that any provision or portion of this
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Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
15. Survivorship. The respective rights and obligations of the parties
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hereunder shall survive any termination of the Employee's employment to the
extent necessary to the intended preservation of such rights and obligations.
16. Beneficiaries/references. The Employee shall be entitled, to the extent
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permitted under the applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
the Employee's death by giving the Company written notice thereof. In the event
of the Employee's death or a judicial determination of his incompetence,
reference in this Agreement to the Employee shall be deemed, where appropriate,
to refer to his beneficiary, estate or other legal representative.
17. Resolution of Disputes. Except for disputes which are subject to the
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provisions of Section 8, any disputes arising under or in connection with this
Agreement shall, at the election of the Employee or the Company, be resolved by
binding arbitration, to be held in Ft. Lauderdale, Florida in accordance with
the rules and procedures of the American Arbitration Association. Judgment upon
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Any judgment or order entered in such action shall
contain a specific provision providing for the prevailing party's recovery of
its attorneys' fees and costs in bringing the action and enforcing the judgment
from the losing party. "Prevailing Party" shall mean the party which has been
granted the relief or remedy sought, or which has obtained judgment for damages
of at least 50 percent of the amount claimed.
18. Notices. Any notice given to a party shall be in writing and shall be
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deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the party concerned at the address indicated at the beginning of this Agreement
or to such changed address as such party may have specified by written notice
hereunder.
19. Headings. The headings of the sections contained in this Agreement are
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for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
20. Counterparts. This Agreement may be executed in two or more
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counterparts.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
Sensormatic Electronics Corporation Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxxx
President and Chief Executive
Officer
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