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EXHIBIT 10.03
CONFIDENTIAL RESIGNATION AGREEMENT
This Confidential Resignation Agreement ("Agreement") is entered into by
and between Xxxxxxx X. Xxxxxx ("Xxxxxx") and FATS, Inc. ("FATS"), Xxxxxx'
employer, on this 10th day of July, 1998.
WHEREAS, Xxxxxx and FATS desire to enter into an agreement that sets forth
the terms and conditions of Xxxxxx' resignation of employment.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
and FATS agree as follows:
1. Xxxxxx performed his normal, full-time duties as Vice President,
Engineering for FATS through June 20, 1998 (the "Active Severance Date").
2. [ DELETED ]
3. Xxxxxx shall continue to be employed by FATS through January 1, 1999 or
until Xxxxxx commences employment with another employer, whichever is earlier
(the "Final Severance Date"). During the period between the Active Severance
Date and the Final Severance Date, Xxxxxx agrees that he will make himself
available to answer questions and to provide consultation to FATS on matters in
which he was involved prior to the Active Severance Date. FATS agrees that it
will schedule such communications with Xxxxxx at such times and under such
circumstances that will not unreasonably interfere with Xxxxxx'x future
employment or his efforts to obtain employment with another employer. Xxxxxx'x
employment with FATS will cease for all purposes on the Final Severance Date.
4. Effective as of the Active Severance Date, Xxxxxx shall resign from his
position as an officer or a director, as the case may be, of FATS and all
related entities, including Firearms Training Systems, Inc.
5. FATS will pay Xxxxxx his current bi-weekly salary of $4,230.77, less
withholding for income and employment taxes to the extent required by law,
through the Final Severance Date. Such payments will be made to Xxxxxx on FATS'
regularly scheduled pay dates.
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6. Xxxxxx shall be entitled to continue to participate in FATS' established
employee benefit plans and programs through the Final Severance Date on the same
terms and conditions as comparable executive-level FATS employees. Following the
Final Severance Date, Xxxxxx shall have the right to continue to participate in
the FATS group health plan, at his own expense, in accordance with, and to the
extent provided by, part 6 of Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA").
7. Xxxxxx shall continue to earn vacation benefits under FATS' established
vacation policy through his Active Severance Date. He will not earn any further
vacation benefits during the period between his Active Severance Date and the
Final Severance Date. Xxxxxx shall be paid for any earned but unused vacation
benefits that he may have as of the Active Severance Date on the first FATS pay
date following his Active Severance Date.
8. As of the date of this Agreement, the following stock option agreements
shall be modified by execution of amendments thereto:
a. Stock Option Agreement Series A, dated September 18, 1996 (a copy of such
agreement and a copy of the form of amendment setting forth the
modifications thereto are attached hereto as Exhibit A1 and Exhibit A2,
respectively);
b. Stock Option Agreement Series B, dated September 18, 1996 (a copy of such
agreement and a copy of the form of amendment setting forth the
modifications thereto are attached hereto as Exhibit B1 and Exhibit B2,
respectively); and
c. Stock Option Agreement Series D, dated April 17, 1997 (a copy of such
agreement and a copy of the form of amendment setting forth the
modifications thereto are attached hereto as Exhibit C1 and Exhibit C2,
respectively).
d. Stock Option Agreement Series D, dated April 17, 1998 (a copy of such
agreement and a copy of the form of amendment setting forth the
modifications thereto are attached hereto as Exhibit D1 and Exhibit D2,
respectively).
e. Stock Option Agreement Series D, dated April 17, 1998 (a copy of such
agreement and a copy of the form of amendment setting forth the
modifications thereto are
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attached hereto as Exhibit E1 and Xxxxxxx X0, respectively).
f. Stock Option Agreement Series D, dated April 17, 1998 (a copy of such
agreement and a copy of the form of amendment setting forth the
modifications thereto are attached hereto as Exhibit F1 and Exhibit F2,
respectively).
9. x. Xxxxxx, on his own behalf and on behalf of anyone claiming through him,
hereby agrees and promises not to xxx, file an administrative claim, or
otherwise initiate any legal proceeding against, and further agrees to release
and discharge FATS and its parents, owners, divisions, subsidiaries,
partnerships, affiliates and/or other related entities, including the entities
described in the Prospectus for Firearms Training Systems, Inc. dated November
26, 1996 as the "Centre Entities," and each of these entities' past, present,
and future trustees, fiduciaries, shareholders, administrators, directors,
officers, agents, partners, members, employees, attorneys, and the predecessors,
successors, and assigns of each of them (hereinafter collectively referred to as
the "Released Parties") with respect to any and all claims, rights, or causes of
action that Xxxxxx now has, has ever had, or may ever have, whether currently
known or unknown, against any of the Released Parties arising from any act or
omission of any nature or kind from the beginning of time through the date
Xxxxxx executes this Agreement including, but not limited to, claims, rights, or
causes of action related in any way to Xxxxxx' employment, hiring, conditions of
employment, or termination from employment in accordance with the terms of this
Agreement, and including, but not limited to, any claims, rights, or causes of
action arising under any federal, state, or local law, regulation, or ordinance
or the common law including, but not limited to, Title VII of the Civil Rights
Act of 1964 as amended, the Civil Rights Act of 1991, the Americans with
Disabilities Act, ERISA, and the Family and Medical Leave Act of 1993. Xxxxxx
represents and warrants that he has not filed or initiated any legal, equitable,
administrative, or other proceeding against any of the Released Parties and that
no such proceedings have been initiated against any of the Released Parties on
his behalf. Xxxxxx will not cause or encourage any legal, equitable,
administrative or other proceeding to be maintained or instituted against any of
the Released Parties, and he will not participate in any manner in any such
proceedings against any of the Released Parties, except as required by law, and
except for any claim for unemployment benefits as described above.
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b. Notwithstanding the provisions of paragraph 9(a) of this Agreement, nothing
herein is intended to release, discharge, or extinguish any rights that
Xxxxxx may have under the Firearms Training Systems, Inc. 401(k) Profit
Sharing Plan, in accordance with the terms of such plan.
10. Xxxxxx represents and warrants that he is the sole owner of the actual or
alleged claims, rights, causes of action, and other matters that are released
herein; that the same have not been transferred or assigned or caused to be
transferred or assigned to any other person, firm, corporation or other legal
entity; and that he has the full right and power to grant, execute and deliver
the releases, undertakings, and agreements contained herein.
11. Xxxxxx agrees that he has no present or future right to employment with the
Released Parties and that he will not apply or seek consideration for any
employment, engagement, or contract with the Released Parties, unless requested
by the Released Parties.
12. Xxxxxx agrees and acknowledges that he continues to be bound by the terms
and conditions contained in the Agreement that he entered into with FATS on
March 19, 1998(the "Non-Compete Agreement"), a copy of which is attached hereto
as Exhibit G. The Non-Compete Agreement is hereby incorporated herein, subject
to the following modifications:
a. Paragraph 1(b) is amended to read as follows:
"Termination Date" - the Final Severance Date defined in the Confidential
Resignation Agreement, dated July 10, 1998, between Employee and FATS.
b. Paragraph 4 is amended to read as follows:
Solicitation of Customers. During Employment and for three years after the
Termination Date, Employee will not solicit Customers for the purpose of
providing Services or for the purpose of selling products identical to or
reasonably substitutable for FATS Products.
c. Paragraph 5 is amended to read as follows:
Solicitation of FATS Employees. During employment and for three years after
the Termination Date, Employee will not solicit for employment with another
Person anyone who is or was, anytime during the year preceding the
Termination Date, a FATS employee.
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d. Paragraph 6 is amended to read as follows:
Limitations on Post-Termination Competition. During employment and for
three years after the Termination Date, Employee will not provide Services
within the Territory to any Person selling products identical to or
reasonably substitutable for FATS Products.
e. Paragraph 9 is amended to read as follows:
Future Employment Opportunities. At any time before, and for three years
after, the Termination Date, Employee shall provide any prospective
employer with a copy of this Agreement, and upon accepting any employment
with another Person, provide FATS with the employer's name and a
description of the services Employee will provide.
13. Xxxxxx agrees that, on or before the Final Severance Date, he will submit
any claims for reimbursement of business expenses actually incurred by him. FATS
will reimburse Xxxxxx for such expenses in accordance with FATS' policy on
reimbursement for business expenses. Xxxxxx agrees that FATS will have no
obligation to reimburse him for any expenses that are not submitted to FATS on
or prior to the Final Severance Date.
14. Xxxxxx agrees that he will not disclose the existence or terms of this
Agreement to any third parties with the exception of his accountants, attorneys,
spouse, future employers, and FATS employees with a need to know, each of whom
shall be bound by this confidentiality provision, or as may be required to
comply with legal process. Xxxxxx understands and agrees that this promise of
confidentiality is a material inducement to FATS to enter into this Agreement.
15. Nothing in this Agreement is intended to or shall be construed as an
admission by FATS or any of the other Released Parties that it has violated any
law, interfered with any right, breached any obligation, or otherwise engaged in
any improper or illegal conduct with respect to Xxxxxx or otherwise, and the
Released Parties expressly deny any such illegal or wrongful conduct.
16. In the event the CEO of FATS determines, in his reasonable discretion, that
Xxxxxx has breached or failed to comply with any of his obligations under this
Agreement or under the Non-Competition Agreement, as
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amended herein, at any time during the three-year period commencing on the Final
Severance Date (the "Compliance Period"), then FATS, in addition to any other
remedies that it may have either in law or in equity, may declare that Xxxxxx is
not in compliance with this Agreement. In such an event FATS shall have no
further obligations under this Agreement. However, Xxxxxx'x duties and
obligations under this Agreement and the Non-Compete Agreement, as amended
herein, shall continue in full force and effect.
17. For all purposes, including without limitation the stock option agreements
referenced in Paragraph 8 above, Xxxxxx'x termination of employment hereunder
shall be deemed to be a termination by the Company other than for "Cause" (as
defined in such stock option agreements), provided that the terms and conditions
of this Agreement are complied with.
18. This Agreement embodies the entire agreement and understanding of the
parties hereto with regard to the matters described herein. This Agreement shall
inure to the benefit of FATS and its successors and assignees, and shall be
binding upon Xxxxxx and Xxxxxx' heirs, administrators, executors, and personal
representatives.
19. This Agreement shall be construed and interpreted in accordance with the
laws of the State of Georgia. Only courts in the State of Georgia shall have
jurisdiction over any controversy or claim arising under or related to this
Agreement. Each party irrevocable (a) consents to the jurisdiction and venue of
the courts of the State of Georgia, including federal courts in Georgia, in any
action arising under or relating to this Agreement, and (b) waives any
jurisdictional defenses (including personal jurisdiction and venue) to any such
action.
20. This Agreement may be modified only in writing, and any party's failure to
enforce this Agreement in the event of one or more events that violate this
Agreement shall not constitute a waiver of any right to enforce this Agreement
against subsequent violations.
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This Agreement may be executed in two counterparts each of which shall
be deemed an original and both of which together shall constitute one and the
same instrument.
FATS, INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Its: President
/s/ Xxxxxxx X. Xxxxxx
XXXXXXX X. XXXXXX
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