EXHIBIT 10.13
SEPARATION, RELEASE AND NON-DISCLOSURE AGREEMENT
Tomo Razmilovic, on his own behalf and on behalf of his
heirs, executors, administrators, attorneys, successors and assigns
(hereinafter collectively referred to as "Razmilovic"), and Symbol
Technologies, Inc., on its own behalf and on behalf of its
subsidiaries, divisions, affiliates, successors, assigns,
representatives, officers, directors, agents and employees
(hereinafter collectively referred to as "Symbol" or the "Company"),
have reached the within agreement ("Agreement") in settlement of any
and all disputes and controversies which have or could have been
raised between them including, but not limited to, any and all
disputes related to Razmilovic's employment with Symbol, such
Agreement being reached on the following terms and conditions:
1. Razmilovic, pursuant to paragraph 12(a)(iii) of the
Employment Agreement between the parties dated July 1, 2000 ("Prior
Employment Agreement"), will resign his position with Symbol as
President and Chief Executive Officer effective February 14, 2002
(the "Transition Date"), although he will remain a full-time
employee of Symbol through May 6, 2002.
2. In consideration for executing this Agreement and in
full and complete satisfaction of its contractual obligations to
Razmilovic under the Prior Employment Agreement, Symbol will provide
Razmilovic the following:
(A) Within thirty (30) days after executing and
returning this Agreement to the Company,
Razmilovic will receive a lump sum payment of
$5 million dollars. Razmilovic relinquishes his
right to all outstanding stock options whether
vested or unvested as of the Transition Date,
with the exception of 236,250 shares granted to
Razmilovic on October 19, 1998, under the
Company's 1997 Stock Option Plan. Such shares
may be exercised by Razmilovic at any time during
the period Razmilovic is working as a part- time
consultant pursuant to the New Employment
Agreement described in paragraph 2(B) below and
attached hereto as Exhibit A.
(B) Effective May 7, 2002 through May 6, 2007
Razmilovic will be employed by Symbol in a part-
time consultative capacity as a part-time
employee pursuant to the terms of a new
Employment Agreement entered into between
Razmilovic and Symbol which is appended hereto
and incorporated herein as Exhibit A (the "New
Employment Agreement").
(C) On or about May 7, 2003, Symbol will pay
Razmilovic a lump sum payment of $2 million
dollars, representing an amount equal to his
annual base salary and target bonus for the
last completed fiscal year prior to his
Transition Date.
2. (A) Symbol agrees to reimburse Razmilovic for the
cost of two roundtrip first class airfares to
England, for himself and his spouse, provided
such cost is incurred during calendar year 2002.
Symbol agrees to reimburse Razmilovic for any
authorized business expenses incurred prior to
the Transition Date pursuant to paragraph 6(a) of
the Prior Employment Agreement and Symbol's
standard expense reporting procedures.
(B) Symbol will reimburse Razmilovic for the Real
Estate Commission fee incurred in connection with
the sale of his home at 0 Xxxxxxxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxx, up to 6% of the sales price of
said home. Symbol also agrees to reimburse
Razmilovic for reasonable relocation expenses
from New York to his home in the United Kingdom
in accordance with the terms of Symbol's normal
relocation expense reimbursement policy.
(C) Symbol agrees to reimburse Razmilovic for his
expenses incurred in connection with the
preparation of his income tax returns for the tax
years 2001 and 2002.
(D) During the five year period while Razmilovic is
employed in a consultative capacity, he shall be
entitled to participate in all of the employee
fringe benefits he was receiving immediately
prior to the Transition Date, pursuant to the
terms of such plans and paragraph 5(c) of the New
Employment Agreement. In the event Razmilovic
becomes ineligible for health insurance coverage
under the terms of such plans, the Company will
reimburse Razmilovic for any comparable coverage
he may obtain through his own efforts, up to the
amount Symbol contributes for such coverage for
its Executives.
(E) Razmilovic and Symbol agree to work together in
preparing a mutually acceptable statement
regarding the reasons for Razmilovic's
resignation as President and Chief Executive
Officer of Symbol. Symbol will also agree to
work with Razmilovic in preparing a mutually
satisfactory press release announcing such
resignation.
(F) All of the above payments and benefits shall be
subject to all deductions required by applicable
federal, state and local laws of the United
States, and any deductions that may be required
under the laws of the United Kingdom.
3. In exchange for the consideration described in
Paragraph two above, Razmilovic hereby releases Symbol 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 Company, 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, all claims arising under the laws of the United
Kingdom, 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. 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.
4. Except for the purpose of seeking enforcement of the
terms of this Agreement, or with respect to any rights Razmilovic
may have under any employee benefit plan in which he is a
participant, or the stock options referenced in paragraph 2(A),
Razmilovic 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 Company before any judicial, administrative, arbitral or other
forum based upon or arising out of any claims, whether asserted or
unasserted, that Razmilovic may have against the Company as of the
date of this Agreement.
5. Symbol expressly denies that it has violated any such
law, statute, ordinance, contract, duty or obligation whatsoever, or
that it committed any tort or engaged in any wrongful conduct with
respect to Razmilovic. Razmilovic acknowledges that the
consideration described in this Agreement is adequate and sufficient
consideration.
6. 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 Razmilovic's employment are and
remain the property of the Company and, as such, are not to be
removed from the Company's offices. In addition, any such materials
which Razmilovic possesses, but which are not in the Company's
offices, are to be returned immediately, other than copies of any
documents Razmilovic may possess relating to his compensation and
benefits.
7. The terms of this Agreement, the claims that have been
or could have been raised against Symbol as of the date of this
Agreement, and the facts and circumstances underlying any such claim
shall not be admissible by Razmilovic 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.
8. Notwithstanding any other provision contained herein,
the obligations assumed by Symbol under this Agreement shall be
conditioned upon its receipt of an executed duplicate original of
this Agreement and complete adherence to its terms by Razmilovic.
9. Razmilovic agrees that, except if issued a subpoena 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 Symbol, and
his resignation from his position as President and Chief Executive
Officer, (2) the terms of this Agreement or the fact that this
Agreement exists, except for the purpose of enforcing this
Agreement, should that ever become necessary, or as otherwise
required by law, or to obtain legal or tax advice. Razmilovic
agrees in this connection not to grant any interviews with the
press, news media or any other individuals or entities regarding his
employment with Symbol or transition from President and Chief
Executive Officer to part-time consultant. Razmilovic may only
discuss with third parties other than his spouse, attorneys, and tax
advisors the fact that he was employed by Symbol, his title, salary,
responsibilities and that he resigned his position, and agrees not
to provide any other information regarding his employment with
Symbol. Razmilovic may only disclose the terms of this Agreement to
his spouse, accountants, attorneys or tax preparers. Razmilovic
agrees that, except if he is issued a subpoena, 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 relating to the operations of the
Company, including any trade secrets or other proprietary
information. Symbol reserves the right to seek appropriate damages,
including attorneys' fees and injunctive relief, should Razmilovic
violate this Agreement.
10. The parties agree that neither they nor their
representatives will publicly or privately disparage or criticize
each other and Razmilovic expressly agrees that he will not publicly
or privately disparage or criticize any of the Company's products,
services, parent, divisions, affiliates, related companies or
current or former officers, directors, trustees, employees, agents,
administrators, representatives or fiduciaries. Truthful
information provided in response to any inquiry from a government
agency by either party will not be deemed a violation of this
provision.
11. 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.
12. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving
effect to its conflicts of laws provisions. Razmilovic hereby
consents to the jurisdiction of the Courts of the State of New York
to resolve any disputes arising out of the interpretation or
administration of this Agreement.
13. If any of the provisions, terms, clauses, or waivers
or releases of claims or rights contained in this Agreement are
declared illegal, unenforceable, or ineffective in a legal forum,
such provisions, terms, clauses, waivers, releases or claims or
rights shall be deemed severable, such that all other provisions,
terms, clauses, waivers, releases of claims and rights contained in
this Agreement shall remain valid and binding upon both parties.
14. Razmilovic agrees to cooperate with the Company in
connection with any threatened, actual or future litigation
involving the Company, whether administrative, civil or criminal in
nature, in which and to the extent his cooperation is deemed
necessary by the Company in its reasonable discretion. The Company
will reimburse Razmilovic for his reasonable travel, meals, and
lodging expenses incurred in connection with this paragraph. Symbol
also agrees to make reasonable efforts to schedule any meetings with
Razmilovic for this purpose as far in advance of such meetings as
practicable.
15. Razmilovic 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. Razmilovic is
hereby advised by to consult with an attorney regarding this
Agreement prior to executing the same.
16. This Agreement has been executed freely, knowingly
and voluntarily by Razmilovic without duress, coercion, or undue
influence, with a full and free understanding of its terms. This
Agreement and General Release is revocable by either party 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 and General Release is signed by the party seeking
revocation. If Razmilovic wishes to revoke his agreement, his
written notice of revocation must be received within the seven (7)
day revocation period by Symbol at the following address: Symbol
Technologies, Inc., c/o Xxxxxxx X. Xxxxxxx, General Counsel, Xxx
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxx 00000.
17. This Agreement supersedes any and all prior
agreements or understandings, whether written or oral between Symbol
and Razmilovic, including the terms of the Prior Employment
Agreement.
18. This Agreement may not be changed except by a writing
signed by Razmilovic and the Chairman of the Board of Symbol.
AGREED: AGREED:
SYMBOL TECHNOLOGIES, INC.
_______________________ By:___________________________
Tomo Razmilovic Xxxxxx Xxxxxx
_______________________ ______________________________
Date Date
On this _____ day of _________, 2002, before me personally came Tomo
Razmilovic, to me known to be the individual described in and who
executed the foregoing Separation Agreement, and duly acknowledged
to me that he executed the same.
______________________________
Notary Public
On this _____ day of ________, 2002, before me personally came
Xxxxxx Xxxxxx, authorized representative for Symbol Technologies,
Inc., to me known to be the individual described in and who executed
the foregoing Separation Agreement, and duly acknowledged to me that
he executed the same.
______________________________
Notary Public
