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EXHIBIT 10.1.20
[TELXON LOGO]
August 30, 1999
Mr. X. Xxxx Xxxxxxx
c/o X.X. Xxxxxxx, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxxxxx 0
Xxxxxxxx, Xxxxxxx 00000
Re: Agreement for MRP - II Consulting Services
Dear Xxxx:
This letter (this "Agreement") sets forth the terms under which Telxon
Corporation ("Telxon" or the "Company") has retained you ("you" or "Consultant")
as an independent contractor to render consulting services to Telxon consisting
of guidance to management in planning for, the training of Telxon employees for,
and participation in and oversight of, the implementation of the MRP - II
business process at Telxon (the "Project"). We appreciate your willingness, in
recognition of the importance and timeliness of MRP - II to the organization, to
begin working with the Company on the Project commencing with the initial
planning meetings held on May 25-26, 1999 and have continued to do so with all
due diligence while we negotiated the nature and terms of the compensation you
are to receive for the Project. I am pleased to confirm by this letter agreement
(the "Agreement") that management's engagement of you for the Project was
ratified, and your compensation as agreed between you and management during our
teleconference of August 23, 1999 and set forth in this letter was authorized
and approved, by our Board of Directors at their meeting today. The terms and
conditions of this Agreement shall apply to and govern all the work you have
already performed on the Project and will provide through the completion of the
initial implementation of the Project, in which implementation we expect and you
agree to provide your services through June 1, 2000.
We understand that the MRP - II implementation process, while a dynamic
one, can be divided into two phases. Initially, your involvement in the
implementation will be planning and training intensive, and following your
conduct of an initial series of training classes for necessary key employees,
will culminate in a full SOP meeting, presently planned for mid-September 1999
("Phase I"). Following the initial full SOP meeting, we expect that, though
additional training classes may be required, your role for the balance of
TELXON CORPORATION/0000 Xxxx Xxxxxx Xxxxxx/P.O. Box 5582/Akron, Ohio 44334-0582
000.000.0000/000.000.0000/Fax 000.000.0000/xxx.xxxxxx.xxx
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X. Xxxx Xxxxxxx
August 30, 1999
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the Project through June 1, 2000 will be primarily one of guidance,
troubleshooting and oversight ("Phase II"). Each of Phases I and II represent
approximately one-half of your services to be rendered under this Agreement.
In consideration of and as the fee for the consulting services you
provide to Telxon with respect to the Project, Consultant shall, as provided in
and subject to the terms of, this Agreement, receive 20,197 shares of Telxon
Common Stock (the "Shares"), representing the number of shares which we agreed
on August 23, 1999, subject to Telxon Board approval, would cover the agreed
$154,000 dollar value of your Project services based on the average closing
price per share of Common Stock on The Nasdaq National Market Tier of The Nasdaq
Stock Market for the ten trading days prior to that date. As part of your
consulting fee in connection with the issuance of the Shares to you, Xxxxxx
agrees to pay on your behalf the $201.97 aggregate par value for the Shares to
fulfill applicable corporate law requirements. In addition to the foregoing
consulting fee, Telxon shall pay or reimburse Consultant for your reasonable
travel expenses incurred in connection with providing Project services at
Company locations and such other significant out-of-pocket expenses as it may
specifically approve in advance and in writing. Consultant shall otherwise be
responsible for all out-of-pocket expenses incidental to the performance of the
consulting services. While Consultant shall personally perform all material
Project services, you may, subject to the confidentiality and other requirements
of this Agreement, utilize the assistance of such other persons as you may
reasonably deem appropriate ("Assistants") and shall be solely responsible for
the conduct, performance, remuneration (including, but not limited to, any
related taxes or unemployment or workers compensation insurance or similar
amounts) and expenses (other than travel and other out-of-pocket expenses
incidental to the performance of Project services, which shall be reimbursed by
Telxon on the same terms as those of Consultant himself as provided above) of
any such persons.
The Shares will be issued to you subject to forfeiture in the event
that you do not perform the services required of you with respect to the Project
in accordance with the terms of this Agreement. Such risk of forfeiture shall
apply to the Shares from their issuance through, in the case of the first 10,098
of the Shares, the completion of Phase I, and in the case of the remaining
10,099 of the Shares, the completion of Phase II. The period during which the
respective portions of the Shares are subject to forfeiture shall constitute the
"Restricted Period" with respect to those Shares. During the applicable
Restricted Period, that portion of the Shares may not be sold, assigned,
exchanged, transferred, pledged, hypothecated or otherwise disposed of or
encumbered. Upon the completion of the applicable Phase of the Project, the
Restricted Period with respect to the subject portion of the Shares shall
terminate, and the Company's right of forfeiture shall lapse as to those Shares.
Pending the vesting of the Shares upon the lapse of the risk of forfeiture
applicable thereto and subject during such period to the transfer and other
restrictions and conditions imposed by the terms of this Agreement, Consultant
shall have full voting and all other rights of a stockholder with respect to the
Shares (including, without limitation, full rights to any stock split or in any
merger or other event affecting the rights of the holders of the Company's
Common Stock generally) except that Consultant shall not be entitled to receive
any dividends (other than dividends payable in stock or other property other
than cash, which non-cash dividends Consultant shall be entitled to receive but
shall be subject to the same restrictions as, and for the same period for which
such restrictions, are applicable to the Shares with respect to which the same
is distributed to Consultant with the same force and effect as if the non-cash
dividend so distributed were Shares)
TELXON CORPORATION/0000 Xxxx Xxxxxx Xxxxxx/P.O. Box 5582/Akron, Ohio 44334-0582
000.000.0000/000.000.0000/Fax 000.000.0000/xxx.xxxxxx.xxx
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August 30, 1999
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declared upon Telxon Common Stock for payment to holders of record thereof as of
any date occurring within the applicable Restricted Period.
The Company will cause one or more stock certificates to be issued in
the name of Consultant as registered owner. Each such certificate shall be
legended as follows:
(i) All certificates representing the Shares shall also bear the
following legend:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS (A) THE SAME SHALL FIRST HAVE BEEN
REGISTERED OR RECEIVED SUCH OTHER REGULATORY APPROVAL OR BEEN
DESCRIBED IN ANY SUCH REGULATORY FILING AS MAY BE REQUIRED
UNDER APPLICABLE LAW OR (B) THE ISSUER SHALL HAVE RECEIVED AN
OPINION OF COUNSEL THAT AN EXEMPTION FROM SUCH REGISTRATION OR
OTHER REGULATORY REQUIREMENT IS AVAILABLE WITH RESPECT TO SUCH
TRANSACTION."
(ii) Until the expiration of the applicable Restricted Period, all
certificates representing the relevant portion of the Shares shall also
bear the following legend evidencing the risk of forfeiture and
transfer restrictions to which those Shares are subject during such
Restricted Period:
"TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND
CONDITIONS (INCLUDING FORFEITURE) OF A LETTER AGREEMENT, DATED
AUGUST 30, 1999, ENTERED INTO BETWEEN THE REGISTERED OWNER AND
TELXON CORPORATION. COPIES OF SUCH AGREEMENT ARE ON FILE AT
THE OFFICES OF TELXON CORPORATION, 0000 XXXX XXXXXX XXXXXX,
XXXXX, XXXX 00000. THE RESTRICTED PERIOD DURING WHICH THESE
SHARES ARE SUBJECT TO CERTAIN VESTING CONDITIONS AND TRANSFER
RESTRICTIONS UNDER SUCH AGREEMENT EXPIRES UPON THE COMPLETION
OF PHASE __ OF THE PROJECT DESCRIBED IN SAID AGREEMENT."
Each certificate evidencing the Shares shall be deposited with the
Company, together with such stock powers in blank as may be requested of
Consultant by the Company at any time prior to the lapse of the applicable
Restricted Period (which Consultant agrees to execute and deliver upon such
request). In the event of any forfeiture of Shares prior to the expiration of
the applicable Restricted Period, and if required in order to effect any such
forfeiture, the stock powers so delivered by Consultant may be used in
processing the same. Upon the expiration of the applicable Restricted Period
without forfeiture of the affected Shares, the restrictions imposed by the
fourth paragraph of this Agreement shall lapse with respect to the affected
Shares, and upon Consultant's request, the legend set forth in subparagraph (ii)
of the immediately preceding paragraph shall, to the extent no longer
applicable, be removed from the certificate(s) representing such Shares, and
Xxxxxx shall deliver to Consultant the replacement certificate(s) for such
Shares, together with any stock power relating to the replaced certificate(s)
(unless required to be used in processing the issuance of the replacement
certificate(s)).
TELXON CORPORATION/0000 Xxxx Xxxxxx Xxxxxx/P.O. Box 5582/Akron, Ohio 44334-0582
000.000.0000/000.000.0000/Fax 000.000.0000/xxx.xxxxxx.xxx
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August 30, 1999
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Consultant makes the following representations, warranties,
acknowledgements and agreements to Telxon with respect to his agreement to
accept the Shares in payment of his consulting fee with respect to the Project:
(1) Consultant understands that the Shares have not been
registered, and that Telxon is under no obligation to register, and has
not made any assurances to Consultant regarding the registration of,
the Shares, under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws and that the Shares are
being offered and sold pursuant to exemptions from registration
contained in the Securities Act and applicable state securities laws
based in part upon your representations contained in this and the
following subparagraphs 2 through 5;
(2) Consultant has had the opportunity to his satisfaction to
ask question of and receive answers from Telxon management regarding
Xxxxxx's business, assets, financial condition, prospects and affairs;
(3) Consultant is an "accredited investor" as such term is
defined in Rule 501 under the Securities Act, has such knowledge and
experience in financial and business matters that he is capable of
evaluating the merits and risks of his investment in the Shares and of
protecting his interests in connection with such investment;
(4) Consultant is not aware of the publication of any
advertisement in connection with the Shares to be issued as
contemplated by this Agreement;
(5) Consultant is acquiring the Shares for his own account for
investment only, and not with a view toward their distribution, can
bear a total loss of the investment without materially impairing his
financial condition, and can bear the economic risk of the investment
indefinitely unless and until, and cannot resell the Shares unless and
until, the Shares are registered under the Securities Act and/or
applicable state securities laws or an exemption from such registration
is available (Consultant understanding that the certificate(s)
evidencing the Shares will be legended regarding the absence of and
necessity for such registration and that there is no assurance that any
registration exemption will be available or that, if available, such
exemption will allow Consultant to transfer all or any portion of the
Shares he may subsequently desire to transfer).
In connection with Consultant providing services under this Agreement,
Consultant will have access to certain non-public, proprietary, confidential
information concerning the business, operations, financial condition, and
affairs of Telxon and its subsidiaries and affiliates (collectively, the
"Confidential Information"). Consultant acknowledges and agrees that (i) all
Confidential Information, and (ii) any and all written and oral analyses,
studies, strategies and advice, as well as any and all reports, surveys, letters
or other documents, provided or prepared by Consultant to or for Telxon (the
"Work Product"), are Xxxxxx's property and constitute trade secrets and
proprietary information of Telxon, provided that Telxon hereby acknowledges and
agrees that to the extent the Work Product contains or reflects matters of
Consultant's general expertise, such matters shall be and remain information of
Consultant which Consultant may use
TELXON CORPORATION/0000 Xxxx Xxxxxx Xxxxxx/P.O. Box 5582/Akron, Ohio 44334-0582
000.000.0000/000.000.0000/Fax 000.000.0000/xxx.xxxxxx.xxx
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August 30, 1999
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for his own benefit or to benefit others in the ordinary and customary rendering
of consulting services in accordance with generally observed professional
standards. In order to protect Xxxxxx's proprietary interest in such
Confidential Information and Work Product, Consultant agrees that his access to
and receipt of Confidential Information and preparation, dissemination and use
of Work Product is subject to, and that he shall be bound by, the obligations of
a "Recipient" set forth in the non-disclosure agreement attached as Exhibit A to
this Agreement and incorporated by this reference as terms of this Agreement and
that, prior to affording any Assistant access to the same, he will require each
such person to sign a non-disclosure agreement substantially in the form of
Exhibit A.
In connection with the performance of Consultant's obligations
hereunder, Consultant shall, and shall ensure that any Assistants, act in
accordance with standards of ethical business conduct and regarding xxxxxxx
xxxxxxx no less stringent than those required by Telxon from time to time of its
management or other personnel generally with respect to such matters, copies of
the current form of Telxon's "Statement of Corporate Ethics" and "Xxxxxxx
Xxxxxxx Policy" being attached to this Agreement as Exhibits B and C,
respectively, and, as the same may be modified from time to time, incorporated
by this reference as terms of this Agreement. Consultant shall require each
Assistant who may be utilized in connection with the Project to agree in writing
to be bound by and observe Xxxxxx's "Statement of Corporate Ethics" and "Xxxxxxx
Xxxxxxx Policy".
This Agreement is subject to termination by Telxon for "Cause" at any
time. In the event of such a termination, Xxxxxx's obligation to compensate
Consultant in accordance with this Agreement shall cease in accordance with the
vesting provisions applicable to the Shares, except for any and all amounts
vested up to and including the date of such termination. "Cause" shall mean any
material dishonesty, willful misconduct, or act of bad faith (termination on any
of the foregoing grounds being effective immediately upon the giving of written
notice thereof by Telxon to Consultant), or, if the same shall remain uncured
thirty (30) days after written notice thereof given by Telxon to Consultant, any
material breach (other than Consultant's failure to perform services hereunder
due to his death or disability) of this Agreement by Consultant or any
Assistant.
Telxon shall also have the right terminate this Agreement for other
than Cause (which may include for Consultant's inability to perform services
hereunder due to his becoming disabled or an election to terminate made
following a change in Telxon's senior management or a change in control of
Telxon), effective upon thirty (30) days prior written notice to Consultant.
Furthermore, this Agreement shall terminate immediately upon Consultant's death.
In the event of termination by reason of Consultant's death or his becoming
disabled so as to be unable substantially to perform the services contemplated
hereby, the vesting of that portion of the Shares (rounded up to the next whole
share) scheduled to vest during the Restricted Period during which the date of
death or the effective date of the termination for disability occurs which is
allocable, based on the number of days elapsed, to the portion of the Restricted
Period from, in the case of the Restricted Period ending upon the completion of
Phase I, May 25, 1999 through and including the date of death or effective
termination date, or in the case of the Restricted Period ending upon the
completion of Phase II, the date of the completion of Phase I through and
including the date of death or effective termination date, shall be
automatically accelerated such that Consultant or his estate shall be entitled
to retain such accelerated portion of the Shares effective as of and from and
after the date
TELXON CORPORATION/0000 Xxxx Xxxxxx Xxxxxx/P.O. Box 5582/Akron, Ohio 44334-0582
000.000.0000/000.000.0000/Fax 000.000.0000/xxx.xxxxxx.xxx
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of death or effective termination date without and free of any continuing risk
of forfeiture to Telxon, but all other Shares not theretofore vested shall be
forfeited to Telxon.
In the event of any termination by Telxon for other than Cause other
than with respect to Consultant's disability as provided for in the preceding
sentence, or Telxon in any manner otherwise does not allow Consultant the
opportunity to complete his services hereunder in accordance with the terms
hereof and Consultant is ready, willing and able to so perform (any such loss of
opportunity being deemed and given effect for purposes hereof as a termination
by Telxon for other than Cause), the vesting of all Shares which are not vested
in accordance with the original schedule therefor as of the effective date of
such termination shall be automatically accelerated such that Consultant shall
be entitled to retain all of the Shares (without regard to any time as may then
remain under the original vesting schedule) effective as of and from and after
such date without and free of any continuing risk of forfeiture to Telxon.
Except for Consultant's obligation to perform requested services and
Xxxxxx's obligation to pay consulting fees, which shall cease upon the
expiration or any earlier termination of this Agreement subject to Consultant's
right to receive all vested Shares, including any portion of the Shares the
vesting of which is accelerated upon any termination of this Agreement, all of
the parties' respective rights and obligations under this Agreement shall
survive such expiration or termination.
Any notice given by Telxon to Consultant with respect to this Agreement
shall be deemed to be given if delivered to Consultant in person, if sent to
Consultant by certified mail, postage prepaid, return receipt requested or by
recognized express courier service for next or second business day delivery
charges prepaid or charged to sender, at his address last shown on the records
of Telxon, and any notice given by Consultant to Telxon shall be deemed to be
given if delivered in person or by mail or courier service as aforesaid,
addressed to Xxxxxx's Chief Executive Officer at Xxxxxx's principal executive
office, unless Consultant or Telxon shall have duly notified the other parties
in writing of a change of address. If sent by mail or courier service, notice
shall be deemed to have been given when deposited in the mail or with the
courier service as set forth above
Consultant is an independent contractor to Telxon, and nothing herein
shall be deemed to cause this Agreement to create an agency, partnership or
joint venture between the parties. Nothing in this Agreement shall be
interpreted or construed as creating or establishing the relationship of
employer and employee between Telxon and either Consultant or any Assistant. No
Assistant, nor any person or entity claiming by, through or under any such
person, shall be a third-party beneficiary of or under the terms of this
Agreement.
Consultant agrees to indemnify and hold harmless Telxon's officers,
directors, employees, and agents, and the administrators of Xxxxxx's benefit
plans from and against any claims, liabilities, or expenses relating to any
loss, liability or expense proximately resulting from any breach of this
Agreement or any Exhibit hereto by Consultant or any Assistant, provided that
Telxon shall promptly notify Consultant of each such matter when and as it comes
to Telxon's attention and not settle or otherwise dispose of such matter in any
manner which results in any financial or other obligation on the part of
Consultant without Consultant's prior written consent, such consent not to be
unreasonably withheld.
TELXON CORPORATION/0000 Xxxx Xxxxxx Xxxxxx/P.O. Box 5582/Akron, Ohio 44334-0582
000.000.0000/000.000.0000/Fax 000.000.0000/xxx.xxxxxx.xxx
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This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior discussions and
agreements between the parties with respect to such subject matter. This
Agreement shall be governed by the laws of the State of Ohio without regard to
principles of conflict of laws. All actions brought by you or Telxon in
connection with this Agreement shall be brought in the courts, state or federal,
sitting in Cuyahoga or Summit County, Ohio, and you and Telxon each hereby
submit to the jurisdiction of such courts and agree not to raise the issue of
improper venue or forum non conveniens in any such proceeding.
This Agreement may not be assigned or otherwise transferred by
Consultant without the prior written consent of Xxxxxx's Chief Executive Officer
or Chief Operating Officer and may be amended only by a written document
executed by one of the foregoing Telxon officers and by Consultant.
Please sign the two counterparts of this letter agreement to
acknowledge your obligation to abide by its terms and conditions, and return one
of the fully executed counterparts to the undersigned.
Sincerely,
TELXON CORPORATION
By: /s/ Xxxx X. Xxxxxx, Xx.
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Xxxx X. Xxxxxx, Xx.
Chairman of the Board and
Chief Executive Officer
ACKNOWLEDGED AND AGREED as of the date above:
/s/ X. Xxxx Xxxxxxx
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X. Xxxx Xxxxxxx ("Consultant")
