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EXHIBIT 10(s)
TERMINATION AGREEMENT
AGREEMENT, dated as of June 5, 1995, between SENSORMATIC
ELECTRONICS CORPORATION, a Delaware corporation (the "Company"), and XXXXXXX X.
XXXXXX ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxx has served the Company in various management
capacities since 1978, including service as its Executive Vice President and
Chief Operating Officer since September 1988, and has been a director of the
Company since 1992;
WHEREAS, Xxxxxx has announced his intention to resign his
offices and retire as of June 30, 1995;
WHEREAS, Xxxxxx is entitled to receive from the Company, (i)
after age 60, payments over a period of 15 years under the Company's Executive
Salary Continuation Plan and Senior Executive Retirement Plan and (ii) amounts
on account of accrued and unused vacation and sick days and for reimbursement
of expenses incurred by Xxxxxx in accordance with the Company's expense
reimbursement policies, and the Company has determined to pay Xxxxxx a bonus
for the Company's 1995 fiscal year and to pay amounts in connection with his
non-competition covenant set forth below; and
WHEREAS, the Company and Xxxxxx wish to set forth their
agreement as to these and certain other matters in connection with the
termination of Xxxxxx'x employment;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements set forth herein, the parties agree as follows:
1. RESIGNATION AND TERMINATION OF EMPLOYMENT. Effective
at the close of business on June 30, 1995 (the "Effective Date"), Xxxxxx'x
employment with the Company shall terminate and Xxxxxx shall resign from the
offices of Executive Vice President and Chief Operating Officer and as a
director of the Company, and from all offices and directorships that he holds
with any of the Company's subsidiaries or affiliates. Concurrently with the
execution of this Agreement, Xxxxxx has delivered to the Company a signed
letter of resignation to such effect.
2. PAYMENTS. The Company shall make payments to Xxxxxx
on account of the amounts referred to in the third recital of this Agreement
(and reflecting discounting of future payments) as follows: July 1, 1995,
$500,000; July 1, 1996, $279,000; and July 1, 1997, $250,000; provided,
however, that the payments due in 1996 and 1997 shall not be made if Xxxxxx
breaches any of the provisions of Sections 7, 8 or 9.
3. OPTIONS. As of the date of this Agreement, Xxxxxx
holds (a) non-qualified options to purchase 25,000 shares of the Company's
Common Stock at an exercise price of $23.00
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per share, granted January 22, 1993, and which are scheduled to vest on January
22, 1996, (b) non-qualified options to purchase 35,000 shares of the Company's
Common Stock at an exercise price of $31.625 per share, granted April 18, 1994,
and which are scheduled to vest on April 18, 1999 (or earlier, if the market
price of the Common Stock appreciates above $42.70 per share), (c)
non-qualified options to purchase 35,000 shares of the Company's Common Stock
at an exercise price of $28.50 per share, granted February 3, 1995, and which
are scheduled to vest on February 3, 2000 (or earlier after February 3, 1996,
if such market price appreciates above $38.48 per share), and (d) long-term
stock options under the Company's Success Sharing Plan to purchase 38,000
shares of the Company's Common Stock and 11,800 shares of Restricted Stock
under such Plan, none of which are vested.
Notwithstanding the termination of Xxxxxx'x employment, the
options referred to in clauses (a) and (b) above shall not terminate on such
event, but shall continue in full force and effect for the full terms of such
options and in accordance with the respective terms and conditions of the
related option agreements (including those with respect to vesting); provided,
however, that if Xxxxxx breaches any of the provisions of Sections 7, 8 or 9,
any of such options which are outstanding at such time shall thereupon
automatically terminate without any further action by the Company. The options
and restricted stock referred to in clauses (c) and (d) above shall be canceled
and shall be of no further force or effect as of the Effective Date.
4. MEDICAL AND DENTAL PLAN COVERAGE. On and after the
Effective Date and until such time, if any, as Xxxxxx begins full-time
employment with another employer which makes available to Xxxxxx medical and
dental coverage comparable to that which the Company currently provides to
Xxxxxx (but otherwise without time limit other than as provided below), the
Company shall make available to Xxxxxx standard family medical and dental
coverage for Xxxxxx under, and subject to the terms and conditions of, such
group medical and dental insurance plans as the Company makes available
generally for its employees from time to time (currently the Jefferson-Pilot
medical and dental plans); provided, however, that Xxxxxx shall be responsible
for reimbursing to the Company, on demand, all premiums for such coverage (or
the equivalent thereof, if such coverage is self-insured by the Company) and
for paying an administrative charge equal to 2% of such premiums (or such other
like charge as is then standard for the Company). The Company's obligations
under this Section 4 shall cease when Xxxxxx reaches age 65, unless the
Company's group plan coverage is extended beyond age 65, in which case the
Company's obligations shall cease when Xxxxxx reaches the maximum age allowed
under such extended coverage. It is agreed that the first 18 months of this
arrangement shall fulfill the Company's obligations to Xxxxxx under COBRA.
Nothing in this Section 4 shall be construed to require the Company to
institute or maintain any or any particular benefit plan, program or policy.
5. RETIREMENT PLANS. The Company shall make its matching
and Corporate Profit-Sharing contributions to Xxxxxx'x accounts in the
Company's SensorSave Plan (401-K Plan) and Employee Stock Ownership Plan for
the 1995 fiscal year. Xxxxxx shall have such rights with respect to his
participation and accounts in the Company's SensorSave Plan (401-K Plan) and
Employee Stock Ownership Plan, regarding retention, distribution, rollover and
otherwise, as are provided under the terms of such plans.
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6. AUTOMOBILE. Xxxxxx shall continue to have use of the
Lexus automobile that the Company currently leases and provides to him for his
use. The Company shall be responsible for all payments under the lease for such
automobile, as well as maintaining required insurance thereon, and Xxxxxx shall
be responsible for all related repair, maintenance and fuel costs for such
automobile. This arrangement shall terminate at the end of the lease term for
such vehicle on February 26, 1996.
7. NON-COMPETITION. In consideration of payments and
accommodations to be made to Xxxxxx pursuant to Sections 2, 3, 4 and 6, Xxxxxx
agrees that, until July 1, 1997 and thereafter so long as any of the options
referred to in clauses (a) or (b) of Section 3 remain in effect, he shall not,
anywhere in the State of Florida, the United States or elsewhere in the world
(or for such lesser area or such lesser period as may be determined by a court
of competent jurisdiction to be a reasonable limitation on the competitive
activity of Xxxxxx), directly or indirectly:
(a) engage in the business of manufacturing, leasing,
selling, promoting, marketing, maintaining or servicing anti-shoplifting, theft
detection, inventory control, exception monitoring, closed-circuit television,
access control or article surveillance devices which are similar to or
accomplish results similar to the Company's systems and products;
(b) otherwise engage in competition with the Company;
(c) solicit or attempt to solicit business of any
customer or prospective customer of the Company to whom proposals have been
made, for products or services the same or similar to those offered or provided
or under development by the Company;
(d) otherwise divert or attempt to divert any business
from the Company;
(e) solicit or attempt to solicit for any business
endeavor any employee of the Company;
(f) interfere with any business relationship between the
Company and any other party; or
(g) render any services as an officer, director,
employee, partner, consultant or otherwise to, or have any interest as a
stockholder, partner, lender or otherwise in, any person or entity which is
engaged in activities which, if performed by Xxxxxx, would violate this Section
7.
The foregoing shall not prevent Xxxxxx from purchasing or owning up to 5% of
the voting securities of any corporation, the securities of which are
publicly-traded. For the purposes of this Section 7 and of Section 8,
references to the Company include its affiliates, including distributors,
licensees and franchisees, subsidiaries and joint ventures.
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8. CONFIDENTIALITY.
(a) As a result of his employment with the Company,
Xxxxxx has become informed of, and has had access to, certain information which
the Company regards as valuable and confidential, including, without
limitation, patent rights, inventions, technical information, know-how and
trade secrets relating to the Company's products and product research and
development, as well as business plans, projections and other information
relating to the business, affairs, finances and prospects of the Company
(together, "Information"). Xxxxxx agrees and acknowledges that the Information,
even whether or not it is novel or unique or known to others, is the exclusive,
valuable, confidential property of the Company, to be held by Xxxxxx in trust
and solely for the Company's benefit. Accordingly, at all times after the date
hereof, and in consideration of the payments, option extensions and other
accommodations to be made to Xxxxxx pursuant to Sections 2(a), 3, 4 and 6,
Xxxxxx agrees that he shall not, except as may be specifically requested or
consented to by the Company, use or disclose to any third party any
Information. This obligation shall not apply to any Information (i) to the
extent that becomes generally known to the public from authorized sources other
than Xxxxxx or (ii) which Xxxxxx is required by law to disclose (but only to
the extent required to be so disclosed and only after Xxxxxx first timely
notifies the Company of any demand or requirement that he make such disclosure,
so that the Company shall have a reasonable time to seek a protective order or
other appropriate relief).
(b) On or before the Effective Date, Xxxxxx shall
promptly deliver to the Company all material in his possession or control
containing Information (whether or not marked as confidential), including,
without limitation, financial statements or projections, drawings, letters,
notes, notebooks, reports and customer and suppliers lists, and all copies
thereof, other than any such material which the Company specifically agrees he
may retain.
9. DISCLOSURE AND ASSIGNMENT OF DISCOVERIES. Xxxxxx
shall (without any additional compensation) promptly disclose in writing to the
Board of Directors of the Company all ideas, formulas, programs, systems,
devices, processes, discoveries and inventions (together, "Discoveries")
whether or not patentable, which he, (i) in the course of performing services
for the Company at any time prior to the Effective Date, conceived, made,
developed, acquired or reduced to practice, or (ii) after the Effective Date,
through July 1, 1997 and thereafter so long as any of the options referred to
in clauses (a) or (b) of Section 3 remain in effect, conceives, makes,
develops, acquires or reduces to practice, in either case, whether alone or
with others and whether during or after usual working hours, and which are
related to the Company's business, or are used or usable by the Company in its
business. Xxxxxx hereby transfers and assigns to the Company all right, title
and interest in and to any Discoveries, including any and all domestic and
foreign patent rights therein and any renewals thereof. On request of the
Company, Xxxxxx shall (without any additional compensation), from time to time,
execute such further instruments (including, without limitation, applications
for letters patent and assignments thereof) and do all such other acts and
things as may be deemed necessary or desirable by the Company to protect or
enforce its rights in respect of the Discoveries. All expenses of filing or
prosecuting any patent applications
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shall be borne by the Company, but Xxxxxx shall cooperate in filing and
prosecuting any such applications.
10. REMEDIES. Because the Company does not have an
adequate remedy at law to protect its business from Xxxxxx'x unfair competition
or to protect its interest in the Information and similar commercial assets,
the Company shall be entitled to injunctive relief, in addition to such other
remedies and relief that would, in the event of a breach of the provisions of
Sections 7, 8 or 9, be available to it. In the event of such a breach, in
addition to any other remedies, the Company shall be entitled to receive from
Xxxxxx reimbursement for its reasonable attorneys' fees and disbursements
incurred in successfully enforcing any such provision.
11. TERMINATION OF PRIOR AGREEMENTS. On the Effective
Date, any agreements between the Company and Xxxxxx relating to his employment
or employee benefits, other than this Agreement, shall terminate and be of no
further force or effect.
12. LITIGATION COOPERATION. From time to time, as
requested by the Company, Xxxxxx shall make his time and attention reasonably
available to, and shall cooperate with, the Company with respect to any aspect
of any litigation or governmental proceedings involving the Company regarding
periods during which he was an employee of the Company and a reasonable period
thereafter. The Company shall reimburse Xxxxxx for any travel, lodging and
other expenses he reasonably incurs in this regard, in accordance with the
Company's standard reimbursement policies. In addition, the Company shall pay
Xxxxxx a per diem fee for such advice and consultation of $1,000 per 8-hour day
or portion thereof; provided, however, that during the first three years of
this Agreement, such per diem fee shall be payable only to the extent that such
services entail more than 10 days per year.
13. RELEASE. Xxxxxx, in consideration of good and
valuable consideration received and to be received from the Company hereunder,
the sufficiency of which is acknowledged, releases and discharges the Company,
and its officers, directors, shareholders, employees, agents, attorneys and
affiliates and its and their respective heirs, personal representatives,
successors and assigns (together, the "Company Releasees"), of and from all
claims, demands, causes of action, suits, actions, proceedings, judgments,
debts, damages, liabilities and obligations, at law, equity or otherwise,
including, without limitation: any federal, state, local or administrative
Equal Employment Opportunity or other claims arising under the Civil Rights
Acts of 1866, 1870 and 1871, the Equal Pay Act of 1963, Title VII of the Civil
Rights Act of 1964, as amended, the Age Discrimination in Employment Act of
1967, as amended, The Civil Rights Act of 1968, the Rehabilitation Act of 1973,
the Vietnam-Era Veterans' Readjustment Assistance Act of 1974, the Veteran's
Reemployment Rights Act, the Immigration Reform and Control Act, the Americans
with Disabilities Act of 1990, the Civil Rights Act of 1991, the Florida Civil
Human Rights Act, the Florida Wage Discrimination Law and any applicable
federal, state, or local anti-discrimination or equal employment opportunity
statues or regulations, including, without limitation, any fair employment or
human rights ordinance of any municipality or county in the State of Florida;
which Xxxxxx or his heirs, personal representatives, successors and assigns
had, have or may hereafter have against the Company Releasees for, on or by
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reason of any matter, cause or thing whatsoever from the beginning of the world
to the date hereof; except that, Xxxxxx in no way releases or discharges the
Company's obligations under this Agreement. Nothing herein shall be construed
as an admission by the Company that Xxxxxx has any claim against it. Xxxxxx and
his heirs, personal representatives, successors and assigns, further waive any
and all manner of notice, knowledge or discovery of any and all such actual or
alleged claims of cause of action.
14. ENTIRE AGREEMENT. This Agreement sets forth the
entire understanding of the parties with respect to its subject matter, merges
and supersedes any prior or contemporaneous understandings with respect to its
subject matter, and shall not be modified or terminated except by a written
instrument executed by the Company and Xxxxxx. Failure of a party to enforce
one or more of the provisions of this Agreement or to require at any time
performance of any of the obligations hereunder shall not be construed to be a
waiver of such provisions by such party nor to in any way affect the validity
of this Agreement or such party's right thereafter to enforce any provision of
this Agreement, nor to preclude such party from taking any other action at any
time which it would legally be entitled to take.
15. SEVERABILITY. If any provision of this Agreement is
held to be invalid or unenforceable by any court or tribunal of competent
jurisdiction, the remainder of this Agreement shall not be affected by such
judgment, and such provision shall be carried out as nearly as possible
according to its original terms and intent to eliminate such invalidity or
unenforceability. In this regard, the Company and Xxxxxx agree that the
provisions of Section 7, including, without limitation, the scope of its
territorial and time restrictions, are reasonable and necessary to protect and
preserve the Company's legitimate interests. If the provisions of Section 7 are
held by a court of competent jurisdiction to be in any respect unreasonable,
then such court may reduce the territory or time to which it pertains or
otherwise modify such provisions to the extent necessary to render such
provisions reasonable and enforceable.
16. SUCCESSORS AND ASSIGNS. Xxxxxx shall have no right to
assign this personal Agreement, or any rights or obligations hereunder, without
the consent of the Company. On the sale of all or substantially all of the
assets of the Company to another party, or on the merger of the Company with
another corporation, this Agreement shall inure to the benefit of, and be
binding on, both Xxxxxx and the party purchasing such assets or surviving such
merger in the same manner and to the same extent as though such other party
were the Company. Subject to the foregoing, this Agreement shall inure to the
benefit of, be binding on and be enforceable by, the parties and their
respective heirs, personal representatives, successors and assigns.
17. COMMUNICATIONS. All notices, consents and other
communications given under this Agreement shall be in writing and shall be
deemed to have been duly given (a) when delivered by hand or by Federal Express
or a similar overnight courier to, (b) five days after being deposited in any
United States post office enclosed in a postage prepaid registered or certified
envelope addressed to, or (c) when successfully transmitted by telecopier (with
a confirming copy of such communication to be sent as provided in (a) or (b)
above) to, the party for whom intended, at the address or telecopier number for
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such party set forth below, or to such other address or telecopier number as
may be furnished by such party by notice in the manner provided herein;
provided, however, that any notice of change of address or telecopier number
shall be effective only upon receipt.
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If to the Company: If to Xxxxxx:
Sensormatic Electronics Corporation Xx. Xxxxxxx X. Xxxxxx
000 X. X. 00xx Xxxxxx 0000 Xxxxx Xxx Xxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000-0000 Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx Telecopier No.: (000) 000-0000
Telecopier No.: (000) 000-0000
18. CONSTRUCTION; COUNTERPARTS. The headings contained in
this Agreement are for convenience only and shall in no way restrict or
otherwise affect the construction of the provisions hereof. References in this
Agreement to Sections are to the sections of this Agreement. This Agreement may
be executed in multiple counterparts, each of which shall be an original and
all of which together shall constitute one and the same instrument.
19. GOVERNING LAW. This Agreement shall be governed by
the laws of the State of Florida applicable to agreements made and fully to be
performed in such state, without giving effect to conflicts of law principles.
20. CONSENT TO JURISDICTION. Each party irrevocably
submits to the jurisdiction and venue of the federal and state courts sitting
in Broward or Palm Beach Counties, Florida, and waives any and all objections
it may have with respect to the jurisdiction of such forums or the
inconvenience of such forums or venues, in connection with any action to
enforce any provision of this Agreement or any dispute or controversy arising
hereunder, and agrees that service may be served on him or it by mail, personal
service or such other manner as may be permissible under the rules of the
applicable jurisdiction.
IN WITNESS WHEREOF, each of the parties has executed this
Agreement as of the date first set forth above.
SENSORMATIC ELECTRONICS CORPORATION
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
President
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
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