<PAGE> 1
EXHIBIT 10.1.23
---------------
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of February 1,
2000, (the "Effective Date") at Akron, Ohio, between TELXON CORPORATION
("Employer"), a Delaware corporation with offices at 3330 West Market Street,
Akron, Ohio 44333, and WILLIAM J. MURPHY ("Key Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Key Employee initially as Executive
Vice President, Americas of Employer, and thereafter, in such capacity as
Employer's chief executive officer (the "Chief Executive Officer"), or such
other officer of Employer as the Chief Executive Officer shall direct (the Chief
Executive Officer or such other officer being Key Employee's "Supervisor"),
shall direct, and Key Employee desires to be so employed, upon the terms and
conditions herein contained.
NOW, THEREFORE, in consideration of the foregoing and in consideration of
the mutual promises and agreements contained herein, the parties hereto agree as
follows:
1. EMPLOYMENT PERIOD. Employer agrees to employ Key Employee, and Key
Employee agrees to be so employed, on the terms and conditions set
forth herein for the period beginning on the Effective Date and
ending March 31, 2003, which period shall thereafter be
automatically extended for successive additional twelve (12) month
periods, subject to the earlier termination of such employment, as
so extended, by Employer or Key Employee pursuant to paragraph 4
(the "Employment Period").
2. NATURE OF DUTIES.
a. Key Employee's duties and responsibilities shall be to serve
as Executive Vice President, Americas of Employer or in such
other capacity as the Supervisor may at any time and from time
to time in its discretion direct, in conformity with
management policies, guidelines and directions issued by
Employer. Key Employee shall report directly to the
Supervisor, and shall have general charge and supervision of
those functions and such other responsibilities as the
Supervisor shall from time to time determine in his
discretion.
b. Key Employee shall work exclusively for Employer on a
full-time basis in such capacity as he is to serve pursuant to
paragraph 2(a), devoting all of his time and attention during
normal business hours to Employer's business.
c. Key Employee shall perform his duties and responsibilities
hereunder diligently, faithfully and loyally in order to cause
the proper, efficient and successful operation of Employer's
business.
3. COMPENSATION AND BENEFITS.
a. BASE SALARY AND EXPENSES. As compensation for Key Employee's
services, Employer shall pay to Key Employee during the
Employment Period a salary (the "Base Salary") at the annual
rate of $325,000. Any salary increases for future fiscal years
will be determined by the Board of Directors of Employer or an
appropriate committee thereof (the "Board") in its discretion
based upon the recommendation of the Chief Executive Officer.
Base salary will be payable in arrears, in equal bi-weekly
installments or at such other interval as the Board or
applicable
<PAGE> 2
Employer policies shall direct. Employer shall reimburse Key
Employee for all reasonable out-of-pocket expenses incurred by
Key Employee on Employer's behalf during the Employment Period
and approved by the Supervisor or such other officer as the
Supervisor or applicable Employer policies shall direct.
b. BONUS COMPENSATION. In addition to the Base Salary, Key
Employee shall, at the discretion of the Board, be eligible to
receive bonus compensation ("Bonus Compensation") with respect
to the fiscal periods during the Employment Period commencing
on or after April 1, 2000 on such basis as shall be approved
by the Board. For FY`01, Key Employee shall be eligible for a
potential bonus of up to $200,000 based upon achieving goals
and achievements agreed upon by Key Employee and the
Supervisor, subject to such approval thereof as may be
required by the Chief Executive Officer and/or the Board.
Bonus compensation for subsequent fiscal years will be
determined by the Board in its discretion based upon the
recommendation of the Chief Executive Officer.
c. PROMOTION BONUS. In recognition of his promotion to the
executive office assumed by Key Employee pursuant to this
Agreement, Key Employee shall be entitled to receive, addition
to any Bonus Compensation to which he is entitled under
paragraph 3(c), a "Promotion Bonus" of $450,000, payable in
three (3) equal annual installments of $150,000 each due on
March 31, 2000, March 31, 2001, March 31,2002.
d. STOCK OPTIONS. During the Employment Period, Key Employee
shall, subject to the approval thereof by the Board or an
appropriate committee thereof, of options to purchase 100,000
shares of Employer common stock. Of such total, an option for
the purchase of 25,000 shares (the "Non-Plan Option") shall be
submitted for Board approval (outside of Employer's 1990 Stock
Option Plan for employees; such plan, as amended from time to
time, the "Option Plan")) at an exercise price of $15.063 per
share (representing the closing market price for the common
stock for the last trading day prior to the Effective Date),
to be exercisable in full immediately upon grant, expiring on
the fifth (5th) anniversary of the Board's approval of the
grant, and otherwise subject to the same terms and conditions
as are applicable to stock options granted under the Option
Plan. The remaining 75,000 options shall be submitted for
approval under the Option Plan in one or more installments as
shares become available therefor, and each grant toward that
balance shall, in accordance with the standard terms of grants
under the Option Plan, be at an exercise price equal to the
closing market price for the common stock for the last trading
day prior to the date of such grant, becoming exercisable in
three (3) equal annual installments on the first three (3)
anniversaries of such grant, expiring on the eighth (8th)
anniversary of such grant and otherwise subject to the terms
of the Option Plan. Key Employee shall be further eligible
during the Employment Period for additional stock options and
other awards and benefits pursuant to such employee stock
option and other stock-based employee benefit plans as
Employer may maintain from time to time during the Employment
Period with respect to its key employees of like stature and
compensation, in such amounts as may be determined by the
Board in its discretion based upon the recommendation of the
Chief Executive Officer. In the event that, during the
Employment Period, Key Employee is re-assigned by Employer to
a position carrying duties and responsibilities of lesser
stature than his present position as recited in paragraph 2(a)
or such position in which Key Employee serves as of the time
that any such options or other rights or benefits are
hereafter granted or awarded to or otherwise received by Key
Employee during the Employment Period (other than a
re-assignment occurring as the result of or in connection with
any change in control of Employer, in which case the
provisions of the governing benefit plan, or any other written
agreement between Telxon and Employee, applicable in such a
circumstance shall control), such options, rights and benefits
shall, to the extent unvested as of the time of such re-
- 2 -
<PAGE> 3
assignment, be subject to such reduction, cancellation and/or
forfeiture as may then be determined to be appropriate by the
Board in its discretion.
i. Key Employee makes the following representations,
warranties, acknowledgements and agreements to Employer
with respect to Non-Plan Option and the shares of Employer
common stock which may be acquired through the exercise
thereof (the "Non-Plan Shares") prior to:
(A) Key Employee understands that the Non-Plan Shares
have not been registered under the Securities Act of
1933, as amended (the "Securities Act") or any state
securities laws;
(B) The Non-Plan Shares are being offered and will be
sold pursuant to exemptions from registration
contained in the Securities Act and applicable state
securities laws based in part upon Key Employee's
representations contained in this paragraph 3(d)(i);
(C) Key Employee has had the opportunity to its
satisfaction to review Employer's quarterly and
annual reports to and other filings with the United
States Securities and Exchange Commission (the "SEC")
and to ask questions of and receive answers from
Employer's management regarding the business, assets,
financial condition, prospects and affairs of
Employer;
(D) Key Employee is an "accredited investor" (as such
term is defined in Rule 501 under the Securities Act)
and has such knowledge and experience in financial
and business matters that he is capable of evaluating
the merits and risks of his investment in the Shares
and of protecting his interests in connection with
such investment;
(E) Key Employee is not aware of the publication of any
advertisement in connection with the Non-Plan Option
or the Non-Plan Shares;
(F) Any Non-Plan Shares which Key Employee may acquire
through exercise of the Non-Plan Option will be for
his own account for investment only, and not with a
view toward their distribution, that he bear a total
loss of the investment without materially impairing
his financial condition, and will be able to bear the
economic risk of the investment indefinitely; and
(G) Key Employee understands that he cannot resell the
Non-Plan Shares unless and until the Non-Plan Shares
are registered under the Securities Act and/or
applicable state securities laws or an exemption from
such registration is available and that any
certificate evidencing Non-Plan Shares upon any
exercise of the Non-Plan Option prior to the
registration thereof provided for in paragraph
3(d)(ii) below will be legended regarding the absence
of and necessity for such registration and that there
is no assurance that any registration exemption will
be available or that, if available, such exemption
will allow Key Employee to transfer all or any
portion of the Non-Plan Shares he may subsequently
desire to transfer.
It shall be a condition of any exercise of the Non-Plan Option
prior to the registration thereof provided for in paragraph
3(d)(ii) below that the representations and warranties
contained in this paragraph 3(d)(i) shall be true in all
material respects on and as of the date of any exercise of the
Non-Plan Option with the same force and effect as though such
representations and warranties had been made on and as of such
exercise date. Upon
- 3 -
<PAGE> 4
request of Key Employee with respect to any such exercise of
the Non-Plan Option as he may contemplate, Employer agrees to
make available to Key Employee copy's of Employer's quarterly
and annual reports to and other filings with the SEC and to
afford him the opportunity to his satisfaction to ask
questions of and receive answers from Employer's management
regarding the business, assets, financial condition, prospects
and affairs of Employer.
ii. Employer agrees to use its reasonable best efforts, (A) if
Employer becomes eligible to utilize Form S-8 for the
registration of securities under the Securities Act prior
to the exercise of the Promotion Option and Form S-8 may
properly be utilized for registration of the Non-Plan
Shares, to register the Non-Plan Shares on such form, or
(B) in the event that Employer is ineligible to register
the Non-Plan Shares on Form S-8 prior to Key Employee's
exercise of the Non-Plan Option or such Form otherwise may
not be utilized for the registration of the Non-Plan
Shares, to register, upon Key Employee's request, the
Non-Plan Shares for Key Employee as a selling stockholder
on Form S-3 at or about the time that Employer effects the
registration with the SEC of the Employer common stock
issued in connection with the Employer's acquisition of
the minority interests in its Metanetics Corporation
subsidiary, or at any time thereafter as of which it may
reasonably be expected that such registration would become
effective prior to the Non-Plan Shares so acquired
becoming eligible for resale in reliance upon SEC Rule
144. Key Employee agrees to cooperate in the effecting of,
and to execute and deliver such representations,
warranties and indemnifications customarily required of
selling stockholders with respect to, such registration as
Employer shall reasonably request. Employer shall bear all
securities registration fees, fees and expenses of its
counsel and accountants, and financial printers' and
similar out-of-pocket costs incident to the preparation,
filing and maintaining of the effectiveness of such
registration but shall not be responsible for any
brokerage, attorneys or other fees or expenses incurred by
Key Employee in connection with the sale or other
disposition of the Non-Plan Shares.
e. VACATION. During the Employment Period, Key Employee shall
be entitled to vacation in accordance with Employer's
policies.
f. HEALTH, DISABILITY, RETIREMENT AND DEATH BENEFITS. Employer
shall provide Key Employee with the same health, disability,
retirement and death and other fringe benefits as are
generally provided to the executive employees of Employer in
accordance with such terms, conditions and eligibility
requirements as may from time to time be established by
Employer.
4. TERMINATION.
a. This Agreement shall terminate automatically upon Key
Employee's death.
b. Employer may terminate Key Employee's employment under this
Agreement at any time, upon thirty (30) days written notice to
Key Employee, if Key Employee becomes permanently disabled.
Permanent disability shall be determined by Employer according
to the same standards applicable to the employees of Employer
generally under the disability benefits referred to in
paragraph 3(e).
c. Employer shall have the right to terminate Key Employee's
employment under this Agreement at any time (i)
immediately for "cause" (which shall mean for any action
or inaction of Key Employee which is adverse to
Employer's interests, including, without limitation, Key
Employee's dishonesty, grossly negligent misconduct,
willful misconduct, disloyalty, act of
- 4 -
<PAGE> 5
bad faith, neglect of duty or material breach of this
Agreement or of any Employer policy applicable to its
employees generally), or (ii) without cause upon thirty
(30) days written notice to Key Employee.
d. Key Employee may voluntarily terminate his employment under
this Agreement at any time, upon thirty (30) days written
notice to Employer.
5. EFFECTS OF TERMINATION.
a. In the event of automatic termination by reason of Key
Employee's death pursuant to paragraph 4(a), or by Employer by
reason of Key Employee's permanent disability pursuant to
paragraph 4(b), all of Employer's obligations under this
Agreement shall end except for Employer's obligations to pay
Key Employee's Base Salary and Bonus Compensation, if any
(which Bonus Compensation shall, for purposes of this
paragraph 5(a) and paragraph 5(c)(i), be prorated in light of
the circumstances), in each case earned but unpaid to the date
of death or permanent disability, plus any then remaining
unpaid portion of the Promotion Bonus. Key Employee shall also
have the right to receive any payments under the death or
disability benefits, as the case may be, provided to Key
Employee pursuant to paragraph 3(e), if any.
b. In the event Employer exercises its right of termination other
than for cause pursuant to paragraph 4(c)(ii), or Key Employee
exercises his right of voluntary termination pursuant to
paragraph 4(d), all of Employer's obligations under this
Agreement shall end except for its obligations to pay Key
Employee's Base Salary, if any, earned but unpaid to the date
of termination (which, for purposes of this paragraph 5(b) and
paragraph 5(c), shall be thirty (30) days after the date on
which notification is provided by Employer to Key Employee
pursuant to paragraph 4(c)(ii) or by Key Employee to Employer
pursuant to paragraph 4(d), as the case may be), plus any then
remaining unpaid portion of the Promotion Bonus and, in the
case of termination pursuant to paragraph 4(c)(ii), Employer's
obligations under paragraph 5(c).
c. In the event Employer exercises its right of termination other
than for cause pursuant to paragraph 4(c)(ii), Employer shall
also be obligated to pay or provide to Key Employee:
i. Key Employee's Bonus Compensation, if any, earned but
unpaid to the date of termination;
ii. as severance pay, for the twelve (12) month period
following the date of such termination, annualized
compensation at a rate which shall be equal to Key
Employee's Base Salary at such termination date, payable
in equal bi-weekly installments or at such other interval
as the Board or Employer's corresponding payroll policies
shall direct; and
iii.continued benefits (or if unavailable under the general
terms and provisions of the applicable plan, their
equivalent) for Key Employee and his dependents, for a
period terminating on the earliest of (A) twelve (12)
months following the date of such termination, (B) the
commencement date of equivalent benefits from a new
employer, or (C) Key Employee's normal retirement date
(after which the terms of the retirement plan which would
have been applicable to Key Employee had he retired as of
such termination date rather than having been terminated
shall govern), under all insured and self-insured employee
welfare benefit plans in which Key Employee was entitled
to participate immediately prior to such termination date,
provided that Key Employee shall not be required to pay
any amount greater than the regular contribution made by
Key Employee for such participation immediately prior to
such termination date.
- 5 -
<PAGE> 6
d. In the event Employer exercises its right of termination
pursuant to paragraph 4(c)(i) for cause, or Key Employee
leaves the employ of Employer other than pursuant to notice
duly given under paragraph 4(d), all of Employer's obligations
under this Agreement shall end except for Employer's
obligations to pay Key Employee's Base Salary, if any, earned
but unpaid to the date of such termination or of the Key
Employee so leaving Employer's employ, plus any then remaining
unpaid portion of the Promotion Bonus.
6. COVENANT NOT TO COMPETE.
a. RESTRICTED ACTIVITIES--DURATION. Except as otherwise consented
to or approved by Employer's Board of Directors in writing,
Key Employee agrees that, in addition to being operative
during the Employment Period, the provisions of paragraphs
6(a)(i) through (iii), inclusive, shall be operative for a
period of twelve (12) months after the later of (1) the date
Key Employee's employment with Employer (pursuant to this
Agreement or otherwise) is terminated or otherwise ceases, or
(2) the end of all severance payments, if any, which Employer
is obligated to make to Key Employee under paragraph 5(c) or
any other subsequent written agreement between them,
regardless of the time, manner or reason for the termination
or other cessation of such employment. During such periods,
without Telxon's prior written consent, Key Employee will not,
directly or indirectly, acting alone or as a member of a
partnership or as an owner, director, officer, employee,
manager, representative or consultant of any corporation or
other business entity:
i. Engage in any business which manufactures, sells,
distributes, services or supports products or services of
a type manufactured, sold, marketed, serviced or
supported, or in any other business in competition with or
adverse to the business that is conducted by Employer, or
which Employer is in the process of developing and in or
of which Key Employee participated or has knowledge, at
the time of the cessation of Key Employee's employment
with the Employer, in the United States, Canada or any
European, Asian, Pacific Rim or other foreign country in
which Employer then or thereafter transacts business or is
making a bona fide attempt to do so;
ii. induce, request or attempt to influence any customer or
supplier of Employer to curtail or cancel their business
or prospective business with Employer or in any way
interfere with Employer's business relationships; or
iii.induce, solicit or assist or facilitate the inducement or
solicitation by any third person of any employee, officer,
agent or representative of Employer to terminate his
respective relationship with Employer or in any way
interfere with the Employer's employee, officer, agent or
representative relationships.
b. TOLLING; RELIEF OF OBLIGATIONS. In the event that Key Employee
breaches any provision of this paragraph 6, such violation (i)
shall toll the running of the twelve (12) month period set
forth in paragraph 6(a) from the date of commencement of such
violation until such violation ceases, and (ii) shall relieve
Employer of any obligations to Key Employee under this
Agreement.
c. "BLUE PENCILING" OR MODIFICATION. If either the length of
time, geographic area or scope of restricted business activity
set forth in paragraph 6(a) is deemed unreasonably restrictive
or unreasonable in any other respect in any proceeding before
a court of competent jurisdiction, Key Employee and Employer
agree and consent to such court's modifying or reducing such
- 6 -
<PAGE> 7
restriction(s) with respect, but only with respect, to that
jurisdiction to the extent deemed reasonable under the
circumstances then presented.
7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
a. For purposes of this Agreement, "Confidential Information"
means all information or trade secrets of any type or
description belonging to Employer which are proprietary and
confidential to Employer and which are not publicly disclosed
or are only disclosed with restrictions. Without limiting the
generality of the foregoing, Confidential Information
includes: strategic and other plans for carrying on business;
cost data and other financial information; lists of customers,
employees, vendors and business partners and alliances;
manufacturing methods and processes; product research and
engineering data, drawings, designs and schematics; computer
programs, flow charts, routines, subroutines, translators,
compilers, operating systems and object and source codes;
specifications, inventions, know-how, calculations and
discoveries; any letters, papers, documents and instruments
disclosing or reflecting any of the foregoing; and all
information revealed to or acquired or created by Key Employee
during Key Employee's employment by Employer relating to any
of the foregoing or otherwise to Employer's past, current or
future business.
b. Key Employee acknowledges that the discharge of Key Employee's
duties under this Agreement will necessarily involve his
access to Confidential Information. Key Employee acknowledges
that the unauthorized use by him or disclosure by him of such
Confidential Information to third parties might cause
irreparable damage to Employer and Employer's business.
Accordingly, Key Employee agrees that at all times after the
date hereof he will not, without the prior written consent of
Employer's Board of Directors, copy, publish, disclose,
divulge to or discuss with any third party, nor use for his
own benefit or that of others any Confidential Information,
except in the normal conduct of his duties under this
Agreement, it being understood and acknowledged by Key
Employee that all Confidential Information created, compiled
or obtained by Key Employee or Employer, or furnished to Key
Employee by any person while Key Employee is associated with
Employer, is and shall be and remain Employer's exclusive
property.
c. Promptly upon termination of his employment, irrespective of
the time or manner thereof or reason therefor, Key Employee
agrees to return and surrender to Employer all Confidential
Information copies thereof in any form which is in any manner
in his control or possession, as well as all other Employer
property.
8. RIGHTS. Key Employee acknowledges and agrees that any
procedure, design feature, schematic, invention, improvement,
development, discovery, know-how, concept, idea or the like
(whether or not patentable, registrable under copyright or
trademark laws, or otherwise protectable under similar laws)
that Key Employee (whether individually or jointly with any
other person or persons) has since the inception of his
employment with Employer conceived of, suggested, made,
invented, developed or implemented, or may hereafter conceive
of, suggest, make, invent, develop or implement, during the
course of his service to Employer which relates in any way to
the business of Employer or to the general industry of which
Employer is a part, all physical embodiments and
manifestations thereof, and all patent rights, copyrights and
trademarks (and applications therefor) and similar protections
thereof (all of the foregoing referred to as "Work Product")
are and shall be the sole, exclusive and absolute property of
Employer. All Work Product shall be deemed to be works for
hire for the benefit of Employer, and to the extent that any
Work Product may not constitute a work for hire, Key Employee
hereby assigns to Employer all right, title and interest in,
to and under such Work Product, including, without limitation,
the right to obtain such patents,
- 7 -
<PAGE> 8
copyright registrations, trademark registrations or similar
protections as Employer may desire to obtain. Key Employee
will immediately disclose all Work Product to Employer and
agrees, at anytime, upon Employer's request and without
additional compensation, to execute any documents and
otherwise to cooperate with Employer (including, without
limitation, all lawful testimony and sworn statements or other
certifications as may be appropriate) respecting the
perfection of its right, title and interest in, to and under
such Work Product and in any litigation or administrative or
other proceeding or controversy in connection therewith, all
expenses incident thereto be borne by Employer.
9. INDUCEMENT; REMEDIES INADEQUATE; AND SURVIVAL.
a. The covenants made by Key Employee in favor of Employer under
paragraphs 6, 7 and 8 and this paragraph 9 are being executed
and delivered by Key Employee in consideration of Key
Employee's employment with Employer and Employer's obligations
hereunder (including, without limitation, the Base Salary, the
Bonus Compensation and other benefits and payments provided
for herein). Key Employee further acknowledges that such
covenants were and have been conditions of his employment
since the inception of Key Employee's employment with
Employer.
b. Key Employee has carefully considered, and has had adequate
time and opportunity to consult with his own counsel or other
advisors regarding the nature and extent of the restrictions
upon him, and the rights and remedies conferred upon Employer,
under paragraphs 6, 7 and 8 and this paragraph 9, and hereby
acknowledges and agrees that such restrictions are reasonable
in time, territory and scope, are designed to eliminate
competition which otherwise would be unfair to Employer, do
not stifle the inherent skill and experience of Key Employee,
would not operate as a bar to Key Employee's sole means of
support, are fully required to protect the legitimate
interests of Employer and do not confer a benefit upon
Employer disproportionate to the detriment to Key Employee.
c. Key Employee acknowledges that the services to be rendered by
him to Employer as contemplated by this Agreement are special,
unique and of extraordinary character. Key Employee expressly
agrees and understand that the remedy at law for any breach by
him of paragraph 6, 7 or 8 will be inadequate and that the
damages flowing from such breach are not readily susceptible
to being measured in monetary terms. Accordingly, upon
adequate proof of Key Employee's violation of any legally
enforceable provision of paragraph 6, 7 or 8, Employer shall
be entitled to immediate injunctive relief, including, without
limitation, a temporary order restraining any threatened or
further breach. In the event any equitable proceedings are
brought to enforce any provision of paragraphs 6, 7 and 8, Key
Employee agrees that he will not raise in such proceedings any
defense that Employer has an adequate remedy at law, and Key
Employee hereby waives any such defense. Nothing in this
Agreement shall be deemed to limit Employer's remedies at law
or in equity for any breach by Key Employee of any of the
provisions of paragraphs 6, 7 and 8 which may be pursued or
availed of by Employer. Without limiting the generality of the
immediately preceding sentence, any covenant on Key Employee's
part contained in paragraph 6, 7 or 8 which may not be
specifically enforceable shall nevertheless, if breached, give
rise to a cause of action for monetary damages.
d. As used in paragraphs 6, 7 and 8 and in this paragraph 9, the
term "Employer" (other than with respect to the Board of
Directors) shall include, in addition to Employer, all
subsidiaries and other affiliates of Employer, whether so
related to Employer during Key Employee's employment with
Employer or at any time thereafter.
- 8 -
<PAGE> 9
e. Subject only to such time limitations as may be expressly set
forth therein, the covenants and agreements made by Key
Employee in paragraphs 6, 7 and 8 and this paragraph 9 shall
survive full payment by Employer to Key Employee of the
amounts to which Key Employee is entitled under this Agreement
and the termination of this Agreement and Key Employee's
employment hereunder or otherwise. The provisions of
paragraphs 6, 7 and 8 and this paragraph 9, and to the extent
applicable thereto, paragraphs 13 through 20, shall continue
to apply to and be binding upon Key Employee in the event and
for so long as Key Employee shall remain in the employ of
Employer following any termination under this Agreement and
for such post-employment period as may there be specified but
measured from the end of such continued employment.
10. ASSIGNMENT OF KEY EMPLOYEE'S RIGHTS. In no event shall Employer be
obligated to make any payment under this Agreement to any assignee
or creditor of Key Employee. Prior to the time provided for the
making of any payment under this Agreement, neither Key Employee
nor his legal representative shall have any right by way of
anticipation or otherwise to assign or otherwise dispose of any
interest under this Agreement.
11. RIGHT OF SET-OFF. Any payments to be made to Key Employee under
this Agreement shall be subject to offset by Employer for any
claims for damages, liabilities or expenses which it may have
against Key Employee.
12. EMPLOYER'S OBLIGATIONS UNFUNDED. Except as to any benefits that
may be required to be funded under any benefit plan of Employer
pursuant to law or under any other written agreement, the
obligations of Employer under this Agreement are not funded, and
Employer shall be not required to deposit in escrow or otherwise
set aside any moneys in advance of the due date for payment
thereof to Key Employee.
13. NOTICES. Any notice to be given hereunder by Employer to Key
Employee shall be deemed to be given if delivered to Key Employee
in person, or if mailed to Key Employee, by certified mail,
postage prepaid, return receipt requested, at his address last
shown on the records of Employer, and any notice to be given by
Key Employee to Employer shall be deemed to be given if delivered
in person or by mail, postage prepaid, return receipt requested to
the Chief Executive Officer at Employer's principal executive
office, unless Key Employee or Employer shall have duly notified
the other parties in writing of a change of address. If mailed,
notice shall be deemed to have been given when deposited in the
mail as set forth above.
14. AMENDMENTS. This Agreement shall not be modified or discharged, in
whole or in part, except by an agreement in writing signed by the
parties hereto.
15. ENTIRE AGREEMENT. This Agreement, together with any and all other
written agreement(s) made contemporaneously herewith, constitute
the entire agreement between the parties with respect to Key
Employee's employment by Employer from and after the Effective
Date. The parties are not relying on any other representation or
understanding with respect thereto, express or implied, oral or
written. This Agreement, as supplemented by such contemporaneous
agreement(s), supersedes any prior employment agreement, written
or oral, between Key Employee and Employer.
16. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only and do not affect the meaning of any
terms or provisions hereof.
- 9 -
<PAGE> 10
17. GENDER AND NUMBER. Whenever the context may permit, any pronouns
used herein shall include the corresponding masculine, feminine
and neuter forms, and the singular form of any noun or pronoun,
including any terms defined herein, shall include the plural and
vice versa.
18. BINDING EFFECT. The rights and obligations of Employer hereunder
shall inure to the benefit of, and shall be binding upon, Employer
and its respective successors and assigns, and the rights and
obligations of Key Employee hereunder shall inure to the benefit
of, and shall be binding upon, Key Employee and his heirs,
personal representatives and estate.
19. SEVERABLE PROVISIONS. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to
be illegal or otherwise unenforceable in any jurisdiction, in
whole or in part, the remaining provisions and any partially
enforceable provision shall be binding and enforceable to the
extent enforceable in such jurisdiction.
20. GOVERNING LAW. This Agreement shall be interpreted, construed, and
enforced in all respects in accordance with the laws of the State
of Ohio.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Effective Date.
TELXON CORPORATION KEY EMPLOYEE:
By: /s/ John W. Paxton, Sr. /s/ William J. Murphy
-------------------------- ----------------------
John W. Paxton, Sr. William J. Murphy
Chairman & CEO
- 10 -
