EXHIBIT 10.1
RETENTION
AGREEMENT
THIS RETENTION AGREEMENT (the
“ Agreement ”), entered into on August 26,
2005 and effective as of August 26, 2005 (the “
Effective Date ”), is made by and between Symbol
Technologies, Inc., a Delaware corporation (the “
Company ”), and Salvatore Iannuzzi (the “
Executive ”). Capitalized terms not otherwise defined
herein shall have the meanings set forth in Section 16.
RECITALS:
A. The Executive is a senior
executive officer of the Company.
B. The Company and the
Executive desire to enter into this agreement with respect to the
Executive’s continued services with the Company.
NOW, THEREFORE, in consideration of
the foregoing and of the respective covenants and agreements set
forth below, the parties hereto agree as follows:
1. Base Salary .
Effective as of August 1, 2005, the Executive’s base
salary shall be payable at the rate of $650,000 per year and shall
be payable pursuant to the Company’s customary payroll
practices and procedures.
2. Retention Payment .
As of January 31, 2006, the Company shall pay to the Executive
a lump-sum retention payment (the “ Retention Payment
”) in an amount equal to the Executive’s annual base
salary as in effect as of the Effective Date; provided ,
however , that, subject to Section 6, no such Retention
Payment shall be payable to the Executive unless the Executive
remains continuously employed by the Company during the period
beginning on the Effective Date and ending on January 31,
2006.
3. Additional Payments
. In consideration for the Executive’s agreement to serve as
the Company’s interim Chief Executive Officer, to use his
best efforts to advance the interests of the Company and to
facilitate the successful transition of the Subsequent Chief
Executive Officer, the Company shall pay the Executive $62,500 per
month for each month beginning August, 2005 and ending March, 2006,
such payments to be made pursuant to the Company’s customary
payroll practices and procedures; provided , however
, that if the Executive’s employment with the Company is
terminated by the Executive without Good Reason prior to the date
that all payments are made pursuant to this Section 3, then no
further payments shall be made by the Company following the Date of
Termination; and, provided , further , that if the
Executive’s employment with the Company is terminated by the
Company without Cause or by the Executive for Good Reason prior to
the date that all payments are made pursuant to this
Section 3, then as soon as reasonably practicable following
the Date of Termination all payments described in this
Section 3 that have not been made on or prior to the Date of
Termination shall be made to the Executive in the form of a single
lump sum payment.
4. Restricted Stock
(a) As of the Effective Date,
the Company shall award to the Executive 50,000 shares of
restricted stock upon substantially similar terms and conditions as
set forth in the May LTIP Restricted Stock Agreement. The
restricted stock award described in this Section 4(a) shall be
evidenced by a written restricted stock award agreement by and
between the Company and the executive which agreement shall be
substantially identical to the May LTIP Restricted Stock Agreement
(such agreement, together with the May LTIP Restricted Stock
Agreement, shall be collectively referred to herein as the “
LTIP Restricted Stock Agreements ”).
(b) Notwithstanding anything
contained in the LTIP Restricted Stock Agreements to the contrary,
any Tranche A Awards (as defined in the LTIP Restricted Stock
Agreements) set forth in the LTIP Restricted Stock Agreements shall
vest and all restrictions with respect to such Tranche A Awards
shall lapse on October 1, 2005; provided ,
however , that, subject to Section 6, the Tranche A Awards
shall not vest unless the Executive remains continuously employed
by the Company during the period beginning on the Effective Date
and ending on October 1, 2005.
5. Deferred Compensation
Plan . As of the initial effective date of the Deferred
Compensation Plan, the Company shall credit $300,000 to the
Executive’s bookkeeping account under the Deferred
Compensation Plan, which amount shall be fully vested as of the
initial effective date of the Deferred Compensation Plan. For the
avoidance of doubt, the Company and the Executive acknowledge and
agree the amount credited to the Executive’s Deferred
Compensation Plan account pursuant to this Section 5 shall be
in addition to any amounts credited to the Executive’s
Deferred Compensation Plan account in connection with the
“sign-on bonus” credits approved by the Company in
April 2005.
6. Certain Terminations of
Employment . If the Executive’s employment is terminated
by the Company without Cause or by the Executive for Good Reason at
any time during the Termination Period, then (subject to the
Executive’s entering into a separation and release agreement
in the Company’s customary form) as of the Date of
Termination (a) the Company shall pay to the Executive
(i) the Retention Payment set forth in Section 2 (to the
extent not previously paid) and (ii) a lump-sum amount equal
to the sum of (A) the Executive’s annual base salary as
in effect as of the Effective Date and (B) the
Executive’s target-level annual bonus for the fiscal year in
which the Effective Date occurs and (b) notwithstanding
anything to the contrary in the LTIP Restricted Stock Agreements,
any and all unvested shares of LTIP Restricted Stock then held by
the Executive shall become fully vested and all restrictions with
respect to such shares of LTIP Restricted Stock shall lapse.
7. Change in Control .
In addition to any payments or benefits that the Executive may be
entitled to under the Change in Control Policy (and notwithstanding
anything to the contrary in the Change in Control Policy or the
LTIP Restricted Stock Agreements), (a) if the
Executive’s employment is terminated by the Company without
Cause or by the Executive for Good Reason on the date of the
consummation of the Change in Control or during the three month
period following the date of such Change in Control, then as of the
date of such termination (i) any and all unvested shares of
LTIP Restricted Stock then held by the Executive shall become fully
vested and all restrictions with respect to such shares of LTIP
Restricted Stock shall lapse and (ii) the Company shall pay to
the Executive the Retention Payment set forth in Section 2 (to
the extent not previously paid); and (b) if the
Executive’s employment is terminated by the Company without
Cause or by the Executive for Good Reason during the three month
period prior to the date of the consummation of the Change in
Control, then immediately prior to such Change in Control
(i) any and all unvested shares of LTIP Restricted Stock then
held by the Executive shall become fully vested and all
restrictions with respect to such shares of LTIP Restricted Stock
shall lapse and (ii) the Company shall pay to the Executive
the Retention Payment set forth in Section 2 (to the extent
not previously paid).
8. Offsets . The
Company and the Executive acknowledge and agree that any payments
made by the Company to the Executive pursuant to
Section 6(a)(ii) shall offset, on a dollar-for-dollar basis,
any payments that the Executive may otherwise later become entitled
to receive pursuant to (a) the Change in Control Policy or
(b) any other severance plan, policy, program or arrangement
maintained by the Company. Conversely, any payments made by the
Company to the Executive pursuant to (x) the Change in Control
Policy or (y) any other severance plan, policy, program or
arrangement maintained by the Company shall offset, on a
dollar-for-dollar basis, any payments that the Executive may
otherwise later become entitled to receive pursuant to Section
6(a)(ii). For the avoidance of doubt, the parties acknowledge and
agree that each share of LTIP Restricted Stock may become vested
pursuant to Section 4, Section 6(b) or Section 7, but not
pursuant to more than any one Section, and that the Retention
Payment may be paid pursuant to Section 2 or Section 7,
but not both.
9. Certain Restrictive
Covenants
(a) The Executive shall not, at
any time during his employment with the Company or during the
six-month period immediately following the Date of Termination (the
“ Restricted Period ”) directly or indirectly
engage in, have any equity interest in, or manage or operate
(whether as a director, officer, employee, agent, representative,
security holder, consultant or otherwise) any Competitive Business;
provided , however , that, notwithstanding the
foregoing, the restrictions set forth in this Section 9(a) shall
not apply following a Change in Control; and, provided ,
further , that the Executive shall be permitted to acquire a
passive stock or equity interest in such a Competitive Business
provided the stock or other equity interest acquired is not more
than five percent (5%) of the outstanding interest in such a
Competitive Business.
(b) The Executive shall not, at
any time during the Restricted Period, directly or indirectly hire
any employee of the Company or otherwise recruit, solicit or induce
any employee, director, consultant, wholesale customer, vendor,
supplier, lessor or lessee of the Company to terminate his or its
employment or arrangement with the Company or otherwise change its
relationship with the Company, or establish any relationship with
the Executive (or any entity employing the Executive or to whom the
Executive provides consulting or similar services) for any business
purpose.
(c) The Executive shall not
disparage the Company, any of its products or practices, or any of
its directors, officers, or employees, whether orally, in writing
or othe
