Exhibit 10.42
PARTIAL RELEASE AND AGREEMENT
This PARTIAL
RELEASE AND AGREEMENT (“Agreement”) is made and entered
into by and between ROY C. CUNY, SMITH & WESSON HOLDING
CORPORATION (“S&W”) and STINGER SYSTEMS,
INC.
RECITALS
WHEREAS, Roy C.
Cuny and S&W were parties to an Executive Employment Agreement,
dated October 22, 2002;
WHEREAS, pursuant
to the terms of Section 4 of the Executive Employment
Agreement, Cuny, for good and valuable consideration, agreed to a
confidentiality provision and restrictive covenants not to compete
and not to interfere with S&W’s customers and
employees;
WHEREAS, Cuny and
S&W severed their employment relationship by entering into a
Resignation and Release Agreement, executed by Cuny on
November 19, 2004;
WHEREAS, pursuant
to the terms of the Resignation and Release Agreement, Cuny, for
good and valuable consideration, reaffirmed the reasonableness and
necessity of the confidentiality provision and restrictive
covenants of the Executive Employment Agreement, which were
incorporated by reference in the Resignation and Release
Agreement;
WHEREAS, the
confidentiality provision and restrictive covenants survived the
Resignation and Release Agreement and remain in full force and
effect today;
WHEREAS, Cuny and
Stinger Systems desire to enter into an employment relationship
without violating or inducing a breach of Cuny’s covenant not
to compete with S&W; and
WHEREAS, S&W
is willing to waive as set forth herein Cuny’s covenant not
to compete.
COVENANTS
THEREFORE, in
consideration of the covenants and agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
1.
Recitals and Representations . The parties hereby
acknowledge the correctness and accuracy of the foregoing recitals.
Cuny represents and warrants that he has complied, at all times,
with the terms of the restrictive covenants as they are both
reasonable and enforceable.
2.
Payment . Upon execution of this Agreement, Stinger Systems
shall pay S&W an amount equal to $152,000. That sum represents
a reimbursement of $100,000 in severance compensation, $27,000 in
fringe benefits, and $25,000 in expenses paid to or on behalf of
Cuny under the Resignation and Release Agreement through
December 31, 2004. Stinger Systems shall pay this sum via a
wire transfer on or before January 10, 2005.
3.
Partial Release and Waiver of Claims and Rights to Payment
.
(a) Except
as limited by Paragraphs 4 and 5 of this Agreement, S&W for
itself and on behalf of its subsidiaries, related, and affiliated
companies, and the predecessors,
successors, and assigns of each
of the foregoing, hereby releases Cuny and Stinger Systems from any
and all claims, charges, complaints, liabilities, and obligations
that it may have against Cuny and/or Stinger Systems arising out of
Cuny’s covenant not to compete contained in Section 4.1
of the Executive Employment Agreement. This release shall be
limited to Stinger Systems’ and Cuny’s negotiations and
Cuny’s subsequent employment with Stinger Systems, effective
January 1, 2005.
(b) Cuny,
for himself and, as applicable, his respective agents, heirs,
beneficiaries, attorneys, successors, and assigns, hereby fully,
forever, irrevocably, and unconditionally releases S&W, its
subsidiaries, related, and affiliated companies, their
predecessors, successors, and assigns, and the past and current
directors and officers of each and all of the foregoing from any
and all payments or claims to payments, which he may have against
any of the foregoing parties, whether now known or unknown, and
whether asserted or unasserted, arising out of the terms of the
Executive Employment Agreement and/or the Resignation and Release
Agreement. Cuny understands and agrees that this release discharges
any obligation S&W has to make additional payments to him or
for his benefit under the Executive Employment Agreement and/or the
Resignation and Release Agreement, including, but not limited to,
additional severance pay, benefits, and expense reimbursements.
Notwithstanding the foregoing, Cuny and S&W’s obligations
under Section 3, titled Assistance and Cooperation in
Litigation and Investigations, of the Resignation and Release
Agreement shall remain in full force and effect.
(c) The
parties acknowledge and agree that, except as expressly modified
herein, this Agreement shall not discharge, relea
