RESIGNATION AGREEMENT AND RELEASE
Exhibit 10.21
RESIGNATION AGREEMENT AND RELEASE
This Resignation Agreement and Release (the “Agreement”) is made June 27, 2008, by and between
W. Xxxx Xxxxxxxxx (“Executive”) and Zareba Systems, Inc. (“Zareba”), a Minnesota corporation.
RECITALS:
WHEREAS, Executive has been employed by Zareba; and
WHEREAS, Executive and Zareba want to document their agreement concerning the terms of the
termination of Executive’s employment and resolve any actual and potential disputes between them.
NOW, THEREFORE, in consideration of the mutual promises and covenants in this Agreement,
Zareba and Executive agree as follows:
AGREEMENTS
1. Premises. The Recitals are incorporated into this Agreement and made part of it.
2. Definitions. The “Company” means Zareba, its subsidiaries and affiliated and
predecessor companies, and the present and former officers, directors, employees, shareholders,
consultants, attorneys, accountants, auditors and agents of any of them, whether in their
individual or official capacities, and the current and former trustees or administrators of any
pension or other benefit plan applicable to the employees or former employees of the Company, in
their individual and official capacities. “Executive” means Executive and anyone who has or
obtains legal rights or claims through Executive.
3. End of Employment; Certain Resignations. Executive’s employment terminated
effective June 27, 2008.
Executive resigns effective immediately as a director and/or officer of all of the direct or
indirect subsidiaries of the Company, including without limitation, Zareba Security, Inc., Zareba
Systems of Canada, Ltd., Zareba Systems Europe Limited, No. 549 Leicester Limited, Rutland Electric
Fencing Co., Limited, Rutland Electric Fencing Co. (Scotland) Limited and Electric Shepherd
Products Limited.
4. Payments and Other Consideration. Specifically in consideration for Executive’s
agreement to this Agreement, and as settlement of any and all claims which Executive has made or
could make against the Company, if Paragraph 5 of this Agreement is not rescinded by Executive or
otherwise such Paragraph is not or does not become void or unenforceable, the termination of
Executive’s employment will be characterized by the parties as a resignation, and Zareba will pay
Executive an amount equal to Executive’s base salary in effect on June 27, 2008, for approximately
four (4) months in eight (8) equal bi-weekly installments beginning on the first
day after July 18, 2008, on which Zareba makes its regular payroll payments and pay for the four
(4) month period during which such installments are payable, the cost (COBRA premiums) of all
existing health/medical/dental benefit plans in which Executive participated as of June 27, 2008.
If it is reasonably possible, at Executive’s sole expense, Executive may arrange for the
transfer to a new cell phone purchased by Executive the telephone number of the cell phone
heretofore used by Executive.
If it is reasonably possible, from the date of this Agreement until July 26, 2008, the Company
will endeavor to forward, to an email address provided by Executive to the Company, personal emails
addressed to Executive at the email address of Executive at the Company. Executive confirms that
Executive has no expectations of privacy concerning emails addressed to Executive at the email
address of Executive at the Company. Executive understands that Company personnel will read emails
addressed to Executive at the email address of Executive at the Company and determine in their sole
and absolute discretion which emails, if any, are to be forwarded to Executive pursuant to this
paragraph. The Company will have no liability to Executive for any delay or failure to forward
personal emails addressed to Executive at the email address of Executive at the Company.
The Company will promptly pay Executive an amount equal to Executive’s accrued but unused
vacation as of June 27, 2008.
The Company will have no other obligations to pay Executive any other amounts or provide other
benefits or consideration to Executive except as set out in this Section.
Except as provided for in this Agreement, neither Executive or Executive’s attorneys will make
any claim against the Company for attorneys’ fees, costs, interest or any and all other expenses
which may have been incurred by Executive and Executive is personally responsible for all of
Executive attorney’s fees and costs, if any.
5. Release of Claims by Executive.
a. Executive releases and forever discharges the Company of and from any and all claims,
actions, causes of action, administrative claims, individual or class action claims, or demands of
any kind whatsoever Executive has or might have against the Company, whether in law or equity,
contract or tort, arising out of or in connection with Executive employment with the Company, the
termination of that employment, or otherwise. Except for the consideration payable to Executive
under Section 4, such release includes, without limiting the generality of the foregoing, any
claims Executive may have for wages, bonuses, commissions, penalties, claims for punitive or
liquidated damages, severance, attorney’s fees, costs and disbursements, vacation pay, or other
benefit, based upon any claim of defamation, breach of contract or tort, at common law, or under
any federal, state or local statute or ordinance prohibiting discrimination or harassment in
employment, including any claims for discrimination arising under the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq., Title VII of the Civil Rights Act, 42 U.S.C. § 2000e
et seq., the Americans With Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000 et
seq., the
Civil Rights Acts of 1866 and 1991, including Section 1981 of the Civil Rights Act, the Family and
Medical Leave Act, the Vocational Rehabilitation Act, Employee Retirement Income Security Act of
1976, the Minnesota Human Rights Act, § 363.01A et seq., or any other claim of discrimination,
harassment and/or retaliation arising under federal, state or local law, or any other claims in any
manner relating to Executive employment with and termination of employment with Zareba, or
otherwise, arising in law or equity, whether known, suspected, or unknown, and however originating
or existing, to the date of Executive signing of this Agreement. Executive releases and discharges
the Company not only from any and all claims that Executive could make on Executive own behalf, but
also those that may or could be brought by any other person or organization on Executive behalf.
Executive is not waiving any right to file a charge with the Equal Employment Opportunity
Commission (in connection with any statutes enforced by that agency), or to participate in any
Equal Employment Opportunity Commission investigation. Executive understands and specifically
acknowledges however, that Executive is waiving all of Executive’s rights to any individual relief
under any and all claims encompassed by the preceding language.
b. To the extent permitted by law, Executive will not institute any claim for damages, by
civil action, administrative proceeding or other legal proceeding, or authorize any other party,
governmental or otherwise, to institute any claim for damages via civil action, administrative
proceeding, or other legal proceeding against the Company based on any claim, including but not
limited to the claims described in Paragraph 5(a), arising in law or equity, whether known,
suspected or unknown and however originating or existing, to the date of Executive signing of this
Agreement. Executive waives any and all relief not provided for in this Agreement. Executive
expressly agrees the payments and other consideration provided to Executive under this Agreement
fully compensates Executive for and extinguishes any and all claims arising out of Executive’s
employment, separation from employment, or otherwise with Zareba.
c. Executive affirms that Executive has not caused or permitted to be filed any charge,
complaint or action against the Company. In the event that there is outstanding any such charge,
complaint, or action, Executive will seek its immediate withdrawal and dismissal with prejudice.
In the event that for any reason any such charge, complaint, or action is not withdrawn, Executive
will not testify, provide documents, or otherwise participate, or permit others to voluntarily
participate on Executive behalf, in any investigation or litigation arising therefrom or associated
therewith and will execute such other papers or documents as the Company’s counsel determines in
such counsel’s sole discretion may be necessary to have any such charge, complaint or action
dismissed with prejudice. This Paragraph 5 will not prohibit either party from testifying or
responding pursuant to a court order or a subpoena issued by a government agency which appears
valid on its face, or as otherwise required by law. Executive’s agreements in this Paragraph will
not affect Executive’s rights to file for unemployment compensation and/or workers’ compensation,
if any.
d. Under this Paragraph 5, Executive is not releasing any of the obligations or liabilities of
Zareba created by this Agreement.
6. Notification of Rights Pursuant to the Minnesota Human Rights Act (Minn. Stat. §
363A.01, et seq.) and the Federal Age Discrimination in Employment Act (29 U.S.C. §§ 621-634).
Executive is notified of Executive’s right to rescind the release of claims in regard to
Executive’s rights under the Minnesota Human Rights Act, Minn. Stat. § 363A.01, et
seq., within fifteen (15) calendar days of Executive signing this Agreement and the federal
Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., within seven (7)
calendar days of Executive signing this Agreement, such rescission periods to run concurrently. In
order to be effective, the rescission must be in writing and delivered to Xxxxxxx Xxxxxxxxx, Zareba
Systems, Inc., 13705 — 00xx Xxxxxx X., Xxxxx 000, Xxxxxxxx, Xxxxxxxxx, 00000, by hand
or mail. If delivered by mail, the rescission must be postmarked within the required period,
properly addressed to Xx. Xxxxxxxxx, at the address set forth above and sent by certified mail,
return receipt requested. Executive understands and expressly agrees that if Executive rescinds
the release of claims set out in Paragraph 5 in accordance with this Xxxxxxxxx 0, Xxxxxx will have
no obligation to provide the payments and other consideration described in Paragraph 4, Executive
will be obligated to return to Zareba any payment(s) already received in connection with this
Agreement, Paragraphs 4, 5 and 9 of this Agreement will be null and void, but the other Paragraphs
of this Agreement will be binding and enforceable agreements of the parties.
7. Non-disclosure by Executive. Executive expressly agrees, now and in the future,
not to disclose, either directly or indirectly, in any manner whatsoever, any information of any
kind regarding either (a) the substance or the existence of any belief that Executive or any other
person may have that the Company engaged in any unlawful, discriminatory, unfair or tortious
conduct towards Executive, or breached any contract, or (b) the terms of this Agreement, to any
person or organization, including, but not limited to, representatives of local, state or federal
agencies, members of the press and media, present and former officers, employees and agents of the
Company (except to effect the terms of this Agreement), and other members of the public. In the
event of a breach by Executive of this Paragraph, Zareba may commence an action to pursue its
available legal or equitable remedies, including the recovery of money damages. In the event that
Zareba takes steps to seek relief from an alleged breach of this Paragraph all of the remaining
provisions of this Agreement will remain in full force and effect. Notwithstanding anything in
this Agreement to the contrary, nothing in this Agreement will prohibit Executive from (i)
discussing the consideration being provided under this Agreement with Executive’s tax advisors,
provided however, that such individuals will comply with the terms of this Paragraph, (ii)
discussing the terms of this Agreement with Executive’s attorneys, their immediate family members
or medical doctors, provided however, that such individuals will comply with the terms of this
Paragraph, (iii) advising a governmental taxing authority of the payments or other consideration
under or of the existence of this Agreement, in response to a question or questions posed by such
taxing authority, (iv) testifying pursuant to a court order or a subpoena issued by a governmental
agency, Court of law or their duly authorized agents, which appears valid on its face, (v)
revealing the terms of this Agreement as required by and in accordance with any law, regulation or
ordinance, or Court order or proceeding, (vi) revealing the terms of this Agreement in order to
enforce its terms, or (vii) stating “the matter has been resolved and the terms of the resolution
are confidential” in response to an inquiry.
8. Nonadmission. Nothing in this Agreement will constitute or be construed as an
admission of any liability or wrongdoing of any nature on the part of the Company. The Company
specifically denies any liability or unlawful conduct.
9. Right to Receive Payments and Other Consideration. Executive warrants and
represents that Executive has the right to receive the payments and other consideration under this
Agreement and has not filed for bankruptcy or otherwise assigned the claims Executive has released
by this Agreement.
10. No Disparagement. Executive will not disparage the Company.
11. No Future Employment with the Company. Executive will never seek or accept or
remain employed by the Company, and/or any successor of the Company.
12. Return of Property. Executive expressly agrees all documents or other tangible
materials relating to the business of, or the products or services provided by the Company,
including Executive’s personnel records, are the sole property of the Company, and Executive oes
not possess, has returned all such property or will return such property within seven (7) days of
Executive signing this Agreement.
13. Confidentiality. Executive acknowledges that while Executive was employed by the
Company Executive acquired knowledge of certain of the Company’s and its affiliates’ confidential
information, including without limitation, information not generally or publicly known and
proprietary to the Company and its affiliates about the Company’s and its affiliates’ operations,
processes and products, and other information from whatever source that the Company is obligated to
retain in confidence or that was identified by the Company as “confidential” or “trade secrets”
(“Confidential Information”). The Confidential Information is of substantial value in the Company
s and its affiliates’ businesses and Executive will (i) keep the same confidential, (ii) not
disclose the Confidential Information to any person or entity and (iii) not use any Confidential
Information in any manner for any reason. Executive’s obligation of non-disclosure pursuant to
this Paragraph does not apply to information that is in the public domain through no fault of
Executive.
14. Agreement Not to Compete. During the Noncompetition Period (defined below),
Executive will not, directly or indirectly, either for himself or as an owner, partner,
shareholder, director, officer, employee, agent or consultant of another, render services or advice
to any person or entity who is “in competition with the Company” anywhere in the United States.
During the Noncompetition Period neither Executive or any business with whom Executive may become
associated will recruit or solicit for employment any person who is an employee of the Company or
an affiliate of the Company. “Noncompetition Period” will means a period of six (6) months from
the date of this Agreement.
A person or entity will be “in competition with the Company” if such person or entity sells
products or services that actually compete with the products or services of the Company or
any affiliate of the Company. Notwithstanding the foregoing, Executive will not be prohibited from
being employed by a person or entity “in competition with the Company” if Executive’s duties with
such person or entity during the Noncompetition Period are restricted so that they do not involve
in any respect products or services that actually compete with the products or services of the
Company or any affiliate of the Company. A person or entity will not be “in competition with the
Company” if Executive’s only involvement with such person or entity is the purchasing, acquiring or
holding of not more than a total of five percent (5%) of the outstanding securities of any publicly
held corporation.
15. Severability. If any term, clause or provision of this Agreement is for any
reason be found invalid, unenforceable or void by a court of competent jurisdiction, the same will
not impair or invalidate any of the other terms, clauses or provisions of this Agreement, all of
which will be performed in accordance with their respective terms.
16. Non-Waiver. Any party’s delay or failure to enforce any term, clause or provision
of this Agreement will not constitute a waiver of such party’s right to enforce that or any other
term, clause or provision.
17. Entire Agreement. This Agreement states the entire agreement of the parties with
respect to the subject matter of this document. No modification, release, discharge or waiver of
any term, clause or provision of this Agreement will be of any force or effect unless it is made in
writing and signed by the parties to this Agreement. The parties each acknowledge that they have
not relied on any representations or statements of the other party, whether oral or written, other
than the express statements of this Agreement, in signing this Agreement.
18. Law Governing. This Agreement will be governed and construed in accordance with
the laws of the State of Minnesota.
19. Acknowledgment of Reading and Understanding; Consultation with Counsel; Twenty-One
(21) Day Consideration Period. Executive, by Executive signing of this Agreement, acknowledges
and expressly agrees that Executive has carefully read and understands all provisions of this
Agreement and that Executive has entered into this Agreement knowingly and voluntarily. Executive
further acknowledges that Zareba, has advised Executive to consult with legal counsel before
signing this Agreement and that Executive has in fact consulted with or had the opportunity to
consult with legal counsel before signing this Agreement. Executive also acknowledges that Zareba,
has informed Executive that Executive has twenty-one (21) days from the receipt of this Agreement
to consider whether the terms, clauses and provisions are acceptable to Executive. Executive
further acknowledges by Executive signing this Agreement that Executive has had the benefit of the
twenty-one (21) day period and if Executive signs this Agreement during twenty-one (21) day period,
Executive has done so knowingly and voluntarily and pursuant to the advice of Executive’s counsel.
Executive acknowledges and expressly agrees that if Executive does not sign this Agreement, Zareba,
will have no obligation to provide any of the payments or other consideration under this Agreement
and that this Agreement will be null and void. Furthermore, Executive understands and agrees
that if Executive does not sign this Agreement, Executive will be required to return any payment(s)
or other consideration already received and, if necessary, Zareba, may commence a legal action to
enforce return of the payments or other consideration and/or reimbursement by Executive.
IN WITNESS WHEREOF, the parties have signed this Agreement on the dates set out below.
| Date: June 27, 2008 | /s/ W. Xxxx Xxxxxxxxx | |||
| W. Xxxx Xxxxxxxxx | ||||
| Zareba Systems, Inc. |
||||
| Date: June 26, 2008 | By: | /s/ Xxxx X. Xxxxxxxxx | ||
| President | ||||
The offer documented by this Resignation Agreement and Release is valid until the close of business
on the 21st day after Executive receives this document, which is July 18, 2008.
