Exhibit 10.13
SEPARATION, RELEASE AND EMPLOYMENT AGREEMENT
SEPARATION, RELEASE AND EMPLOYMENT AGREEMENT (the "Agreement") made as
of the 7th day of July, 2003 by and between SYMBOL TECHNOLOGIES, INC., a
Delaware corporation (the "Corporation"), and XXXXXX XXXXXX (the "Executive").
WITNESSETH:
WHEREAS, the Executive and the Corporation are parties to an Employment
Agreement, dated as of July 1, 2000 (the "Prior Employment Agreement") setting
forth the terms and conditions of the Executive's employment by the Corporation;
and
WHEREAS, the Executive and the Corporation desire that the Executive
continue to be employed by the Corporation in the manner and on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and of the mutual and
dependent agreements and covenants set forth, the parties hereto agree as
follows:
1. Prior Employment Agreement
The Executive and the Corporation agree that the Prior Employment
Agreement will terminate upon the execution of this Agreement and that this
Agreement supersedes the Prior Employment Agreement in all respects. Pursuant to
paragraph 12(a)(iii) of the Prior Employment Agreement, Executive hereby resigns
his position with the Corporation as a director, Chief Scientist and as
executive Chairman of the Board effective July 1, 2003, and hereby resigns
effective July 1, 2003 all other director, executive or other positions he
currently holds with the Corporation, and any affiliate or subsidiary of the
Corporation, and accepts the position of Chief Scientist Emeritus as set forth
below.
2. Employment
The Corporation hereby agrees to employ the Executive as set forth
below, reporting to the Chief Executive Officer, and the Executive hereby agrees
to render services to the Corporation and its subsidiaries, divisions and
affiliates for the period and on the terms and conditions set forth in this
Agreement. The Executive shall render such services as, from time-to-time, may
be required of the Executive by the Chief Executive Officer as set forth in
Section 4 of this Agreement.
3. Term
The Executive's employment under the Agreement shall be as follows
unless this Agreement is terminated earlier pursuant to the provisions of
Section 13 hereof; from the date of the execution of this Agreement, through and
including July 1, 2004, the Executive shall remain as a part-time employee of
the Corporation as its Chief Scientist Emeritus. The Executive shall be
compensated for his services pursuant to Section 5 of this Agreement.
4. Duties
(a) So long as the Executive's employment under this Agreement shall
continue, the Executive shall be available, upon reasonable notice, from time to
time to advise and consult with the senior executive officers of the Corporation
and to devote such business time, attention, and energies to the affairs of the
Corporation and its subsidiaries, divisions and affiliates as is sought by the
Corporation, use his best efforts to promote its and their best interests and
perform such duties relating solely to certain technology and related
intellectual property projects as may be assigned to him by the Chief Executive
Officer of the Corporation. Executive shall have no direct reports except for an
administrator. Executive shall vacate his current office as soon as is
reasonably practicable and be relocated to an office in the engineering
department of the Corporation. Such relocation shall occur no later than August
1, 2003, provided the Corporation makes such office available by that date.
(b) Executive agrees to cooperate with the Corporation in connection
with any threatened, actual or future litigation involving the Corporation,
whether administrative, civil or criminal in nature, in which and to the extent
his cooperation is deemed necessary by the Corporation in its reasonable
discretion. Subject to the then current travel policies of the Corporation, the
Corporation will reimburse Executive for his reasonable travel, meals, and
lodging expenses incurred in connection with this paragraph. Corporation also
agrees to make reasonable efforts to schedule any meetings with Executive for
this purpose as far in advance of such meetings as practicable. Executive
further agrees to cooperate fully with the Corporation and to testify truthfully
in connection with any existing or future investigations or litigations
involving the Corporation, which the Corporation is currently conducting,
conducts in the future, or in which it is currently or may become involved. This
obligation includes truthfully cooperating with any outside counsel or other
professionals employed by the Corporation for such purposes, and with all
regulatory authorities. For purposes of this paragraph, refusing to testify will
constitute a failure to cooperate and therefore a material breach of this
Agreement. After the expiration of this Agreement, the Corporation agrees as to
commercial and intellectual property matters only and apart from testimony on
such matters, that it will agree to pay Executive a reasonable consulting fee
for any substantial consultation on such matters should such consultation be
requested by the Corporation.
(c) Executive and the Corporation hereby agree to issue the press
release annexed hereto as Exhibit A.
5. Compensation; Options
(a) The Corporation hereby agrees to pay to the Executive, and the
Executive hereby agrees to accept, as his sole and entire compensation for all
services rendered under this Agreement, a salary at the rate of $1 from the date
hereof through and including July 1, 2004.
(b) The Executive will not be eligible to participate in the
Corporation's Executive Retirement Plan, and was not participating in this plan
immediately prior to the execution of this Agreement. The Executive shall not be
eligible to receive any bonus or any grant of stock options from the
Corporation. No stock options of the Corporation held by the Executive, or the
Xxxxxx Xxxxxx Irrevocable Family Trust (the "Trust"), shall vest after June 30,
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2003, and all options of the Executive and the Trust that were scheduled to vest
after June 30, 2003 are hereby cancelled. However, during the term of this
Agreement, Executive and the Trust may exercise any vested options owned by
either of them as is permitted under the applicable terms of those options and
relevant option plans.
(c) In addition to the foregoing, it is hereby agreed that during the
term of this Agreement, the Corporation shall provide and Executive shall be
entitled to receive employee life, disability and health benefits provided by
the Corporation no less favorable to the Executive than the benefits provided to
him by the Corporation as of the date of this Agreement relating to life and
disability and health insurance. In addition, the Executive shall continue to be
eligible to participate in the Corporation's 401(k) plan.
(d) Notwithstanding paragraph 5(c) above, the Corporation shall not
provide any payments with respect to split dollar life insurance policies
currently in effect with respect to the Executive. Pursuant to a certain
agreement, dated March 31, 1999, entered into between the Corporation and the
Xxxxxx Xxxxxx Irrevocable Family Trust No. 2 U/A/D 10/5/98, it is an obligation
of this Trust to reimburse the Corporation for all insurance premiums it paid in
connection with any policies owned by the Trust. However, if the Corporation's
interest in any such policy is purchased through a promissory note issued by the
Trust, then the Executive personally guarantees full payment of such debt. The
Corporation further acknowledges and agrees that its entitlement to the
repayment of premiums on all split-dollar agreements (less any amounts
previously paid by the Trust or the Executive under the "crawl-out" provisions
governing such split-dollar arrangements) shall be paid only out of either the
death proceeds under any and all of the policies or, if one or more policies are
terminated prior to the Executive's death (other than in connection with the
restructuring described in the following sentence), out of the cash value of the
policies, with any Aggregate Shortfall being forgiven by the Corporation.
Aggregate Shortfall shall mean the amount, if any, by which the total amount of
premiums to which the Corporation is entitled exceeds the total amount of (a)
all death proceeds from all such split dollar policies, plus (b) all returned
cash value of all such terminated policies, it being understood that the
Corporation is entitled to payment of all such premiums from any of (a) and (b)
above. The Corporation further agrees that it will not unreasonably withhold its
consent, if such consent is requested by the Executive or the Trust, to enable
the Executive and/or the Trust to restructure one or more of the split-dollar
policies, which restructuring may include reducing the face amount of one or
more policies and/or terminating one or more policies and transferring the cash
value of such policies to other policies, provided that the Corporation's
collateral position in the aggregate in all of the policies is not adversely
affected by such restructuring.
(e) All of the above payments and benefits made or provided by the
Corporation to Executive shall be subject to all deductions required by
applicable federal, state and local laws of the United States or any other
applicable jurisdiction.
6. Expenses
(a) During the term of this Agreement, subject to the then current
travel policies of the Corporation, the Corporation shall pay or reimburse the
Executive for all reasonable travel and other expenses incurred or paid by him
in connection with the performance
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of his employment duties under this Agreement, upon presentation to the
Corporation of expense statements or vouchers and such other supporting
documentation as it may, from time to time, reasonably require; provided however
that the maximum amount available for such expenses, as any time from time to
time, be fixed in advance by the Board of Directors of the Corporation. The
Corporation also shall continue the Executive's current car allowance during the
term of this Agreement.
(b) The Executive shall be entitled at all times to the benefit of the
maximum indemnification and advancement of expenses available from time to time
under any applicable agreements with the Corporation, the By-Laws of the
Corporation, the laws of the state of Delaware and any director's and officer's
liability insurance maintained by the Corporation.
7. Inventions
(a) The Executive agrees to and hereby does assign to the Corporation
or any subsidiary, affiliate or division of the Corporation designated by the
Corporation, all his right, title and interest throughout the World in and to
all ideas, methods, developments, products, inventions, processes, improvements,
modifications, techniques, designs and/or concepts relating directly or
indirectly to the business of the Corporation, its subsidiaries, affiliates or
divisions, whether patentable or unpatentable, which the Executive may conceive
and/or develop during a period of twenty-four (24) months following the
termination of his employment (whether pursuant to this Agreement or otherwise)
if such conception and/or development during such twenty-four (24) month period
is a direct result of the Executive's activities while employed by the
Corporation, whether or not conceived and/or developed at the request of the
Corporation or any subsidiary, affiliate or division (the "Inventions");
provided, however, that if the Corporation or such subsidiary, affiliate or
division determines that it will not use any such Invention or that it will
license or transfer any such Invention to an unaffiliated third party, then it
will negotiate in good faith with the Executive, if the Executive so requests,
with respect to a transfer or license of such Invention to the Executive.
(b) The Executive further agrees promptly to communicate and disclose
to the Corporation any and all such Inventions as well as any other knowledge or
information which he may possess or obtain relating to any such Inventions.
(c) In furtherance of the foregoing, the Executive agrees that at the
request of the Corporation, and at its expense, he will make or cooperate in the
making of applications for letters patent of the United States or elsewhere and
will execute such other agreements, documents or instruments which the
Corporation may reasonably consider necessary to transfer to and vest in the
Corporation or any subsidiary, affiliate or division, all right, title and
interest in such Inventions, and all applications for any letters patent issued
in respect of any of the foregoing. After the expiration of this Agreement, the
Corporation agrees that if the cooperation required by this paragraph 7(c) is
substantial, the Corporation shall pay Executive a reasonable consulting fee for
such cooperation.
(d) The Executive shall assist, upon request, in locating writings and
other physical evident of the making of the Inventions and provide unrecorded
information relating to them and give testimony in any proceeding in which any
of the Inventions or any application or
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patent directed thereto may be involved, provided that the Executive shall be
reimbursed for any out of pocket expenses incurred by him in connection
therewith, except that during such period of time as the Executive is no longer
employed by the Corporation, the Corporation shall not be obligated to
compensate the Executive at a higher rate for the giving of testimony than the
rate established by law for the compensation of witnesses in the court or
tribunal where the testimony is given or in the district where the testimony was
taken. The Corporation shall give the Executive reasonable notice should it
require such services, and, to the extent reasonably feasible, the Corporation
shall use its best efforts to request such assistance at times and places as
will least interfere with any other employment of the Executive.
(e) At the expense of the Corporation, the Executive shall assign to
the Corporation all his interest in copyrightable material which he produces,
composes, or writes, individually or in collaboration with others, which arises
out of work performed by him on behalf of the Corporation, and shall sign all
papers and do all other acts necessary to assist the Corporation to obtain
copyrights on such material in any and all jurisdictions.
8. Confidential Information
The Executive hereby acknowledges that, in the course of his employment
by the Corporation he has had and will have access to secret and confidential
information, which related to or affects all aspects of the business and affairs
of the Corporation and its subsidiaries, affiliates and divisions, and which are
not available to the general public ("Confidential Information"). Without
limiting the generality of the foregoing, Confidential Information shall include
information relating to inventions, developments, specifications, technical and
engineering data, information concerning the filing or pendency of patent
applications, business ideas, trade secrets, products under development,
production methods and processes, sources of supply, marketing plans, and the
names of customers or prospective customers or of persons who have or shall have
traded or dealt with the Corporation. Accordingly, the Executive agrees that he
will not, at any time, without the express written consent of the Corporation,
directly or indirectly, disclose or furnish, or negligently permit to be
disclosed or furnished, any Confidential Information to any person, firm,
corporation or other entity except in performance of his duties hereunder;
provided, however, that the Executive may, after giving the Corporation at least
five business days advance notice, disclose any Confidential Information without
the express written consent of the Corporation to the extent required by law or
applicable court order, or to the extent such Confidential Information has
already become publicly available other than in violation of this Agreement.
9. Confidential Materials
The Executive hereby acknowledges and agrees that any and all models,
prototypes, notes, memoranda, notebooks, drawings, records, plans, documents or
other material in physical form which contain or embody Confidential Information
and/or information relating to Inventions and/or information relating to the
business and affairs of the Corporation, its subsidiaries, affiliates and
divisions and/or the substance thereof, whether created or prepared by the
Executive or by others ("Confidential Materials"), which are in the Executive's
possession or under his control, are the sole property of the Corporation.
Accordingly, the Executive hereby agrees that, upon the termination of his
employment with the Corporation, whether pursuant to
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this Agreement or otherwise, or at the Corporation's earlier request, the
Executive shall return to the Corporation all Confidential Materials and all
copies thereof in his possession or under his control and shall not retain any
copies of Confidential Materials.
10. Non-Competition
(a) The Executive agrees that he shall not, so long as he shall be
employed by the Corporation in any capacity (whether pursuant to this Agreement
or otherwise), without the express written consent of the Corporation, directly
or indirectly, own, manage, operate, control or participate in the ownership,
management, operation or control or be employed by or connected in any manner
including as a consultant, with any business which is or may be in competition,
directly or indirectly with the business of the Corporation or any subsidiary,
affiliate or division of the Corporation.
(b) The Executive agrees that for a period of thirty-six (36) months,
commencing on the effective date of the termination of his employment, whether
such termination is pursuant to the terms of this Agreement or otherwise
(collectively the "Period"), he shall not, without the express written consent
of the Corporation directly or indirectly, own, manage, operate, control, or
participate in the ownership, management, operation or control, or be employed
by or connected in any manner including as a consultant, with any business, firm
or corporation which is engaged in any business activity competitive with the
business of the Corporation and its subsidiaries, affiliates and divisions as
such business is conducted during the period of his employment by the
Corporation (whether pursuant to this Agreement or otherwise and at the
termination thereof). Moreover, during the Period, Executive shall not directly
or indirectly solicit, divert or take away in whole or in part any clients or
prospects of the Corporation who were solicited or serviced directly or
indirectly by Executive or by anyone directly or indirectly under Executive's
supervision or with whom Executive had any business relationship within the two
(2) year period prior to the termination of Executive's Prior Employment
Agreement. Executive also agrees that during the Period Executive will not
directly or indirectly attempt to recruit or solicit or aid in the recruitment
or solicitation of any employee, independent contractor or consultant of the
Corporation for the purpose of working for Executive or any competitor of the
Corporation or any other entity.
(c) Anything to the contrary herein notwithstanding, the provisions of
this section shall not be deemed violated by the purchase and/or ownership by
the Executive of shares of any class of equity securities (or options, warrants
or rights to acquire such securities, or any securities convertible into such
securities) representing (together with any securities which would be acquired
upon the exercise of any such options, warrants or rights or upon the conversion
of any other convertible into such securities) 1% or less of the outstanding
shares of any such class of equity securities of any issuer whose securities are
listed on a national securities exchange or traded on NASDAQ, the National
Quotations Bureau Incorporated or any similar organization or (ii) securities
having a market value of less than $100,000; provided, however, that the
Executive shall not be otherwise connected with or active in the business of the
issuers described in this subsection 10(c).
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11. Remedy for Breach
The Executive hereby acknowledges that in the event of any breach or
threatened breach by him of any of the provisions of sections 7, 8, 9 or 10 of
this Agreement, the Corporation would have no adequate remedy at law and could
suffer substantial and irreparable damage. Accordingly, the Executive hereby
agrees that, in such event, the Corporation shall be entitled, without necessity
of proving damages, and notwithstanding any election by the Corporation to claim
damages, to obtain a temporary and/or permanent injunction to restrain any such
breach or threatened breach or to obtain specific performance of any of such
provisions, all without prejudice to any and all other remedies which the
Corporation may have at law or in equity.
12. Termination
This Agreement and the employment of the Executive by the Corporation
shall terminate upon the earliest of the dates specified below:
(a) the close of business on the date as of which the term of the
Executive's employment hereunder has terminated as provided in Section 3 hereto;
provided, however, that such term is not extended by any other agreement between
the Executive and the Corporation; or
(b) the close of business on the date of the death of the Executive; or
(c) the close of business on the effective date of the voluntary
termination by the Executive of his employment with the Corporation; or
(d) the close of business on the one hundred and eightieth (180th) day
following the date on which the Corporation shall have given written notice to
the Executive that the Board of Directors of the Corporation has resolved to
terminate his employment without cause; or
(e) the close of business on the twenty-first (21st) day following the
date on which the Corporation shall have given written notice to the Executive
terminating his employment for "Cause." "Cause" shall include without
limitation: (i) the intentional refusal by the Executive to perform such
services as may legally and reasonably be delegated or assigned to him,
consistent with his position, by the Chief Executive Officer of the Corporation,
or (ii) willful misconduct or gross negligence on his part in connection with
the performance of such duties, or (iii) a breach of this Agreement, or (iv) the
filing of any civil or criminal charges against the Executive by any
governmental agency, or Executive entering into any settlement with any
governmental agency, including without limitation any administrative settlement,
or (v) the discovery after the date of the Agreement of past willful misconduct
or gross negligence on the part of the Executive prior to the date of this
Agreement. A termination for "Cause" shall not be deemed to occur until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by an affirmative vote of not less than a majority of the entire membership of
the Board finding the existence of cause.
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13. No Conflicting Agreements
In order to induce the Corporation to enter into this Agreement and to
employ the Executive on the terms and conditions set forth herein, the Executive
hereby represents and warrants that he is not a party to or bound by any
agreement, arrangement or understanding, written or otherwise, which prohibits
or in any manner restricts his ability to enter into and fulfill his obligations
under this Agreement, to be employed by and serve as an executive of the
Corporation.
14. Release
In exchange for the consideration described in this Agreement,
including without limitation the consideration set forth in Section 5 of this
Agreement, and in exchange for payment by the Corporation of ten dollars
($10.00), receipt of which is hereby acknowledged, Executive hereby releases the
Corporation, and its subsidiaries, divisions, affiliates, successors, assigns,
representatives, and the current and former officers, directors, agents and
employees of each of them from any and all liability arising from any and all
acts including, but not limited to, those arising out of his employment
relationship with the Corporation, the Prior Employment Agreement or under any
contract, tort, federal, state, or local fair employment practices or civil
rights law including, but not limited to, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of
1967, the Older Worker Benefits Protection Act of 1990, the Civil Rights Act of
1866, the Americans With Disabilities Act of 1990, the Employee Retirement
Income Security Act of 1974, the New York State & New York City Human Rights
Laws, or any claim for physical or emotional distress or injuries, or any other
duty or obligation of any kind or description including costs, expenses and
attorneys' fees, except that this release shall not apply to: (1) the rights of
the Executive to receive all amounts to which he is or may be entitled to under
this Agreement; (2) the rights of the Executive as a stockholder of the
Corporation; (3) the right of the Executive to receive COBRA continuation of
coverage under applicable law; (4) claims for benefits under any health,
disability, retirement, life insurance or other employee benefit plan (within
the meaning of Section 3(3) of ERISA) of the Corporation or any of its
affiliates; and (5) claims for the reimbursement of unreimbursed reasonable
business expenses incurred prior to the date hereof.
This release shall apply to all known, unknown, unsuspected and
unanticipated claims, liens, injuries and damages including, but not limited to,
claims of employment discrimination, indemnity for discharge, or claims sounding
in tort or in contract, express or implied, as of the date of the execution of
this Agreement.
15. Covenant not to Xxx
Except for the purpose of seeking enforcement of the terms of this
Agreement, or with respect to any rights Executive may have under any employee
benefit plan in which he is a participant, Executive stipulates and agrees that
he will not file or institute or cause to have filed or instituted any civil
action, complaint, charge, or other proceedings of any nature or description
against the Corporation before any judicial, administrative, arbitral or other
forum based upon or arising out of any claims, whether asserted or unasserted,
that Executive may have against the Corporation as of the date of this
Agreement.
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16. No Admission
The Corporation expressly denies that it has violated any law, statute,
ordinance, contract, duty or obligation whatsoever, or that it committed any
tort or engaged in any wrongful conduct with respect to Executive. Executive
acknowledges that the consideration described in this Agreement is adequate and
sufficient consideration, and is in some part a benefit to which he would not
otherwise be entitled. The terms of this Agreement, the claims that have been or
could have been raised against the Corporation as of the date of this Agreement,
and the facts and circumstances underlying any such claim shall not be
admissible by Executive in any litigation or proceeding in any forum, except as
required by law, for any purpose other than to secure enforcement of the terms
and conditions of this Agreement.
17. Ownership of Records
It is understood and agreed that all files, papers, memoranda, letters,
handbooks and manuals, facsimile or other communications that were written,
authorized, signed, received or transmitted during or prior to Executive's
employment are and remain the property of the Corporation. Accordingly, such
records are not to be removed from the Corporation's offices, except in
furtherance of the Executive's duties under this Agreement. In addition, any
such records that Executive possesses, but which are not in the Corporation's
offices, are to be returned immediately upon the termination of this Agreement,
other than copies of any documents Executive may possess relating to his
compensation and benefits.
18. Conditional Obligations
Notwithstanding any other provision contained herein, the obligations
assumed by the Corporation under this Agreement shall be conditioned upon its
receipt of an executed duplicate original of this Agreement and complete
adherence to its terms by Executive.
19. Response to Subpoena
Executive agrees that, except if issued a subpoena therefore or as
otherwise required by law, he will not publish, publicize, or disseminate or
cause to be published, publicized or disseminated or permit to be published,
publicized or disseminated, directly or indirectly, and will keep entirely
confidential any information, data or documents (1) relating to his employment
with the corporation, and his resignation from his positions as executive
Chairman of the Board of Directors, Chief Scientist and as a director, (2) the
terms of this Agreement, except for the purpose of enforcing this Agreement,
should that ever become necessary, or as otherwise required by law, or to obtain
legal, accounting or tax advice. Executive agrees in this connection not to
grant any interviews with the press, news media or any other individuals or
entities regarding his employment with the Corporation or transition from
executive Chairman of the Board to part-time consultant. Executive may discuss
with third parties other than his spouse, attorneys, and tax advisors only the
fact that he was employed by the Corporation, his title, salary,
responsibilities and that he resigned his positions, and agrees not to provide
any other information regarding his employment with the Corporation. Executive
may disclose the terms of this Agreement only to his spouse, accountants,
attorneys or tax preparers. Executive agrees that, except if he is issued a
subpoena therefore, he will not publish,
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publicize or disseminate, or cause to be published, publicized or disseminated
or permit to be published, publicized or disseminated, directly or indirectly,
and will keep entirely confidential any information, data or documents relating
to the operations of the Corporation, including any trade secrets or other
proprietary information. The Corporation reserves the right to seek appropriate
damages, including attorneys' fees and injunctive relief, should Executive
violate this Agreement. Nothing herein shall limit the Executive from talking
about the technology of the Corporation in furtherance of the Executive's duties
as Chief Scientist or Chief Scientist Emeritus, provided that such disclosure is
consistent with then existing policies of the Corporation, or has been expressly
authorized by the Chief Executive Officer.
20. Waiver and Revocation
(a) Executive acknowledges that he has had up to twenty-one (21) days
from the date he received this Agreement to consider the terms of this Agreement
and further, acknowledges that he is fully aware of its contents and of its
legal effects. Executive is hereby advised by the Corporation to consult with an
attorney regarding this Agreement prior to executing the same.
(b) This Agreement has been executed freely, knowingly and voluntarily
by Executive without duress, coercion, or undue influence, with a full and free
understanding of its terms. This agreement is revocable by the Executive for
seven (7) days following its execution, after which time it shall become
effective and enforceable. Notice of revocation must be sent in writing to the
other party prior to the eighth day after this Agreement is signed by the party
seeking revocation. If Executive wishes to revoke his agreement, his written
notice of revocation must be postmarked within the seven (7) day revocation
period to the Corporation at the following address: Symbol Technologies, Inc.,
x/x Xxxxxxx Xxxxxxx, Xxx xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxx 00000.
21. Miscellaneous
(a) This Agreement shall become effective as set forth in Section 20(b)
and, from and after that time, shall extend to and be binding upon the
Executive, his personal representative or representatives and testate or
intestate distributees, and upon the Corporation, its successors and assigns;
and the term "Corporation", as used herein, shall include successors and
assigns.
(b) Nothing contained in this Agreement shall be deemed to involve the
creation by the Corporation of a trust for the benefit of, or the establishment
by the Corporation of any other form of fiduciary relationship with the
Executive, his beneficiaries or any of their respective legal representatives or
distributes. To the extent that any person shall acquire the right to receive
any payments from the Corporation hereunder, such right shall be no greater than
the right of any unsecured general creditor of the Corporation.
(c) Any notice required or permitted by this Agreement shall be given
by registered or certified mail, return receipt requested, addressed to the
Corporation at its then principal office or to the Executive at his residence
address, or to either party at such other
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address or addresses as it or he may from time to time specify for the purpose
in a notice similarly given to the other party.
(d) This Agreement shall be construed and enforced in accordance with
the laws of the State of New York, without regard to its conflicts of laws
principles. In this connection, Executive hereby consents to the exclusive
jurisdiction of the federal courts sitting in New York or the courts of the
State of New York to resolve any disputes arising out of interpretation or
administration of this Agreement.
(e) This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and there are no agreements,
representations or warranties not herein set forth. No modification or waiver of
this Agreement shall be valid unless in writing and signed by the Corporation
and the Executive. A waiver of the breach of any term or condition of this
Agreement shall not be deemed to constitute a waiver of any subsequent breach of
the same or any other term or condition. The failure of either party to insist
upon strict adherence to any term of this Agreement on any occasion shall not be
considered a waiver thereof or deprive either party of the right thereafter to
insist upon strict adherence to that term or any other term of the Agreement.
(f) If any provision of this Agreement shall be held invalid, such
invalidity shall not affect any other provision of this Agreement not held so
invalid, and all other such provisions shall remain in full force and effect to
the full extent consistent with the law.
(g) Nothing contained in this Agreement shall be deemed a waiver or
release by the Corporation of any actual or potential, accrued or unaccrued
claim or cause of motion against Executive, including without limitation any
claims or causes of action under Section 304 of the Sarbanes Oxley Act. All
rights of the Corporation against Executive are expressly reserved.
(h) In entering into this agreement, the parties represent that they
have each been represented by counsel of their choice in the negotiation and
drafting of this Agreement. Accordingly, this 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 and conditions of this
Agreement have been read and explained to them by their attorneys, and that
those terms are fully understood and voluntarily accepted by them.
(i) The section headings in this Agreement are for identification
purposes only, and shall not be considered in interpreting, construing or
determining the meaning of any section of this Agreement.
(j) The following sections shall survive the termination on expiration
of this Agreement: 4(b), 5(d), 6(b), 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18 and
21.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
SYMBOL TECHNOLOGIES, INC.
By: /s/ (illegible)
---------------------------
Its:
---------------------------
/s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx
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EXHIBIT A
SYMBOL TECHNOLOGIES ANNOUNCES RESIGNATION
OF CHAIRMAN XXXXXX
CEO XXXXXXX TO SERVE AS INTERIM BOARD CHAIRMAN;
XXXXXXX RESIGNS AS GENERAL COUNSEL
HOLTSVILLE, N.Y., July 7, 2003 - Symbol Technologies, Inc. (NYSE:SBL)
today announced that its board of directors has accepted the resignation of Xx.
Xxxxxx Xxxxxx as chairman of the board, a director of the corporation and chief
scientist, effective immediately.
Chief Executive Officer Xxxxxxx Xxxxxxx, who is vice chairman of the
board, has taken on the duties of chairman until the next annual meeting of
shareholders, scheduled for Oct. 20, 2003. A new chairman will be elected at the
board meeting following the annual meeting.
Through July 1, 2004, Xxxxxx, who co founded Symbol in 1975, will be a
part-time employee as chief scientist emeritus, reporting to Xxxxxxx and
focusing on technology and intellectual property matters. Xxxxxx is an inventor
named on approximately 150 of Symbol's patents, about 20 percent of the
Company's total portfolio, and his many product innovations have been recognized
as contributing to the growth of a global industry.
Symbol also announced the resignation of Xxxxxxx X. Xxxxxxx, executive
vice president, general counsel and secretary, effective as of June 30, 2003.
The Company may retain Xxxxxxx for a period following June 30 to provide legal
services related to the completion of certain outstanding intellectual property
and commercial litigation matters. Xxxxxx Xxxxxx, deputy general counsel and
vice president of law and business development, is serving as interim general
counsel. Symbol has initiated a search for a new general counsel.
Xxxxxx said, "It is clear that Improper finance and accounting
activities occurred at Symbol Technologies during my tenure. With the Company's
internal investigation now essentially complete, and corrective actions under
way, I have decided to step down. Over the next year, I will be available to
Symbol to conclude work aimed at securing its technology and intellectual
property foundations. I also plan to focus an increasing portion of my
professional energies on my long-standing interest in brain research through the
work of the Xxxxxx Foundation for computational Neuroscience. I have confidence
that Xxxx Xxxxxxx, along with Xxxx Xxxx and the new executive leadership team,
will carry Symbol forward. I am proud of Symbol's exceptional people whose hard
work over the years turned vision into business reality and created a company
whose technology and applications have benefited customers worldwide. I believe
the best years are still to come for Symbol."
Xxxxxxx said, "The Company is working diligently to resolve as soon as
possible those issues emerging from our internal investigation of past
accounting practices. The new executive leadership team is committed to ensuring
the utmost integrity in its financial reporting and the management of its
business. Symbol is fortunate to have a strong strategic position with a
world-class customer base, superb technology assets, solid balance sheet and
intelligent and
motivated staff at every level. We are moving beyond historical operational
issues and view the opportunities of today and tomorrow with confidence in our
prospects and abilities."
STATUS OF INVESTIGATIONS, RESTATEMENTS
As announced last month, Symbol expects to file the Company's 2002
Annual Report on form 10-K with the Securities and Exchange Commission in the
second half of July and to file both the first-quarter and second-quarter 2003
10-Qs filed by Aug. 14, 2003, at which time Symbol will be current with its
periodic SEC filings. While the Company believes that it can adhere to this
timetable, there is no guarantee that it can complete the filings as described.
The previously reported Investigations by the Securities and Exchange
Commission and the U.S. Attorney's office are continuing, and the Company's
Internal investigation, undertaken with the assistance of independent legal
counsel and independent auditing firms, is nearing completion. The Company has
shared appropriate documentation and discussed relevant issues with its
auditors, who are reviewing them in connection with the audit of 2002 results
and the restatement of previously issued financial statements.
The status of the investigations and the timing and estimated scope of
the restatement remain unchanged from the company's June 25, 2003, announcement
on those matters.
ABOUT SYMBOL TECHNOLOGIES
Symbol Technologies, Inc. delivers enterprise mobility solutions that
enable anywhere, anytime data and voice communication designed to increase
productivity, reduce costs and realize competitive advantage. Symbol systems and
services integrate rugged mobile computing, advanced data capture and wireless
networking for the world's leading retailers, transportation and logistics
companies and manufacturers as well as government agencies and providers of
healthcare, hospitality and security. More information is available at
xxx.xxxxxx.xxx.
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