EXHIBIT 10.2
RETENTION
AGREEMENT
THIS RETENTION AGREEMENT (the
“ Agreement ”), entered into on August
, 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
(the “ Executive
”). Capitalized terms not otherwise defined herein shall have
the meanings set forth in Section 13.
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. 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 3, 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.
2. LTIP Restricted
Stock . Notwithstanding anything contained in the LTIP
Restricted Stock Agreement to the contrary, the Tranche A Award (as
defined in the LTIP Restricted Stock Agreement) set forth in the
LTIP Restricted Stock Agreement shall vest and all restrictions
with respect to the Tranche A Award shall lapse on October 1,
2005; provided , however , that, subject to
Section 3, the Tranche A Award 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.
3. 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 1 (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 Agreement,
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.
4. 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 Agreement), (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 1 (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 1 (to the extent not previously paid).
5. Offsets . The
Company and the Executive acknowledge and agree that any payments
made by the Company to the Executive pursuant to
Section 3(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
3(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 2, Section 3(b) or Section 4, but not
pursuant to more than any one Section, and that the Retention
Payment may be paid pursuant to Section 1 or Section 4,
but not both.
6. 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 6(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 otherwise, at any time. Notwithstanding the foregoing, nothing
in this Section 6(c) shall limit the ability of the Executive to
provide truthful testimony as required by law or any judicial or
administrative process.
(d) The Executive expressly
acknowledges and agrees that the agreements and covenants contained
in this Section 6 are reasonable. In the event, however, that
any agreement or covenant contained in this Section 6 shall be
determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of
time or over too great a geographical area or by reason of its
being too extensive in any other respect, it will be interpreted to
extend only over the maximum period of time for which it may be
enforceable, and/or over the maximum geographical area as to which
it may be enforceable and/or to the maximum extent in all other
respects as to which it may be enforceable, all as determined by
such court in such action.
(e) As used in this
Section 6, the term “ Company ” shall
include the Company and any of its Affiliates or direct or indirect
subsidiaries.
7. Specific Performance
. It is recognized and acknowledged by the Executive that a breach
of the covenants contained in Section 6 will cause irreparable
damage to the Company and its goodwill, the exact amount of which
will be difficult or impossible to ascertain, and that the remedies
at law for any such breach will be inadequate. Accordingly, the
parties agree that in t
