EXHIBIT 10.3
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is made and
entered into this 7th day of October, 2003 (the "Effective Date") by and between
Universal Electronics Inc. ("UEI") and Jerry Bardin ("Bardin").
WITNESSETH:
WHEREAS, Bardin has been employed by UEI since August 3, 1998;
WHEREAS, effective on the "Separation Date" (as defined herein), Bardin
hereby voluntarily resigns as an employee of UEI and any of its subsidiaries and
affiliates and UEI hereby accepts such resignation.
NOW, THEREFORE, in consideration of the mutual covenants and promises
of the parties to this Agreement, including UEI's agreement to pay Bardin
pursuant to Paragraph 2 of this Agreement, the receipt and sufficiency of which
are hereby acknowledged, Bardin and UEI agree as follows:
1. TERMINATION AS AN EMPLOYEE. Effective on the October 17, 2003,
(the "Separation Date"), Bardin hereby voluntarily resigns as an employee of UEI
and any of its subsidiaries or affiliates and UEI hereby accepts such
resignation.
2. PAYMENTS. On the Separation Date, UEI will pay, as set forth
below, to Bardin a gross amount (before deduction of appropriate taxes and other
customary withholdings which Bardin understands and agrees shall also be
deducted from this amount) of $14,258.09 which includes $11,538.47 (representing
Bardin's bi-weekly payroll through the Separation Date), and $2,719.62
(representing accrued but unused vacation through the Separation Date). The
payment of this payroll and vacation (less appropriate taxes and other customary
withholdings) shall be paid via check presented to Bardin on the Separation
Date. Bardin acknowledges and agrees that such amount represents all
compensation, salary, vacation pay, profit sharing, bonuses, and commissions to
which he is entitled. In addition to the above payment, UEI agrees to pay to
Bardin as severance, an amount equal to $16,666.67 (one (1) month pay) less
appropriate taxes and other customary withholdings which shall be deducted from
the payment made pursuant to this Paragraph 2 (the "Severance Amount"). The
payment of the Severance Amount shall be made in one lump sum on UEI's first
regularly scheduled payroll date after the expiration of the revocation period
as set forth in Paragraph 20. Bardin shall be entitled to this Severance Amount
by virtue of this Agreement and the performance by him of his obligations
hereunder and Bardin acknowledges and agrees that he has no independent right to
it.
3. STOCK OPTIONS. UEI and Bardin hereby agree that all options
granted to him are as set forth below and Bardin represents, warrants and agrees
that this Paragraph 3 accurately sets forth all options granted to him and that
there are no other options which have been granted to him, that he has not
exercised any of the options granted him other than those stated in
sub-paragraphs a and b
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below, and that no other options have been promised to him and he acknowledges
that he is not entitled to any other options:
a. On August 3, 1998, UEI, pursuant to one of its Stock
Option Plans, granted to Bardin the option to purchase up to 30,000
shares of common stock of UEI at an exercise price of $6.1875 per
share. As of the Separation Date, Bardin shall be vested in 100% of the
option (30,000 shares), of which 7,500 have been exercised by Bardin.
Bardin may exercise the vested portion of such option until the end of
UEI's business day on February 28, 2005 and otherwise in accordance
with the terms and conditions set forth within the agreement, after
which date such option shall terminate and be of no further force and
effect.
b. On January 28, 1999, UEI, pursuant to one of its
Stock Option Plans, granted to Bardin the option to purchase up to
10,000 shares of common stock of UEI at an exercise price of $7.50 per
share. As of the Separation Date, Bardin shall be vested in 100% of the
option (10,000 shares), of which 2,353 have been exercised by Bardin.
Bardin may exercise the vested portion of such option until the end of
UEI's business day on February 28, 2005 and otherwise in accordance
with the terms and conditions set forth within the agreement, after
which date such options shall terminate and be of no further force and
effect.
c. On October 7, 1999, UEI, pursuant to one of its Stock
Option Plans, granted to Bardin the option to purchase up to 20,000
shares of common stock of UEI at an exercise price of $11.016 per
share. As of the Separation Date, Bardin shall be vested in 100% of the
option (20,000 shares), none of which have been exercised by Bardin.
Bardin may exercise the vested portion of such option until the end of
UEI's business day on February 28, 2005 and otherwise in accordance
with the terms and conditions set forth within the agreement, after
which date such options shall terminate and be of no further force and
effect.
d. On August 24, 2000, UEI, pursuant to one of its Stock
Option Plans, granted to Bardin the option to purchase up to 10,000
shares of common stock of UEI at an exercise price of $20.188 per
share. As of the Separation Date, Bardin shall be vested in 75% of the
option (7,500 shares), none of which have been exercised by Bardin.
Bardin may exercise the vested portion of such option until the end of
UEI's business day on February 28, 2005 and otherwise in accordance
with the terms and conditions set forth within the agreement, after
which date such options shall terminate and be of no further force and
effect. It is understood and agreed to by the parties that, effective
immediately on the Separation Date, the unvested portion of the option
terminated automatically and was of no further force and effect.
e. On February 5, 2002, UEI, pursuant to one of its
Stock Option Plans, granted to Bardin the option to purchase up to
10,000 shares of common stock of UEI at an exercise price of $15.98 per
share. As of the Separation Date, Bardin shall be vested in 25% of the
option (2,500 shares), none of which have been exercised by Bardin. As
further consideration to Bardin in exchange for his obligations and
duties hereunder, UEI hereby agrees that an additional 25% of the
option shall vest on it next regularly scheduled vesting date (as set
forth
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within the agreement - February 5, 2004) at which time Bardin shall
become 50% vested in the option. Bardin may exercise the vested portion
of such option until the end of UEI's business day on February 28, 2005
and otherwise in accordance with the terms and conditions set forth
within the agreement, after which date such options shall terminate and
be of no further force and effect. It is understood and agreed to by
the parties that, effective immediately on the Separation Date, the
remaining unvested portion of the option (50% after the next vest)
terminated automatically and was of no further force and effect.
f. On November 12, 2002, UEI, pursuant to one of its
Stock Option Plans, granted to Bardin the option to purchase up to
10,000 shares of common stock of UEI at an exercise price of $8.45 per
share. As of the Separation Date, Bardin shall be vested in 0% of the
option (0 shares). As further consideration to Bardin in exchange for
his obligations and duties hereunder, UEI hereby agrees that the first
25% of the option shall vest on its next regularly scheduled vesting
date (as set forth within the agreement - November 12, 2003) at which
time Bardin shall become 25% vested in the option. Bardin may exercise
the vested portion of such option until the end of UEI's business day
on February 28, 2005 and otherwise in accordance with the terms and
conditions set forth within the agreement, after which date such
options shall terminate and be of no further force and effect. It is
understood and agreed to by the parties that, effective immediately on
the Separation Date, the remaining unvested portion of the option (75%
after the next vest) terminated automatically and was of no further
force and effect.
4. INSURANCE CONTINUATION. UEI has provided Bardin or will
provide Bardin in accordance with law, all notices for continuation of health
and disability insurance as required by COBRA. Bardin understands and agrees
that it is his responsibility to elect to continue such insurance under COBRA
and that he must notify UEI timely of such election. Bardin further understands
and agrees that he shall be solely and fully responsible for all premiums,
deductibles and co-payments as required under the specific insurance plans
continued by virtue of Bardin's election. Further, Bardin acknowledges and
agrees that all life insurance previously provided Bardin by UEI shall terminate
as of the last day of the month in which the Separation Date falls.
5. EXPENSES. Bardin acknowledges and agrees that he has submitted
all expense reports and that he has received payment therefore and that there
are no other expense items due him.
6. NO AUTHORITY. Bardin acknowledges that effective immediately
on his Separation Date he does not have authority to bind UEI to any contracts
or commitments and agrees not to create any obligation of UEI or bind or attempt
to bind UEI in any manner whatsoever, and agrees not to involve himself in any
activities of UEI, except as may be requested in writing by an authorized
officer of UEI.
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7. DUTY TO COOPERATE/CONSULTING
a. Bardin agrees to cooperate fully, subject to
reimbursement by UEI of reasonable out-of-pocket costs and expenses,
with UEI and its counsel with respect to any matter (including any
litigation, investigation or governmental proceeding) which relates to
matters with which Bardin was involved during the term of his
employment with UEI. Such cooperation shall include appearing from time
to time at the offices of UEI or UEI's counsel for conferences and
interviews and in general providing the officers of UEI and its counsel
with the full benefit of Bardin's knowledge with respect to any such
matter. Bardin agrees to render such cooperation in a timely fashion
and at such times as may be mutually agreeable to the parties
concerned. During the entire period in which Bardin provides
cooperation as set forth above, all information concerning UEI or its
businesses learned or received by Bardin shall be treated as
confidential in the same manner as such information would have been
treated during any period of employment and in accordance with the
terms and conditions of confidentiality in Paragraph 9 below which
terms and conditions are hereby incorporated for purposes of this
subparagraph.
b. The parties agree to enter into that certain
Consulting Agreement of even date herewith attached here to as
Attachment A.
8. RETURN OF UEI'S PROPERTY. All notes, reports, sketches, plans,
books, credit cards, calling cards, keys, computers, and related paraphernalia,
computer passwords, unpublished memoranda or other documents or property which
were created, developed, generated or held or controlled by Bardin and which
concern or are related to UEI's business, whether containing or relating to
Confidential Information as defined below or not, are the property of UEI and
have been or shall be returned to UEI immediately. Bardin acknowledges that he
has received all of his personal property that was located at UEI's offices. In
the event that UEI or Bardin shall discover any other property of the other in
its or his possession, UEI or Bardin, as the case may be, shall immediately
return such property to the other.
9. CONFIDENTIAL INFORMATION. Bardin recognizes he has a duty and
obligation to UEI to continue to protect the confidential and proprietary
information and any trade secrets belonging to UEI ("Confidential Information")
which includes but is not limited to information pertaining to pricing, customer
lists, product development, marketing, accounts receivable, customer credit
information, research or development, distribution, technology, product design,
packaging, or manufacturing or assembly processes and know-how, and marketing
and therefore agrees that:
a. Any and all UEI Confidential Information produced or
received by Bardin during his employment and hereafter is the property of UEI.
b. Bardin shall not use, disclose, divulge or convey to
any third person, anywhere in the world, any Confidential Information belonging
to UEI or its affiliates until
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such time as such information or secrets become publicly known by legitimate
means, such as public disclosure by UEI or otherwise through no wrongful act by
Bardin.
10. INDUCEMENT OF OTHER EMPLOYEES. For a two (2) year period
ending on the second anniversary date of the Separation Date, Bardin will not,
directly or indirectly, solicit, induce or encourage any other person or entity
to leave employment, agency or office with UEI nor will he, directly or
indirectly, hire any such person or entity.
11. REMEDIES.
a. Bardin acknowledges that failure to comply with the
terms of this Agreement may cause irreparable damage to UEI and
therefore, in addition to any other remedies at law or in equity
available to UEI for Bardin's breach or threatened breach of this
Agreement, UEI is entitled to apply for specific performance or
injunctive relief against Bardin to prevent such damage or breach
without the necessity of posting bond or other security, as well as an
award of attorneys fees and costs incurred as a result of any action
which is necessary to enforce this Agreement.
b. Bardin acknowledges that if he breaches any portion
of this Agreement, in addition to any remedy afforded UEI at law or in
equity or by this Agreement, UEI may seek damages for any alleged
violation of this Agreement.
c. UEI acknowledges that if UEI breaches any portion of
this Agreement, in addition to any remedy afforded Bardin at law or in equity or
by the Agreement, Bardin may seek damages for any alleged violation of this
Agreement.
12. KNOWING AND VOLUNTARY. Bardin also acknowledges and recites
that
a. He enters into this Agreement knowingly and
voluntarily;
b. He has read and understands this Agreement in its
entirety;
c. He has been advised and directed orally and in
writing (and this subparagraph 12(c) constitutes such written
direction) to seek legal counsel and any other advice he wishes with
respect to the terms of this Agreement before executing it, and he has
had an opportunity to negotiate about its terms;
d. His execution of this Agreement has not been forced
by any employee or agent of UEI;
e. He has been offered 21 calendar days after receipt of
this Agreement to consider its terms before he executed it; and
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f. That the Severance Amount in Paragraph 2 and the
additional vesting of certain options as set forth in Paragraph 3
constitutes additional consideration to which he is entitled by virtue
of this Agreement only.
13. RELEASE, DISCHARGE, WAIVER AND COVENANT NOT TO SUE. For and in
consideration of the mutual covenants provided in this Agreement, each of UEI on
behalf of itself, its affiliates, subsidiaries, successors and assigns and
Bardin on behalf of himself and his heirs, executors, administrators, children,
and assigns:
a. do hereby fully release and discharge the other and
each of their respective past and present officers, directors,
employees, attorneys, agents, subsidiaries, affiliates, related
organizations, heirs, executors, administrators, children, successors
and assigns from,
b. do hereby fully waive any obligations of the other,
such persons or entities for, and
c. covenants not to sue or otherwise commence any action
to recover from the other, such persons or entities,
any and all sums of money, accounts, actions, causes of action, claims and
demands based upon or arising by reason of any damage, loss, injury or
entitlement regardless of source or nature, whether known or unknown or
contingent or absolute, which heretofore has been or which hereafter may be
suffered or sustained, directly or indirectly, by either UEI or its past or
present officers, directors, employees, attorneys, agents, subsidiaries,
affiliates, related organizations, successors and assigns, or Bardin or his
heirs, executors, administrators, children, or assigns in consequence of,
arising out of, or in any way related to Bardin's employment, or termination of
employment, with UEI or any of its affiliated organizations, divisions or
operational subdivisions, including his separation as a UEI employee on the
Separation Date. The foregoing release and discharge, waiver and covenant not to
sue includes, but is not limited to, all claims, and any obligations or causes
of action arising from such claims, which could have been raised under common
law including wrongful or retaliatory discharge, breach of contract and any
action arising in tort including libel, slander, defamation or intentional
infliction of emotional distress, personal injury, and claims under any statute
including Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e,
et. seq., the Civil Rights Act of 1866 and 1871, 42 U.S.C. Section 1981, et.
seq., the National Labor Relations Act, 29 U.S. Section 151, et. seq.; the Age
Discrimination in Employment Act, 29 U.S.C. Section 621, et. seq., including the
Older Workers Benefit Protection Act, the Fair Labor Standards Act, 29 U.S.C.
Section 201, et. seq., the Employee Retirement Income Security Act, 29 U.S.C.
Section 1001, et. seq., the Americans with Disabilities Act of 1990, the
Rehabilitation Act, or any statute under applicable state law including any
antidiscrimination statutes and any wage and hour laws applicable to employees,
and/or any claims under any express or implied contract which either party or
its or his successors or assigns or representatives may claim existed with the
other. This release and discharge, waiver and covenant not to sue expressly
includes all claims, and any obligations or causes of action arising from such
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claims, that could have been raised in state or federal court or with a state,
federal or municipal agency or entity.
14. EXCLUSIVE PAYMENTS/BREACH. The payments outlined in this
Agreement to be made to Bardin will be considered as fulfilling all compensation
obligations to Bardin or UEI, including but not limited to salary, vacation,
benefits, bonuses, profit sharing, commissions, and any other payments or
benefits from UEI and Bardin agrees that all such payments, including all past
compensation, are full and adequate consideration for his agreements and
releases hereunder.
15. NON-DISCLOSURE. Bardin certifies that he has not and agrees
that he will not discuss, disclose or release in any fashion any information
relating to this Agreement to any person other than his attorney, accountant,
financial advisor, and wife, each of whom he has advised of this confidentiality
provision and directed to maintain the same.
16. SEVERABILITY. In the event that any term or provision of this
Agreement shall be held to be indefinite, invalid or otherwise unenforceable,
the indefinite, invalid or unenforceable provision shall be deemed deleted, and
the remaining part of the Agreement shall continue in full force and effect. If
any tribunal or Court of competent jurisdiction deems any term or provision
hereof unenforceable, such term or provision shall be modified only to the
extent necessary to render it enforceable and this Agreement shall be valid and
enforceable and the parties hereto agree to be bound by and perform same as thus
modified. In making such determination, any such tribunal or Court shall also
consider a reduction to or reimbursement to UEI for any consideration to which
Bardin has received or is to receive, including without limitation, any and all
amounts and other items set forth in Paragraph 2 of this Agreement.
17. ENTIRE AGREEMENT. The terms of this Agreement constitute the
entire Agreement between Bardin and UEI, and as of the date of this Agreement
supersede any prior agreement whether in writing or orally, between Bardin and
UEI.
18. GOVERNING LAW. This Agreement is to be executed in the State
of California and shall be construed and enforced under the laws of the State of
California without regard to its conflict of laws provisions.
19. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and may be enforced by the parties to this Agreement and shall be
binding upon Bardin, his executors, administrators, legatees, or any other
successor in interest and upon UEI, its successors and any assignee or
transferee of or successor to all or substantially all of the business or assets
of UEI, and may not be amended, in whole or in part, except in writing signed by
a duly authorized officer of UEI and Bardin.
20. REVOCATION. Bardin shall have seven (7) days from the date he
executes this Agreement within which to revoke his execution, in which event
this Agreement shall be unenforceable and null and void. In the event that
Bardin elects to revoke this Agreement pursuant
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to this Paragraph 20, Bardin shall, within five (5) days of such election return
to, refund and/or reimburse UEI for any and all amounts paid to or on behalf of
Bardin pursuant to this Agreement, which amounts shall include, without
limitation, any and all Severance Amount.
21. UNEMPLOYMENT CLAIM. UEI agrees to not contest any claim made
by Bardin for unemployment compensation.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
dated indicated above.
Witness: Universal Electronics Inc.
______________________________
By:_____________________________________
President and Chief Operating Officer
Witness:
______________________________ ________________________________________
Jerry Bardin
Dated:__________________________________
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ATTACHMENT A
Form of Consulting Agreement
Attached 7 Pages
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