EXHIBIT 10.12
TERMINATION AGREEMENT AND RELEASE
THIS TERMINATION AGREEMENT AND RELEASE is made and entered into this
3rd day of May, 2002, and is by and between Ultrak Operating, L.P., a Texas
limited partnership (together with its parent, Ultrak, Inc., a Delaware
corporation and their affiliated entities, the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇ (the
"Executive").
WHEREAS, the Executive has been employed by the Company as its
President and Chief Operating Officer; and
WHEREAS, certain disputes between the Company and the Executive have
arisen with respect to the Executive's departure from the Company; and
WHEREAS, the Company and the Executive have agreed upon the terms of
the Executive's resignation as an officer, employee and director of the Company
and desire to set forth the terms and conditions of the Executive's amicable
departure from the Company.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Termination of Employment. Effective the date hereof, the
Executive's employment with the Company is hereby terminated and Executive
hereby resigns from his position as an officer of the Company and hereby
reaffirms his resignation as a director of the Company.
2. Severance Payments. The Company shall pay to the Executive (a) on or
before May 10, 2002, a lump sum payment of $155,000, (b) on or before May 10,
2002, a payment of $6,554.72, which represents the Executive's accrued and
unpaid vacation pay and (c) during the period from the date hereof through
October 31, 2002, the Executive's normal payroll payments in accordance with the
Company's standard payroll procedure at the Executive's current salary rate of
$310,000 per annum; provided; however; that if Executive accepts any position
(including, but not limited to, a consulting position) from an entity that
purchases all or a portion of the assets of the Company, whether by sale, merger
or otherwise, the payments referred to in subparagraph (c) above shall terminate
on the later of the date the Executive accepts such position (prior to October
31, 2002) or July 31, 2002. All payments to be made hereunder shall be subject
to appropriate withholding for Federal and state taxes.
3. Options. The Executive's right to exercise any options to purchase
shares of Ultrak, Inc. shall continue to be governed by the terms of the
applicable stock option plans and grant agreements.
4. Medical Benefits. The Company shall continue to pay the Company's
portion of the premiums for the Executive's medical insurance under the
Company's group insurance plan so that the Executive continues to be covered
until the earlier of October 31, 2002 or such time as the Executive accepts
full-time employment with another entity.
5. Forfeiture of Bonus Pool. The Executive hereby forfeits
participation in any Company bonus pools and any performance bonuses to which he
may have been entitled.
6. No Other Benefits. Other than as set forth herein, the Executive
agrees that he is not entitled to any further compensation (cash, equity or
otherwise) or benefits from the Company or to receive any of the benefits made
available to the Company during his employment by the Company.
7. Release of the Company. For good and valuable consideration, receipt
of which is hereby acknowledged, the Executive hereby releases and discharges
the Company and its principals, directors, officers, partners, agents,
attorneys, assureds, employees, past and present heirs, executors,
administrators, successors and assigns from any and all actions, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims and demands whatsoever, in law, admiralty
or equity, which against the Company and its principals, directors, officers,
partners, agents, attorneys, assureds, employees, past and present, heirs,
executors, administrators, successors and assigns the Executive ever had, now
has, or hereafter can, shall or may have upon or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the date of this
Agreement. The foregoing release shall include, but not be limited to, all
matters arising from any rights as an employee of the Company including, but not
limited to, those arising under the Age Discrimination in Employment Act of
1967, as amended, the Older Workers Benefit Protection Act and Title VII of the
Civil Rights of 1964, as amended. However, nothing contained herein shall in any
way affect the right of the Executive to enforce his rights and remedies under
this Agreement or any rights of indemnification the Executive may have under the
Company's director and officer liability policy or the Company's Certificate of
Incorporation, Bylaws or Partnership Agreement.
8. Release of the Executive. In consideration for the surrender by the
Executive of the options and other good and valuable consideration, receipt of
which is hereby acknowledged, the Company, including its principals, directors
and officers, hereby releases and discharges the Executive and his agents,
attorneys, assureds, past and present, heirs, executors, administrators,
successors and assigns from any and all actions, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims and demands whatsoever, in law, admiralty or equity,
which against the Executive, his agents, attorneys, assureds, past and present
heirs, executors, administrators, successors and assigns the Company ever had,
now has or hereafter can, shall or may have upon or by reason of any matter,
cause or thing whatsoever from the beginning of the world to the date of this
Agreement. However, nothing contained herein shall in any way affect the right
of the Company to enforce its rights and remedies under this Agreement.
9. Covenants, Representations and Warranties by the Parties. The
parties hereto hereby covenant, warrant and represent, with full knowledge that
each other intends to rely thereupon, that
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(a) they possess all of the requisite power and authority to
enter into and fully perform their obligations under this Agreement and to bind
the party or parties on whose behalf he or it has signed;
(b) they have not assigned, do not intend to assign and will
not assign any claims that are the subject of the releases set forth herein;
(c) they have not assigned or otherwise transferred, do not
intend to assign or transfer and will not assign or transfer to any person or
entity any right that would or might derogate, encumber or interfere with any of
the rights granted herein;
(d) they have had the opportunity to consult with legal
counsel of their own choosing in connection with this matter;
(e) they have entered into this Agreement voluntarily and with
full knowledge of the effects thereof;
(f) they have read and fully understand the terms and
conditions of this Agreement;
(g) they are under no financial, emotional, physical or other
duress or compulsion in connection with their entry into this Agreement;
(h) they are under no time pressure in connection with their
entry into this Agreement; and
(i) the terms of this Agreement are fair, reasonable, and not
unconscionable.
The parties acknowledge and agree that they have all participated in
the drafting of this Agreement, and the language of all parts of this Agreement
shall in all cases be construed as a whole, according to its fair meaning, and
not strictly for or against any of the parties. All covenants, representations,
warranties, rights and obligations contained in this Agreement shall survive the
execution of this Agreement.
10. Disclaimers by the Company. The Company and its principals,
directors, officers, partners, agents, attorneys and employees have not made and
do not make any representations or warranties concerning the past, present or
projected value of any options issued by Ultrak, Inc. or the stock of Ultrak,
Inc. or any other matter affecting or relating to any options issued by Ultrak,
Inc. or the stock of Ultrak, Inc. The parties acknowledge that no such
representations have been made.
11. Non-Competition Covenant of the Executive. In consideration of the
payment of severance benefits hereunder and other good and valuable
consideration, for a period of one year from the date hereof, the Executive will
not, assist a Competing Business (as defined below) by doing any of the
following prohibited acts:
(a) 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 Covered Brokers
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(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 Company to its customers that they would displace or
reduce the volume of products or services sold by the Company to its customers.
In addition, the Executive will not identify or disclose any such Covered
Brokers, Covered Customers or Prospective Customers, or any part thereof, as
being a business broker, customer or prospective customer of the Company to any
person, firm, corporation, association, or other entity engaged in a Competing
Business; or
(b) participate in a Competing Business by supervising, or
providing, directly or indirectly, services or assistance to a Competing
Business in a position that involves (i) duties or functions that are the same
or substantially similar in their purpose to those provided by the Executive to
the Company, (ii) 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 (iii) direction or control over communications with Covered
Customers, Prospective Customers and/or Covered Brokers; provided, however, that
nothing herein shall prevent the Executive from directly owning less than five
percent (5%) 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
(c) solicit or otherwise induce, on his own behalf or on
behalf of any other person or entity, any of the Company's employees to
terminate their employment with the Company; or
(d) 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 Company's business brokers, customers, or
prospective customers to induce the Company's business broker, customer or
prospective customer at issue to terminate or reduce in any way any aspect of
the Company's ongoing sales or services, or other business activities with the
customer, broker or prospective customer that the Executive is then working for;
or
(e) use any of the specialized training he has received from
the Company; or
(f) use the goodwill developed with the Company's customers,
contractors and vendors.
The foregoing restrictions apply to activities by Executive anywhere
within a fifty (50) mile radius of any office of the Company; and at the
addresses or locations where Covered Customers and Prospective Customers and
Covered Brokers are doing business on the date hereof.
The Executive acknowledges and agrees that the scope described above is
necessary and reasonable in order to protect the Company in the conduct of its
business and that, if the Executive becomes employed by another employer, he
shall be required to disclose the existence of this Section 11 to such employer
and the Executive hereby consents to and the Company is hereby given permission
to disclose the existence of this Section 11 to such employer.
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For purposes of this Section 11, (A) a "Competing Business" 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
Company to its customers that they would displace or reduce the volume of
products or services sold by the Company to its customers, (B) a "Covered
Customer" or "Prospective Customer" means any person or entity that (i) held a
contract with the Company, or requested a contract proposal, or had a contract
proposal made to it by the Company, within the previous six months; and (ii)
that the Executive either had contact with or received confidential information
about during the last six months of the Executive's employment with the Company,
(C) a "Covered Broker" refers to any person or entity who, within the preceding
12 months in the ordinary course of business for that person or entity, (i)
acted as an agent or intermediary to facilitate the sale of goods or services
sold by the Company; and, (ii) had contact with the Executive or was the subject
of confidential information handled by the Executive.
Notwithstanding the foregoing, if the Executive accepts a position from
an entity that purchases all or a portion of the assets of the Company, whether
by sale, merger or otherwise, the Executive's compliance with this Section 11
shall be waived by the Company.
12. Confidentiality: Non-Disparagement.
(a) The Executive represents that he has returned or will
immediately return to the Company all Company Information (as defined below) and
property, including, without limitation, the Executive's leased vehicle, mailing
lists, reports, files, memoranda, records and software, credit cards, cell
phones (to be returned on July 1, 2002), door and file keys, computer access
codes or disks and instructional manuals, and other physical or personal
property that he received or prepared or helped to prepare in connection with
his employment with the Company and that he will not retain any copies,
duplicates, reproductions, notes, excerpts or abstracts thereof. In the event
the Executive hereafter discovers any Company Information in his possession, he
agrees to immediately return such material or materials to the Company. Should
the Executive be uncertain as to whether any material or materials in his
possession constitute Company Information, he agrees to submit a written list
thereof to the Company and make such material or materials available for
inspection by the Company, and Executive shall abide by the Company's reasonable
designation of such materials as Company Information. In addition to the
foregoing, "Company Information" as used in this Agreement means (i)
confidential information of the Company, including, without limitation,
information received from the Company or from third parties under confidential
conditions, (ii) all information related to the Company's projects, and (iii)
other technical, business or financial information or trade secrets, the use or
disclosure of which might reasonably be construed to be contrary to the
interests of, or beneficial to the competitors of, the Company.
(b) The Executive and the Company agree that in the course of
his employment with the Company, the Executive acquired Company Information. The
Executive agrees that such Company Information has been disclosed to him in
confidence and for the use only of the Company. The Executive acknowledges that
he has no ownership right or interest in any Company Information used or
developed during the course of his employment. The Executive agrees (i) that he
will keep such Company Information confidential at all times and (ii)
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that he will not make use of Company Information on his own behalf or on behalf
of any third party.
(c) The Executive agrees that in the event he receives any
request or demand for information concerning the Company from any third party,
including any subpoena or demand for discovery, he shall notify the Company by
certified or registered mail, postage prepaid immediately upon receipt of such a
request or demand. The Executive agrees to cooperate with any effort by the
Company, at its expense, to lawfully oppose, limit or quash any such subpoena,
request or demand for information.
(d) The Executive acknowledges and agrees that the Company
Information constitutes a legitimate, protectible interest of the Company. The
Executive further acknowledges that, in light of his exposure to Company
Information and the uniqueness of his services to the Company, the restrictions
contained in this Section 12 are reasonable and necessary to protect the
Company's business and goodwill, and that a violation of this Section 12 would
cause irreparable damage to the Company.
(e) Each of the parties hereto agrees that it or he (as
applicable) will not make, or cause to be made, any statements, observations or
opinions, or communicate any information (whether oral or written) that
disparages or is likely in any way to harm the business, business or personal
reputation or financial condition of the Company and, in the case of the
Executive, the business or personal, reputation or financial condition of the
Executive.
(f) The parties shall keep this Agreement, and all
discussions, negotiations and terms of this Agreement (the "Agreement
Information") strictly confidential. Notwithstanding the foregoing, the Company
may disclose the Agreement Information to related parties who, in the Company's
reasonable judgment, need to know such information. The Company shall inform
such related party of this Agreement and the confidential nature of such
information. For purposes hereof, related party shall mean the Company's
directors, officers, partners, employees, outside counsel, engineers,
consultants, lenders, representatives and accountants. Notwithstanding anything
contained herein to the contrary, the parties may disclose the Agreement
Information in connection with a dispute concerning this Agreement, in the
Company's financial statements, to the Executive's financial and legal advisors
or as required by law, including in connection with a Securities and Exchange
Commission filing by the Company or its affiliates
13. Review and Consideration of Agreement. The Company hereby advises,
and the Executive acknowledges that the Company has advised him to consult with
an attorney of his choice prior to signing this Agreement, and that he has
availed himself of that right. The Executive acknowledges that he understands
and agrees that the Company is under no obligation to offer any of the benefits
set forth in this Agreement, including the release and that he is under no
obligation to consent to the release. The Executive acknowledges that the
payments being made to him under this Agreement are in excess of what he would
have ordinarily been entitled to receive upon termination of his employment with
the Company. The Executive acknowledges that he fully understands the terms of
this Agreement, that he has had 21 days to consider them and to seek the advice
of his attorney and that he is signing them freely, knowingly and voluntarily;
and understands that he has seven days from the date he presents this Agreement
to
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the Company to revoke them, and that this Agreement shall not become effective
or enforceable until the seven day revocation period has expired.
14. Complete Agreement; Amendment. The terms set forth in this
Agreement constitute the entire agreement among the parties with respect to the
subject matter hereof and may not be altered or modified other than in a writing
signed by each of the parties hereto. This Agreement supersedes all prior
agreements and understandings between the parties concerning the subject matter
hereof, including, without limitation, the Employment Agreement dated January
1,2001, by and between Ultrak Operating, L.P. and the Executive and any drafts
of an employment agreement by and between Ultrak Operating, L.P. and the
Executive.
15. Severability. In the event any one or more of the provisions of
this Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby. Moreover, if any one or more of the provisions
contained in this Agreement is held to be excessively broad as to duration,
geographical scope, activity or subject, such provisions will be construed by
limiting and reducing them so as to be enforceable to the maximum extent
compatible with applicable law.
16. Notices. Any notices, transmittals, or other communications
required or permitted hereunder shall be given in writing and shall be delivered
or sent by next day delivery service, personal delivery or certified or
registered mail, postage prepaid, addressed as follows:
If to the Company, to:
Ultrak Operating, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Executive to:
▇▇▇▇▇ ▇▇▇▇▇
Ivy Barn, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
or to such other address as shall be furnished in writing by such party, and any
such notice or communication shall be effective and be deemed to have been given
upon its receipt.
17. Arbitration; Governing Law. All disputes with regard to this
Agreement shall be exclusively adjudicated by binding arbitration in the State
of Texas, County of Dallas in accordance with the then current rules of the
American Arbitration Association. This Agreement shall be construed in
accordance with and governed by the laws of the State of Texas without regard to
the effect of principles or conflicts of laws thereof.
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18. No Third-Party Beneficiaries. This Agreement is made solely for the
benefit of, and shall be binding upon and inure to the benefit of those persons
who are parties hereto (including their heirs, executors, administrators and
successors), and no other person shall have or be entitled to enforce any
rights, benefits or obligations under this Agreement.
19. No Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be sold, transferred or
assigned by either of the parties hereto without the prior written consent of
the other party hereto. Any sale, transfer or assignment of this Agreement or
any of the rights, interests or obligations under this Agreement in violation of
the foregoing sentence shall be null and void.
20. Headings. The headings in this Agreement are for convenience and
reference only and shall not be construed as part of this Agreement or to limit
or otherwise affect the meaning hereof.
21. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be original, but all such
counterparts shall constitute one and same instrument.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
COMPANY
EXECUTIVE:
ULTRAK OPERATING, L.P.
By: ULTRAK GP, INC.
Sole General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------- ------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and
General Counsel
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