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Exhibit 10.1.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of April 1, 1997
(the "Effective Date") at Akron, Ohio between TELXON CORPORATION ("Employer"), a
Delaware corporation with offices at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxx 00000,
and XXXXXXX X. XXXXXX ("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee initially as Senior Vice
President, Global Professional Services of Employer, and thereafter, in such
capacity as the Board of Directors of Employer shall direct, and Employee
desires to be so employed, upon the terms and conditions herein contained; and
WHEREAS, Employer and Employee desire to have this Agreement supersede any
and all prior agreements, oral or written, relating to the employment of
Employee by Employer.
NOW, THEREFORE, in consideration of the foregoing and in consideration of
the mutual promises and agreements contained herein, the parties hereto agree as
follows:
1. EMPLOYMENT PERIOD. Employer agrees to employ Employee, and
Employee agrees to serve Employer, for the period beginning on
the Effective Date and ending March 31, 2000, subject to
earlier termination pursuant to paragraph 4 hereof (the
"Employment Period").
2. NATURE OF DUTIES.
a. Employee's duties and responsibilities shall be to
serve as Senior Vice President, Global Professional
Services of Employer or in such other capacity as the
Board of Directors of Employer may at any time and
from time to time in its discretion direct, in
conformity with management policies, guidelines and
directions issued by Employer. Employee shall report
directly to Xxxxx X. Brick, President and Chief
Executive Officer of Employer, or such other officer
of Employer as the Board of Directors shall direct
(the "Supervisor"), and shall have general charge and
supervision of those functions and such other
responsibilities as the Supervisor shall from time to
time determine in his discretion.
b. Employee shall work exclusively for Employer on a
full-time basis in such capacity as he is to serve
pursuant to paragraph 2(a), devoting all of his time
and attention during normal business hours to
Employer's business.
c. Employee shall perform his duties and
responsibilities hereunder diligently, faithfully and
loyally in order to cause the proper, efficient and
successful operation of Employer's business.
3. COMPENSATION AND BENEFITS.
a. BASE SALARY AND EXPENSES. As compensation for
Employee's services, Employer shall pay to Employee
during the Employment Period a salary (the "Base
Salary") at the annual rate of $250,000 for FY `98.
Any salary increases for future fiscal years will be
determined by the Board of Directors of Employer or
an appropriate committee thereof (the "Board") in its
discretion based upon the recommendation of
Employer's chief executive officer (the "Chief
Executive Officer"). Base salary will be payable in
arrears, in equal bi-weekly installments or at such
other interval as the Board or applicable Employer
policies shall direct. Employer shall reimburse
Employee for all reasonable out-of-pocket expenses
incurred by Employee on
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Employer's behalf during the Employment Period and
approved by the Supervisor or such other officer as
the Supervisor or applicable Employer policies shall
direct.
b. BONUS COMPENSATION. In addition to the Base Salary,
Employee shall, at the discretion of the Board, be
eligible to receive bonus compensation ("Bonus
Compensation") with respect to the Employment Period
on such basis as shall be approved by the Board. For
FY `98, Employee shall be eligible for a potential
bonus of up to $150,000 based upon achieving goals
and achievements agreed upon by Employee and
Employer's Chief Executive Officer, subject to such
approval thereof as may be required by the Board.
Bonus compensation for subsequent fiscal years will
be determined by the Board in its discretion based
upon the recommendation of the Chief Executive
Officer. The Bonus Compensation, if any, in respect
to each fiscal year during the Employment Period
shall be earned and shall accrue at, and Employee
shall have no entitlement thereto (on a pro rata or
any other basis) prior to, the end of the fiscal year
to which such Bonus Compensation relates.
c. STOCK OPTIONS. During the Employment Period, Employee
shall be eligible to receive grants of stock
option(s) and other awards and benefits pursuant to
such employee stock option and other stock-based
employee benefit plans as Employer may maintain from
time to time during the Employment Period with
respect to Employer executives of like stature and
compensation, in such amounts as may be determined by
the Board in its discretion based upon the
recommendation of the Chief Executive Officer. In the
event that, during the Employment Period or at any
time thereafter, Employee is re-assigned by Employer
to a position carrying duties and responsibilities of
lesser stature than the position in which Employee
serves as of the time during the Employment Period
that any such options or other rights or benefits are
granted or awarded to or otherwise received by
Employee (other than a re-assignment occurring as the
result of or in connection with any change in control
of Employer, in which case the provisions of the
governing benefit plan applicable in such a
circumstance shall control), such options, rights and
benefits shall, to the extent unvested, unexercised
or otherwise unrealized as of the time of such
re-assignment, be subject to such reduction,
cancellation and/or forfeiture as may then be
determined to be appropriate by the Board in its
discretion.
d. VACATION. During the Employment Period, Employee
shall be entitled to vacation in accordance with
Employer's policies.
e. HEALTH, DISABILITY, RETIREMENT AND DEATH BENEFITS.
Employer shall provide Employee with the same health,
disability, retirement and death and other fringe
benefits as are generally provided to the executive
employees of Employer in accordance with such terms,
conditions and eligibility requirements as may from
time to time be established by Employer.
4. TERMINATION.
a. This Agreement shall terminate automatically upon
Employee's death.
b. Employer may terminate Employee's employment under
this Agreement at any time, upon five (5) days
written notice to Employee, if Employee becomes
permanently disabled. Permanent disability shall be
determined by Employer according to the same
standards applicable to the employees of Employer
generally under the disability benefits referred to
in paragraph 3(e) hereof.
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c. Employer shall have the right to terminate Employee's
employment under this Agreement at any time (i) immediately
for "cause" (which shall mean for any action or inaction of
Employee which is adverse to Employer's interests, including,
without limitation, Employee's dishonesty, grossly negligent
misconduct, willful misconduct, disloyalty, act of bad faith,
neglect of duty or material breach of this Agreement or of any
Employer policy applicable to its employees generally), or
(ii) without cause upon five (5) days written notice to
Employee.
5. EFFECTS OF TERMINATION AND EXPIRATION.
a. In the event of automatic termination by reason of Employee's
death pursuant to paragraph 4(a), or by Employer by reason of
Employee's permanent disability pursuant to paragraph 4(b),
all of Employer's obligations under this Agreement shall end
except for Employer's obligations to pay Employee's Base
Salary and Bonus Compensation, if any, in each case earned and
accrued but unpaid to the date of death or permanent
disability. Employee shall also have the right to receive any
payments under the death or disability benefits, as the case
may be, provided to Employee pursuant to paragraph 3(e), if
any.
b. In the event Employer exercises its right of termination other
than for cause pursuant to paragraph 4(c)(ii), or upon the
expiration of the Employment Period, all of Employer's
obligations under this Agreement shall end except for its
obligations to pay Employee's Base Salary and Bonus
Compensation, if any, in each case earned and accrued but
unpaid to the date of termination (which, for purposes of this
paragraph 5(b) and paragraph 5(c) below, shall be five (5)
days after the date on which notification is provided by
Employer to Employee pursuant to paragraph 4(c)(ii)) or at the
expiration of the Employment Period, whichever the case may be
and, in the case of termination pursuant to paragraph
4(c)(ii), Employer's obligations under paragraph 5(c) of this
Agreement.
c. In the event Employer exercises its right of termination other
than for cause pursuant to paragraph 4(c)(ii), Employer shall
be obligated to pay Employee as severance pay, for the twelve
(12) month period following the date of such termination,
annualized compensation at a rate which shall be equal to the
Base Salary at such termination date. Such payments shall be
made in equal bi-weekly installments or at such other interval
as the Board or Employer's corresponding payroll policies
shall direct.
d. In the event Employer exercises its right of termination
pursuant to paragraph 4(c)(i) for cause, or Employee otherwise
leaves the employ of Employer prior to the expiration of the
Employment Period, all of Employer's obligations under this
Agreement shall end except for Employer's obligations to pay
Employee's Base Salary, if any, earned and accrued but unpaid
to the date of such termination or of the Employee otherwise
leaving Employer's employ.
6. COVENANT NOT TO COMPETE.
a. RESTRICTED ACTIVITIES--DURATION. Except as otherwise consented
to or approved by Employer's Board of Directors in writing,
Employee agrees that, in addition to being operative during
the Employment Period, the provisions of paragraphs 6(a)(i)
through (iii) hereof, inclusive, shall be operative for a
period of twelve (12) months after the later of (1) the date
Employee's employment with Employer (pursuant to this
Agreement or otherwise) is terminated or otherwise ceases, or
(2) the end of all severance payments, if any, which Employer
is obligated to make to Employee under paragraph 5(c) of this
Agreement or any other subsequent written agreement between
them, regardless of the time, manner or reason for the
termination or other cessation of such employment. During such
periods, Employee will not, directly or indirectly,
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acting alone or as a member of a partnership or as an owner,
director, officer, employee, manager, representative or
consultant of any corporation or other business entity:
i. Engage in any business which manufactures, sells,
distributes, services or supports products or services of
a type manufactured, sold, marketed, serviced or
supported, or in any other business in competition with or
adverse to the business that is conducted by Employer, or
which Employer is in the process of developing and in or
of which Employee participated or has knowledge, at the
time of the cessation of Employee's employment with the
Employer, in the United States, Canada or any European,
Asian, Pacific Rim or other foreign country in which
Employer then or thereafter transacts business or is
making a bona fide attempt to do so;
ii. induce, request or attempt to influence any customer
or supplier of Employer to curtail or cancel their
business or prospective business with Employer or in
any way interfere with Employer's business
relationships; or
iii. induce, solicit or assist or facilitate the inducement or
solicitation by any third person of any employee, officer,
agent or representative of Employer to terminate his
respective relationship with Employer or in any way
interfere with the Employer's employee, officer, agent or
representative relationships.
b. TOLLING; RELIEF OF OBLIGATIONS. In the event that Employee
breaches any provision of this paragraph 6, such violation (i)
shall toll the running of the twelve (12) month period set
forth in paragraph 6(a) from the date of commencement of such
violation until such violation ceases, and (ii) shall relieve
Employer of any obligations to Employee under this Agreement.
c. "BLUE PENCILING" OR MODIFICATION. If either the length of
time, geographic area or scope of restricted business activity
set forth in paragraph 6(a) is deemed unreasonably restrictive
or unreasonable in any other respect in any proceeding before
a court of competent jurisdiction, Employee and Employer agree
and consent to such court's modifying or reducing such
restriction(s) with respect, but only with respect, to that
jurisdiction to the extent deemed reasonable under the
circumstances then presented.
7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
a. For purposes of this Agreement, "Confidential Information"
means all information or trade secrets of any type or
description belonging to Employer which are proprietary and
confidential to Employer and which are not publicly disclosed
or are only disclosed with restrictions. Without limiting the
generality of the foregoing, Confidential Information
includes: strategic and other plans for carrying on business;
cost data and other financial information; lists of customers,
employees, vendors and business partners and alliances;
manufacturing methods and processes; product research and
engineering data, drawings, designs and schematics; computer
programs, flow charts, routines, subroutines, translators,
compilers, operating systems and object and source codes;
specifications, inventions, know-how, calculations and
discoveries; any letters, papers, documents and instruments
disclosing or reflecting any of the foregoing; and all
information revealed to or acquired or created by Employee
during Employee's employment by Employer relating to any of
the foregoing or otherwise to Employer's past, current or
future business.
b. Employee acknowledges that the discharge of Employee's duties
under this Agreement will necessarily involve his access to
Confidential Information. Employee acknowledges that the
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unauthorized use by him or disclosure by him of such
Confidential Information to third parties might cause
irreparable damage to Employer and Employer's business.
Accordingly, Employee agrees that at all times after the date
hereof he will not, without the prior written consent of
Employer's Board of Directors, copy, publish, disclose,
divulge to or discuss with any third party, nor use for his
own benefit or that of others any Confidential Information,
except in the normal conduct of his duties under this
Agreement, it being understood and acknowledged by Employee
that all Confidential Information created, compiled or
obtained by Employee or Employer, or furnished to Employee by
any person while Employee is associated with Employer, is and
shall be and remain Employer's exclusive property.
c. Promptly upon termination of his employment, irrespective of
the time or manner thereof or reason therefor, Employee agrees
to return and surrender to Employer all Confidential
Information copies thereof in any form which is in any manner
in his control or possession, as well as all other Employer
property.
8. RIGHTS. Employee acknowledges and agrees that any procedure,
design feature, schematic, invention, improvement,
development, discovery, know-how, concept, idea or the like
(whether or not patentable, registrable under copyright or
trademark laws, or otherwise protectable under similar laws)
that Employee (whether individually or jointly with any other
person or persons) has since the inception of his employment
with Employer conceived of, suggested, made, invented,
developed or implemented, or may hereafter conceive of,
suggest, make, invent, develop or implement, during the course
of his service to Employer which relates in any way to the
business of Employer or to the general industry of which
Employer is a part, all physical embodiments and
manifestations thereof, and all patent rights, copyrights and
trademarks (and applications therefor) and similar protections
thereof (all of the foregoing referred to as "Work Product")
are and shall be the sole, exclusive and absolute property of
Employer. All Work Product shall be deemed to be works for
hire for the benefit of Employer, and to the extent that any
Work Product may not constitute a work for hire, Employee
hereby assigns to Employer all right, title and interest in,
to and under such Work Product, including, without limitation,
the right to obtain such patents, copyright registrations,
trademark registrations or similar protections as Employer may
desire to obtain. Employee will immediately disclose all Work
Product to Employer and agrees, at anytime, upon Employer's
request and without additional compensation, to execute any
documents and otherwise to cooperate with Employer (including,
without limitation, all lawful testimony and sworn statements
or other certifications as may be appropriate) respecting the
perfection of its right, title and interest in, to and under
such Work Product and in any litigation or administrative or
other proceeding or controversy in connection therewith, all
expenses incident thereto be borne by Employer.
9. INDUCEMENT; REMEDIES INADEQUATE.
a. The covenants made by Employee in favor of Employer under
paragraphs 6, 7 and 8 of this Agreement are being executed and
delivered by Employee in consideration of Employee's
employment with Employer and Employer's obligations hereunder
(including, without limitation, the Base Salary, the Bonus
Compensation and other benefits and payments provided for
herein). Employee further acknowledges that such covenants
were and have been conditions of his employment since the
inception of Employee's employment with Employer.
b. Employee has carefully considered, and has had adequate time
and opportunity to consult with his own counsel or other
advisors regarding the nature and extent of the restrictions
upon him, and the rights and remedies conferred upon Employer,
under paragraphs 6, 7 and 8 hereof, and hereby acknowledges
and agrees that such restrictions are reasonable in time,
territory and
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scope, are designed to eliminate competition which otherwise
would be unfair to Employer, do not stifle the inherent skill
and experience of Employee, would not operate as a bar to
Employee's sole means of support, are fully required to
protect the legitimate interests of Employer and do not confer
a benefit upon Employer disproportionate to the detriment to
Employee.
c. Employee acknowledges that the services to be rendered by him
to Employer as contemplated by this Agreement are special,
unique and of extraordinary character. Employee expressly
agrees and understand that the remedy at law for any breach by
him of paragraph 6, 7 or 8 of this Agreement will be
inadequate and that the damages flowing from such breach are
not readily susceptible to being measured in monetary terms.
Accordingly, upon adequate proof of Employee's violation of
any legally enforceable provision of paragraph 6, 7 or 8
hereof, Employer shall be entitled to immediate injunctive
relief, including, without limitation, a temporary order
restraining any threatened or further breach. In the event any
equitable proceedings are brought to enforce any provision of
paragraphs 6, 7 and 8 hereof, Employee agrees that he will not
raise in such proceedings any defense that Employer has an
adequate remedy at law, and Employee hereby waives any such
defense. Nothing in this Agreement shall be deemed to limit
Employer's remedies at law or in equity for any breach by
Employee of any of the provisions of paragraphs 6, 7 and 8
hereof which may be pursued or availed of by Employer. Without
limiting the generality of the immediately preceding sentence,
any covenant on Employee's part contained in paragraph 6, 7 or
8 hereof which may not be specifically enforceable shall
nevertheless, if breached, give rise to a cause of action for
monetary damages.
d. As used in paragraphs 6, 7 and 8 hereof and in this paragraph
9, the term "Employer" (other than with respect to the Board
of Directors) shall include, in addition to Employer, all
subsidiaries and other affiliates of Employer, whether so
related to Employer during Employee's employment with Employer
or at any time thereafter.
e. Subject only to such time limitations as may be expressly set
forth therein, the covenants and agreements made by Employee
in paragraphs 6, 7 and 8 hereof and this paragraph 9 shall
survive full payment by Employer to Employee of the amounts to
which Employee is entitled under this Agreement, the
expiration of the Employment Period and the expiration or
termination of this Agreement.
10. ASSIGNMENT OF EMPLOYEE'S RIGHTS. In no event shall Employer be
obligated to make any payment under this Agreement to any assignee
or creditor of Employee. Prior to the time provided for the making
of any payment under this Agreement, neither Employee nor his
legal representative shall have any right by way of anticipation
or otherwise to assign or otherwise dispose of any interest under
this Agreement.
11. RIGHT OF SET-OFF. Any payments to be made to Employee under this
Agreement shall be subject to offset by Employer for any claims
for damages, liabilities or expenses which it may have against
Employee.
12. EMPLOYER'S OBLIGATIONS UNFUNDED. Except as to any benefits that
may be required to be funded under any benefit plan of Employer
pursuant to law or under any other written agreement, the
obligations of Employer under this Agreement are not funded, and
Employer shall be not required to deposit in escrow or otherwise
set aside any moneys in advance of the due date for payment
thereof to Employee.
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13. NOTICES. Any notice to be given hereunder by Employer to
Employee shall be deemed to be given if delivered to Employee
in person, or if mailed to Employee, by certified mail,
postage prepaid, return receipt requested, at his address last
shown on the records of Employer, and any notice to be given
by Employee to Employer shall be deemed to be given if
delivered in person or by mail, postage prepaid, return
receipt requested to the President and Chief Executive Officer
of Employer at Employer's principle executive office, unless
Employee or Employer shall have duly notified the other
parties in writing of a change of address. If mailed, notice
shall be deemed to have been given when deposited in the mail
as set forth above.
14. AMENDMENTS. This Agreement shall not be modified or
discharged, in whole or in part, except by an agreement in
writing signed by the parties hereto.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to Employee's
employment by Employer from and after the Effective Date. The
parties are not relying on any other representation or
understanding with respect thereto, express or implied, oral
or written. This Agreement supersedes any prior employment
agreement, written or oral, between Employee and Employer.
16. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only and do not affect the meaning of
any terms or provisions hereof.
17. GENDER AND NUMBER. Whenever the context may permit, any
pronouns used herein shall include the corresponding
masculine, feminine and neuter forms, and the singular form of
any noun or pronoun, including any terms defined herein, shall
include the plural and vice versa.
18. BINDING EFFECT. The rights and obligations of Employer
hereunder shall inure to the benefit of, and shall be binding
upon, Employer and its respective successors and assigns, and
the rights and obligations of Employee hereunder shall inure
to the benefit of, and shall be binding upon, Employee and his
heirs, personal representatives and estate.
19. SEVERABLE PROVISIONS. The provisions of this Agreement are
severable, and if any one or more provisions may be determined
to be illegal or otherwise unenforceable in any jurisdiction,
in whole or in part, the remaining provisions and any
partially enforceable provision shall be binding and
enforceable to the extent enforceable in such jurisdiction.
20. GOVERNING LAW. This Agreement shall be interpreted, construed,
and enforced in all respects in accordance with the laws of
the State of Ohio.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Effective Date.
TELXON CORPORATION EMPLOYEE
By: /s/ Xxxxx X. Brick /s/ Xxxxxxx X. Xxxxxx
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Xxxxx X. Brick Xxxxxxx X. Xxxxxx
President & Chief Executive Officer Senior Vice President,
Global Professional Services
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