EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") made and entered into as of
the 1st day of July, 2002, is among Ultrak Operating, L.P., a Texas limited
partnership ("ULTRAK"), Ultrak, Inc., a Delaware corporation and the ultimate
parent of Ultrak (the "PARENT") (Ultrak and the Parent are collectively referred
to as (the "EMPLOYER"), and Xxxxx X. Xxxxxx, (the "Executive").
RECITALS
A. The Employer desires that the Executive continue to provide services
for the benefit of the Employer and its affiliates and the Executive desires to
continue her employment with the Employer.
B. The Employer and the Executive acknowledge that the Executive will
be a member of the senior management team of the Employer and, as such, will
participate in implementing the Employer's business plan.
C. In the course of employment with the Employer, the Executive has had
and will continue to have access to certain confidential information that
relates to or will relate to the business of the Employer and its affiliates.
D. The Employer desires that any such information not be disclosed to
other parties or otherwise used for unauthorized purposes.
NOW, THEREFORE, in consideration of the above premises and the
following mutual covenants and conditions, the parties agree as follows:
1. Employment. The Employer shall employ the Executive as its Senior
Vice President and General Counsel and the Executive hereby accepts such
employment on the terms and conditions in this Agreement.
2. Duties. The Executive shall work for the Employer in a full-time
capacity. The Executive shall, during the term of this Agreement, have the
duties, responsibilities, powers, and authority of the position of Senior Vice
President and General Counsel. The Executive shall report to, and follow the
direction of the Chief Executive Officer of the Parent (the "CEO") or any other
employee designated by the CEO. The Executive shall diligently, competently, and
faithfully perform all duties, and shall devote her entire business time,
energy, attention, and skill to the performance of duties for the Employer or
its affiliates and will use her best efforts to promote the interests of the
Employer. It shall not be considered a violation of the foregoing for the
Executive to serve on corporate, industry, civic, religious or charitable boards
or committees, so long as such activities do not significantly interfere with or
present a conflict of interest with the performance of the Executive's
responsibilities as an employee of the Employer in accordance with this
Agreement.
3. Executive Loyalty. The Executive shall devote all of her time,
attention, knowledge, and skill solely and exclusively to the business and
interests of the Employer, and
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the Employer shall be entitled to all benefits and profits arising from or
incident to any and all work, services, and advice of the Executive. The
Executive expressly agrees that during the term of this Agreement, she shall not
provide assistance to, as a partner, officer, director, member, manager,
stockholder, advisor, agent, employee, or in any other form or capacity, any
other business similar to that of the Employer. The foregoing notwithstanding,
except as provided for in paragraph 9.D.(2) below, nothing herein contained
shall be deemed to prevent the Executive from investing her money in the
securities of any corporation whose stock or securities are publicly-owned or
are regularly traded on any securities exchange.
4. Term of Employment. Unless sooner terminated as hereinafter
provided, this Agreement shall be entered into for a period of twelve (12)
month's (the "INITIAL TERM"), commencing on July 1, 2002 (the "EFFECTIVE DATE").
The term of employment shall be renewed automatically for successive periods of
twelve (12) month's each (a "RENEWAL TERM") after the expiration of the Initial
Term and any subsequent Renewal Term, unless the Employer provides the
Executive, or the Executive provides the Employer, with written notice to the
contrary at least sixty (60) days prior to the end of the Initial Term or any
Renewal Term.
5. Compensation.
A. Salary. The Employer shall pay the Executive an annual base salary
of $170,000.00 (the "BASE SALARY"), payable in substantially equal installments,
on a time schedule that is in accordance with the Employer's payroll policy for
executives in effect at the time. The Executive's salary shall be subject to any
payroll or other deductions as may be required to be made pursuant to law,
government order, or by agreement with, or consent of, the Executive. The
Employer will formally evaluate the Executive's performance and communicate the
results to the Executive no less than once a year. The Executive will be
eligible for performance-based increases in the Executive's base salary on the
same terms and conditions normally afforded executive employees employed at the
Executive's level with the Employer. The Executive's base salary will not be
reduced during the Initial Term of the Agreement. The Executive shall receive
all regular costs of living and other standard raises or salary increases, if
any, provided to other executive employees employed at the Executive's level
with the Employer.
B. Performance Bonus. The Executive shall be entitled to receive a
bonus, if earned, to be determined according to the management bonus program
established by the Employer for each of the Employer's fiscal years beginning
2002, and the Executive shall be entitled to participate in the Ultrak Executive
Management Stock Option Program.
C. Other Benefits. During the term of this Agreement, the Employer
shall:
(1) include the Executive in any medical, dental or health
insurance, disability or life insurance, retirement plans and other
benefit plans or programs as partially funded and maintained by the
Employer for the benefit of its employees.
(2) provide the Executive with four (4) weeks paid vacation in
each year to be taken at a time or times reasonably agreeable to both
the Executive and
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the Employer, in addition to Employer designated holidays and
sick leave in accordance with the Employer's policy;
(3) provide a monthly car allowance of $300.00 (after
taxes);
(4) pay for reasonable professional associations,
dues, educational seminars to maintain license status.
D. Profit Sharing. The Executive shall not be entitled to
participate in any profit sharing program of the Employer, unless otherwise
determined by the CEO and/or the Board of Directors of the Parent (the "BOARD"),
from time to time
6. Expenses. The Employer shall reimburse the Executive for all
reasonable and approved business expenses, provided that the Executive submits
paid receipts or other documentation acceptable to the Employer and as required
by the Internal Revenue Service to qualify as ordinary and necessary business
expenses under the Internal Revenue Code of 1986, as amended.
7. Termination. Notwithstanding anything in Paragraph 4 of this
Agreement to the contrary, the Executive's services shall automatically
terminate upon the first to occur of the following events:
A. At the end of the term of this Agreement, including any
Renewal Terms, if notice of intent not to renew was provided in accordance with
Paragraph 4.
B. Upon the Executive's date of death or the date the
Executive becomes Disabled (as defined herein). For purposes of this Agreement,
the Executive is "DISABLED" if the Executive, as a result of illness or
incapacity, shall be unable to perform the essential functions of her job, with
or without any reasonable accommodation required by law, for a period of three
(3) consecutive months or for any aggregate period of six (6) months in any
twelve (12) month period. A termination of the Executive's employment by the
Employer for disability shall be communicated to the Executive by written notice
and shall be effective on the tenth (10th) business day after receipt of such
notice by the Executive, unless the Executive returns to full-time performance
of her duties before such tenth (10th) business day.
C. The date the Employer provides the Executive with written
notice that she is being terminated for Cause (as defined in this Agreement).
For purposes of this Agreement, the term CAUSE means the Executive:
(1) commits any felony including, but not limited to,
a felony involving fraud, theft, misappropriation, dishonesty,
or embezzlement or commits any misdemeanor which in the sole
discretion of the Employer involves moral turpitude;
(2) willfully engages in acts that she knew, or
should have known in the exercise of reasonable care, would
cause material harm to the Employer's property, goodwill or
existing business interests; provided, however, that no act on
the Executive's part shall be considered "willful" unless done
by the
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Executive, in the Employer's sole discretion, without a good
faith and reasonable belief that her actions were in the best
interest of the Employer;
(3) engages in any violation of any civil law,
including but not limited to harassment (sexual and/or
otherwise unlawful) and RICO laws.
(4) continues to fail to substantially perform her
previously identified duties, or refuses to substantially
perform her previously identified duties, thirty (30) calendar
days after written demand for substantial performance is
delivered by the Employer specifically identifying the manner
in which the Employer believes the Executive has failed or
refused to substantially perform her duties.
(5) a material breach of the Employer's written
policies or procedures that are applicable to executives at
the Executive's level or higher within the Employer, after
written notice by the Employer to the Executive of such
violation, and in the event of a procedural breach of any
written policies or procedures of the Employer, the failure by
the Executive to undertake her best efforts to cure such
procedural violation within a thirty (30) calendar day period
where a cure within that time period is possible; provided,
however, that Cause will not exist if the policy violation
would not normally be a dischargeable offense under the
Employer's progressive discipline policies.
D. On the date the Executive terminates, her employment for
any reason, provided that the Executive shall give the Employer thirty (30) days
written notice prior to such date of her intention to terminate this Agreement.
E. On the date the Employer terminates the Executive's
employment for any reason, other than A-D set forth in this Paragraph 7.
F. On the date the Executive terminates her employment for a
Change of Control (as defined in this Agreement) of the Employer in conjunction
with either (1) a material change in the Executive's job duties that is
inconsistent with the scope of responsibilities described in the attached Job
Description for Executive or (2) a reduction in the Executive's total
compensation package, during the Initial Term.
8. Compensation Upon Termination.
A. lithe Executive's services are terminated pursuant to any
of the provisions of Paragraphs 7A, 7B, or 7E, then the Executive shall be
entitled to the Base Salary through the later of (1) the Executive's final
date of active employment or (2) the date this Agreement otherwise terminates.
The Executive shall also be entitled to any benefits mandated under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).
If the Executive's services are terminated pursuant to Paragraph 7A, 7B and/or
7E, then the Executive, upon agreement to and execution of a release of claims
agreeable to the Employer Ultrak, shall be entitled to the continuation of the
Base Salary plus benefits, exclusive of vacation accrual, at the rate as set
forth in Paragraph 5A for an eighteen (18) month period (the "SEVERANCE
PERIOD"), payable on a time schedule that is in accordance with the Employer's
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payroll policy for executives in effect at the time. During the Severance
Period, if the Executive becomes an employee with, or provides consulting
services for pay, to any company or entity other than the Employer or an
affiliate of the Employer, then the Employer shall only be responsible for
payment to the Executive of the amount by which the Executive's Base Salary
exceeds the Executive's base salary from her new employer during the remainder
of the Severance Period.
Additionally, the Executive shall be entitled to the continuation of her Base
Salary plus Other Benefits as set forth in this Paragraph for a period of 18
months if the Executive, pursuant to Xxxxxxxxx 0X, xxxxxxxxxx her employment
following a Change in Control (as defined in this Agreement) in conjunction with
either (a) a material change in the Executive's job duties that is inconsistent
with the scope of responsibilities described in the attached Job Description for
Executive, or (b) a reduction in the Executive's total compensation package,
during the Initial Term. For the purposes of this Agreement a "CHANGE OF
CONTROL" shall mean:
1) an ownership change in which any individual or entity
in one or more transactions or series of
transactions, directly or indirectly, acquires
beneficial ownership of at least 50.1% of the voting
stock of the Parent; or
2) the direct or indirect sale or exchange by the
stockholders of the Parent of all or substantially
all of the stock of the Parent; or
3) a merger (other than a re-incorporation merger) or
consolidation in which the Parent is a party (and the
stockholders of the Parent do not own at least 50.1%
of the entity surviving the merger); or
4) the sale, exchange, or transfer of all or
substantially all of the assets of Ultrak or the
Parent.
B. If the Executive's services are terminated pursuant to
Paragraph 7B or 7F, then all stock options granted to the Executive under any of
the Employer's stock option plans will become immediately vested.
9. Protective Covenants. The Executive acknowledges and agrees that by
virtue of her employment by, and relationship with the Employer, she has
acquired and will acquire Confidential Information (as defined in this
Agreement), as well as special knowledge of the Employer's relationships with
its customers and business brokers, and that, but for her association with the
Employer, the Executive would not or will not have had access to said
Confidential Information or knowledge of said relationships. The Executive
further acknowledges and agrees (i) that the Employer has long term,
near-permanent relationships with its customers, and that those relationships
were developed at great expense and difficulty to the Employer over several
years of close and continuing involvement; (ii) that the Employer's
relationships with its customers are and will continue to be valuable, special
and unique assets of the Employer and that the identity of its customers is kept
under tight security with the Employer and cannot be readily ascertained from
publicly available materials or from materials available to the Employer's
competitors; and (iii) that the Employer has the following protectable interests
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that are critical to its competitive advantage in the industry and would be of
demonstrable value in the hands of a competitor.
The Executive acknowledges and agrees that by virtue of her employment
by and relationship with the Employer that the Employer agrees to provide the
Executive with specialized training and instruction regarding the Employer's
operations, products sold and serviced by the Employer, as well as marketing and
operational techniques and strategies to the extent applicable to the
Executive's employment with the Employer. This training may be provided through
direct experience or otherwise.
The Executive acknowledges and agrees that by virtue of her employment
by and relationship with the Employer that the Employer agrees to provide the
Executive with an interest in the growth of the goodwill of the Employer through
her employment. The Employer also agrees to provide expense reimbursements in
accordance with the Employer's policy, access to confidential information, arid
contact with customers, contractors and vendors in order to help the Employer
develop goodwill for the Employer.
In return for the consideration described in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and as a condition precedent to the Employer entering into this
Agreement, and as an inducement to the Employer to do so, the Executive hereby
represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as
her free and voluntary act, after having determined that the provisions
contained herein are of a material benefit to her, and that the duties and
obligations imposed on her hereunder are fair and reasonable and will not
prevent her from earning a comparable livelihood following the termination of
her employment with the Employer;
B. The Executive has read and fully understands the terms and
conditions set forth herein, has had time to reflect on and consider the
benefits and consequences of entering into this Agreement and has had the
opportunity to review the terms hereof with an attorney or other representative,
if she so chooses;
C. The execution and delivery of this Agreement by the
Executive does not conflict with, or result in a breach of or constitute a
default under, any agreement or contract, whether oral or written, to which the
Executive is a party or by which the Executive may be bound;
D. The Executive agrees that, during the time of her
employment and for a period of one (1) year after the termination of the
Executive's employment under Paragraph 7A C, D, E or F, the Executive will not,
except on behalf of Employer, assist a Competing Business (as defined below) by
doing any of the following prohibited acts:
(1) directly or indirectly, contact or solicit, or
direct any one else to contact or solicit, any Covered
Customer or Prospective Customer (as defined below) or
Business Brokers (as defined below) for the purpose of selling
or attempting to sell, any products and/or services that are
the same or so similar to the products and services provided
by the Employer to its customers that they
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would displace or reduce the volume of products or services
sold by Employer to its customers during the term hereof. In
addition, the Executive will not identify or disclose any such
Covered Business Brokers, Covered Customers or Prospective
Customers, or any part thereof, as being a business broker,
customer or prospective customer of the Employer to any
person, firm, corporation, association, or other entity
engaged in a Competing Business; or
(2) participate in a Competing Business by
supervising, or providing, directly or indirectly, services or
assistance to a Competing Business in a position that involves
(a) duties or functions that are the same or substantially
similar in their purpose to those provided by the Executive to
the Employer, (b) duties or functions that would involve input
into or direction of the Competing Business' decisions
regarding, but not limited to, marketing, product or service
development, engineering or research and development,
financial planning, organizational change or restructuring,
customer solicitations, and (c) direction or control over
communications with Covered Customers and Prospective
Customers, and Covered Brokers; provided, however, that
nothing herein shall prevent the Executive from directly
owning less than one percent (1%) of the common stock of a
publicly traded Competing Business or indirect ownership of an
interest in a Competing Business through mutual funds or
similar investment entities; or
(3) solicit or otherwise induce, on her own behalf or
on behalf of any other person or entity, any person who is any
of the Employer's employees to terminate employment with the
Employer; or
(4) take any action as a consultant, advisor,
officer, manager, agent, director, partner, independent
contractor, owner, or employee for or on behalf of any of the
Employer's business brokers, customers, or prospective
customers to induce the Employer's business broker, customer
or prospective customer at issue to terminate or reduce in any
way any aspect of the Employer's ongoing sales or services, or
other business activities with the customer, broker or
prospective customer that the Executive is then working for;
or
(5) use any of the specialized training she has
received from the Employer; or
(6) use the goodwill developed with the Employer's
customers, contractors and vendors.
The foregoing restrictions in Paragraphs 9D(l)-(4) apply to activities by
Executive anywhere within a fifty (50) mile radius of any office of Employer;
and at the addresses or locations where Covered Customers and Prospective
Customers and Covered Brokers are doing business at the time of the Executive's
termination from employment & during a period of six (6) months prior to the
Executive's termination from employment unless otherwise modified and agreed to
in writing and authorized by the CEO.
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E. The Executive acknowledges and agrees that the scope
described above is necessary and reasonable in order to protect the Employer in
the conduct of its business and that, if the Executive becomes employed by
another employer, she shall be required to disclose the existence of this
Paragraph 9 to such employer and the Executive hereby consents to and the
Employer is hereby given permission to disclose the existence of this Paragraph
9 to such employer;
F. A COMPETING BUSINESS, as referred to in Paragraph 9 and its
subparts, means any person or entity engaged in the business of providing
competing goods or services that are the same or similar to the goods or
services sold by the Employer to its customers that they would displace or
reduce the volume of products or services sold by the Employer to its customers.
A COVERED CUSTOMER or PROSPECTIVE CUSTOMER, as referred to in Paragraph 9 and
its subparts, means any person or entity that (a) hold a contract with the
Employer, or requested a contract proposal, or had a contract proposal made to
it by the Employer, within the previous six (6) months; and (b) that the
Executive either had contact with or received confidential information about
during the last six (6) months of the Executive's employment with the Employer.
A COVERED BROKER, as referred to in Paragraph 9 and its subparts, refers to any
person or entity who, within the preceding twelve (12) months in the ordinary
course of business for that person or entity, (a) acted as an agent or
intermediary to facilitate the sale of goods or services sold by the Employer
and, (b) had contact with the Executive or was the subject of confidential
information handled by the Executive.
G. The Executive agrees that both during her employment and
for a period of one (1) year thereafter the Executive will not, for any reason
whatsoever, use for herself or disclose to any person not employed by the
Employer any Confidential Information (as defined in this Agreement) of the
Employer acquired by the Executive during her relationship with the Employer,
both prior to and during the term of this Agreement, except as otherwise
provided for below. The Executive further agrees to use Confidential Information
solely for the purpose of performing duties with the Employer and further
agrees not to use Confidential Information for her own private use or
commercial purposes or in any way detrimental to the Employer, except as
otherwise provided for below. The Executive agrees that the term CONFIDENTIAL
INFORMATION means (1) information created or compiled by the Employer in the
course of its business, including a formula, pattern, compilation, program,
product, device, method, technique, or process, that (i) derives economic value
(actual or potential) from not being generally known to, and not being readily
ascertainable by proper means by other persons who can obtain economic value
from its disclosure or use, and (ii) is subject to efforts by the Employer that
are reasonable under the circumstances to keep it secret; or (2) information
that was first acquired by the Executive from or through the Executive's
employment with the Employer and that is information the Employer indicated to
the Executive should be maintained as confidential and not disclosed to others
outside the company without permission by designating or marking it as
"confidential" or through some other reasonable means of communication. The
Employer acknowledges and agrees that Confidential Information does not include
(1) information properly in the public domain, or (2) information in the
Executive's possession prior to the date of her original employment with the
Employer. Nothing herein will be construed to preclude the Executive from (i)
disclosing Confidential Information to her personal accountants, tax advisors,
or legal counsel, in confidence, where necessary for them to provide their
professional services to the Executive; or, (2) where compelled to do so by law
(in response to a subpoena for
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example); provided, however, that if the Executive believes she is compelled by
law to make such a disclosure of Confidential Information she will provide the
Employer as much notice as practicable before making the disclosure.
H. During and after the term of employment hereunder, the
Executive will not remove from the Employer's premises any documents, records,
files, notebooks, correspondence, computer printouts, computer programs,
computer software and hardware, price lists, microfilm, or other similar
documents containing Confidential Information, including copies thereof whether
prepared by her or others, except as her duty shall require, and in such cases,
will promptly return such items to the Employer. Upon termination of her
employment with the Employer, all such items including summaries or copies
thereof, then in the Executive's possession, shall be returned to the Employer
immediately. The Executive agrees to the return of such items, which shall be a
requirement in order for the Executive to receive, at the time of such
termination, or any time thereafter, any compensation due her pursuant to any
paragraphs hereunder or otherwise; provided, however, that the Employer will not
make any withholdings or reduce the compensation due the Executive under this
agreement or otherwise without first identifying the item that has not been
returned and providing the Executive five (5) business days to return it.
I. The Executive recognizes and agrees that all ideas,
inventions, enhancements, plans, writings, and other developments or
improvements (the "INVENTIONS") conceived by the Executive, alone or with
others, during the term of her employment, whether or not during working hours,
that are within the scope of the Employer's business operations or that relate
to any of the Employer's work or projects, are the sole and exclusive property
of the Employer. The Executive further agrees that (1) she will promptly
disclose all Inventions to the Employer and hereby assigns to the Employer all
present and future rights she has or may have in those Inventions, including
without limitation those relating to patent, copyright, trademark or trade
secrets; and (2) all of the Inventions eligible under the copyright laws are
"work made for hire." At the request of and without charge to the Employer, the
Executive will do all things deemed by the Employer to be reasonably necessary
to perfect title to the Inventions in the Employer and to assist in obtaining
for the Employer such patents, copyrights or other protection as may be provided
under law and desired by the Employer, including but not limited to executing
and signing any and all relevant applications, assignments or other instruments.
The Employer hereby notifies the Executive that the provisions of this Paragraph
9 shall not apply to any Inventions for which no equipment, supplies, facility
or trade secret information of the Employer was used and which were developed
entirely on the Executive's own time, unless (i) the Invention relates (i) to
the business of the Employer, or (ii) to actual or demonstrably anticipated
research or development of the Employer, or (2) the Invention results from any
work performed by the Executive for the Employer.
J. The Executive acknowledges and agrees that all customer
lists, supplier lists, and customer and supplier information, including, without
limitation, addresses and telephone numbers, are and shall remain the exclusive
property of the Employer, regardless of whether such information was developed,
purchased, acquired, or otherwise obtained by the Employer or the Executive. The
Executive agrees to furnish to the Employer on demand at any tine during the
term of this Agreement, and upon termination of this Agreement, her complete
list of the correct names and places of business and telephone numbers of all of
its customers
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served by her and located within any or all of the territories to which she has
been assigned, including all copies thereof wherever located. The Executive
further agrees to promptly notify the Employer of the name and address of any
new customer, and report all changes of a location of old customers, that are
not otherwise already known to the Employer, so that upon the termination of
this Agreement, the Employer will have a complete list of the correct names and
addresses of all of its customers with which the Executive has had dealings. The
Executive also agrees to furnish to the Employer on demand at any time during
the term of this Agreement, and upon the termination of this Agreement, any
other records, notes, computer printouts, computer programs, computer software
or hardware, price lists, microfilm, or any other documents related to the
Employer's business that were maintained by the Executive in the course of her
employment, including originals and copies thereof; and
K. It is agreed that any breach or anticipated or threatened
breach of any of the Executive's covenants contained in this Paragraph 9 will
result in irreparable harm and continuing damages to the Employer and its
business and that the Employer's remedy at law for any such breach or
anticipated or threatened breach will be inadequate and, accordingly, in
addition to any and all other remedies that may be available to the Employer at
law or in equity in such event, any court of competent jurisdiction may issue a
decree of specific performance or issue a temporary and permanent jurisdiction,
enjoining and restricting the breach, or threatened breach, of any such
covenant, including, but not limited to, any injunction restraining the
Executive from disclosing, in whole or part, any Confidential Information.
10. Acknowledgment of Ancillary Agreement and Consideration. The
Executive and the Employer agree that the protective covenants set forth in
this Agreement are reasonable and necessary for the protection and enforcement
of their agreements on property rights set forth in Paragraph 9 above. The
Executive acknowledges that the Executive's agreement to be bound by the
protective covenants set forth in Paragraph 9 is a concurrent and material
inducement for Ultrak (i) to enter into the ancillary terms of this Agreement,
(ii) to initiate or continue the Executive's employment with Ultrak, and (iii)
to provide the Executive with promises and consideration set forth in this
Agreement. The Executive agrees that each agreement set forth in Paragraph 9 is
an otherwise enforceable, ancillary agreement, and each is independently
sufficient to support all of the protective covenants in Paragraph 9 THE
EXECUTIVE AGREES THAT THESE RESTRICTIONS DO NOT UNREASONABLY RESTRICT THE
EXECUTIVE'S ABILITY TO EARN A LIVING AFTER TERMINATION OF THE EXECUTIVE'S
EMPLOYMENT. The Employer agrees to provide the Executive the access to trade
secrets, confidential and proprietary information, or specialized training and
instruction, or the goodwill support, referred to in Paragraph 9 above within 30
days of the execution of this Agreement. This is not contingent upon the
Executive complying with the protective covenants in Paragraph 9 and its
subparts.
11. Indemnification. The Employer shall indemnify the Executive to the
full extent authorized by law in the event she is made or threatened to be made
a party to any action, suit, or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that she is or was a
director, officer or employee of Ultrak or serves or served any other enterprise
as a director, officer or employee at the request of Ultrak and in compliance
with the corporate By-Laws.
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12. Notices. Any and all notices required in connection with this
Agreement shall be deemed adequately given only if in writing and (a) personally
delivered, or sent by first class, registered or certified mail, postage
prepaid, return receipt requested, or by recognized overnight courier, (b) sent
by facsimile, provided a hard copy is sent with postage prepaid thereon via
regular mail on that date to the party for whom such notices are intended, or
(c) sent by other means at least as fast and reliable as first class mail. A
written notice shall be deemed to have been given to the recipient party on the
earlier of (a) the date it shall be delivered to the address required by this
Agreement; (b) the date delivery shall have been refused at the address required
by this Agreement; (c) with respect to notices sent by mail or overnight
courier, the date as of which the Postal Service or overnight courier, as the
case may be, shall have indicated such notice to be undeliverable at the
address required by this Agreement; or (d) with respect to a facsimile, the date
on which the facsimile is sent and receipt of which is confirmed. Any and all
notices referred to in this Agreement, or which either party desires to give to
the other, shall be addressed to her residence in the case of the Executive, or
to its principal office in the case of the Employer.
13. Waiver of Breach. A waiver by either party hereto of a breach of
any provision of this Agreement by the other party shall not operate or be
construed as a waiver or estoppel by the nonbreaching party of any subsequent
breach, and no waiver shall be valid unless it is contained in a signed writing.
14. Right to Cure/Early Resolution Conference. If either party becomes
aware of any breach of any material term of this Agreement, prior to taking any
action based upon the alleged breach, the nonbreaching party will provide the
other party written notice of the alleged breach within fourteen (14) days from
the date on which the non-breaching party became aware of the alleged breach,
and give the breaching party thirty (30) days from the date of the written
notice to undertake best efforts to cure the alleged breach ("the right to cure
period"). Failure by the nonbreaching party to provide written notice and an
opportunity to cure will waive any right of the nonbreaching party to assert the
alleged breach at a later time. Within fourteen (14) days after the expiration
of the right to cure period, if the breaching party has not undertaken its best
efforts to cure the alleged breach, the nonbreaching party will notify the
breaching party of this failure and request, in writing, a meeting to discuss
resolution of any disputes between the parties (the "EARLY RESOLUTION
CONFERENCE"). Provided, however, that Ultrak may at any time independently
pursue the remedies specifically provided m Paragraph 9.
15. Resolution of Disputes. In the event there is a dispute between the
parties arising from any breach or alleged breach of this Agreement or as to the
Executive's termination or compensation or as to any allegation that Ultrak has
violated any of the Executive's employment, civil or other rights under any
laws, statutes or constitutional provisions, and the provisions of Paragraph 14
have been unsuccessful to resolve the dispute, the parties agree that the suit
will be subject to mediation and binding arbitration.
16. Assignment. The Executive acknowledges that the services to be
rendered by her are unique and personal. Accordingly, the Executive may not
assign any of her rights or delegate any of her duties or obligations under this
Agreement. The rights and obligations of the Employer under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
the Employer so long as the successor or assign of the Employer.
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provides the Executive employment in a position that is the same, or reasonably
similar; in its responsibilities, compensation, benefits, and other terms and
conditions.
17. Entire Agreement. This Agreement sets forth the entire and final
agreement and understanding of the parties and contains all of the agreements
made between the parties with respect to the subject matter hereof. This
Agreement supersedes any and all other agreements, either oral or in writing,
between the parties hereto, with respect to the subject matter hereof. No change
or modification of this Agreement shall be valid unless in writing and signed by
the Employer and the Executive.
18. Severability. If any provision of this Agreement shall be found
invalid or unenforceable for any reason, in whole or in part, then such
provision shall be deemed modified, restricted, or reformulated to the extent
and in the manner necessary to render the same valid and enforceable, or shall
be deemed excised from this Agreement, as the case may require, and this
Agreement shall be construed and enforced to the extent necessary to protect the
interests of both parties hereto, as if such provision had been originally
incorporated herein as so modified, restricted, or reformulated or as if such
provision had not been originally incorporated herein, as the case may be. The
parties further agree to seek a lawful substitute for any provision found to be
unlawful; provided, that, if the parties are unable to agree upon a lawful
substitute, the parties desire and request that a court or other authority
called upon to decide the enforceability of this Agreement modify those
restrictions in this Agreement that, once modified, will result in an agreement
that is enforceable to the extent necessary to protect the interests of both
parties hereto.
19. Headings. The headings in this Agreement are inserted for
convenience only and are not to be considered a construction of the provisions
hereof.
20. Execution of Agreement This Agreement may be executed in several
counterparts, each of which shall be considered an original, but which when
taken together, shall constitute one agreement.
21. Recitals. The recitals to this Agreement are incorporated herein as
an integral part hereof and shall be considered as substantive and not prefatory
language.
22. Expenses. In any action brought by either the Executive or the
Employer to enforce any of the provisions of this Agreement, all expenses
incurred by the party in connection with such actions, including reasonable
attorneys' fees, shall be borne by that party.
23. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Texas.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EMPLOYER: EXECUTIVE:
ULTRAK OPERATING, L.P.
By: Ultrak, GP, Inc.
Sole General Partner
/s/ XXXXX X. XXXXXX
--------------------------------
Xxxxx X. Xxxxxx
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
ULTRAK, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
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