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EXHIBIT 10.2
EMPLOYMENT AGREEMENT WITH DONALD K. SKINNER
This EMPLOYMENT AGREEMENT ("Agreement") dated as of January 1, 1997 ("Effective
Date"), between Donald K. Skinner, ("Skinner") an individual residing at 5566
Little Fawn Court, Westlake Village, California 91362, and Eltron International,
Inc. ("Eltron"), a California corporation.
WITNESSETH:
WHEREAS, Eltron desires to retain Skinner as a senior executive of Eltron and
Skinner desires to perform such duties,
This agreement replaces all previous employment agreements between Eltron and
Skinner.
NOW, THEREFORE, it is mutually agreed by among the parties as follows:
Section 1. Employment, Term and Duties
1.1 Employment
Upon the terms and subject to the conditions and contained herein, during the
Employment Term (as hereinafter defined), Eltron hereby employs Skinner as a
senior executive officer of Eltron. Skinner shall report directly to the Board
of Directors of Eltron. Skinner hereby accepts such employment and, during the
Employment Term shall devote his fill business time, skill, energy and attention
to the business of Eltron, and shall perform his duties in a diligent,
trustworthy, loyal, businesslike and efficient manner, all for the purpose of
advancing the business of Eltron.
1.2 Employment Term.
The Employment Term shall commence on the Effective Date and, unless extended by
mutual agreement of the parties hereto, or sooner terminated or canceled
pursuant to Section 3.2 hereof, shall terminate and expire on the 3rd annual
anniversary of the Effective Date, provided however, that for purposes of
Section 4.3 hereof, the Employment Term shall be deemed to be 3 years.
1.3 Duties and Responsibilities
Skinner shall serve Eltron as its President and shall have the duties and
responsibilities of its Chief Executive Officer. Skinner agrees to observe and
comply with the policies, procedures and rules of Eltron regarding performance
of his specific duties and the duties of Eltron employees in general. Skinner
specifically covenants, warrants and represents to Eltron that he has the full,
complete and entire right and authority to enter into this Agreement, that he
has no agreement, duty, commitment or responsibility of any kind or nature
whatsoever with any other party, person or entity which would conflict in any
manner whatsoever with any of his obligations to Eltron under this Agreement,
and that he is fully ready, willing and able to perform each and all duties and
responsibilities set forth in this Agreement.
Section 2. Compensation
2.1 Base Salary
During the first year of the Employment Term the Eltron shall pay, and Skinner
shall be entitled to receive from the Eltron, a base salary for full-time
employment referred to in Section 1 hereof, compensation at the rate of $210,000
per year ("Base Salary"), payable in equal bi-weekly
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installments. Eltron shall make all deductions, withholdings and/or payments
that are required by law from the gross sums payable to Skinner pursuant to the
provisions of this Section.
2.2 Adjustment
During the Employment Term, the base salary Skinner is entitled to receive will
be reviewed each February by the Compensation Committee of the Board of
Directors and adjusted effective January 1 of the coming year. The salary
adjustment Skinner is entitled to receive will be determined at the sole
discretion of the Compensation Committee.
2.3 Additional Compensation
An incentive bonus based on the growth and performance of Eltron International,
Inc. shall be payable to Skinner in the years 1997 to 1999, inclusive. The
incentive bonus shall be an amount not exceeding 75% of Skinner's base salary
for the year in respect of which the bonus is payable. The bonus Skinner shall
be entitled to receive will (Additional Compensation") be based on the audited
financial statements of the Company and will be calculated based on the criteria
found in Appendix A.
In the event that either the nature of the Company changes by virtue of a
merger, acquisition or similar event or if Skinner is called upon to serve in a
substantially different role by the Company, the Bonus criteria will be reviewed
and revised to reflect such terms as are mutually acceptable to both Skinner and
the Compensation Committee of the Company's Board of Directors.
2.4 Expenses
Eltron shall reimburse Skinner for all ordinary and necessary expenses incurred
and paid by him in the course of the performance of his duties pursuant to this
Agreement and consistent with Eltron's policies in effect from time to time with
respect to travel, entertainment and other business expenses, and subject to
Eltron's requirements with respect to the manner of reporting such expenses.
Eltron shall continue in effect (or substitute on a comparable basis) the major
medical, hospitalization, life, travel, accident and disability insurance
policies covering Skinner and/or his eligible dependents. In addition, Eltron
shall reimburse Skinner for his and his wife's and dependent children's medical
expenses not covered by Eltron's medical insurance.
Section 3. Termination.
3.1 Termination.
Eltron shall have the right to terminate the Employment Term for Cause (as
hereinafter defined) or in the event Skinner suffers an illness or incapacity of
such character as to substantially disable him from performing his duties
hereunder or upon the death of Skinner. Notwithstanding anything to the contrary
set forth in this Agreement, Skinner's obligations and covenants set forth in
Sections 4 and 5 hereof shall survive the termination of this Agreement.
3.2 Termination of Employment for Cause
Eltron may at time during the term of this Agreement, by written notice,
terminate the employment of Skinner for cause. In such event, Skinner shall be
entitled to receive any unpaid amounts of Base Salary and Additional
Compensation for services provided by Skinner to Eltron up to and including the
date of termination of the employment of Skinner, but under no circumstances
whatsoever shall Skinner be entitled to receive any other compensation of any
kind or nature whatsoever, including, without limitation, for any period of time
after the date of the termination of the employment of Skinner. The following
shall be deemed to constitute the types of acts or conduct which shall
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constitute grounds for termination of Skinner's employment for cause ("Cause")
by written notice pursuant to this Agreement:
(a) The commission by Skinner of any felony.
(b) Any breach by Skinner of any material term, provision or covenant
contained in this Agreement and the failure of Skinner to cure the same within a
reasonable period of time not to exceed sixty (60) days of receipt of written
notice of such failure (which notice must state specifically and precisely what
action or inaction by the Employee constitutes the breach and what Employee must
do or not do to correct the breach) and the demand that the same be cured;
(c) The persistent and willful failure, neglect, inability or refusal
of Employee to perform his duties and responsibilities under this Agreement and
the failure to cure the same within fifteen (15) days of receipt of written
notice (which notice must state specifically and precisely what action or
inaction by the Employee constitutes the breach and what Employee must do or not
do to correct the breach) of such failure and the demand that the same be cured;
or
(d) Any material breach by Employee of any of Company's material
policies, practices, rules and/or regulations and the failure to cure the same
within fifteen (15) days of receipt of written notice (which notice must state
specifically and precisely what action or inaction by the Employee constitutes
the breach and what Employee must do or not do to correct the breach) of such
failure and the demand that the same be cured.
3.3 Disability
If, during the Employment Term, Employee becomes disabled due to illness, injury
or similar cause in such a manner that he is unable fully to perform his duties
pursuant to this Agreement, he shall be entitled upon certification of such
disability by a physician of Company's choice to a leave of absence from Company
for the duration of such disability as certified by such physician up to but not
exceeding the expiration of a period of one (1) year or until the end of the
Employment Term of this Agreement, whichever first occurs. In no event shall
Employee receive disability income coverage beyond the period of one (1) year
except to the extent provided in the Company's existing disability policy.
Employee's salary as provided in this Agreement, including the Base Salary and
the additional Compensation, shall continue to be paid by the Company during any
such leave of absence not to exceed one (1) year, provided, however, that if
Employee receives any payment or payments on account of such disability from any
employer-provided, governmental, employee-provided or other program or programs
of disability insurance attributable to the one (1) year leave of absence, or,
when appropriate, such shorter time period, Company shall be obligated to pay to
Employee only the difference, if any, between the salary provided to Employee by
the Company pursuant to this Agreement for the applicable period and the total
amount of disability insurance payments payable to Employee through or by any
such program or programs of disability insurance attributable to the same
applicable period. If Employee's absence because of disability continues for
more than one (1) year and the term of this Agreement has not expired, Company
shall have the full and unrestricted right, in its sole and exclusive
discretion, immediately to terminate Employee's employment by Company.
3.4 Death of Employee
In the event of the death of Employee during the term of this Agreement, this
Agreement shall immediately terminate, and Employee's estate shall be entitled
to receive any unpaid amounts of Base Salary and Additional Compensation for
services provided by Employee to Company up to
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and including the date of Employee's death and an additional payment equal to
the aggregate of Employee's Base Salary and Additional Compensation during his
last full year of employment by Company, but under no circumstances whatsoever
shall Employee's estate be entitled to receive any other compensation of any
kind or nature whatsoever for any period of time after the date of Employee's
death.
3.5 Duties of Employee After Termination of Employment
Following any termination of Employee's employment with Company, Employee shall
fully cooperate with Company in all matters relating to the winding up of his
pending work on behalf of Company and the orderly transfer of any such pending
work and of his duties and responsibilities for Company to such other employees
of Company as may be designated by Company. Company shall be entitled to such
full-time or part-time services of Employee as Company may reasonably require
during all or any part of the thirty (30) day period, Saturdays, Sundays and
federal holidays excepted, immediately following any termination of Employee's
employment by Company. Employee shall receive reasonable compensation for any
such services so rendered. Immediately upon any termination of Employee's
employment with Company, Employee shall return to Company any and all property
of Company of any kind or nature whatsoever in Employee's possession, custody or
control.
3.6 Option to Terminate Upon Change in Control
In the event of a merger or sale, or in the event a third party obtains majority
control of, or in the event that Skinner ceases to function as the President or
Chief Executive Officer of the Company, Skinner shall have the option to
terminate his employment and shall be entitled to receive a severance payment
equal to three times his annual base salary in effect at that time. Skinner
shall have this option for up to 180 days after said change of control occurs
and must notify the Company in writing 60 days prior his decision to terminate
based upon said change of control.
Section 4. Business Properties.
4.1 Business Properties.
Other than as required to perform his duties in accordance with this Agreement
and for purposes of furthering the business of Eltron, Skinner shall not use or
cause to be used any customer lists, trade secrets or any other confidential
business information by him as a result of his employment or relationship to
Eltron or any affiliate of Eltron.
4.2 Revealing of Trade Secrets, etc.
Skinner acknowledges the interest of Eltron in maintaining the confidentiality
of information related to its business an shall not at any time during the
Employment Term or thereafter, directly or indirectly, reveal or cause to be
revealed to any person or entity the production processes, inventions, formulae,
trade secrets, customer lists or other confidential business information
obtained by him as a result of his employment or relationship with Eltron or any
affiliate of Eltron, except when authorized in writing to do so by the Board of
Directors of Eltron; provided, however, that the parties acknowledge that it is
not the intent of this Section 4.2 to include within its subject matter (i)
information not proprietary to Eltron, or (ii) information which is in the
public domain.
4.3 Non-Competition.
During the Employment Term and for a period of one (1) year thereafter. Skinner
shall not (a) (i) compete with Eltron, in the Territory (as hereinafter defined)
in the conduct of its business as a manufacturer of bar code printers and
related accessories or in the conduct of any other
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business carried on by Eltron, or (ii) engage or participate, directly or
indirectly, in any business or businesses substantially similar to the business
as conducted by Eltron as of the date of this agreement or as may thereafter be
conducted by Eltron at any time during the Employment Term, (b) solicit or cause
to be solicited within or without the Territory any customers of Eltron, or (c)
recruit or cause any other person to recruit any employee of Eltron to any of
said business or businesses.
Section 5. Invention.
5.1 Assignment.
Without further consideration Skinner shall fully and promptly report to Eltron
all ideas, concepts, inventions, discoveries, formulae and designs conceived or
produced by Skinner at any time during the Employment Term, whether alone or
with others and whether patentable or unpatentable (collectively, "Inventions")
pertaining, directly or indirectly, to the business of Eltron as conducted at
any time or at any time during the employment Term, and shall assign and hereby
does assign to Eltron or its nominee Skinner's entire right, title and interest
in and to all such Inventions.
5.2 Cooperation.
Skinner shall take all reasonable action requested by Eltron to protect or
obtain title to any and all United States and/or foreign patents on any such
Inventions, including execution and delivery of all applications, assignments
and other document deemed necessary or desirable by Eltron, provided Skinner is
reimbursed for reasonable expenses incurred by Skinner in connection with such
execution and delivery.
Section 6. Miscellaneous.
6.1 Remedies.
The parties acknowledge that any breach, violation or evasion by Skinner of the
terms of this Agreement will result in immediate and irreparable injury and harm
to Eltron, and will cause damage to Eltron in amounts difficult to ascertain.
Accordingly, Eltron shall be entitled to the remedies of injunction and specific
performance, or either of such remedies, as well as to all other legal or
equitable remedies to which Eltron may be entitled, including, without
limitation, termination of the Employment Term and this Agreement. Any breach,
violation or evasion by Eltron of the terms of this Agreement will result in
immediate and irreparable injury and harm to Skinner, and shall entitle him to
all legal or equitable remedies to which Skinner may be entitled.
6.2 Certain Definitions.
For purposes of this Agreement, the following terms shall have the following
meanings:
a) "Engage or participate in any business" referred to in Section 4.3 hereof
shall by deemed to mean engaging or participating in any business or
businesses; directly or indirectly, whether for his own account or for
that of any other person, firm or corporation, and whether as a
stockholder (except as a stockholder in a publicly-hold corporation of
which Skinner owns less that 1% of the outstanding securities of any
class), principal, agent proprietor, partner, officer, director, employee
or consultant, or in any other capacity;
(b) "Territory" shall mean any domestic or foreign jurisdiction in which
Eltron or any affiliate or subsidiary of Eltron, as of the date of the
Agreement or any time during the Employment Term, has conducted any part
of its business, whether design, development,
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engineering, manufacturing, sale, distribution or servicing of its
products or other marketing operations.
6.3 Notices.
Any notice or other communications required or permitted to be given to the
parties hereto shall be deemed to have been given when received, addressed as
follows (or at such other address as the party addressed may have substituted by
notice pursuant to this Section 6.3):
(a) If to Eltron:
Eltron International, Inc.
41 Moreland Road
Simi Valley, California 93065
Attention: Board of Directors
(b) If to Skinner:
Donald K. Skinner
5566 Little Fawn Court
Westlake Village, California 91362
6.4 Heading.
The captions set forth in this Agreement are for convenience only and shall not
be considered as part of this Agreement or as in any way limiting or amplifying
the terms and provisions hereof.
6.5 Governing Law.
The Agreement shall in all respect be interpreted, construed and governed by and
in accordance with the law of the State of California.
6.6 Severability.
In case this Agreement, or any one or more of the provision hereof, shall be
held to be invalid, illegal or unenforceable within any governmental
jurisdiction or subdivision thereof, the Agreement or any such provision or
provisions shall not as a consequence thereof be deemed to be invalid, illegal
or unenforceable in any other governmental jurisdiction or subdivision thereof.
In case any one or more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any other respect,
such invalidity, illegality or unenforecability shall not affect any other
provision of this Agreement, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein and
there shall be deemed substituted such other provision as will most nearly
accomplish the intent of the parties to the extent permitted by applicable law.
6.7 Whole Agreement.
This Agreement embodies all the representations, warranties, covenants and
agreement of the parties in relation to the subject matter hereof, and no
representations, warranties, covenants, understandings or agreement, or
otherwise, in relation thereto exist between the parties, or in an instrument in
writing signed by the party to be bound thereby which makes reference to this
Agreement.
6.8 No Rights in Third Parties.
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Nothing herein expressed or implied is intended to or shall be construed to
confer upon or give to any person, firm or other entity, other than the parties
hereto and their respective successors and assigns or personal representatives,
any rights or remedies under or by reason of this Agreement.
6.9 Assignment.
Except as provided by section 3.3 to this Agreement, Eltron may assign its
rights and delegate its responsibilities under this Agreement to any affiliated
company or to any corporation which acquires all or substantially all of the
operating assets of Eltron by merger, consolidation, dissolution, liquidation,
combination, sale or transfer or assets or otherwise. Except as herein before
provided neither of the parties hereto may assign any rights or obligations
under this Agreement.
6.10 Amendment.
The Agreement may not be amended orally but only by an instrument in writing
duly executed by the parties hereto.
6.11 Counterparts.
This Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
\s\Donald K. Skinner By \s\George L. Bragg
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Donald K. Skinner George L. Bragg
Compensation Committee
By \s\Robert G. Bartizal
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Robert G. Bartizal
Compensation Committee
By \s\William R. Hoover
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William R. Hoover
Compensation Committee
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APPENDIX 'A'
During the Employment Term, the additional compensation Skinner is entitled to
receive will be reviewed each December by the Compensation Committee of the
Board of Directors and fixed effective January 1 of the coming year.
The following defines the criteria to be used for allocating the 1997 bonus
("Additional Compensation") to Skinner:
1. MOST IMPORTANT TASKS: (MIT) Skinner shall be entitled to receive and
shall be paid a maximum quarterly bonus equal to 75% of his quarterly
salary. MIT's will be created, by Skinner and approved by the
Compensation Committee of the Board of Directors, prior to the beginning
of each quarter. Each task will be assigned a numerical weighting for
bonus allotment. At the end of each quarter, MIT's will be reviewed by
Skinner and the Compensation Committee Board of Directors to assess task
completion and to complete the amount of bonus to be awarded for the
prior. quarter.
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