Exhibit 10.14
FULL AND FINAL RELEASE OF CLAIMS
The parties to this Full and Final Release of Claims (the "AGREEMENT")
are American Building Control, Inc., a Delaware corporation, together with any
and all of its affiliates and subsidiaries ("ABCX"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇
("▇▇▇▇▇▇"), an individual residing in Dallas County, Texas. The Agreement shall
have an Effective Date as of January 1, 2004.
The specific terms and conditions of this Agreement, and the
consideration that the parties have agreed to exchange and provide to each other
under the terms of this Agreement are described more particularly as follows:
A. INTRODUCTION
1. PURPOSE OF AGREEMENT. The purpose of this Agreement is to
compromise, settle and dispose of all claims, potential claims, losses, damages,
demands, potential litigation and disputes between the parties that arise out
of, relate to or in any way concern ▇▇▇▇▇▇'▇ previous employment or stockholder
relationship with ABCX or any services that he provided for ABCX.
2. SETTLEMENT ACHIEVED. The parties have decided to enter into the
settlement and release provisions of this Agreement to compromise and settle all
claims and disputes now existing between them, as well as all other disputes,
claims, losses, damages or demands that may arise in the future and which arise
out of, relate to or in any way concern ▇▇▇▇▇▇'▇ previous employment with ABCX,
or any services that he provided for ABCX, or any stockholder relationship with
ABCX. ▇▇▇▇▇▇ and ABCX agree, for the consideration and upon the terms set forth
in this Agreement that:
(i) ▇▇▇▇▇▇ ceased to be an employee of ABCX on November 11, 2003
(the "Resignation Date").
(ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ confirms that, as of the Resignation Date, he
has voluntarily resigned from any and all positions he held in
any and all capacities with ABCX and agrees to execute all
other documents that ABCX may reasonably request more
specifically evidencing such resignation.
(iii) ▇▇▇▇▇▇ hereby confirms that he has received the Warrant
Agreement referenced in that certain Guaranty Reimbursement
Agreement dated as of December 17, 2001 between ABCX (formerly
Ultrak, Inc.) and ▇▇▇▇▇▇ whereby ABCX granted to ▇▇▇▇▇▇
warrants (the "Warrants") to acquire 200,000 shares of the
common stock of ABCX at a price per share of $1.64 for three
(3) years. ▇▇▇▇▇▇ hereby acknowledges and confirms that all
obligations of ABCX in any way related to the delivery of the
Warrant Agreement to ▇▇▇▇▇▇ have been satisfied and ▇▇▇▇▇▇
forever releases ABCX from any further obligations thereunder
except as are specifically provided for in the Warrant
Agreement itself.
(iv) ▇▇▇▇▇▇ hereby agrees that all other obligations attributable
to ABCX under the Guaranty Reimbursement Agreement are hereby
satisfied and forever discharged and ABCX shall have no
further obligation to ▇▇▇▇▇▇ under the Guaranty Reimbursement
Agreement and ▇▇▇▇▇▇ and ABCX hereby agree that the Guaranty
Reimbursement Agreement is terminated and of no further force
and effect.
(v) ▇▇▇▇▇▇ and ABCX hereby each agree that any and all of the
obligations to be performed or assumed by ABCX under that
certain Severance Agreement entered into between them as of
December 4, 2001 have been fulfilled by ABCX and ABCX shall
have no further obligation arising out of or in any related to
that Severance Agreement.
(vi) ▇▇▇▇▇▇ and ABCX hereby agree that in settlement of any and all
claims ▇▇▇▇▇▇ may have against ABCX or obligations ABCX may
have to ▇▇▇▇▇▇ relating to ▇▇▇▇▇▇'▇ right to receive options
to purchase the stock of ABCX, ▇▇▇▇▇▇ and ABCX shall each
execute and deliver to the other the attached American
Building Control, Inc. 2002 Stock Incentive Option Plan Stock
Option Agreement (the "2002 Agreement") pursuant to which
▇▇▇▇▇▇ shall be issued the right and option to purchase
300,000 shares of the common stock of ABCX at a price of $0.95
per share. Pursuant to the terms of the 2002 Agreement, the
grant shall be dated April 16, 2003, the date the Compensation
Committee of the Board of Directors of ABCX approved the grant
and shall expire on January 14, 2005. Under the terms of the
2002 Agreement, ▇▇▇▇▇▇ shall have the right to exercise the
options any time on or after the date the 2002 Agreement is
executed by the parties and prior to or on the expiration
date. The grant is issued subject to ▇▇▇▇▇▇ agreeing that he
will not take any actions to purchase shares pursuant to that
certain Non-Qualified Stock Option Agreement, dated January
15, 2002, by and between ABCX and ▇▇▇▇▇▇, pursuant to which
▇▇▇▇▇▇ was granted the option to purchase up to 475,000 shares
of the common stock of ABCX at a price per share of $1.42.
▇▇▇▇▇▇ hereby agrees that the January 15, 2002 agreement is
cancelled and of no further effect.
B. SETTLEMENT AND RELEASE PROVISIONS
1. SETTLEMENT PROCEEDS. ABCX agrees to pay, and ▇▇▇▇▇▇ hereby accepts
payment of, an aggregate net amount of $185,000.00 (the "SETTLEMENT PROCEEDS")
to ▇▇▇▇▇▇ in full settlement of all claims, potential claims, demands, potential
litigation and disputes between the parties that arise out of, relate to or in
any way concern ▇▇▇▇▇▇'▇ employment relationship with ABCX or services he
provided for ABCX or the Severance Agreement. The Settlement Proceeds to be paid
to ▇▇▇▇▇▇ are net of applicable required withholding taxes. ABCX shall deliver
to ▇▇▇▇▇▇ appropriate documentation itemizing the gross amounts of the
Settlement Payments.
2. CONFIDENTIALITY OF RELEASE PROVISIONS. It is expressly agreed by all
of the parties, and their directors, officers, employees, attorneys, agents, and
all other persons acting at their direction or on their behalf, that the
existence and the terms of this Agreement shall remain confidential including,
but not limited to, the specific amount of the settlement proceeds being paid
and any estimation or description of the amounts paid in settlement, except as
expressly required by law, the reporting requirements of the I.R.S. or the U.S.
Securities and Exchange Commission, or pursuant to valid court order or other
legal process. Notwithstanding the foregoing, each party may disclose
information regarding the Agreement to its own attorneys, accountants, agents or
tax advisors as necessary for business purposes, if the disclosing party advises
the recipient of the confidential nature of such information.
3. NO FURTHER PAYMENTS. It is the specific intent of the parties to
this Agreement that ABCX shall hereafter be required to pay no further amounts
to ▇▇▇▇▇▇, or to issue any further options or warrants to purchase stock or
provide any other consideration, for any claims, potential claims, losses,
damages, demands, potential litigation and disputes between the parties that
arise out of, relate to or in any way concern ▇▇▇▇▇▇'▇ previous employment or
stockholder relationship with ABCX.
4. ▇▇▇▇▇▇'▇ RELEASE OF ABCX. For and in consideration of the foregoing
payment and the other good and valuable consideration that is set forth in this
Agreement, ▇▇▇▇▇▇ hereby releases and forever discharges ABCX, as well as all of
its directors, officers, shareholders, employees, agents, representatives and
attorneys, of and from all claims that ever existed and which arose out of,
relate to or concern in any way ▇▇▇▇▇▇'▇ employment or stockholder relationship
with ABCX or services he provided for ABCX. This release therefore includes all
claims whether they are now known or unknown, matured or unmatured, in law or in
equity, that ▇▇▇▇▇▇ ever had, now has or may later claim to have against ABCX,
its directors, officers, shareholders, employees, agents, representatives and
attorneys arising out of, relating to or concerning: (i) any representations or
warranties made by ABCX before the Effective Date of this Agreement that are not
expressly set forth in this Agreement, (ii) any amounts claimed due from ABCX
other than amounts to be paid under the terms of this Agreement (iii) any
warrants, stock or stock options claimed due from ABCX other than warrants,
stock or stock options to be transferred or issued under the terms of this
Agreement, and (iv) any statements, acts or omissions by ABCX, which relate to
or concern in any way ▇▇▇▇▇▇'▇ employment or stockholder relationship with ABCX
or services he provided for ABCX. This release is intended to and shall inure to
the benefit of ABCX, as well as all of its employees, attorneys, agents, assigns
and successors. Notwithstanding the foregoing, ▇▇▇▇▇▇ does not release any
claims against ABCX that may later arise based on its breach of any term or
representation that is expressly set forth in this Agreement.
▇▇▇▇▇▇ agrees to refrain from instituting, prosecuting, filing or processing, or
assisting or cooperating with the instituting, prosecuting, filing or processing
of any litigation against ABCX, its officers, agents or employees, under, but
not limited to, the following legal theories or causes of action: any claims of
negligent or intentional infliction of emotional distress; any claims alleging
the existence of an implied or express contract of employment; any claims of
contractual rights arising out of any employment agreement, handbooks or policy
statements; any employment claims alleging violations of public policy, breach
of fiduciary duties, denial of payment of benefits (either severance, retirement
or otherwise), failure to pay commissions owed, and any other claims, charges or
causes of action against ABCX, its officers, agents or employees, arising out of
alleged instances of wrongful termination, employment discrimination and/or
slanderous publication or any other aspects of the previous terms and conditions
of ▇▇▇▇▇▇'▇ employment with ABCX which may have arisen prior to, or at the time
of, the effective date of this Agreement.
▇▇▇▇▇▇ agrees that he will not make any disparaging remarks, or otherwise take
any action that could reasonably be anticipated to cause material damage to the
reputation and goodwill of, or otherwise negatively reflect upon, ABCX, its
employees, officers, agents, shareholders or directors.
5. RELEASE BY ABCX OF ▇▇▇▇▇▇. For and in consideration of the foregoing
release by ▇▇▇▇▇▇ and the other good and valuable consideration that is set
forth in this Agreement, ABCX hereby releases and forever discharges ▇▇▇▇▇▇, of
and from all claims that ever existed and which
arose out of, relate to or concern in any way ▇▇▇▇▇▇'▇ employment with ABCX.
This Release therefore includes all claims whether they are now known or
unknown, matured or unmatured, in law or in equity, that ABCX ever had, now has
or may later claim to have against ▇▇▇▇▇▇ arising out of, relating to or
concerning: (i) any representations or warranties made by ▇▇▇▇▇▇ before the
Effective Date of this Agreement that are not expressly set forth in this
Agreement, (ii) any amounts claimed due from ▇▇▇▇▇▇ other than amounts to be
paid under the terms of this Agreement (iii) any warrants, stock or stock
options claimed due from ▇▇▇▇▇▇ other than warrants, stock or stock options to
be transferred or issued under the terms of this Agreement, (iv) any statements,
acts or omissions by ▇▇▇▇▇▇, which relate to or concern in any way ▇▇▇▇▇▇'▇
employment with ABCX. This Release is intended to and shall inure to the benefit
of ▇▇▇▇▇▇, as well as all of his successors. Notwithstanding the foregoing, ABCX
do not release any claims against ▇▇▇▇▇▇ that may later arise based on his
breach of any term or representation that is expressly set forth in this
Agreement.
6. NO PREVIOUS ASSIGNMENT. The parties warrant and represent that
before the Effective Date of this Agreement, none of them has sold, assigned,
granted or otherwise transferred any claim, cause of action, right, privilege,
or cause of action, or any part thereof, that is covered by or subject to the
terms of this Agreement.
7. NO RELIANCE ON ANY UNDOCUMENTED PROMISES. No party to this Agreement
has made any statements, representations or promises to the other parties,
whether in writing or otherwise, or offered any other type of promise,
consideration or inducement that is not specifically set forth in this
Agreement. In this regard, all parties represent and warrant that, in entering
into this Agreement, they are each relying solely and exclusively on the
statements that are expressly set forth in this Agreement, and that they are
under no duress, coercion or pressure from any source.
8. INDEPENDENT JUDGMENT. ABCX and ▇▇▇▇▇▇ are each relying on their own
independent business judgment in deciding to enter into this Agreement. Further,
the parties have each received, and are relying and acting upon the advice of
their own legal counsel, who has reviewed the terms and language of this
Agreement with them and advised them of their legal rights relating to their
decision to settle and compromise their disputes, claims and potential claims,
causes of action, losses, damages and demands. Each of the parties understands
that this Agreement shall operate as a full, complete and final release and
settlement of any and all of their claims, as set forth above.
9. SEVERABILITY. In the event that any of the provisions of this
Agreement shall be held to be invalid or unenforceable in whole or in part,
those provisions to the extent enforceable and all other provisions shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included in this Agreement. In the event that
any provision relating to the time period or scope of restriction shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or scope such court deems reasonable and enforceable, then the time period or
scope of restriction deemed reasonable and enforceable by the court shall become
and shall thereafter be the maximum time period.
10. GOVERNING LAW; ATTORNEYS FEES. THIS AGREEMENT SHALL BE CONSTRUED
AND ENFORCED ACCORDING TO THE LAWS OF THE STATE OF TEXAS. ALL LEGAL ACTIONS
ARISING UNDER THIS AGREEMENT SHALL BE INSTITUTED IN, AND BOTH ABCX AND ▇▇▇▇▇▇
CONSENT TO JURISDICTION IN, DALLAS COUNTY, TEXAS. IN
THE EVENT OF ANY LITIGATION TO ENFORCE THIS AGREEMENT, THE PREVAILING PARTY
SHALL BE ENTITLED TO RECOVER ITS REASONABLE LEGAL FEES, COURT COSTS AND
EXPENSES.
11. AGREEMENT, READ, UNDERSTOOD, AND FAIR. ▇▇▇▇▇▇ has carefully read
and considered all provisions of this Agreement and agrees that all of the
restrictions set forth are fair and reasonable and are reasonably required for
the protection of the interests of ABCX.
IN WITNESS WHEREOF the undersigned parties have executed this Agreement
to be effective as of the Effective Date.
AMERICAN BUILDING CONTROL, INC. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: President
