Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of July 22, 2005 by and between
TELULAR CORPORATION, a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxx, a resident of Sarasota, Florida (the "Executive");
WITNESSETH:
WHEREAS, the Company wishes to employ the Executive as its President
and Chief Executive Officer; and
WHEREAS, the Executive wishes to be employed in this capacity by the
Company, on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the mutual obligations set forth
herein, the parties hereto hereby agree as follows:
1. Engagement. The Company hereby agrees to employ the Executive as
its President and Chief Executive Officer, and the Executive hereby accepts such
employment, on the terms and conditions hereinafter set forth. The Executive's
principal place of business shall be at the headquarters of the Company.
2. Term of Employment. The Executive's employment by the Company
shall commence on August 1, 2005 (the "Effective Date"). Employment shall be on
an "at-will" basis and shall continue in effect until terminated by either party
upon at least 60 days prior notice. The period of employment of the Executive by
the Company is referred to herein as the "Term."
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3. Duties. During the Term, Executive shall serve as the Company's
President and Chief Executive Officer and shall have such duties and
responsibilities as are set forth in the Company's Bylaws and such other
executive responsibilities and performances as may be assigned to him from time
to time by the Board of Directors of the Company (the "Board"). The Executive
shall use his best efforts and shall act in good faith in performing all duties
reasonably required to be performed by him under this Agreement.
4. Availability. The Executive shall devote his entire working time,
attention and energies to the Company's business and, during the term of this
Agreement, shall not be engaged in any other business activity without the
express written approval of the Board.
5. Expenses. The Company shall reimburse the Executive, promptly upon
presentation of itemized vouchers, for all ordinary and necessary business
expenses incurred by the Executive in the performance of his duties hereunder.
In addition, the Company shall pay to the Executive the sum of $25,000, which
the Executive plans to use to pay the costs and expenses of his relocation from
Sarasota, Florida, to the Chicago area.
6. Compensation. As compensation for the services to be rendered
hereunder, the Company agrees as follows:
(a) The Company shall pay to the Executive an annual base salary (the
"Base Salary") which shall be at the annual rate of $300,000. The Base Salary
shall be paid in accordance with the Company's normal payroll practice.
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(b) The Company shall pay to the Executive a performance bonus with an
annual target of $110,000 commencing with Fiscal Year 2006, and a pro rata
portion of such target for Fiscal Year 2005 (with such portion determined by the
number of days of such Fiscal Year that are included in the Term divided by
365), all in accordance with the Company's CEO Bonus Plan. Annual targets for
years subsequent to Fiscal Year 2006 shall be as established by the Compensation
Committee of the Company (the "Compensation Committee") and communicated to the
Executive not later than 30 days after the beginning of such year.
(c) The Executive shall be entitled to participate in the Company's
Performance Incentive Plan, with quarterly targets of $10,000 commencing in
Fiscal Year 2006, and a pro rata portion of such target for the final quarter
Fiscal Year 2005 (with such portion determined by the number of days of such
quarter that are included in the Term divided by 92), and shall be entitled to
receive such quarterly payments provided that (i) the Executive has continued to
serve as Chief Executive Officer and President of the Company through the
payment date, and (ii) the Executive has achieved the performance targets
specified by the Compensation Committee for the Executive for such calendar
quarter. Performance targets for each calendar quarter shall be established by
the Compensation Committee and communicated to the Executive not later than 26
days after the beginning of such calendar quarter.
(d) The Company shall permit the Executive to participate such
pension, 401(k), and other employee benefit plans as are made available to
employees of the Company generally. The Executive shall be entitled to four
weeks of paid vacation per year.
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7. Stock Options. Under an Option Agreement of even date herewith,
the Company is granting to the Executive certain stock options under the
Company's Stock Incentive Plan.
8. Ownership of Proprietary Information. All right, title and
interest of every kind and nature whatsoever in and to discoveries, inventions,
improvements, patents (and applications therefor), copyrights, ideas, know-how,
laboratory notebooks, creations, properties and all other proprietary rights
arising from, or in any way related to, the Executive's employment hereunder
shall become and remain the exclusive property of the Company, and the Executive
shall have no interest therein.
9. Trade Secrets. The Executive shall not, during the Term or
thereafter, disclose to anyone (except to the extent reasonably necessary for
the Executive to perform his duties hereunder or as may be required by law) any
confidential information concerning the business or affairs of the Company (or
of any affiliate or subsidiary of the Company), including but not limited to
lists of customers, business plans, joint ventures, financial or cost
information, and confidential scientific and technological information (whether
of the Company or entrusted to the Company by a third party under a
confidentiality agreement or understanding) which the Executive shall have
acquired in the course of, or incident to, the performance of his duties
pursuant to the terms of this Agreement or pursuant to any prior dealings with
the Company or any affiliate or subsidiary of the Company. In the event of a
breach or threatened breach by the Executive of the provisions of this Section
9, the Company shall be entitled to an injunction restraining the Executive from
disclosing, in whole or in part, such information or from rendering any services
to any person, firm, corporation, association or other entity to whom such
information has been disclosed or is threatened to be disclosed.
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Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company for such breach or threatened breach,
including the recovery of damages from the Executive. Nothing herein shall be
construed as prohibiting the Executive from disclosing to anyone any information
which is, or which becomes, available to the public (other than by reason of a
violation of this Section 9) or which is a matter of general business knowledge
or experience.
10. Termination For Cause. The Company may terminate the employment of
the Executive under this Agreement in the event that the Board determines that
the Executive (a) has materially and substantially breached his obligations
under Section 4, 9, or 13 of this Agreement, provided that the employment of the
Executive shall not be terminated under this clause (a) unless the Executive is
given notice in writing that the conduct in question constitutes grounds for
termination under this Section 10 and the Executive is allowed at least thirty
(30) days to remedy the refusal or failure, (b) has been convicted of a felony
constituting a crime of moral turpitude (whether or not in conjunction with the
performance by the Executive of his duties under this Agreement), or (c) has
through willful misconduct or gross negligence engaged in an act or course of
conduct that causes material injury to the Company (or any affiliate or
subsidiary of the Company). If the employment of the Executive under this
Agreement is terminated under this Section 10, the Board shall give written
notice to the Executive specifying the cause of such action. Upon a termination
of employment under this Section 10, the Company shall be relieved of all
further obligations under this Agreement, other than the payment of any accrued
and unpaid Base Salary through the date of termination and any expenses for
which the Executive is entitled to be reimbursed pursuant to Section 5.
Notwithstanding such termination of employment, the Executive shall continue to
be bound by the provisions of Sections 8, 9, and 13.
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11. Termination Without Cause.
(a) If the employment of the Executive is terminated (i) by the
Company other than for Cause or as provided in Section 12, or (ii) by
resignation of the Executive because the responsibilities and duties of the
Executive are, other than for Cause, materially diminished or changed by the
Company in a manner that materially impairs the Executive's ability to function
as the Chief Executive Officer of the Company (provided that such diminution or
change is not cured by the Company within 30 days after receiving notice thereof
from the Executive), the Executive shall be entitled to receive, no later than
60 days following such termination, a Severance Payment (as defined herein).
(b) For purposes hereof, "Severance Payment" shall mean: (i) if such
termination is effective prior to February 1, 2006, and prior to any Change in
Control (as defined in the Company's Sixth Amended and Restated Stock Incentive
Plan, subject to any amendments thereto that may hereafter be adopted)(a "Change
in Control"), one-half of the Executive's annual Base Salary at the time of such
termination, and (ii) if such termination is effective on or after February 1,
2006, or upon or after any Change in Control, the Executive's annual Base Salary
at the time of such termination.
(c) Termination of employment under this Section 11 shall not
terminate the Executive's obligations under Sections 8, 9 and 13.
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12. Death or Disability of the Executive. In the event that the
Executive, during the period while employed under this Agreement, shall die or,
as a result of the Executive's incapacity due to injury or physical or mental
illness, the Executive shall have been unable to perform the Executive's duties
with the Company for a period of three consecutive months, or for four months
out of any six consecutive months, the Company may terminate this Agreement and
be relieved of all further obligations hereunder, other than the payment of any
accrued and unpaid Base Salary through the date of termination and any expenses
for which the Executive is entitled to be reimbursed pursuant to Section 5.
Termination of employment under this Section 12 shall not terminate the
Executive's obligations under Section 8, 9 and 13.
13. Non-Competition. The Executive hereby agrees that, during the Term
and for a period of eighteen (18) months following the termination of his
employment under this Agreement, he will not, directly or indirectly and in any
way, (a) own, manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation or control of
any business competing with the business of the Company, (b) interfere with,
solicit on behalf of another or attempt to entice away from the Company (or any
affiliate or subsidiary of the Company) (i) any project, financing or customer
that the Company (or any affiliate or subsidiary of the Company) has under
contract (including unfulfilled purchase orders), or any letter of supply or
other supplier contract or arrangement entered into by the Company (or any
affiliate or subsidiary of the Company), and all extensions, renewals and
resolicitations of such contracts or arrangements, (ii) any contract, agreement
or arrangement that the Company (or any affiliate or subsidiary of the Company)
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is actively negotiating with any other party, or (iii) any prospective business
opportunity that the Company (or any affiliate or subsidiary of the Company) has
identified, or (c) for himself or another, hire, attempt to hire, or assist in
or facilitate in any way the hiring of any employee of the Company (or any
affiliate or subsidiary of the Company), or any employee of any person, firm or
other entity, the employees of which the Company.(or any affiliate or subsidiary
of the Company) has agreed not to hire or endeavor to hire. The effective time
of the limitations imposed by this Section 13 shall be extended for the period
of time equal to any period of time during which the Executive acts in
circumstances that a court of competent jurisdiction finds to have violated the
terms of this Section 13.
Because of the Executive's knowledge of the Company's business, in the
event of the Executive's actual or threatened breach of the provisions of this
Section 13, the Company shall be entitled to, and the Executive hereby consents
to, an injunction restraining the Executive from any of the foregoing. However,
nothing herein shall be construed as prohibiting the Company from pursuing any
other available remedies for such breach or threatened breach, including the
recovery of damages from the Executive. The Executive agrees that the provisions
of this Section 13 are necessary and reasonable to protect the Company in the
conduct of its business. If any restriction contained in this Section 13 shall
be deemed to be invalid or unenforceable by reason of the extent, duration of
geographic scope thereof, then the Company shall have the right to reduce such
extent, duration, geographic scope of other provisions thereof, and in their
reduced form such restrictions shall then be enforceable in the manner
contemplated hereby.
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14. Capacity. The Executive represents and warrants to the Company
that he is not now under any obligation, of a contractual nature or otherwise,
to any person, firm, corporation, association or other entity that is
inconsistent or in conflict with this Agreement or which would prevent, limit or
impair in any way the performance by him of his obligations hereunder.
15. Withholding. The Executive acknowledges that salary and all other
compensation payable under this Agreement shall be subject to withholding for
income and other applicable taxes to the extent required by law, as determined
by the Company in its reasonable judgment.
16. Indemnification. To the greatest extent permitted by applicable
law, and in a manner consistent with any procedures required by applicable law,
the Corporation shall indemnify and hold the Executive harmless from and against
any liability (including, without limitation, reasonable attorneys, fees)
incurred by the Executive in any claim, action, suit, or proceeding instituted
or brought against the Executive as a result of or arising out of service by the
Executive as an officer or director of the Company, or of any other corporation
or other entity at the request or direction of the Company, except to the extent
that such liability is the result of the criminal action or willful misconduct
on the part of the Executive.
17. Waiver. No act, delay, omission or course of dealing on the part
of any party hereto in exercising any right, power or remedy hereunder shall
operate as, or be construed as, a waiver thereof or otherwise prejudice such
party's rights, powers and remedies under this Agreement.
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18. Notice. Any and all notices referred to herein shall be sufficient
if furnished in writing and delivered by hand, by facsimile transmission or by
overnight delivery service maintaining records of receipt, to the respective
parties at the following addresses:
If to the Company:
Telular Corporation
000 X. Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Chief Operating Officer
Facsimile #: 847-247-9400
If to the Executive: Xxxxxxx X. Xxxxx
c/o Telular Corporation
000 X. Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000
Facsimile #: 000-000-0000
or to such other address or addresses as either party may from time to time
designate by notice given as aforesaid. Notices shall be effective when
delivered
19. Arbitration. Except for the enforcement by the Company of its
rights under Sections 8, 9 and 13 and except as provided otherwise in this
Agreement, all disputes arising under or in connection with this Agreement shall
be submitted to arbitration in Chicago, Illinois under the rules of the American
Arbitration Association, and the decision of the arbitrator shall be final and
binding upon the parties. Judgment upon the award rendered may be entered and
enforced in any court having jurisdiction.
20. Assignability. The rights and obligations contained herein shall
be binding on and inure to the benefit of the successors and assigns of the
Company. The Executive may not assign his rights or obligations hereunder
without the express written consent of the Company.
21. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois, excluding any conflicts or
choice of law rules that might otherwise refer construction or interpretation of
this Agreement to the laws of another jurisdiction.
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22. Completeness. Except for the terms of the compensation and benefit
plans in which the Executive participates, this Agreement and the Option
Agreement entered into pursuant hereto (a) set forth all, and are intended by
each party to be an integration of all, of the promises, agreements and
understandings between the parties hereto with respect to the subject matter
hereof, and (b) supersede all prior agreements and communications, whether
written or oral, between the Executive and the Company. This Agreement shall not
be modified except by written agreement between the Executive and the Company.
23. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one agreement binding on the parties hereto.
24. Severability. Each provision of this Agreement shall be considered
severable and if for any reason any provision that is not essential to the
effectuation of the basic purpose of the Agreement is determined to be invalid
or contrary to any existing or future law, such invalidity shall not impair the
operation of or affect those provisions of this Agreement that are valid.
25. Headings; Construction. Headings contained in this Agreement are
inserted for reference and convenience only and in no way define, limit, extend
or describe the scope of this Agreement or the meaning or construction of any of
the provisions hereof. As used herein, unless the context otherwise requires,
the single shall include the plural and vice versa, words of any gender shall
include words of any other gender, and "or" is used in the inclusive sense.
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26. Survival of Terms. If this Agreement is terminated for any reason,
the provisions of Sections 8, 9 and 13 shall survive and the Executive and the
Company, as the case may be, shall continue to be bound by the terms thereof to
the extent provided therein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
TELULAR CORPORATION
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxx
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Xxxxxxx X. Xxxxx Xxxx Xxxxxx
Chief Executive Officer
