Exhibit 10.20
TOLLING AGREEMENT
WHEREAS, Symbol Technologies, Inc. ("Symbol") is the subject of a
number of investigations being conducted into its accounting policies and
practices;
WHEREAS, Tomo Razmilovic ("Razmilovic") was President of Symbol from
October 1995 to February 14, 2002;
WHEREAS, Symbol and Razmilovic entered into an Employment Agreement,
dated February 14, 2002, and a Separation, Release, and Non-Disclosure Agreement
that was fully executed on February 27, 2002 (the "Agreement");
WHEREAS, the conduct of Razmilovic and others while at Symbol is being
investigated by a number of entities;
WHEREAS, Symbol and Razmilovic have been named as defendants in a
consolidated putative class action lawsuit and other litigations asserting
claims allegedly arising out of Symbol's accounting policies and practices and
Razmilovic's conduct as President (the "Litigations");
WHEREAS, Symbol and Razmilovic disagree about their current respective
rights and obligations under the Agreements;
WHEREAS, Symbol and Razmilovic believe they may have actual and/or
potential claims, cross-claims and/or counterclaims against each other arising
out of the Litigations, the conduct that is the subject matter of the Litigation
or the Agreements;
WHEREAS, Symbol has announced that it intends to restate certain of its
past reported financial results and, upon such restatements, Symbol believes
that it may have an additional claim against Razmilovic under the Xxxxxxxx-Xxxxx
Act or common law for restitution or disgorgement of certain moneys or
securities previously received by Razmilovic (the "Restitution Claim");
WHEREAS, neither Symbol nor Razmilovic admits the existence of any
valid claims, cross-claims or counterclaims against it in favor of the other;
and
WHEREAS, Symbol and Razmilovic, 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 April 1, 2003
(the "Effective Date"), and 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) 10 days after
the receipt by any other party of written notice from said Terminating Party
that the provisions of this Tolling Agreement are terminated with respect to the
Terminating Party; or (ii) March 31, 2004.
2. While this Tolling Agreement is in effect, neither Symbol nor
Razmilovic shall commence any action against the other or assert any cross-claim
or counterclaim against the other in the Litigations or any other action,
including, without limitation, the Restitution Claim.
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 Razmilovic against the other with respect to
Symbol's accounting policies or practices, Razmilovic's conduct as Symbol's
President or the Agreements, 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 Razmilovic 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 Razmilovic 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 Razmilovic 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. Except as specifically provided herein, this Tolling Agreement is
not intended to amend or modify the terms of the Agreements. While this Tolling
Agreement is in effect, however, Symbol may choose, but is not obligated, to
make payments to Razmilovic or on Razmilovic's behalf pursuant to the
Agreements. Any such payments made, or not made, to Razmilovic or on
Razmilovic's behalf while this Tolling Agreement is in effect shall not be
deemed to waive any rights, claims, defenses or arguments that Symbol may have
against Razmilovic, or that Razmilovic may have against Symbol, and neither
Razmilovic nor Symbol shall contend to the contrary in any forum in connection
with any controversy or action between Symbol and Razmilovic.
6. This Tolling Agreement shall not operate as an admission of
liability by either Symbol or Razmilovic, and neither Symbol nor Razmilovic
acknowledges that the other has a valid claim against it. Symbol denies any
liability to Razmilovic, and Razmilovic denies any liability to Symbol.
7. 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.
8. 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:
Xxxxxxx X. Xxxxxxx, 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
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Any communication to Razmilovic 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:
Tomo Razmilovic
Xxxxx Xxxxx
Xxxxx Xxxxx Xxxx
Xxxxx
Xxxxxxxxx, Xxxxxxx XX00XX
Tel: 000-00-0000000000
Fax: 000-00-0000000000
- and -
Xxxxx X. Xxxxxxx, Esq.
Solomon, Zauderer, Ellenhorn, Xxxxxxxx and Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Either Symbol or Razmilovic may, by written notice to the other, change the
representative or the addresses to which communications should be sent.
9. The provisions of this Tolling Agreement will be binding on the
successors, executors and assigns of both Symbol and Razmilovic, including, but
not limited to any acquirer of the business or assets of Symbol.
10. This Tolling Agreement contains the full and complete agreement of
the parties hereto and may not be altered or amended except in a writing
executed by representatives of both Symbol and Razmilovic.
11. 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.
12. In entering into this Tolling Agreement, the parties represent that
they have each been represented by counsel of their 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 has been completely read and explained to them by their
attorneys, and that those terms are fully understood and voluntarily accepted by
them.
13. 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: May 6, 2003 /s/ Tomo Razmilovic
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Tomo Razmilovic
DATED: May 6, 2003 By:/s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Attorneys for Tomo Razmilovic
SYMBOL TECHNOLOGIES, INC.
DATED: May 6, 2003 By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President
And General Counsel
Symbol Technologies -
Corporate Headquarters
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000-
1300
Tel: (000) 000-0000
XXXXXXX BERLIN SHEREFF XXXXXXXX, LLP
DATED: May 6, 2003 By:/s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Attorneys for Symbol Technologies, Inc.
