EXHIBIT 10.28
October 15, 2003
Xx. Xxxxx Xxxxxx
c/o Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Separation of Employment
Dear Xxxxx:
This letter sets forth terms and conditions, relative to the termination of your
employment with Symbol Technologies, Inc. ("Symbol" or "the Company"), effective
July 11, 2003.
You resigned your employment effective July 11, 2003. After you execute and
return this Agreement to the Company, the Company will provide you with
severance payments payable in installments coincident with the Company's normal
payroll cycles, for a six (6) month period, based on your final base salary,
less applicable taxes and other standard deductions. Such payments will be
deemed to have commenced retroactive to your termination date. In addition, on
or about the fourteenth (14th) day after you execute this Agreement and return
the same to Xxxxxx X. Xxxxxx, Esq., of Xxxxxxxx Xxxx, counsel for Symbol, the
Company will provide you with a lump sum payment of $50,000, less applicable
deductions. During the period of July 11, 2003 through January 11, 2004, should
you elect to continue your group health insurance under COBRA, coverage will be
provided for yourself and your eligible dependents at Symbol's expense. In the
event you are not covered by another group health plan at the end of this six
(6) month period, the Company will permit you to remain as a member of its group
health plans for the balance of the applicable COBRA period (i.e., up to an
additional twelve (12) months) at your own expense. You agree to notify the
Company's Human Resources Department in writing upon you and/or your eligible
dependents becoming covered under a new group health plan.
In exchange for the Company providing you with six (6) months' severance
payments, providing COBRA coverage, and for the lump sum payment referenced
above, you hereby waive all claims against the Company and unconditionally and
irrevocably release and discharge the Company from liability for any claims or
damages arising during or, in whole or in part, out of your employment
relationship with the Company that you have or may have against it, its current
or former officers, employees, agents and assigns up to the moment this
Agreement becomes fully executed, regardless of whether those claims are known
or unknown including, but not limited to, any claims for wages, severance,
bonuses or benefits, or any other claims whatsoever arising during or, in whole
or in part, out of your employment relationship with the Company, or violations
of any federal, state or local fair employment statute, executive order,
ordinance, law or regulation, including Title VII of the Civil Rights Act, the
Rehabilitation Act of 1973, the Americans With Disabilities Act, the Age
Discrimination in Employment Act, as amended by the Older Workers' Benefit
Protection Act, the New York State Human Rights Law, or any other potentially
applicable employment or labor law, or any other rule of law or common law
including, but not limited to those concerning possible torts, express or
implied contract, the implied covenant of good faith and fair dealing, public
policy, or other obligations. Other than with respect to any rights to which you
may be entitled under the
federal Age Discrimination in Employment Act, you also agree not to initiate any
administrative or legal action against the Company to assert such claims.
Moreover, to the extent any such action is brought by you or on your behalf by
any third party, you agree to waive all claims to monetary relief or damages of
any kind, including attorneys' fees and costs. You understand that the fact of
this agreement and/or the agreement to pay or the payment of the consideration
described herein does not constitute an admission by the Company that it has
violated any such law or legal obligation. Notwithstanding the above, this
Agreement will not affect your rights to COBRA benefits, vested stock options,
or benefits to which you are entitled under Symbol's Executive Retirement Plan
("SERP"). Moreover, an estimate of your SERP benefits, which you understand are
governed by the terms of the official SERP plan document, are attached hereto as
Exhibit A. You shall also be entitled to indemnification pursuant to the By-Laws
of the Company, and the laws of the state of Delaware.
Your outstanding stock options, that were vested at the time of your
termination, may be exercised commencing on the date Symbol files with the
Securities and Exchange Commission (SEC) its Annual Report on Form 10-K for the
year ended December 31, 2002, and any other periodic reports it is required to
file with the SEC (i.e. 2003 First and Second Quarter 10-Qs), and for a period
of ninety (90) days thereafter. Notice of this filing date will be provided to
you via U.S. mail. Please find included with this Agreement, a stock option
exercise form for use if you desire to give notice of exercise of options.
You agree that you will not disclose or cause to be disclosed in any way, any
confidential information or documents relating to your employment with the
Company, the operations of the Company, the terms of this Agreement, the facts
and circumstances underlying this Agreement or the fact that such Agreement
exists, except for the purpose of enforcing this Agreement, should that ever be
necessary. This provision should not be construed as preventing you from
discussing your employment with Symbol with any prospective employer. Further,
you agree to continue to abide by the terms of the Company's Non-Disclosure
Agreement, which you signed while an associate of the Company. You also agree
not to make any disparaging or derogatory remarks about the Company, or its
products or services. The Company also agrees not to make any disparaging or
derogatory remarks about you.
You further agree that you will cooperate fully with the Company in connection
with any existing or future internal or external investigations which the
Company is currently conducting, conducts in the future, or in which it is
currently or may become involved, and in any existing or future litigation
involving the Company, whether administrative, civil, or criminal in nature, in
which and to the extent the Company deems your cooperation necessary.
You acknowledge that you have had more than twenty-one (21) days to consider the
terms of this Agreement, and have discussed the same with your attorneys, Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx. You further agree that the changes we have made to this
Agreement do not restart the running of the twenty-one day period within which
you had to consider its terms. You also acknowledge that you were advised by
Symbol to discuss the terms of this Agreement with your attorneys prior to
signing this Agreement. You further acknowledge that you are entering into this
Agreement, freely, knowingly, and voluntarily, with a full understanding of its
terms and that you will have 7 days to revoke this Agreement after executing the
same by notifying the undersigned in writing during this seven-day period.
Except as set forth herein, this constitutes the entire agreement between us
regarding the subject matter hereof. This Agreement may not be changed or
altered, except by a writing signed by you and the Company. This Agreement is
entered into in the State of New York and
the laws of the State of New York will apply to any dispute concerning it. If
any clause of this Agreement should ever be determined to be unenforceable, it
is agreed that this will not affect the enforceability of any other clause or
the remainder of this Agreement.
/s/ XXXXXX XXXXXX
---------------------------------------------------------
Xxxxxx XxXxxx
Xx. Vice President, Human Resources
Symbol Technologies, Inc.
AGREED AND ACCEPTED:
XXXXX X. XXXXXX 10/21/03
By: ------------------------------------------------------- Date: ----------------------------
Please Print Name
/s/ X. X. XXXXXX
Signature: ------------------------------------------------------------
