EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), dated as of July 9, 1998,
is made by and between XXXXXXX X. FOLIARD (the "EMPLOYEE"), an individual
residing at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, ELTRON
INTERNATIONAL, INC., a California corporation (the "COMPANY"), and ZEBRA
TECHNOLOGIES CORPORATION, a Delaware corporation ("ZEBRA").
PREAMBLE:
A. The Company desires to retain Employee as a senior executive of
the Company and Employee desires to perform such duties.
B. Concurrently herewith, the Company, Zebra and SPRUCE ACQUISITION
CORP., a Delaware Corporation ("MERGER SUB") are entering into an Agreement
and Plan of Merger (as such agreement may hereafter be amended from time to
time, the "MERGER AGREEMENT"; capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Merger Agreement)
pursuant to which Merger Sub will be merged with and into the Company, with
the Company continuing as the surviving corporation and as a direct
wholly-owned subsidiary of Zebra (the "MERGER").
C. The effectiveness of this Agreement is expressly conditioned upon
consummation of the Merger and the transactions contemplated by the Merger
Agreement.
D. This Agreement, once effective, will supersede all previous
employment agreements by and between the Company and Employee (the "PRIOR
AGREEMENTS"), which Prior Agreements shall be null and void, having no
further force or effect, as of the Effective Time.
E. In consideration of the continuation of his employment with the
Company subsequent to the Merger, Employee has agreed to certain
nonsolicitation and noncompetition provisions contained in this Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Employee agree as follows:
SECTION 1. EMPLOYMENT, TERM AND DUTIES.
1.1 EMPLOYMENT. Upon the terms and subject to the conditions
contained herein, during the Employment Term (as defined in SECTION 1.2), the
Company hereby employs Employee as a senior executive officer of the Company.
Employee shall initially report directly
to the President of the Card Printer Unit of Zebra. Employee hereby accepts
such employment, and during the Employment Term shall devote his full
business time, skill, energy and attention to the business of the Company,
and shall perform his duties in a diligent trustworthy, loyal, businesslike
and efficient manner, all for the purpose of advancing the business of the
Company. The Company agrees that in the event that Employee's position is
eliminated by the Company and Employee is not offered any other comparable
position with the Company in the Los Angeles metropolitan area, Employee
shall have the right to terminate his employment and Employee shall be
entitled to receive all of the benefits set forth in Section 3.4 below.
1.2 EMPLOYMENT TERM. The Employment Term shall commence as of the
Effective Time on the Closing Date and, unless extended by mutual agreement
of the parties hereto or sooner terminated or canceled pursuant to SECTION 3
hereof, shall be for a period ending at 11:59 P.M., California time, on
December 31, 2000 (the "INITIAL TERM") and shall automatically renew at the
end of the Initial Term and on each anniversary thereafter, in each case, for
an additional one (1) year period. "EMPLOYMENT TERM" shall mean the Initial
Term and any extensions or renewals thereof.
1.3 DUTIES AND RESPONSIBILITIES. Employee shall serve the Company
initially as its Vice President - Sales and Marketing of the Card Printer
Unit of the Company and shall have the duties and responsibilities associated
therewith. Employee agrees to observe and comply with the policies,
procedures and rules of the Company regarding performance of his specific
duties and the duties of the Company employees in general, Employee
specifically covenants, warrants and represents to the Company that he has
the full, complete and entire right and authority to enter into this
Agreement that he has no agreement, duty, commitment or responsibility of any
kind or nature whatsoever with any other party, person or entity which would
conflict in any manner whatsoever with any of his obligations to the Company
under this Agreement, and that he is fully ready, willing and able to perform
each and all duties and responsibilities set forth in this Agreement.
SECTION 2. COMPENSATION.
2.1 BASE SALARY. Subject to annual adjustments as provided below, the
Company shall initially pay, and Employee shall be entitled to receive from
the Company, a base salary for full-time employment referred to in SECTION 1
hereof, compensation at the rate of $130,000 per year ("BASE SALARY"),
payable in equal bi-weekly installments. The Company shall make all
deductions, withholdings and/or payments that are required by law from the
gross sums payable pursuant to the provisions of this SECTION 2.
2.2 ADJUSTMENT. During the Employment Term, the Base Salary and
Incentive Bonus (as defined in SECTION 2.3) which Employee is entitled to
receive will be reviewed each December by the Compensation Committee of the
Board of Directors and shall be adjusted effective January 1 of each year.
The Base Salary and Incentive Bonus will be determined at the sole discretion
of the Compensation Committee, but in no event will the Base Salary be
decreased.
2.3 INCENTIVE BONUS. An incentive bonus may be awarded to Employee.
The incentive bonus shall be in an amount not to exceed seventy-five percent
(75%) of Employee's
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Base Salary for the fiscal year in respect of which a bonus is payable (the
"INCENTIVE BONUS"). The Incentive Bonus which Employee shall be entitled to
receive will be based on the audited financial statements of the Company, and
will be calculated based on the criteria determined by the Compensation
Committee of the Board of Directors described in APPENDIX I.
In the event that either the nature of the Company changes by virtue of
a merger, acquisition or similar event or if Employee is called upon to serve
in a substantially different role by the Company, the bonus criteria will be
reviewed and revised to reflect such terms as are mutually acceptable to both
Employee and the Compensation Committee of the Company's Board of Directors.
2.4 STOCK OPTION PLANS. Employee shall be eligible to participate in
the Company's Stock Option Plans. Notwithstanding any terms to the contrary
contained in any Stock Option Agreement all stock options received by
Employee from the Company shall immediately accelerate upon a Change in
Control (as defined in SECTION 3.5).
2.5 EXPENSES. The Company shall reimburse Employee for all ordinary
and necessary expenses incurred and paid by him in the course of the
performance of his duties pursuant to this Agreement and consistent with the
Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses, and subject to the Company's
requirements with respect to the manner of reporting such expenses. The
Company shall continue in effect (or substitute on a comparable basis) the
major medical, hospitalization, life, travel, accident and disability
insurance policies covering Employee and/or his eligible dependents.
2.6 BENEFIT PLANS AND OTHER FRINGE BENEFITS. Employee and his
dependents that are eligible will be permitted to participate in medical,
life insurance and disability plans now made available generally by the
Company to its employees or which may be made generally available in the
future, subject to, and on a basis consistent with the terms, conditions and
administration of each such plan.
It will not constitute a breach of this Agreement if the Company
unilaterally modifies, reduces or eliminates any of the benefits under any of
these plans if such modifications, reduction or elimination applies equally
to all similarly situated eligible participants in such plans.
2.7 ZEBRA STOCK OPTIONS. On the Closing Date, but in no event prior
to the Effective Time, Employee shall be granted an option to purchase 16,000
shares of Class A Common Stock of Zebra (the "COMMON STOCK") at an exercise
price per share equal to the closing price of the Common Stock on the Closing
Date as reported by the Nasdaq National Market ("NASDAQ"). In the event a
closing price is not reported by Nasdaq, the price per share shall be equal
to the closing price as reported by the Wall Street Journal. Such option
shall be granted in accordance with the Zebra 1997 Stock Option Plan attached
hereto as EXHIBIT C and upon the terms and conditions set forth in Zebra's
customary form of stock option certificate; provided, that such option shall
immediately become exercisable in the event that the Company terminates this
Agreement pursuant to Section 3.4 hereof.
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2.8 ELTRON STOCK OPTIONS. The parties acknowledge and agree that all
options to acquire common stock of the Company previously granted to Employee
shall become automatically fully vested at the strike price at the time of
such grant upon commencement of the Employment Term.
SECTION 3. TERMINATION.
3.1 TERMINATION OF EMPLOYMENT FOR CAUSE. The Company may at any time
during the term of this Agreement, by written notice, terminate the
employment of Employee For Cause (as defined below). In such event, Employee
shall be entitled to receive any unpaid amounts of Base Salary and Incentive
Bonus for services provided by Employee to the Company up to and including
the date of termination of the employment of Employee, but under no
circumstances whatsoever shall Employee be entitled to receive any other
compensation of any kind or nature whatsoever, including without limitation,
for any period of time after the date of the termination of the employment of
Employee. The following shall be deemed to constitute the types of acts or
conduct which shall constitute grounds for termination of Employee's
employment "FOR CAUSE" by written notice pursuant to this Agreement:
(a) The conviction (notwithstanding any possible or pending appeal) of
Employee of any felony; PROVIDED, HOWEVER, that prior to any conviction, but
while charged with a felony, the Company may, at its discretion, suspend
Employee with or without pay;
(b) Any material breach by Employee of any term, provision or covenant
contained in this Agreement and the failure of Employee to cure the same
within a reasonable period of time not to exceed sixty (60) days of receipt
of written notice of such failure (which notice must state specifically and
precisely what action or inaction by the Employee constitutes the breach and
what Employee must do or not do to correct the breach) and the demand that
the same be cured;
(c) The persistent and willful failure, neglect, inability or refusal
of Employee to perform in all material respects his duties and
responsibilities under this Agreement and the failure to cure the same within
fifteen (15) days of receipt of written notice (which notice must state
specifically and precisely what action or inaction by the Employee
constitutes the breach and what Employee must do or not do to correct the
breach) of such failure and the demand that the same be cured; or
(d) Any material breach by Employee of any of the Company's policies,
practices, rules and/or regulations and the failure to cure the same within
fifteen (15) days of receipt of written notice (which notice must state
specifically and precisely what action or inaction by the Employee
constitutes the breach and what Employee must do or not do to correct the
breach) of such failure and the demand that the same be cured.
3.2 DISABILITY. If during the Employment Term Employee becomes
disabled due to illness, injury or similar cause in such a manner that he is
unable fully to perform his duties pursuant to this Agreement, he shall be
entitled upon certification of such disability by a physician of the
Company's choice to a leave of absence from the Company for the duration of
such disability as certified by such physician up to but not exceeding the
expiration of a period
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of one (1) year or until the end of the current Employment Term of this
Agreement, whichever first occurs. Such period shall not to exceed one (1)
year and shall be integrated with any existing Company disability policy,
provided, however, in no event shall Employee receive disability income
coverage beyond the period of one (1) year except to the extent provided in
the Company's disability policy, if any. Employee's salary as provided in
this Agreement including the Base Salary and the incentive bonuses (if
earned), shall continue to be paid by the Company during any such leave of
absence not to exceed one (1) year provided, however, that if Employee
receives any payment or payments on account of such disability from any
employer-provided, governmental, employee-provided or other program or
programs of disability insurance attributable to the one (1) year leave of
absence, or when appropriate, such shorter time period the Company shall be
obligated to pay to Employee only the difference, if any, between the salary
provided to Employee by the Company pursuant to this Agreement for the
applicable period and the total amount of any disability insurance payments
payable to Employee through or by any such program or programs of disability
insurance attributable to the same applicable period. If Employee's absence
because of disability continues for more than one (1) year and the term of
this Agreement has not expired, the Company shall have the full and
unrestricted right, in its sole and exclusive discretion, immediately to
terminate Employee's employment by the Company.
3.3 DEATH OF EMPLOYEE. In the event of the death of Employee during
the term of this Agreement, this Agreement shall immediately terminate, and
Employee's estate shall be entitled to receive any unpaid amounts of Base
Salary and Incentive Bonus for services provided by Employee to the Company
up to and including the date of Employee's death and an additional payment
equal to the aggregate of Employee's base salary and Incentive Bonus during
his last full year of employment by the Company, but under no circumstances
whatsoever shall Employee's estate be entitled to receive any other
compensation of any kind or nature whatsoever for any period of time after
the date of Employee's death.
3.4 OPTION TO TERMINATE WITHOUT CAUSE. If the Company terminates
Employee's employment for any reason other than For Cause, Employee shall be
entitled to receive all of the following severance benefits, which shall
satisfy all of the Company's liabilities to Employee for any claims related
to such termination:
(a) A continuation of his Base Salary in effect immediately prior to
such termination for a period of one (1) year from the date of termination
("CONTINUED BASE SALARY"); and
(b) During any such period that he is receiving Continued Base Salary,
Employee shall also receive medical coverage for himself and his dependents
and life insurance for himself, all at a level equivalent (or as nearly
equivalent as practicable) to the benefits he was receiving immediately prior
to his termination. Employee agrees to cooperate with the Company to
facilitate its provision of such benefits to Employee at the lowest
reasonable cost. No vacation benefits shall accrue during any such period.
In any such case, any Continued Base Salary payments shall be made in
accordance with the Company's then existing payroll policies. During any
period that Employee is receiving Continued Base Salary, Employee agrees to
advise and consult with the Company's officers and directors with respect to
the Company's affairs if reasonably requested to do so.
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3.5 OPTION TO TERMINATE UPON CHANGE IN CONTROL. Upon a Change in
Control (as defined below), Employee shall have the option for a period of up
to one (1) year from the date of any Change in Control, to terminate his
employment and shall be entitled to receive a lump-sum severance payment
equal to one time his then existing annual Base Salary subject to normal
withholding requirements (the "SEVERANCE PAYMENT"). Employee shall notify
the Company in writing 60 days prior to his decision to terminate based upon
said Change in Control. Following such notice and on or before Employee's
last day of employment, the Company shall pay Employee the Severance Payment.
For purposes of this Agreement a "CHANGE IN CONTROL" means the
occurrence of any of the following events:
(i) Any "person" or group (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company or Zebra representing 50% or more of
the total voting power represented by the Company's or Zebra's then
outstanding voting securities, as the case may be; or
(ii) A change in the composition of the Board of Directors of Zebra
occurring within any two-year period, as a result of which fewer than a
majority of the directors are Incumbent Directors. "INCUMBENT DIRECTORS"
shall mean directors who either (A) are directors of Zebra as of the date
hereof; or (B) are elected, or nominated for election, to the Board of
Directors of Zebra with the affirmative votes of at least a majority of the
current directors who were directors at the beginning of such two year period
(but shall not include an individual whose election or nomination is proposed
in connection with an actual or threatened proxy contest relating to the
election of directors for Zebra); or
(iii) The stockholders of Zebra approve any transaction which would be a
reorganization under Delaware law and results in the voting securities of
Zebra outstanding immediately prior to the consummation of the transaction
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) less than fifty
percent (50%) of the total voting power represented by the voting securities
of the surviving entity outstanding immediately after such merger or
consolidation; or
(iv) The stockholders of Zebra approve a plan of complete liquidation
of Zebra or an agreement for the sale or disposition by Zebra of all or
substantially all of Zebra's assets.
Notwithstanding the paragraph above, the following events shall not
constitute a Change in Control: (i) any acquisition of beneficial ownership
pursuant to a will or the laws of descent and distribution; (ii) any
acquisition of beneficial ownership by operation of a trust established prior
to such reorganization and merger, created and utilized for estate planning
purposes and which was the record holder of 5% or more of the voting; (iii)
any acquisition of beneficial ownership pursuant to (A) a reclassification,
however effected, of Zebra's authorized stock, or (B) a corporate
reorganization involving Zebra or any of its subsidiaries which does not
result in a material change in the ultimate ownership by the shareholders or
Zebra (through their ownership of Zebra or to the successor to Zebra
resulting from the reorganization) of the assets of Zebra and its
subsidiaries, if such reclassification or reorganization is approved by the
Board
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of Directors of Zebra; or (iv) the Merger or any transaction contemplated by
the Merger Agreement.
3.6 OPTION OF EMPLOYEE TO TERMINATE EMPLOYMENT. If Employee
terminates his employment with the Company (other than in connection with a
Change in Control or pursuant to Section 1.1 above), or his employment is
terminated by the Company For Cause, the Company's obligation to provide
Employee with compensation or employment benefits shall cease upon the
effective date of such termination and Employee shall not be entitled to
receive any severance payments, or any other payments or reimbursements, in
connection with such termination.
3.7 DUTIES OF EMPLOYEE AFTER TERMINATION OF EMPLOYMENT. Following any
termination of Employee's employment with the Company for any reason under
SECTION 3, Employee shall fully cooperate with the Company in all matters
relating to the winding up of his pending work on behalf of the Company and
the orderly transfer of any such pending work and of his duties and
responsibilities for the Company to such other employees of the Company as
may be designated by the Company. The Company shall be entitled to such
full-time or part-time services of Employee as the Company may reasonably
require during all or any part of the thirty (30) day period immediately
following any termination of Employee's employment by the Company, excluding
Saturdays, Sundays and federal holidays. In addition, to any other severance
benefits, Employee shall receive reasonable compensation for any such
services so rendered. Immediately upon any termination of Employee's
employment with the Company, Employee shall return to the Company any and all
property of the Company of any kind or nature whatsoever in Employee's
possession, custody or control.
SECTION 4. FULL-TIME EMPLOYMENT; CONFIDENTIALITY; INDEMNIFICATION.
4.1 FULL-TIME EMPLOYMENT. Employee will devote his full time,
energies and attention to perform all of his duties to the Company under this
Agreement. In addition, Employee will not engage in any business, civic or
other activities that would interfere with the performance of his duties
hereunder. Employee further agrees that he will not perform services,
whether or not for compensation, for any person or entity which competes
directly or indirectly with the Company.
4.2 CONFIDENTIALITY. Except as may be required in the ordinary course
of performing his duties hereunder. Employee at no time, whether during or
after the termination of his employment (other than to promote and advance
the business of the Company), will reveal to any person or entity any trade
secrets proprietary or confidential business information concerning the
Company, including but not limited to, its production processes, inventions,
formulae, research results and activities, marketing plans and strategies,
pricing policies, customer lists and accounts, business or financial
information of the Company which have come to the Employee's knowledge in the
course and result of his employment with the Company. These restrictions
will not apply to (a) information that is in the public domain through no
breach by Employee of this Agreement, (b) information that is required to be
disclosed by law or an order of a court, agency or proceeding, or (c) in the
event Employee is authorized in writing to disclose such information by the
Board of Directors of the Company.
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4.3 RETURN OF ALL COMPANY PROPERTY AND DOCUMENTS. Upon the
termination of employment, Employee will immediately return to the Company
all property of the Company including, without limitation, all keys, credit
cards, documents and information, however maintained (including computer
files, tapes, and recordings), concerning the Company and acquired by
Employee in the course and scope of his employment (excluding only those
documents totaling to Employee's own salary and benefits).
4.4 COMPANY'S RIGHT TO EQUITABLE RELIEF. Employee acknowledges that
the provisions of SECTIONS 4.2, 5.1 and 5.2 are reasonable and necessary to
protect the legitimate interests of the Company. If Employee commits a
breach, or threatens to commit a breach, of SECTIONS 4.2, 5.1, 5.2 or any
other term of this Agreement it is understood and agreed that such conduct
would result in immediate and irreparable harm to the Company and would cause
damage to the Company which cannot reasonably or adequately be compensated by
monetary damages. The Company will be entitled to the remedies of injunction
and specific performance by any court having competent equity jurisdiction,
and nothing in SECTION 8 herein shall apply or be interpreted to prohibit the
Company from seeking such equitable remedies.
4.5 INDEMNIFICATION. The Company agrees to indemnify and hold
harmless Employee from and against all claims, suits, damages, losses, costs
and expenses incurred or suffered by Employee by reason of any acts or
omissions arising out of Employee's services to or activities on behalf of
the Company or its subsidiaries to the full extent permitted by the
California General Corporation Law. Employee will also be covered by Zebra's
directors and officers liability insurance policy.
SECTION 5. NON-SOLICITATION AND NON-COMPETITION.
5.1 NON-SOLICITATION. During the Employment Term and for a period of
three (3) years thereafter, Employee agrees that he shall not solicit any
customers of the Company, or recruit or cause any other person to recruit any
employee of or consultant to the Company, to stop working for, contracting
with, or otherwise alter their relationship with the Company or to work for
or contract with any business or businesses competitive with the Company.
5.2 NON-COMPETITION. For a period of one (1) year after termination
of employment under this Agreement, Employee shall not (a) compete with the
Company or any affiliate or subsidiary of the Company, in the Territory (as
defined below), in the conduct of its business as a manufacturer and/or
seller of bar code printers and plastic card printers, or (b) engage or
participate, directly or indirectly, whether for his own account or for that
of any other person, firm or corporation, and whether as a stockholder
(except as a stockholder in a publicly held corporation of which Employee
owns less than 1% of the outstanding securities of any class), principal,
agent proprietor, partner, officer, director, employee or consultant, or in
any other capacity. "TERRITORY" shall mean each of the cities, counties or
other jurisdictions set forth on EXHIBIT D attached hereto, and any other
domestic or foreign jurisdiction in which the Company or any affiliate or
subsidiary of the Company, as of the date of the Agreement, has conducted any
part of its business, whether design, development, engineering,
manufacturing, sale, distribution or servicing of its products or other
marketing operations, in any business or businesses substantially similar to
the business as conducted by the Company as of the date of
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this Agreement or as may thereafter be conducted by the Company at any time
during the Employment Term.
SECTION 6. INVENTIONS.
6.1 INVENTIONS RETAINED AND LICENSED. Employee has attached as
EXHIBIT A hereto a list describing all inventions, original works of
authorship, developments, improvements, and trade secrets which were made by
Employee prior to his employment with the Company (collectively referred to
as "PRIOR INVENTIONS"), which belong to Employee, which relate to the
Company's proposed business, products or research and development and which
are not assigned to the Company hereunder, or, if no such list is attached,
Employee represents that there are no such Prior Inventions. If in the
course of Employee's employment with the Company, Employee incorporates into
an the Company product, process or machine any Prior Inventions owned by
Employee or in which Employee has an interest the Company is hereby granted
and shall have a nonexclusive, royalty-free, irrevocable, perpetual,
worldwide license to make, have made, modify, use and sell such Prior
Inventions as part of or in connection with such product process or machine.
6.2 ASSIGNMENT OF INVENTIONS. Employee agrees that he will promptly
make full written disclosure to the Company, will hold in trust for the sole
right and benefit of the Company, and hereby assigns to the Company, or its
designee, all of Employee's right title, and interest in and to any and all
inventions, original works of authorship, developments, concepts,
improvements or trade secrets, whether or not patentable or registrable under
copyright or similar laws, which Employee may solely or jointly conceive or
develop or reduce to practice, or cause to be conceived or developed or
reduced to practice, during the period of time Employee is in the employ of
the Company (collectively referred to as "INVENTIONS"), except as provided in
SECTION 6.5 below. Employee further acknowledges that all original works of
authorship which are made by Employee (solely or jointly with others) within
the scope of and during the period of his employment with the Company and
which are protectable by copyright are "works made for hire," as that term is
defined in the United States Copyright Act.
6.3 MAINTENANCE OF RECORDS. Employee agrees to keep and maintain
adequate and current written records of all Inventions made by Employee
(solely or jointly with others) during the term of Employee's employment with
the Company. The records will be in the form of notes, sketches, drawings,
and any other format that may be specified by the Company. The records will
be available to and remain the sole property of the Company at all times.
6.4 PATENT AND COPYRIGHT REGISTRATIONS. Employee agrees to assist the
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the inventions and any copyright patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all permanent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the
Company shall deem necessary in order to apply for and obtain such rights and
in order to assign and convey to the Company, its successors, assigns, and
nominees the sole and exclusive rights, title and interest in and to such
inventions, and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto. Employee further agrees that
his obligation to execute or cause
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to be executed, when it is in Employee's power to do so, any such instrument
or papers shall continue after the termination of this Agreement. If the
Company is unable because of Employee's mental or physical incapacity or for
any other reason to secure Employee's signature to apply for or to pursue any
application for any United States or foreign patents or copyright
registrations covering inventions or original works of authorship assigned to
the Company as above, then Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as
Employee's agent and attorney-in-fact, to act for and in Employee's behalf
and stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters or
patent or copyright registrations thereon with the same legal force and
effect as if executed by Employee.
6.5 EXECUTION TO ASSIGNMENTS. Employee understands that the
provisions of this Agreement requiring assignment of inventions to the
Company do not apply to any invention which qualifies fully under the
provisions of California Labor Code Section 2870 (attached as EXHIBIT B).
Employee will advise the Company promptly in writing of any inventions that
Employee believes meet the criteria in California Labor Code Section 2870 and
which are not otherwise disclosed on EXHIBIT A.
SECTION 7. NO MITIGATION OR SET OFF. Employee's right to receive benefits
under this Agreement shall not be reduced by reason of Employee's employment
with any other employer after termination or resignation of employment with
the Company. Any compensation for services rendered or consulting fees
earned after the date of termination or resignation shall not diminish
Employee's right to receive all amounts due hereunder. The right of Employee
to receive benefits under this Agreement shall be absolute and shall not be
subject to any set-off, counterclaim, recoupment, defense, duty to mitigate
or other right the Company may have against him or anyone else.
SECTION 8. ARBITRATION. Any controversy, dispute or claim arising out of,
or relating to or concerning the employment and compensation of Employee or
the termination of Employee's employment or a claimed violation of any
provision of any local, state or Federal law will be settled by arbitration
in Ventura County, California, in accordance with the Rules of the American
Arbitration Association (the "AAA") then existing. Should the AAA publish
rules designed to accomplish the arbitration of employment disputes between
employees not represented by a union and their employers, then those rules
will be utilized. This agreement to arbitrate will be specifically
enforceable. Judgment upon any award rendered by an arbitrator may be
entered in any court having jurisdiction. If the rules of the AAA differ from
those of this Section, the provisions of this Agreement will control.
(a) PROCEDURE FOR ARBITRATION. Subject to the above, any demand
for arbitration may be filed with the AAA and served upon the other party at
any time within the period covered by the applicable statute of limitations.
(b) CONDUCT OF ARBITRATION PROCEEDINGS. The cost of the
arbitrator will be shared equally by the parties. If there is any issue
whatsoever concerning confidentiality or trade secrets, no recording or
transcription of the arbitration will take place.
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(c) POWERS OF THE ARBITRATOR. The arbitrator will have no
authority to extend, modify or suspend any of the terms of this Agreement.
The arbitrator will make his award in writing and shall accompany it with
opinion discussing the evidence and setting forth the reasons for his award.
The arbitrator shall have the power to make all factual determinations and
rule on all issues of law. ANY AWARD RENDERED BY THE ARBITRATOR SHALL BE
FINAL AND BINDING UPON EACH PARTY TO THE ARBITRATION AND UNREVIEWABLE FOR
ERROR OF LAW OR FOR LEGAL REASONING OF ANY KIND AND ANY SUCH AWARD MAY BE
CONFIRMED AND A JUDGMENT ON SUCH AWARD MAY BE ENTERED IN ANY COURT OF
COMPETENT JURISDICTION.
(d) WAIVER OF RIGHT TO TRIAL BY JURY OR COURT. THE COMPANY AND
EMPLOYEE EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OR A TRIAL
BEFORE A STATE OR FEDERAL COURT JUDGE OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT BY ONE PARTY AGAINST ANY
OTHER PARTY OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY AND THE EMPLOYEE EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE ARBITRATED AS PROVIDED IN THIS SECTION 8.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY OR A TRIAL BEFORE A STATE OR FEDERAL
COURT JUDGE IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION
HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
SECTION 9. MISCELLANEOUS.
9.1 NOTICE. Any notice or other communications required or permitted
to be given to the parties hereto shall be deemed to have been given when
received addressed as follows (or at such other address as the party
addressed may have substituted by notice pursuant to this Section):
(a) If to the Company:
Eltron International, Inc.
00 Xxxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to Employee:
To the address specified in the first paragraph hereof.
-11-
9.2 HEADING. The captions set forth in this Agreement are for
convenience of reference only and shall not be considered as part of this
Agreement or as in any way limiting or amplifying the terms and provisions
hereof.
9.3 GOVERNING LAW. The Agreement, shall in all respect, be
interpreted, construed and governed by and in accordance with the law of the
State of California.
9.4 SEVERABILITY. If any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein and there shall be deemed substituted such other
provision as will most nearly accomplish the intent of the parties to the
extent permitted by applicable law.
9.5 WHOLE AGREEMENT. This Agreement embodies all the representations,
warranties, covenants and agreements of the parties in relation to the
subject matter hereof, and no representations, warranties, covenants,
understandings or agreements or otherwise, in relation thereto exist between
the parties, or in an instrument in writing signed by the party to be bound
thereby which makes reference to this Agreement.
9.6 NO RIGHTS IN THIRD PARTIES. Nothing herein expressed or implied
is intended to or shall be construed to confer upon or give to any person,
firm or other entity, other than the parties hereto and their respective
successors and assigns or personal representatives, any rights or remedies
under or by reason of this Agreement.
9.7 ASSIGNMENT. The Company may assign its rights and delegate its
responsibilities under this Agreement to any successor corporation or to any
corporation which acquires all or substantially all of the operating assets
of the Company by merger, consolidation, dissolution, liquidation,
combination, sale or transfer or assets or otherwise. Employee may not
assign any rights or obligations under this Agreement.
9.8 AMENDMENT. The Agreement may not be amended orally but only by an
instrument in writing duly executed by the parties hereto.
9.9 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same Agreement.
9.10 SURVIVAL OF OBLIGATIONS. Notwithstanding anything to the contrary
set forth in this Agreement, the obligations set forth in SECTIONS 4, 5, 6
AND 8 shall survive any termination of this Agreement.
-12-
IN WITNESS WHEREOF, the Company and Employee have caused this Agreement
to be duly executed and delivered as of the date first written above.
"EMPLOYEE": "COMPANY":
ELTRON INTERNATIONAL, INC.
By:
------------------------------ ----------------------------------
XXXXXXX X. FOLIARD Name:
--------------------------------
Title:
-------------------------------
"ZEBRA"
ZEBRA TECHNOLOGIES CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
-13-
APPENDIX I
TO
EMPLOYMENT AGREEMENT
During the Employment Term, the additional compensation Employee is entitled
to receive will be reviewed each December by the Compensation Committee of
the Board of Directors and fixed effective January 1 of the coming year.
The following defines the criteria to be used for allocating the 1998 bonus
program to Employee:
MOST IMPORTANT TASKS: (MIT) Employee shall be entitled to receive a maximum
quarterly bonus equal to 75% of his quarterly salary. MIT's will be
created by Employee and approved by the Compensation Committee of the Board
of Directors, prior to the beginning of each quarter. Each task will be
assigned a numerical weighing for bonus allotment. At the end of each
quarter, MIT's will be reviewed by Employee and the Compensation Committee
of the Board of Directors to assess task completion and to compute the
amount of bonus to be awarded for the prior quarter.
The following defines the criteria to be used for allocating the 1999 and 2000
bonus program to Employee:
MOST IMPORTANT TASKS: (MIT) Employee shall be entitled to receive a maximum
quarterly bonus equal to 75% of his quarterly salary. MIT's will be
created by Employee and approved by the Chairman and Chief Executive
Officer of Zebra, prior to the beginning of each quarter. Each task will
be assigned a numerical weighing for bonus allotment. At the end of each
quarter, MIT's will be reviewed by Employee and the Chairman and Chief
Executive Officer of Zebra to assess task completion and to compute the
amount of bonus to be awarded for the prior quarter.
EXHIBIT A
TO
EMPLOYMENT AGREEMENT
The following is a list describing all inventions, original works of
authorship, developments, improvements, and trade secrets of Employee:
------ No Inventions, improvements, etc. listed.
------ Addition Sheets Attached
---------------------------
Employee
EXHIBIT B
TO
EMPLOYMENT AGREEMENT
California Labor Code Section 2870:
Section 2870. Employment agreements; assignment of rights.
(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the
employer's equipment, supplies, facilities, or trade secret information
except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer, or
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
EXHIBIT C
TO
EMPLOYMENT AGREEMENT
ZEBRA 1997 Stock Option Plan
EXHIBIT D
TO
EMPLOYMENT AGREEMENT
List of Jurisdictions
Los Angeles, Los Angeles County, California
Simi Valley, Ventura County, California
Greenville, Outagamie County, Wisconsin
Camarillo, Ventura County, California
OFFICES:
Coral Gables, Florida
Marietta, Georgia
Xxxxxxxx Park, New Jersey
Schaumburg, Illinois
Cheshire, Connecticut
Malvern, Pennsylvania
Bloomington, Minnesota
