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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made and entered into
as of the 1st day of June, 1999, by and between Ultrak Operating, L.P., a Texas
limited partnership, ("ULTRAK") and Xxxxxxxx X. Xxxxxxxxxx, (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 accept such 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
Executive Vice President and the Executive hereby accepts such employment on
the following terms and conditions.
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 Executive
Vice President, as detailed in the attached "JOB DESCRIPTION" for the position
of Executive Vice President, which is incorporated herein. The Executive shall
report to, and follow the direction of, the Chief Executive Officer ("CEO") or
President of the Employer or any other employee designated by the CEO or
President of the Employer. The Executive shall diligently, competently, and
faithfully perform all duties, and shall devote his entire business time,
energy, attention, and skill to the performance of duties for the Employer or
its affiliates and will use his 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.
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3. Executive Loyalty. The Executive shall devote all of his time,
attention, knowledge, and skill solely and exclusively to the business and
interests of the Employer, and 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, he 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 his
money in the capital stock or other securities of any corporation whose stock
or securities are publicly-owned or are regularly traded on any public
exchange.
4. Term of Employment. Unless sooner terminated as hereinafter
provided, this Agreement shall be entered into for a period of one (1) year
(the "INITIAL TERM"), commencing on January 1, 1999 (the "EFFECTIVE DATE"). The
term of employment shall be renewed automatically for successive periods of one
(1) year 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 $200,000.06 (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 Executive no less than once a year. 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 Executive's level with Ultrak. The Executive's base salary will not be
reduced during the Initial Term of the Agreement. Executive shall receive all
regular costs of living and other standard raises or salary increases, if any,
provided to other executive employees employed at Executive's level with
Ultrak.
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 Employer for each of Employer's fiscal years beginning January
1, 1999, and Executive shall be entitled to participate in the Ultrak Annual
Incentive Stock Option Program.
C. Other Benefits. During the term of this Agreement, the Employer
shall:
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(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
Ultrak 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 the Employer, in addition to Employer
designated holidays and sick leave in accordance with the Ultrak
policy;
(3) provide a monthly car allowance of $300.00;
(4) pay for reasonable professional associations, dues,
educational seminars to maintain license status, or taxes; and,
D. Profit Sharing. The Executive shall not be entitled to
participate in any profit sharing program of Employer, unless otherwise
determined by Ultrak's CEO and/or Board of Directors, from time to time.
6. Expenses. The Employer shall reimburse the Executive for all
reasonable and approved business expenses, provided 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 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
his 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 his duties before such tenth (10th) business
day.
C. For "cause," on the date the Employer provides the Executive
with written notice that he is being terminated for Cause (as defined
herein). For purposes of this Agreement, "CAUSE" exists if the
Executive:
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(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 Employer involves moral turpitude;
(2) willfully engages in acts that he knew, or should have
known in the exercise of reasonable care, would cause material harm
to Employer's property, goodwill or existing business interests;
provided, however, that no act on Executive's part shall be
considered "willful" unless done by Executive, in Employer's sole
discretion, without a good faith and reasonable belief that his
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 his previously
identified duties, or refuses to substantially perform his
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 Executive has failed or refused to substantially perform
his duties.
(5) a material breach of any written Employer policies or
procedures that are applicable to executives at Executive's level
or higher within Ultrak, after written notice by the Employer to
the Executive of such violation, and in the event of a procedural
breach of any written Employer policies or procedures the failure
by the Executive to undertake his 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 his employment for any
reason, provided that the Executive shall give the Employer thirty (30) days
written notice prior to such date of his 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.
8. Compensation Upon Termination.
A. If the Executive's services are terminated pursuant to any of
the provisions of Paragraph 7, the Executive, shall be entitled to the Base
Salary through the later of: the
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Executive's final date of active employment; or the date of the Agreement's
termination. The Executive shall also be entitled to any benefits mandated
under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).
In addition to the Base Salary and benefits as set forth in Paragraph 8A, if
the Executive's services are terminated pursuant to Paragraph 7A, 7B and/or 7E,
the Executive, upon agreement to and execution of a release of claims agreeable
to 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 a 12 month period (the "SEVERANCE PERIOD"), payable on a time schedule
that is in accordance with the Employer's 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 Employer or an affiliate of Employer, 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 Compensation from his new employer
during the remainder of the Severance Period.
Additionally, the Executive shall be entitled to the continuation of his Base
Salary plus Other Benefits as set forth in this Paragraph if the Executive,
pursuant to Xxxxxxxxx 0X, xxxxxxxxxx his employment following (1) a "CHANGE OF
CONTROL" of the Employer (as herein defined), (2) 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 (3) a reduction in
the Executive's total compensation package, during the Initial Term. The
occurrence of a "Change of Control" shall mean, for purposes of this Agreement:
1) an ownership change in which any person/individual or entity,
excluding Xxxxxx X. Xxxxxx, his family members, affiliates or
related parties, in one or more transactions or series of
transactions, directly or indirectly, acquires more than 50%
of the record and beneficial ownership in the voting stock of
the Employer; or
2) the direct or indirect sale or exchange by the shareholders
of the Employer of all or substantially all of the stock of
the Employer; or
3) a merger or consolidation in which the Employer is a party;
or
4) the sale, exchange, or transfer of all or substantially all
of the assets of the Employer.
B. If the Executive's services are terminated pursuant to A,B,D, or
E set forth in paragraph 7, all stock options granted to the Executive
under the Ultrak 1988 Non-Qualified Stock Option Plan and Amendments
thereto or the Ultrak Incentive Stock Option Plan will become
immediately vested.
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9. Protective Covenants. The Executive acknowledges and agrees that by
virtue of his employment by, and relationship with Ultrak, he has acquired and
will acquire "CONFIDENTIAL INFORMATION", as hereinafter defined, as well as
special knowledge of the Employer's relationships with its customers and
business brokers, and that, but for his 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 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 his employment
by and relationship with Ultrak that Ultrak agrees to provide the Executive
with specialized training and instruction regarding Ultrak's operations,
products sold and serviced by Ultrak, as well as marketing and operational
techniques and strategies to the extent applicable to the Executive's
employment with Ultrak. This training may be provided through direct experience
or otherwise.
The Executive acknowledges and agrees that by virtue of his employment
by and relationship with Ultrak that Ultrak agrees to provide the Executive
with an interest in the growth of the goodwill of Ultrak through his
employment. Ultrak also agrees to provide expense reimbursements in accordance
with Ultrak policy, access to confidential information, and contact with
customers, contractors and vendors in order to help Ultrak develop goodwill for
Ultrak.
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 his
free and voluntary act, after having determined that the provisions contained
herein are of a material benefit to him, and that the duties and obligations
imposed on him hereunder are fair and reasonable and will not prevent him from
earning a comparable livelihood following the termination of his 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 he so chooses;
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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 his employment and
for a period of one (1) year after the termination of the Executive's
employment under Paragraph 7A, C, D, or E, 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 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 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 Executive to 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 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 his 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
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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 he has received from
Ultrak; or
(6) use the goodwill developed with Ultrak's customers,
contractors and vendors.
The foregoing restrictions in Paragraphs 9D(1)-(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 or 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 Employer's Chief Executive Officer.
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, he 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 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
Employer, or requested a contract proposal, or had a contract proposal made to
it by Employer, within the previous six (6) months; and (b) that Executive
either had contact with or received confidential information about during the
last six (6) months of Executive's employment with 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 Employer; and, (b) had contact
with Executive or was the subject of confidential information handled by the
Executive.
G. The Executive agrees that both during his employment and for a
period of one (1) year thereafter the Executive will not, for any reason
whatsoever, use for himself or disclose to any person not employed by the
Employer any "Confidential Information" of the Employer acquired by the
Executive during his 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
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the Employer and further agrees not to use Confidential Information for his own
private use or commercial purposes or in any way detrimental to the Employer,
except as otherwise provided for below. The Executive agrees that "Confidential
Information" means (1) information created or compiled by 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 Executive from or through Executive's employment
with 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 his original employment with the Employer. Nothing herein
will be construed to preclude Executive from (i) disclosing Confidential
Information to his personal accountants, tax advisors, or legal counsel, in
confidence, where necessary for them to provide their professional services to
Executive; or, (2) where compelled to do so by law (in response to a subpoena
for example); provided, however, that if Executive believes he is compelled by
law to make such a disclosure of Confidential Information he will provide
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 him or others, except as his duty shall require, and in such cases, will
promptly return such items to the Employer. Upon termination of his 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 him pursuant to any paragraphs hereunder
or otherwise; provided, however, that Employer will not make any withholdings
or reduce the compensation due Executive under this agreement or otherwise
without first identifying the item that has not been returned and providing
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 his 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) he will promptly disclose all
Inventions to the Employer and hereby assigns to the Employer all present and
future rights he has or may have in
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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 (1) 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 time during
the term of this Agreement, and upon termination of this Agreement, his
complete list of the correct names and places of business and telephone numbers
of all of its customers served by him and located within any or all of the
territories to which he 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 Executive in the course of his 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 injunction, 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.
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10. Acknowledgement of Ancillary Agreements and Consideration. The
Executive and Ultrak 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. Ultrak 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
Ultrak's employment with the Employer but it is contingent upon Ultrak
complying with the protective covenants in Paragraph 9 and its subparts.
11. Indemnification. Ultrak shall indemnify the Executive to the full
extent authorized by law in the event he 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 he 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.
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 his 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.
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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 in Paragraph 9(K).
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 the mediation and binding arbitration
provisions set forth in Attachment A. The parties agree to execute the Policy
for Resolution of Disputes set forth in Exhibit A in conjunction with and upon
execution of this Agreement.
16. Assignment. The Executive acknowledges that the services to be
rendered by him are unique and personal. Accordingly, the Executive may not
assign any of his rights or delegate any of his 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
provides 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
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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 have set their signatures on the date
first written above.
EMPLOYER: EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxx Xxxxxxxxxx
------------------------------- ---------------------------
Xxxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer Print Name: Xxx Xxxxxxxxxx
WITNESS:
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Print Name: Xxxx X. Xxxxxxxx
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EXHIBIT A
POLICY FOR RESOLUTION OF DISPUTES
A. Agreement to Arbitrate.
In the event that any employment dispute arises between Ultrak and the
Executive, the parties involved will make all efforts to resolve any such
dispute through informal means as outlined in Paragraph 14 of the Employment
Agreement between Ultrak and the Executive. If these informal attempts at
resolution fail and if the dispute arises out of or is related to the
termination of employment, compensation of the Executive, or any alleged
unlawful discrimination, or violation of any law, Ultrak and the Executive
shall submit the dispute to final and binding arbitration. Provided, however,
that Ultrak may at any time pursue the remedies specifically provided in
Paragraph 9(K) of the Employment Agreement between Ultrak and the Executive.
By accepting or continuing employment with Ultrak, the Executive
agrees that arbitration is the exclusive remedy for all such arbitrable
disputes other than the remedies specifically provided in Paragraph 9(K) of the
Employment Agreement between Ultrak and the Executive; with respect to such
disputes, no other action may be brought in court or any other forum (except
actions to compel arbitration hereunder). THIS POLICY AND AGREEMENT TO
ARBITRATE IS A FULL AND COMPLETE WAIVER OF THE PARTIES' RIGHTS TO A CIVIL COURT
ACTION FOR ANY DISPUTES RELATING TO COMPENSATION, TERMINATION OF EMPLOYMENT,
ANY CLAIMS WHATSOEVER RELATED TO ANY EMPLOYMENT AGREEMENT, ALLEGED OR ACTUAL
VIOLATION OF ANY LAWS, RULES, REGULATIONS OR STATUTES RELATED TO THE EMPLOYMENT
OF THE EXECUTIVE, OR ANY ALLEGED OR ACTUAL UNLAWFUL DISCRIMINATION, WHICH
INCLUDES SEXUAL OR OTHER UNLAWFUL HARASSMENT. ONLY AN ARBITRATOR, NOT A JUDGE
OR JURY, WILL DECIDE SUCH DISPUTES.
Employment disputes arising out of or related to termination of
employment or alleged unlawful discrimination, which includes sexual or other
unlawful harassment, shall include, but not be limited to, the following:
alleged violations of federal, state, and/or local constitutions, statutes, or
regulations; claims based on any purported breach of contractual obligations;
and claims based on any purported breach of duty arising in tort, including
violations of public policy. Disputes related to injuries covered by workers'
compensation and unemployment compensation and the Employee Retirement Income
Security Act of 1974 (ERISA) are not arbitrable hereunder.
B. Attempt at Informal Resolution of Disputes (Mediation).
Prior to submission of any dispute to arbitration, Ultrak and the
Executive shall attempt to resolve the dispute informally through mediation.
Ultrak and the Executive will select a mediator from a list provided by the
American Arbitration Association or other recognized
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dispute resolution provider that will assist the parties in attempting to reach
a settlement or bind the parties. The mediator may make settlement suggestions
to the parties but shall not have the power to impose a settlement upon them.
If the dispute is resolved in mediation, the matter shall be deemed closed upon
execution of a document memorializing the resolution and signed by both
parties. If the dispute is not resolved in mediation and goes to the next step
(binding arbitration), any proposals or compromises suggested by either of the
parties or the mediator shall not be referred to or have any bearing on the
arbitration procedure. The mediator cannot also serve as the arbitrator in the
subsequent proceeding unless all parties expressly agree in writing. Ultrak
shall bear the full costs of the mediator's fees and any reasonable costs
associated with the mediation proceedings.
C. Request for Arbitration.
1. Arbitration Procedures.
The Executive or his/her representative must submit a "Request for
Arbitration" in writing to the President of Ultrak within one (1) year or the
statutory period required under Federal and/or Texas State law of (i) the
termination of employment (including resignation), (ii) the incident giving
rise to the dispute or claim, or, (iii) in the case of unlawful discrimination,
including sexual or other unlawful harassment, the alleged conduct. This time
limitation will not be extended for any reason and shall not be subject to
tolling, equitable or otherwise. If the "Request for Arbitration" is not
submitted in accordance with the aforementioned time limitations, the Executive
will not be able to bring his/her claim to this or any other forum. The
Executive can obtain a "Request for Arbitration" form from the President of
Ultrak or submit his/her own "Request for Arbitration" form, as long as it
clearly states "Request for Arbitration" and includes the following
information:
a. A factual description of the dispute in sufficient detail
to advise the parties of the nature of the dispute;
b. The date when the dispute first arose;
c. The names, work locations, telephone numbers of any
co-workers or supervisors with knowledge of the dispute;
and
d. The relief requested by the party.
Ultrak will respond in a timely manner to any "Request for
Arbitration," initiated by the Executive so that the parties can begin the
process of selecting an arbitrator. Such response may include any counterclaims
that Ultrak chooses to bring against the Executive.
2. Selection of the Arbitrator.
All disputes will be resolved by a single arbitrator. The
arbitrator will be mutually selected by Ultrak and the Executive. If the
parties cannot agree on an arbitrator, then a list of seven (7) arbitrators,
experienced in employment matters, shall be provided by the American
Arbitration Association. The arbitrator will be selected by the parties who
will
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alternately strike names from the list. The last name remaining on the list
will be the arbitrator selected to resolve the dispute. Upon selection, the
arbitrator shall set an appropriate time, date and place for the arbitration,
after conferring with the parties to the dispute.
3. Arbitrator's Authority.
The arbitrator shall have the powers enumerated below:
a. Ruling on motions regarding discovery, and ruling on
procedural and evidentiary issues arising during the
arbitration;
b. Issuing protective orders on the motion of any party or
third party witness (such protective orders may include,
but not be limited to, sealing the record of the
arbitration, in whole or in part (including discovery
proceedings and motions, transcripts, and the decision and
award), to protect the privacy or other constitutional or
statutory rights of parties and/or witnesses); and
c. Determining only the issue(s) submitted to him/her (the
issue(s) must be identified in the "Request for
Arbitration" or counterclaims, and any issue(s) not so
identified in those documents shall be deemed to be and
is/are outside the scope of the arbitrator's jurisdiction,
and any award involving those issue(s) shall be subject to
a motion to vacate).
4. Pleadings.
a. A copy of the "Request for Arbitration" shall be forwarded
to the arbitrator within five (5) calendar days of his/her
selection.
b. Within ten (10) calendar days following submission of the
Executive's "Request for Arbitration" to the arbitrator,
Ultrak shall respond in writing to the "Request for
Arbitration" to the arbitrator by answer and/or demurrer.
The answer or demurrer shall be served on the arbitrator
and the Executive.
c. The answer to the "Request for Arbitration" shall include
the following information:
(1) A response, by admission or denial, to each claim set
forth in the "Request for Arbitration";
(2) All affirmative defenses asserted by Ultrak to each
claim; and
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(3) All counterclaims Ultrak asserts against the
Executive and any related third party claims.
d. If Ultrak contends that some or all of the Executive's
claims set forth in the "Request for Arbitration" are
barred as a matter of law, it may respond by demurrer
setting forth the legal authorities in support of its
position. If Ultrak demurs to less than the entire "Request
for Arbitration," Ultrak must answer those claims to which
it does not demur at the same time that it submits its
demurrer.
e. The Executive shall have twenty (20) calendar days to
oppose Ultrak's demurrer. Any opposition must be in writing
and served on the arbitrator and Ultrak.
f. If Ultrak's answer alleges a counterclaim, within twenty
(20) days of service of the answer, the Executive shall
answer and/or demur to the counterclaim in writing and
serve the answer and/or demurrer on the arbitrator and
Ultrak. If the Executive demurs to any counterclaim, Ultrak
shall have twenty (20) calendar days from its receipt of
the demurrer to submit a written opposition to the demurrer
to the Executive and the arbitrator.
g. The arbitrator shall rule on demurrer(s) to any claims
and/or counterclaims within fifteen (15) calendar days of
service of the moving and opposition papers.
h. If any demurrer is overruled, the moving party must answer
those claims to which it demurred within five (5) calendar
days of the arbitrator's ruling. The answer must be served
on the arbitrator and the opposing party.
i. When all claims and counterclaims have been answered, the
arbitrator shall set a time and place for hearing which
shall be no earlier than three (3) months from the day on
which the parties are notified of the date of hearing and
no late than twelve (12) months from the date on which the
arbitrator sets the date of the hearing.
j. The above rules apply whether the arbitration is initiated
by the Executive or by Ultrak. Should arbitration be
initiated by Ultrak, the Executive shall have all rights of
response, demand and counterclaim, and otherwise as
outlined above.
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5. Discovery.
The discovery process shall proceed and be governed as follows:
a. Parties may obtain discovery by any of the following
methods:
(1) Depositions upon oral examination, one (1) per side
as of right, with more permitted if leave is obtained
from the arbitrator;
(2) Written interrogatories, up to a maximum combined
total of (20), with the responding party having
twenty (20) days to respond;
(3) Request for production of documents or things or
permission to enter upon land or other property for
inspection, with the responding party having twenty
(20) days to produce the documents and allow entry or
to file objections to the request; and
(4) Physical and mental examination, in accordance with
the Federal Rule of Civil Procedure 35(a).
b. Any motion to compel production, answers to interrogatories
or entry onto land or property must be made to the
arbitrator within fifteen (15) days of receipt of
objections.
c. All discovery requests shall be submitted no less than
sixty (60) days before the hearing date.
d. The scope of discoverable evidence shall be in accordance
with Federal Rule of Civil Procedure 26(b)(1).
e. The arbitrator shall have the power to enforce the
aforementioned discovery rights and obligations by the
imposition of the same terms, conditions, consequences,
liabilities, sanctions, and penalties as can or may be
imposed in like circumstances in a civil action by a
federal court under the Federal Rules of Civil Procedure,
except the power to order the arrest or imprisonment of a
person.
6. Hearing Procedure.
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The hearing shall proceed according to the American Arbitration
Association's Rules with the following amendments:
a. The arbitrator shall rule at the outset of the arbitration
on procedural issues that bear on whether the arbitration
is allowed to proceed.
b. Each party has the burden of proving each element of its
claim or counterclaims, and each party has the burden of
proving any of its affirmative defenses.
c. In addition to, or in lieu of, closing arguments, either
party shall have the right to present post-hearing briefs,
and the due date for exchanging post-hearing briefs shall
be mutually agreed on by the parties and the arbitrator.
7. Substantive Law.
The applicable substantive law shall be the law of the State of
Texas or federal law. If both federal and state law speak to a cause of action,
the Executive shall have the right to elect his/her choice of law. However,
choice of law in no way affects the procedural aspects of the arbitration,
which are exclusively governed by the provisions of this Policy.
8. Opinion and Award.
The arbitrator shall issue a written opinion and award, in
conformance with the following requirements:
a. The opinion and award must be signed and dated by the
arbitrator.
b. The arbitrator's opinion and award shall decide all issues
submitted.
c. The arbitrator's opinion and award shall set forth the
legal principles supporting each part of the opinion.
d. The arbitrator shall have the same authority to award
remedies and damages as provided to a judge and/or jury
under parallel circumstances.
9. Fees and Costs.
Fees and costs shall be allocated in the following manner:
a. Each party shall be responsible for its own attorneys'
fees, except as provided by law;
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b. Ultrak shall bear the full cost of the arbitrator's fees
and any costs associated with the facilities for the
arbitration.
c. Ultrak and the Executive shall each bear an equal one-half
of any court reporters' fees, assuming both parties want a
transcript of the proceeding. If one party elects not to
receive a transcript of the proceedings, the other party
will bear all of the court reporters' fee. However, such an
election must be made when the arrangements for the court
reporter are being made.
d. Each party shall be responsible for its costs associated
with discovery.
D. Severability.
In the event that any provision of this Policy is determined
by a court of competent jurisdiction to be illegal, invalid or
unenforceable to any extent, such term or provision shall be enforced
to the extent permissible under the law and all remaining terms and
provisions of this Policy shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have set their signatures on the date
first written above.
EMPLOYER: EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxxx BY: /s/ Xxx Xxxxxxxxxx
------------------------------ ------------------------------
Xxxxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer Print Name: Xxx Xxxxxxxxxx
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