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EXHIBIT 10.01
CONFIDENTIAL RESIGNATION AGREEMENT
This Confidential Resignation Agreement ("Agreement") is
entered into by and between Xxxxx X. Xxxxxxxx ("Xxxxxxxx") and FATS, Inc.
("FATS"), Apseloff's employer, on this 8th day of May, 1998.
WHEREAS, Apseloff and FATS desire to enter into an agreement
that sets forth the terms and conditions of Apseloff's resignation of
employment.
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein, the adequacy and sufficiency of which are hereby
acknowledged, Apseloff and FATS agree as follows:
1. Apseloff shall continue to perform his normal, full-time duties as
Chief Financial Officer ("CFO") for FATS through July 31, 1998 (the "Active
Severance Date"). Such duties shall include, but not be limited to:
a. Coordinating preparation and filing of the Fiscal Year 1998
Form 10-K,
b. Coordinating preparation of the 1998 Annual Report and Proxy
Statement,
c. Coordinating preparation and filing of 1998 tax returns,
d. Assisting with review and structuring of corporate
transactions,
e. Assisting with corporate budget and financial analysis,
f. Training and providing transition assistance for successor
CFO,
g. Coordinating all activities of FATS' independent auditors, and
h. Coordinating analysts' calls, providing guidance for Fiscal
Year 1999 interaction with analysts, participating in analyst
and investor visits, and providing general oversight of
investor relations.
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Notwithstanding the foregoing, FATS may release Apseloff from his obligation to
provide these services prior to the Active Severance Date if FATS' Chief
Executive Officer ("CEO") determines, in his sole discretion, that these
services have been completed.
2. During the period prior to the Active Severance Date, FATS will allow
Apseloff to be absent up to one day per week to conduct job search activities.
3. Apseloff shall continue to be employed by FATS through October 31, 1998
or until Apseloff commences employment with another employer, whichever is
earlier (the "Final Severance Date"). During the period between the Active
Severance Date and the Final Severance Date, Apseloff agrees that he will make
himself available to answer questions and to provide consultation to FATS on
matters in which he was involved prior to the Active Severance Date. FATS agrees
that it will schedule such communications with Apseloff at such times and under
such circumstances that will not unreasonably interfere with Apseloff's future
employment or his efforts to obtain employment with another employer. Apseloff's
employment with FATS will cease for all purposes on the Final Severance Date.
4. Effective as of the Active Severance Date, Apseloff shall resign from
his position as an officer or a director, as the case may be, of FATS and all
related entities including (i) Firearms Training Systems, Inc., (ii) FATS Canada
Holdings, Inc., (iii) Simtran Technologies, Inc., (iv) Dart International, Inc.,
(v) Firearms Training Systems Netherlands, B.V. and (vi) FSS, Inc.
5. FATS will pay Apseloff his current bi-weekly salary of $4,807.70, less
withholding for income and employment taxes to the extent required by law,
through the Final Severance Date. Such payments will be made to Apseloff on
FATS' regularly scheduled pay dates.
6. Apseloff shall be entitled to continue to participate in FATS'
established employee benefit plans and programs through the Final Severance Date
on the same terms and conditions as comparable executive-level FATS employees.
Following the Final Severance Date, Apseloff shall have the right to continue to
participate in the FATS group health plan, at his own expense, in accordance
with, and to the extent provided by, part 6 of Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
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7. Apseloff shall continue to earn vacation benefits under FATS'
established vacation policy through his Active Severance Date. He will not earn
any further vacation benefits during the period between his Active Severance
Date and the Final Severance Date. Apseloff shall be paid for any earned but
unused vacation benefits that he may have as of the Active Severance Date on the
first FATS pay date following his Active Severance Date.
8. Apseloff shall be paid a bonus for FATS' fiscal year ended March 31,
1998 in an amount equal to $50,000 (less withholding for income and employment
taxes to the extent required by law). Such bonus shall be payable as soon as
administratively practicable after execution of this Agreement. Apseloff shall
not be entitled to a bonus from FATS on account of services performed in any
subsequent fiscal year.
9. As of the date of this Agreement, the following stock option agreements
shall be modified by execution of amendments thereto:
a. Stock Option Agreement Series A, dated September 18, 1996 (a copy
of such agreement and a copy of the form of amendment setting forth
the modifications thereto are attached hereto as Exhibit A1 and
Exhibit A2, respectively);
b. Stock Option Agreement Series B, dated September 18, 1996 (a copy
of such agreement and a copy of the form of amendment setting forth
the modifications thereto are attached hereto as Exhibit B1 and
Exhibit B2, respectively); and
c. Stock Option Agreement Series D, dated April 17, 1997 (a copy of
such agreement and a copy of the form of amendment setting forth
the modifications thereto are attached hereto as Exhibit C1 and
Exhibit C2, respectively).
10. x. Xxxxxxxx, on his own behalf and on behalf of anyone claiming through
him, hereby agrees and promises not to xxx, file an administrative charge (other
than any claim for unemployment benefits that can be claimed for any period
following the Final Severance Date in the event that Apseloff is unable to
secure future employment), or otherwise initiate any legal proceeding against,
and further agrees to release and discharge FATS and its parents, owners,
divisions, subsidiaries, partnerships, affiliates and/or other related entities,
including the entities
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described in the Prospectus for Firearms Training Systems, Inc. dated November
26, 1996 as the "Centre Entities," and each of these entities' past, present,
and future trustees, fiduciaries, shareholders, administrators, directors,
officers, agents, partners, members, employees, attorneys, and the predecessors,
successors, and assigns of each of them (hereinafter collectively referred to as
the "Released Parties") with respect to any and all claims, rights, or causes of
action that Apseloff now has, has ever had, or may ever have, whether currently
known or unknown, against any of the Released Parties arising from any act or
omission of any nature or kind from the beginning of time through the date
Apseloff executes this Agreement including, but not limited to, claims, rights,
or causes of action related in any way to Apseloff's employment, hiring,
conditions of employment, or termination from employment in accordance with the
terms of this Agreement, and including, but not limited to, any claims, rights,
or causes of action arising under any federal, state, or local law, regulation,
or ordinance or the common law including, but not limited to, Title VII of the
Civil Rights Act of 1964 as amended, the Civil Rights Act of 1991, the Americans
with Disabilities Act, ERISA, and the Family and Medical Leave Act of 1993.
Apseloff represents and warrants that he has not filed or initiated any legal,
equitable, administrative, or other proceeding against any of the Released
Parties and that no such proceedings have been initiated against any of the
Released Parties on his behalf. Apseloff will not cause or encourage any legal,
equitable, administrative or other proceeding to be maintained or instituted
against any of the Released Parties, and he will not participate in any manner
in any such proceedings against any of the Released Parties, except as required
by law, and except for any claim for unemployment benefits as described above.
b. Notwithstanding the provisions of paragraph 10(a) of this
Agreement, nothing herein is intended to release, discharge, or extinguish any
rights that Apseloff may have under the Firearms Training Systems, Inc. 401(k)
Profit Sharing Plan, in accordance with the terms of such plan.
11. Apseloff represents and warrants that he is the sole owner of the
actual or alleged claims, rights, causes of action, and other matters that are
released herein; that the same have not been transferred or assigned or caused
to be transferred or assigned to any other person, firm, corporation or other
legal entity; and that he has the full right and power to grant, execute and
deliver the releases, undertakings, and agreements contained herein.
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12. Apseloff agrees that he has no present or future right to employment
with the Released Parties and that he will not apply or seek consideration for
any employment, engagement, or contract with the Released Parties.
13. Apseloff agrees and acknowledges that he continues to be bound by the
terms and conditions contained in the Agreement that he entered into with FATS
on March 14, 1996 (the "Non-Compete Agreement"), a copy of which is attached
hereto as Exhibit D. The Non-Compete Agreement is hereby incorporated herein,
subject to the following modifications:
a. Paragraph 1(b) is amended to read as follows:
"Termination Date" - the Final Severance Date defined in the
Confidential Resignation Agreement, dated May 8, 1998, between
Employee and FATS.
b. Paragraph 4 is amended to read as follows:
Solicitation of Customers. During Employment and for three years
after the Termination Date, Employee will not solicit Customers for
the purpose of providing Services or for the purpose of selling
products identical to or reasonably substitutable for FATS
Products.
c. Paragraph 5 is amended to read as follows:
Solicitation of FATS Employees. During employment and for three
years after the Termination Date, Employee will not solicit for
employment with another Person anyone who is or was, anytime during
the year preceding the Termination Date, a FATS employee.
d. Paragraph 6 is amended to read as follows:
Limitations on Post-Termination Competition. During employment and
for three years after the Termination Date, Employee will not
provide Services within the Territory to any Person selling
products identical to or reasonably substitutable for FATS
Products.
e. Paragraph 9 is amended to read as follows:
Future Employment Opportunities. At any time before, and for three
years after, the Termination Date, Employee shall provide any
prospective
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employer with a copy of this Agreement, and upon accepting any
employment with another Person, provide FATS with the employer's
name and a description of the services Employee will provide.
14. Apseloff agrees that, on or before the Final Severance Date, he will
submit any claims for reimbursement of business expenses actually
incurred by him. FATS will reimburse Apseloff for such expenses in
accordance with FATS' policy on reimbursement for business expenses.
Apseloff agrees that FATS will have no obligation to reimburse him for
any expenses that are not submitted to FATS on or prior to the Final
Severance Date.
15. Apseloff agrees that he will not disclose the existence or terms of
this Agreement to any third parties with the exception of his
accountants, attorneys, spouse, future employers, and FATS employees
with a need to know, each of whom shall be bound by this
confidentiality provision, or as may be required to comply with legal
process. Apseloff understands and agrees that this promise of
confidentiality is a material inducement to FATS to enter into this
Agreement.
16. Nothing in this Agreement is intended to or shall be construed as an
admission by FATS or any of the other Released Parties that it has
violated any law, interfered with any right, breached any obligation,
or otherwise engaged in any improper or illegal conduct with respect to
Apseloff or otherwise, and the Released Parties expressly deny any such
illegal or wrongful conduct.
17. In the event the CEO of FATS determines, in his sole discretion, that
Apseloff has breached or failed to comply with any of his obligations
under this Agreement or under the Non-Competition Agreement, as amended
herein, at any time during the three-year period commencing on the
Final Severance Date (the "Compliance Period"), then FATS, in addition
to any other remedies that it may have either in law or in equity, may
declare that Apseloff is not in compliance with this Agreement;
provided that nothing contained herein shall require Apseloff to return
to FATS any salary, bonus or benefits that have accrued hereunder prior
to the Final Severance Date. In such an event FATS shall have no
further obligations under this Agreement. Apseloff's duties and
obligations under the Non-Compete Agreement, as amended herein, shall
continue in full force and effect.
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18. For all purposes, including without limitation the stock option
agreements referenced in Paragraph 9 above, Apseloff's termination of
employment hereunder shall be deemed to be a termination by the Company
other than for "Cause" (as defined in such stock option agreements),
provided the terms and conditions of this Agreement are complied with.
19. This Agreement embodies the entire agreement and understanding of the
parties hereto with regard to the matters described herein. This
Agreement shall inure to the benefit of FATS and its successors and
assignees, and shall be binding upon Apseloff and Apseloff's heirs,
administrators, executors, and personal representatives.
20. This Agreement shall be construed and interpreted in accordance with
the laws of the State of Georgia. Only courts in the State of Georgia
shall have jurisdiction over any controversy or claim arising under or
related to this Agreement. Each party irrevocable (a) consents to the
jurisdiction and venue of the courts of the State of Georgia, including
federal courts in Georgia, in any action arising under or relating to
this Agreement, and (b) waives any jurisdictional defenses (including
personal jurisdiction and venue) to any such action.
21. This Agreement may be modified only in writing, and any party's failure
to enforce this Agreement in the event of one or more events that
violate this Agreement shall not constitute a waiver of any right to
enforce this Agreement against subsequent violations.
This Agreement may be executed in two counterparts each of which shall
be deemed an original and both of which together shall constitute one and the
same instrument.
FATS, INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Its: President
/s/ Xxxxx X. Xxxxxxxx
XXXXX X. XXXXXXXX
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