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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of April 22, 1997, by and between
TELULAR CORPORATION, a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, a resident of the state of Georgia (the "Executive");
WITNESSETH:
WHEREAS, the Company wishes to employ the Executive as its Executive
Vice President and Chief Operating Officer; and
WHEREAS, the Executive wishes to be employed in this capacity by the
Company, on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the mutual obligations set forth
herein, the parties hereto hereby agree as follows:
1. Engagement. The Company hereby agrees to employ the Executive
as its Executive Vice President and Chief Operating Officer and the Executive
hereby accepts such employment, on the terms and condition hereinafter set
forth. The Executive's principal place of business shall be at the
headquarters of the Company, and the Executive shall promptly establish a
residence in the Chicago metropolitan area.
2. Term of Employment. The Executive's employment by the Company
shall commence on April 22, 1997 (the "Effective Date"). Employment shall be
on an "at-will" basis and shall continue in effect until termination by either
party upon at least 60 days prior notice. The period of employment of the
Executive by the Company is referred to herein as the "Term".
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3. Duties. During the Term, the Executive shall serve as the
Company's Executive Vice President and Chief Operating Officer and shall have
such duties and responsibilities as may be assigned to him from time to time by
the Chief Executive Officer. The Executive shall use his best efforts and
shall act in good faith in performing all duties reasonably required to be
performed under this Agreement.
4. Availability. The Executive shall devote his entire working
time, attention and energies to the Company's business and, during the term of
this Agreement, shall not be engaged in any other business activity without the
express written approval of the Board.
5. Expenses. (a) The Company shall reimburse the Executive,
promptly upon presentation of itemized vouchers, for all ordinary and necessary
business expenses incurred by the Executive in the performance of this duties
hereunder.
(b) The Company shall reimburse the Executive for
his reasonable costs and expenses incurred in connection with the relocation of
his residence from Atlanta, Georgia, to the Chicago metropolitan area
(including without limitation costs of selling the Executive's Atlanta
residence and closing costs and points incurred in the Executive's purchase of
a Chicago residence), up to a maximum reimbursement of $50,000. The Executive
shall provide the Company with reasonable supporting documentation for all
expenses for which reimbursement is sought.
6. Compensation. As compensation for the services to be rendered
hereunder, the Company agrees as follows:
(a) The Company shall pay to the Executive an annual base salary
(the "Base Salary") which shall be at the annual rate of $ 205,000. The Base
Salary shall be paid in bi-
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monthly installments or in such other installments as to which the Company and
the Executive may agree.
(b) In addition, Executive is eligible to earn an incentive
bonus, under the company's Management Bonus Plan. The Board shall establish
performance targets for the Executive for each fiscal year during which the
Executive remains employed by the Company, and for the partial fiscal year
between the date of this Agreement and September 30, 1997 (the "Partial Year").
For any fiscal quarter for which the Executive achieves 100% of the performance
targets established for the quarter, the Company shall pay to the Executive,
not later than 30 days after the end of such fiscal quarter, an incentive bonus
(the "Incentive Bonus") of $25,000 of which $12,500 shall be paid in cash and
$12,500 in the form of Common Stock, par value $.01 per share, of the Company
("Common Stock"), having a Market Value (as defined below) of $12,500.
(c) For purposes of Section 6 (b), the "Market Value" of a share of
Common Stock shall be the average closing bid price of the Common Stock over
the five consecutive trading days ending on the last day of period for which
objectives are set. (For example, in the case of objectives established for
the period ending September 30, 1997, the Market Value would be the average
closing bid price on September 24, 25, 26, 27, and 30, 1997).
(d) No Incentive Bonus shall be payable for any fiscal quarter or
partial fiscal quarter if (i) the Executive for any reason was not an employee
of the Company for at least one-half of such fiscal quarter or partial fiscal
quarter or (ii) the Executive was not an employee of the Company at the end of
such fiscal quarter or partial fiscal quarter by reason of either the prior
resignation of the Executive or the prior termination of the Executive by the
Company for Cause (as defined below).
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(e) The Company shall permit the Executive to participate in such
pension, 401 (k), and other employee benefit plans as are made available to
employees of the Company generally. The Executive shall be entitled to four
weeks of paid vacation per year.
7. Stock Options. Under an Option Agreement of even date herewith,
the Company is granting to the Executive certain stock options under the
Company's Stock Incentive Plan.
8. Ownership of Material Information. All right, title and
interest of every kind and nature whatsoever in and to discoveries, inventions,
improvements, patents (and applications therefor), copyrights, ideas, know-how,
laboratory notebooks, creations, properties and all other proprietary rights
arising from, or in any way related to, the Executive's employment hereunder
shall become and remain the exclusive property of the Company, and the
Executive shall have no interest therein.
9. Trade Secrets. The Executive shall not, during the term of this
Agreement or thereafter, disclose to anyone (except to the extent reasonably
necessary for the Executive to perform his duties hereunder or as many be
required by law) any confidential information concerning the business or
affairs of the Company (or of any affiliate or subsidiary of the Company),
including by not limited to lists of customers, business plans, joint ventures,
financial or cost information, and confidential scientific and technological
information (whether of the Company or entrusted to the Company by a third
party under a confidentiality agreement or understanding) which the Executive
shall have acquired in the course of, or incident to, the performance of his
duties pursuant to the terms of this Agreement or pursuant to any prior
dealings with the Company or any affiliate or subsidiary of the Company. In
the event of a breach or threatened breach by the Executive of the provisions
of this Section 9, the Company shall be
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entitled to an injunction restraining the Executive from disclosing, in whole
or in part, such information or from rendering any services to any person,
firm, corporation, association or other entity to whom such information has
been disclosed or is threatened to be disclosed. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies available
to the Company for such breach or threatened breach, including the recovery of
damages from the Executive. Nothing herein shall be construed as prohibiting
the Executive from disclosing to anyone any information which is, or which
becomes, available to the public (other than by reason of a violation of this
Section 9) or which is a matter of general business knowledge or experience.
10. Termination for Cause. The Company may terminate the employment
of the Executive under this Agreement in the event that the Board determines
that the Executive (a) has materially and substantially breached his
obligations under Section 4, 9, or 13 of this Agreement, provided that the
employment of the Executive shall not be terminated under this clause (a)
unless the Executive is given notice in writing that the conduct in question
constitutes grounds for termination under this Section 10 and the Executive is
allowed at least thirty (30) days to remedy the refusal or failure, (b) has
been convicted of a felony constituting a crime of moral turpitude (whether or
not in conjunction with the performance by the Executive of his duties under
this Agreement), or (c) has through willful misconduct or gross negligence
engaged in an act or course of conduct that causes material injury to the
Company (or any affiliate or subsidiary of the Company). If the employment of
the Executive under this Agreement is terminated under this Section 10, the
Chief Executive Officer shall give written notice to the Executive specifying
the cause of such action. Upon termination of employment under this Section
10, the Company shall be relieved of all further obligations under this
Agreement.
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Notwithstanding such termination of employment, the Executive shall continue to
be bound by the provisions of Sections 8, 9, and 13.
11. Termination Without Cause.
(a) If, except as otherwise provided in Section 12, the employment
of the Executive is terminated by the Company other than for Cause or by
resignation of the Executive, or if the responsibilities and duties of the
Executive are, other than for Cause, materially diminished or changed by the
Company in a manner that materially impairs the Executive's ability to function
as the Executive Vice President and Chief Operating Officer of the Company, the
Executive shall be entitled to receive severance payments aggregating up to
$205,000; said severance payments are to be paid as continuation of monthly
salary payments until such time as Executive secures other employment at which
time the payments shall cease. In no event will severance payments continue
for more than 12 months or exceed in the aggregate $205,000.
(b) Termination of employment under this Section 11 shall not
terminate the Executive's obligations under Sections 8, 9, and 13.
12. Death or Disability of the Executive. In the event that the
Executive, during the period while employed under this Agreement, shall die or
at any time become unable, due to ill-health, accident, injury or similar
cause, to carry out his duties under this Agreement, the Company may terminate
this Agreement and be relieved of all further obligations hereunder, other than
compensation for services provided prior to such termination, reimbursement for
expenses incurred prior to such termination, and, other than in the case of
death, payment of the severance payment specified in Section 11 (a).
Termination of employment under this Section 12 shall not terminate the
Executive's obligation under section 8, 9 and 13.
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13. Non-Competition. The Executive hereby agrees that, during the
Term and for a period of eighteen (18) months following the termination of his
employment under this Agreement, he will not, directly or indirectly and in any
way, (a) own, manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation or control of
any business competing with the business of the Company, (b) interfere with,
solicit on behalf of another or attempt to entice away from the Company (or any
affiliate or subsidiary of the Company) (i) any project, financing or customer
that the Company (or any affiliate or subsidiary of the Company) has under
contract (including unfulfilled purchase orders), or any letter of supply or
other supplier contract or arrangement entered into by the Company (or any
affiliate or subsidiary of the Company), and all extensions, renewals and
resolicitations of such contracts or arrangements, (ii) any contract,
agreement or arrangement that the Company (or any affiliate or subsidiary of
the Company) is actively negotiating with any other party, or (iii) any
prospective business opportunity that the Company (or any affiliate or
subsidiary of the Company) has identified, or (c) for himself or another, hire,
attempt to hire, or assist in or facilitate in any way the hiring of any
employee of the Company (or any affiliate or subsidiary of the Company), or any
employee of any person, firm or other entity, the employees of which the
Company (or any affiliate or subsidiary of the Company) has agreed not to hire
or endeavor to hire. The effective time of the limitations imposed by this
Section 13 shall be extended for the period of time equal to any period of time
during which the Executive acts in circumstances that court of competent
jurisdiction finds to have violated the terms of this Section 13.
Because of the Executive's knowledge of the Company's business, in the
event of the Executive's actual or threatened breach of the provisions of this
Section 13, the Company shall be entitled to, and the Executive hereby consents
to, an injunction restraining the Executive
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from any of the foregoing. However, nothing herein shall be construed as
prohibiting the Company from pursuing any other available remedies for such
breach or threatened breach, including the recovery of damages from the
Executive. The Executive agrees that the provisions of this Section 13 are
necessary and reasonable to protect the Company in the conduct of its
business. If any restriction contained in this Section 13 shall be deemed to
be invalid or unenforceable by reason of the extent, duration of geographic
scope thereof, then the Company shall have the right to reduce such extent,
duration, geographic scope of other provisions thereof, and in their reduced
form such restrictions shall then be enforceable in the manner contemplated
hereby.
14. Capacity. The Executive represents and warrants to the
Company that he is not now under any obligation, of a contractual nature or
otherwise, to any person, firm, corporation, association or other entity that
is inconsistent or in conflict with this Agreement or which would prevent,
limit or impair in any way the performance by him of his obligations hereunder.
15. Withholding. The Executive acknowledges that salary and all
other compensation payable under this Agreement shall be subject to withholding
for income and other applicable taxes to the extent required by law, as
determined by the Company in its reasonable judgment.
16. Indemnification. To the greatest extent permitted by applicable
law, and in a manner consistent with any procedures required by applicable law,
the Corporation shall indemnify and hold the Executive harmless from and
against any liability (including, without limitation, reasonable attorneys'
fees) incurred by the Executive in any claim, action, suit, or proceeding
instituted or brought against the Executive as a result of or arising out of
service by
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the Executive as an officer, director of the Company, or of any other
corporation or other entity at the request or direction of the Company, except
to the extent that such liability is the result of the criminal action or
willful misconduct on the part of the Executive.
17. Waiver. No act, delay, omission or course of dealing on the
part of any party hereto in exercising any right, power or remedy hereunder
shall operate as, or be construed as, a waiver thereof or otherwise prejudice
such party's rights, powers and remedies under this Agreement.
18. Notice. Any and all notices referred to herein shall be
sufficient if furnished in writing and delivered by hand, by facsimile
transmission or by overnight delivery service maintaining records of receipt,
to the respective parties at the following addresses:
If to the Company: Telular Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile #: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile #: ▇▇▇-▇▇▇-▇▇▇▇
If to the Executive: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address or addresses as either party may from time to time
designate by notice given as aforesaid. Notices shall be effective when
delivered.
19. Arbitration. Except as provided otherwise in this Agreement,
all disputes arising under or in connection with this Agreement may be
submitted to arbitration in Chicago,
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Illinois under the rules of the American Arbitration Association, and the
decision of the arbitrator shall be final and binding upon the parties.
Judgment upon the award rendered may be entered and enforced in any court
having jurisdiction.
20. Assignability. The rights and obligations contained herein
shall be binding on and inure to the benefit of the successors and assigns of
the Company. The Executive may not assign his rights or obligations hereunder
without the express written consent of the Company.
21. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
22. Completeness. This Agreement and the Option Agreement entered
into pursuant hereto set forth all, and are intended by each party to be an
integration of all, of the promises, agreements and understandings between the
parties hereto with respect to the subject matter hereof.
23. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one agreement binding on the parties hereto.
24. Severability. Each provision of this Agreement shall be
considered severable and if for any reason any provision that is not essential
to the effectuation of the basic purpose of the Agreement is determined to be
invalid or contrary to any existing or future law, such invalidity shall not
impair the operation of or affect those provisions of this Agreement that are
valid.
25. Headings; Construction. Headings contained in this Agreement
are inserted for reference and convenience only and in no way define, limit,
extend or describe the scope of this Agreement or the meaning or construction
of any of the provisions hereof. As used
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herein, unless the context otherwise requires, the single shall include the
plural and vice versa, words of any gender shall include words of any other
gender, and "or" is used in the inclusive sense.
26. Survival of Terms. If this Agreement is terminated for any
reason, the provisions of Sections 8, 9 and 13 shall survive and the Executive
and the Company, as the case may be, shall continue to be bound by the terms
thereof to the extent provided therein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
TELULAR CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and C.E.O.