RESIGNATION AGREEMENT AND
RELEASE
This Resignation
Agreement and Release (the “Agreement”) is made
June 2, 2008, by and between Executive
(“Executive”) and Zareba Systems, Inc., f/k/a Waters
Instruments, Inc. (“Zareba”), a Minnesota
corporation.
WHEREAS, Executive
has been employed by Zareba under a certain Employment Agreement
dated July 1, 1995 (the “Employment
Agreement”);
WHEREAS, under the
Employment Agreement, Zareba has the right unilaterally to
terminate Executive’s employment by notice to Executive, but
has offered Executive certain consideration in exchange for
Executive’s resignation which offer Executive wants to
accept; 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:
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 2, 2008. Executive
acknowledges and expressly agrees Executive has received from
Zareba a written notice of termination which complies with
Section 6(b)(3) of the Employment Agreement. Upon such
termination notice, the Company’s only obligation under the
Employment Agreement and any applicable incentive compensation plan
is to pay Executive an amount equal to the Base Salary (as defined
in the Employment Agreement) in effect on June 2, 2008, for
one (1) year in twenty-six (26) equal bi-weekly
installments beginning on the next day on which Zareba makes its
regular payroll payments, and continue to pay for the twelve
(12) month period during which such installments are payable,
the cost of all existing health/medical and other benefit plans
enjoyed by Executive on June 2, 2008 (subject to the terms of
the plans)
or provide
substantially the same benefits if the terms of a plan exclude
non-employees. Under the Employment Agreement upon such termination
notice, Executive is also entitled to receive on August 31, 2008,
Incentive Compensation (as defined in the Employment Agreement)
under Section 3 of the Employment Agreement, determined in the
manner described in the Employment Agreement. Because of the
Company’s performance, Executive acknowledges and expressly
agrees that Executive is not entitled to receive under the
Employment Agreement any Incentive Compensation on August 31,
2008.
Executive resigns
effective immediately as a director and/or officer of Zareba and
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.
Characterization of Termination as Resignation; Payments and
Other Consideration . Executive acknowledges and expressly
agrees that under Section 6(d) the Employment Agreement if
Executive’s employment by Zareba ends by Executive’s
resignation, the Company will have no further obligation under the
Employment Agreement or any applicable incentive compensation plan,
including any obligation to may any payments to Executive.
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
notwithstanding Section 6(d) of the Employment Agreement, Zareba
will pay Executive an amount equal to the Base Salary (as defined
in the Employment Agreement) in effect on June 2, 2008, for
one (1) year in twenty-six (26) equal bi-weekly
installments beginning on the next day on which Zareba makes its
regular payroll payments, and continue to pay for the twelve
(12) month period during which such installments are payable,
the cost of all existing health/medical and other benefit plans
enjoyed by Executive on June 2, 2008 (subject to the terms of
the plans) or provide substantially the same benefits if the terms
of a plan exclude non-employees.
The Company will
promptly pay Executive an amount equal to Executive’s accrued
but unused vacation as of June 2, 2008.
The Company will
continue to pay through the end of the current automobile lease
term the automobile lease payments and insurance respecting the
automobile heretofore used by Executive, but in no event after
December 31, 2008. At the end of such lease term, Executive
will be offered the opportunity to purchase, at Executive’s
sole expense, the automobile pursuant to the terms of the
automobile lease.
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.
2
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 4. Sections 7-12, 14 and 17 of the
Employment Agreement will continue to be binding and in effect as
set forth in the Employment Agreement.
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 that
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 Disabilities Act, 42 U.S.C. §
12101 et seq ., the Civil Rights Acts of 1866 and
1991, including Section 1981 of the Civil Rights Act, the
Family and Medical Leave Act, t
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