Exhibit 10.26
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“ Agreement ”) is made and entered into by and
between Zebra Technologies Corporation, a Delaware corporation (the
“ Employer ”), and Noel Elfant (the “
Executive ”), to be effective as of November 16,
2007 (the “ Effective Date ”).
RECITALS
A. The Employer desires that the
Executive continue to provide services for the benefit of the
Employer and its affiliates and the Executive desires to accept
such continued employment with the Employer.
B. The Employer and the Executive
previously executed the following agreements (collectively, the
“ Prior Agreements ”), which constitute all
executed agreements addressing the terms and conditions of the
Executive’s employment with the Employer:
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1.
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Special
Separation Agreement dated October 27, 2006; and
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2.
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Directors and
Officers Employment Agreement dated December 16, 2002 and
December 17, 2002.
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C. The Employer and the Executive
desire to enter into a single comprehensive agreement that enhances
the employment relationship and supersedes the Prior Agreements in
order to encourage the Executive to continue to serve in the employ
of the Employer on a full-time basis.
NOW, THEREFORE, in consideration of
the above premises and the following mutual covenants and
conditions, the parties agree as follows:
1. Employment . As of the
Effective Date, the Executive hereby accepts such continued
employment on the following terms and conditions. The Employer
shall employ the Executive as an executive officer of the Employer.
The Executive understands and agrees that he is an at-will
employee, and the Executive and the Employer can, and shall have
the right to, terminate the employment relationship at any time for
any or no reason, with or without notice, and with or without
cause, subject to the payment provisions contained in Paragraph 7
of this Agreement. Nothing contained in this Agreement or any other
agreement shall alter the at-will relationship.
2. Duties . The Executive
shall work for the Employer in a full-time capacity. The Executive
shall, during the term of his employment, have the duties,
responsibilities, powers, and authority customarily associated with
the position of an executive officer. The Executive shall solely
report to, and follow the direction of, the Chief Executive Officer
of the Employer or to his designee or a designee of the Board of
Directors of the Company (the “ Board ”). The
Executive shall diligently, competently, and faithfully perform all
duties, and shall devote his
entire business time, energy, attention, and
skill to the performance of duties for the Employer or its
affiliates and will use his best efforts to promote the interests
of the Employer. It shall not be considered a violation of the
foregoing for the Executive to serve on business, industry, civic,
religious or charitable boards or committees, so long as such
service is in compliance with the Employer’s Corporate
Governance Guidelines, the Chief Executive Officer of the Employer
is provided notice of such service and, in his reasonable
determination, such service does not individually or in the
aggregate significantly interfere with the performance of the
Executive’s responsibilities as an employee of the Employer
in accordance with this Agreement.
3. Executive Loyalty .
Subject to the terms of this Agreement and the Corporate Governance
Guidelines, the Executive shall devote all of his time, attention,
knowledge, and skill solely and exclusively to the business and
interests of the Employer, and the Employer shall be entitled to
all benefits and profits arising from or incident to any and all
work, services, and advice of the Executive. The Executive
expressly agrees that during the term of his employment, he shall
not engage, directly or indirectly, as a partner, officer,
director, member, manager, stockholder, supplier, advisor, agent,
employee, or in any other form or capacity, in any other business
similar to that of the Employer. The foregoing notwithstanding, and
except as otherwise set forth in Paragraph 8, and provided that
none of the following reflects poorly on the Employer or, in the
reasonable determination of the Employer’s Chief Executive
Officer, individually or in the aggregate significantly interferes
with the performance of the Executive’s responsibilities as
an employee of the Employer in accordance with this Agreement,
nothing herein contained shall be deemed to prevent the Executive
from (1) otherwise managing his personal investments and
financial affairs, or (2) investing his money in the capital
stock or other securities of any corporation whose stock or
securities are publicly-owned or are regularly traded on any public
exchange, so long as (a) the Executive does not beneficially
own stock in any such corporation if more than five percent
(5%) of the Employer’s annual sales are to such
corporation or if the Employer’s products comprise more than
five percent (5%) of such corporation’s annual sales, or
(b) the Executive does not beneficially own more than one
percent (1%) of the outstanding capital stock of any such
corporation.
4. Compensation .
A. Base Salary . So long as
the Executive is employed by the Employer, the Employer shall pay
the Executive a gross base salary at an annual rate of $254,200
(the “ Base Salary ”), payable in substantially
equal installments in accordance with the Employer’s payroll
policy from time to time in effect. The Executive’s Base
Salary shall be subject to any payroll or other deductions as may
be required to be made pursuant to law, government order, or by
agreement with, or consent of, the Executive. The Base Salary shall
be reviewed at least annually, and may be increased or decreased
from time to time as shall be determined by the Employer, and once
such Base Salary shall have been increased or decreased, it shall
thereafter be treated for all purposes of this Agreement as the
Executive’s Base Salary. Unless specifically agreed to in
writing by the Employer and the Executive, any increase or decrease
in Base Salary shall not limit or reduce any other obligation of
the Employer or the Executive under this Agreement.
B. Performance Bonus . The
Executive shall be eligible to earn a performance bonus under the
Employer’s Management Bonus Plan (the “ Bonus
”) upon the
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attainment of certain performance measures. The
Compensation Committee of the Board (the “ Compensation
Committee ”) shall set the performance targets for a
given year. The Bonus shall be targeted at forty-five (45%) of
the Executive’s Base Salary (the “ Target Bonus
”), with the actual Bonus earned to be calculated on that
portion of the Executive’s Base Salary actually earned during
the calendar year for which the Bonus is calculated. The Bonus, if
any, for a given year (the “ Bonus Year ”) shall
be paid in the following year and on or before March 15 of
such year, provided, and except as otherwise set forth in Paragraph
7B, the Executive must be employed by the Employer and in good
standing as of the date that the Bonus is paid to earn any Bonus
for the Bonus Year.
C. Equity . The Employer may
award the Executive various forms of equity compensation, all as
determined by the Compensation Committee under and pursuant to the
terms of the 2006 Zebra Technologies Corporation Incentive
Compensation Plan as may be amended from time to time (the “
2006 Incentive Compensation Plan ”). Upon the date of
any such grant, the Employer shall provide the Executive with an
award agreement which shall describe the terms and conditions of
such award.
D. Employee Benefits . During
the term of the Executive’s employment, the Employer
shall:
(1) include the Executive in any
life insurance, disability insurance, medical, dental or health
insurance, vacation (of four (4) weeks in each calendar year,
which vacation shall be forfeited if not used by the end of the
applicable calendar year), savings, pension and retirement plans
and other benefit plans or programs (including, if applicable, any
excess benefit or supplemental executive retirement plans)
maintained by the Employer for the benefit of its executive
officers; and
(2) include the Executive in such
perquisites as the Employer may establish from time to time that
are commensurate with his position and at least comparable to those
received by other executive officers of the Employer.
Nothing in this Agreement shall be
construed to limit, condition, or otherwise encumber the rights of
the Employer, in its sole discretion, to amend, discontinue,
substitute or maintain any benefit plan, program, or
perquisite.
5. Expenses . While employed
by the Employer, the Executive shall be entitled to receive prompt
reimbursement for all reasonable and necessary business expenses
incurred by the Executive, in accordance with the practices and
policies applicable to other executive officers of the Employer,
including professional and service company dues, journal
subscriptions, educational seminars, conferences, and symposiums
and as required by the Internal Revenue Service to qualify as
ordinary and necessary business expenses under the Internal Revenue
Code of 1986, as amended (the “ Code
”). The Executive shall be entitled to receive prompt
reimbursement for travel expenses incurred in connection with the
performance of his duties under this Agreement. To receive
reimbursement, the Executive shall submit to the Employer such
vouchers or expense statements that reasonably evidence expenses
incurred in accordance with the Employer’s travel and expense
reimbursement policy.
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6. Termination . The
Executive’s services shall terminate upon the first to occur
of the following events:
A. Death or Disability . Upon
the Executive’s date of death or the date the Executive is
given written notice that he has been determined to be disabled by
the Employer. For purposes of this Agreement, the Executive shall
be deemed to be disabled if the Executive, as a result of illness
or incapacity, shall be unable to perform substantially his
required duties for a period of one hundred eighty
(180) consecutive days; provided, however, that if the
Executive, after being unable to perform substantially his required
duties for a period of less than one hundred eighty
(180) consecutive days as a result of illness or
incapacity returns to active duty for less than thirty
(30) days, the period of such active duty will be
disregarded in determining whether the 180 consecutive day
threshold has been accumulated (although it will not be
accumulated as part of the 180 day period). A termination of the
Executive’s employment by the Employer for disability shall
be communicated to the Executive by written notice and shall be
effective on the tenth (10th) business day after receipt of
such notice by the Executive, unless the Executive returns to
full-time performance of his duties before such tenth
(10th) business day.
B. Cause Termination . On the
date the Board provides the Executive with written notice that he
is being terminated for Cause. For purposes of this Agreement, and
as determined by the Board in its sole discretion, the Executive
shall be deemed terminated for “ Cause ” if the
Board terminates the Executive after the Executive:
(1) shall have committed, been
indicted of, or been convicted of, or admitted, plea bargained,
entered a plea of no contest or nolo contendere to, any felony of
any kind or a misdemeanor, or violated any laws, involving fraud,
dishonesty or an act of moral turpitude;
(2) shall have materially breached
this Agreement or any other agreement to which the Executive and
the Employer are parties;
(3) shall have materially violated
any written Employer policy, regardless of whether within or
outside the scope of his authority;
(4) shall have committed willful or
intentional misconduct, gross negligence, or dishonest, fraudulent
or unethical behavior, or other conduct involving serious moral
turpitude in the performance of his duties hereunder;
(5) shall have failed or refused to
materially comply (to the best of his ability) with a specific
direction of the Employer, unless the Executive reasonably and in
good faith believes such specific direction to be unlawful (in
which case the Employer’s termination of the
Executive’s employment shall not be for Cause under this
provision); or
(6) engages in any conduct which
breaches his fiduciary duty to the Employer, which materially
injures the integrity, character or reputation of the Employer or
which impugns Executive’s own integrity, character or
reputation so as to cause Executive to be unfit to act in the
capacity of an executive officer of the Employer.
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A termination of employment by the Employer for
Cause under subparagraphs 6B(2), (3), (4), (5) or
(6) shall be effectuated by the Board giving the Executive
written notice of the termination within thirty (30) days of
the event constituting Cause, or such longer period as the parties
may agree, setting forth in reasonable detail the specific conduct
of the Executive that constitutes Cause, the specific provisions of
this Agreement on which the Employer relies and, to the extent such
Cause is susceptible to cure, providing the Executive with a thirty
(30) day cure period. If such Cause is susceptible to cure and
the Executive fails to remedy the condition within such thirty
(30) day cure period, the Employer may terminate the
Executive’s employment within thirty (30) days after the
expiration of the cure period, and if the Employer fails to so
terminate the Executive’s employment, any subsequent
termination based upon the same underlying facts shall not
constitute a termination for Cause under this subparagraph
6B.
C. Employer Termination . On
the date the Employer terminates the Executive’s employment
for any reason, other than a reason otherwise set forth in this
Paragraph 6.
D. Good Reason Termination .
On the date the Executive terminates his employment for Good
Reason. The term “ Good Reason ” means the
occurrence of any one of the following:
(1) demotion of the Executive by the
Employer to a non-executive officer position (including a material
diminution in the status of the Executive’s responsibilities,
authorities, powers or duties taken as a whole) or assignment to
the Executive of any duties materially inconsistent with his
position, status or responsibilities under this
Agreement;
(2) material breach of any provision
of this Agreement by the Employer; or
(3) decrease in Base Salary as in
effect on the Effective Date in an amount equal to or greater than
ten percent (10%) (unless such decrease is applied on a
proportionally equal basis to all executive officers of the
Employer) (an “ Applicable Decrease ”), but only
if the Executive terminates his employment with the Employer as a
result of an Applicable Decrease within fifteen (15) business
days of the later of (i) the effective date of the Applicable
Decrease, or (ii) the Executive’s actual knowledge of
Applicable Decrease (“ Applicable Decrease Date
”). For clarification purposes, should the Executive fail to
terminate his employment with the Employer within fifteen
(15) business days of the Applicable Decrease Date, such
termination shall not constitute termination of employment by the
Executive for Good Reason under this provision.
A termination of employment by the
Executive for Good Reason under subparagraph 6D(1) or
(2) shall be effectuated by giving the Employer written notice
of the termination within thirty (30) days of the event
constituting Good Reason, setting forth in reasonable detail the
specific conduct of the Employer that constitutes Good Reason and
the specific provisions of this Agreement on which Executive relies
and providing the Employer with a thirty (30) day period
during which it may remedy the condition constituting Good Reason.
If the Employer fails to
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remedy the condition within such thirty
(30) day period, the Executive must terminate his employment
within thirty (30) days after the expiration of the cure
period, and if the Executive fails to so terminate his employment,
any subsequent termination based upon the same underlying facts
shall not constitute a termination for Good Reason under this
subparagraph 6D.
E. Resignation . On the date
the Executive terminates his employment for any reason (other than
Good Reason), provided that the Executive shall give the Board
sixty (60) days written notice prior to such date of his
intention to terminate such employment. The Board may, in its sole
discretion, waive such sixty (60) day notice
requirement.
7. Compensation Upon
Termination .
A. Final Payments . If the
Executive’s services are terminated pursuant to Paragraph 6,
the Executive shall be entitled to his salary through his final
date of active employment plus any accrued but unused vacation pay.
The Executive also shall be entitled to any benefits mandated under
the Consolidated Omnibus Budget Reconciliation Act of 1985 (“
COBRA ”) or required under the terms of any death,
insurance, or retirement plan, program, or agreement provided by
the Employer and to which the Executive is a party or in which the
Executive is a participant, including, but not limited to, any
short-term or long-term disability plan or program, if
applicable.
B. Severance Benefits
.
(1) In addition to the salary and
benefits described in Paragraph 7A, if the Executive’s
employment is terminated pursuant to Paragraphs 6C or 6D, the
Executive shall be entitled to the following: (i) the
continuation of his Base Salary at the annual salary rate then in
effect (before any reduction under Paragraph 6D(3) which is made on
a proportionally equal basis to all executive officers and which is
made within the one (1) year period preceding the date the
Executive’s employment is terminated), for a period of one
year following the termination of the Executive’s employment
(the “ Severance Period ”), payable in
accordance with the Employer’s payroll policy from time to
time in effect and subject to the limitations imposed under
subparagraph 7B(3); (ii) a pro-rata portion of the Bonus for
the year in which the Executive’s employment terminates, if
such Bonus would have been earned had the Executive been employed
and in good standing as of the date the Bonus otherwise is paid to
other senior level executive of the Employer, and payable at the
time the Bonus otherwise is paid to other senior level executives
of the Employer; (iii) the Bonus attributable to the calendar
year prior to the calendar year in which the Executive’s
employment terminates, if such Bonus would have been earned had the
Executive been employed and in good standing as of the date the
Bonus otherwise is paid to other senior level executive of the
Employer, and provided such Bonus had not yet been paid in
accordance with the timing provisions set forth in Paragraph 4B,
and payable at the time the Bonus otherwise is paid to other senior
level executives of the Employer; (iv) a payment equal to one
hundred percent (100%) of the Target Bonus (before any
reduction under Paragraph 6D(3) which is made on a proportionally
equal basis to all executive officers and which is made within
the
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one (1) year period preceding
the date the Executive’s employment is terminated), based
upon the Base Salary for such year, to be paid at the same time
that performance bonuses are generally paid by the Employer to its
executives for the year in which such termination occurs;
(v) equity compensation, if any, subject to the terms of the
Executive’s award agreement; (vi) professional
outplacement services by a company selected by, and paid by, the
Employer within one (1) year after the date of termination, in
an amount not to exceed $32,000; and (vii) continued coverage
of the Executive and his dependents in the medical and dental
insurance plans sponsored by the Employer, as mandated by COBRA,
which may continue to the extent required by applicable law and the
Employer shall pay for such coverage, at the same rate the Employer
pays for health insurance coverage for its active employees
unde