Exhibit 10.1
TRANSITION AGREEMENT
--------------------
TRANSITION AGREEMENT (the "Agreement"), made this 21st day of January, 2005
is entered into by and among CompuDyne Corporation, a Nevada corporation
("Parent"), ▇▇▇▇▇▇▇ Security Group, Inc., a Delaware corporation and a
wholly-owned subsidiary of Parent (the "Employer"), and ▇▇▇ ▇▇▇▇▇▇▇▇ (the
"Employee").
In consideration of the mutual covenants and promises contained herein, the
parties, intending to be legally bound hereby, agree as follows:
1. Employment Transition. Employer shall transition Employee's employment,
and Employee hereby accepts the transition of his employment with the Employer,
in return for the covenant not to compete and upon the other terms set forth in
this Agreement. The period of this Agreement shall commence on February 1, 2005
(the "Commencement Date") and end on the second anniversary of the Commencement
Date (the "Initial Transition Period"), unless sooner terminated in accordance
with the provisions hereof.
2. Compensation; Bonus; Responsibilities; Benefits. The terms of Employee's
employment during the Transition Period shall be as attached on Exhibit A. The
Employee hereby agrees to undertake the duties and responsibilities described in
Exhibit A and such related duties and responsibilities as the CEO or COO of
Parent or his designee shall from time to time reasonably assign to him. The
Employee agrees to abide by the rules, regulations, instructions, personnel
practices and policies of the Parent and the Employer and any changes therein
which may be adopted from time to time by the Parent or the Employer. In the
event of the death or disability of Employee, Employee or his estate shall be
paid the compensation otherwise payable hereunder for an additional 60 days
after the date of such death or disability. As used in this Agreement, the term
"disability" shall mean the inability of the Employee, due to a physical or
mental disability, for a period of 90 days, whether or not consecutive, during
any 360-day period, to perform the services contemplated under this Agreement. A
determination of disability shall be made by a physician selected by Parent.
3. Non-Compete; Non-Solicitation; Non-Disparagement.
a. During the period the Employee is employed by the Employer, the Parent
or any affiliate of the Parent and for a period of three years after the
termination or expiration thereof, the Employee will not:
(i) compete, directly or indirectly, with any business of Employer or the
Parent or any affiliate of Parent and the Employee shall not assist any other
person to do so; or be a proprietor, equity holder, investor (except as an
investor holding not more than 1% of the capital stock or other securities of a
publicly held company), lender, partner, director, officer, employee, consultant
or representative of any person who does or attempts to do so; or
4
(ii) directly or indirectly recruit, solicit, induce, or attempt to induce
any of the employees or independent contractors of the Parent, the Employer or
any of their affiliates to terminate their employment or contractual
relationship with the other party or any such affiliate; and the Employee shall
not assist any other person to do so, or be a proprietor, equity holder,
investor (except as an investor holding not more than 1% of the capital stock or
other securities of a publicly held company), lender, partner, director,
officer, employee, consultant or representative of any person who does or
attempts to do so; or
(iii) directly or indirectly solicit, divert, take away, or attempt to
divert or take away, from the Parent, the Employer or any of their affiliates
any of their business or patronage of their customers, clients, accounts,
vendors or suppliers, and the Employee shall not assist any other person to do
so, or be a proprietor, equity holder, investor (except as an investor holding
not more than 1% of the capital stock or other securities of a publicly held
company), lender, partner, director, officer, employee, consultant or
representative of any person who does or attempts to do so; or
(iv) make any negative or disparaging statements or communications
regarding Employer, Parent, any of their affiliates or employees or any product
or service offered by Employer, Parent or any of their affiliates.
(v) the Employee, during the "non-compete" period, is expressly permitted
to be employed by a General Contractor in the construction industry, even though
the General Contractor may engage subcontractors that compete with CompuDyne, as
long as that General Contractor or its affiliates is not in the business of
directly supplying the types of security related products and services that
CompuDyne provides.
b. If any restriction set forth in this Section 3 is found by any court of
competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
c. The restrictions contained in this Section 3 are necessary for the
protection of the business and goodwill of the Employer and the Parent and are
considered by the Employee to be reasonable for such purpose. The Employee
agrees that any breach of this Section 3 will cause the Employer and the Parent
substantial and irrevocable damage and therefore, in the event of any such
breach, in addition to such other remedies which may be available, the Employer
and the Parent shall have the right to seek specific performance and injunctive
relief.
4. Proprietary Information and Developments.
a. Employee agrees that all information and know-how, whether or not in
writing, of a private, secret or confidential nature concerning the business or
financial affairs of the Parent or the Employer or the business or financial
affairs of any entity affiliated with the Parent or the Employer (collectively,
"Proprietary Information") is and shall be the exclusive property of the Parent
and the Employer, respectively. By way of illustration, but not limitation,
Proprietary Information may include inventions, products, processes, methods,
techniques, formulas, compositions, compounds, projects, developments, plans,
research data, clinical data, financial data, personnel data, computer programs,
software, and customer and supplier lists. Employee will not disclose any
Proprietary Information to others outside the Employer or the Parent or use the
same for any unauthorized purposes without written approval, either during or
after his employment, unless and until such Proprietary Information has become
public knowledge without fault by the Employee.
5
b. Employee agrees that all files, letters, memoranda, reports, records,
data, sketches, drawings, laboratory notebooks, program listings, or other
written, photographic, or other tangible material containing Proprietary
Information, whether created by the Employee or others, which shall come into
his custody or possession, shall be and are the exclusive property of the
Employer and the Parent to be used by the Employee only in the performance of
his duties for the Employer and the Parent and shall be returned by Employee
upon termination of his employment.
c. Employee agrees that his obligation not to disclose or use information,
know-how and records of the types set forth in paragraphs (a) and (b) above,
also extends to such types of information, know-how, records and tangible
property of customers of the Employer and Parent or suppliers to the Employer
and Parent or other third parties who may have disclosed or entrusted the same
to the Employer, Parent or to the Employee in the course of the Employer's or
the Parent's business.
5. Notices. All notices required or permitted under this Agreement shall be
in writing and shall be deemed effective upon personal delivery or upon deposit
in the United States Post Office, by registered or certified mail, postage
prepaid, addressed to the other party as set forth below:
a. If to Parent:
CompuDyne Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
b. If to Employer:
▇▇▇▇▇▇▇ Security Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President of Finance
6
c. If to Employee:
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
7. Amendment. This Agreement may be amended or modified only by a written
instrument executed by the Parent, the Employer and the Employee.
8. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Alabama.
9. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of both parties and their respective successors and assigns,
including any corporation with which or into which the Employer or the Parent
may be merged or which may succeed to its assets or business, provided, however,
that the obligations of the Employee are personal and shall not be assigned by
him.
10. Miscellaneous.
a. No delay or omission by the Parent or the Employer in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by the Parent or the Employer on any one occasion
shall be effective only in that instance and shall not be construed as a bar or
waiver of any right on any other occasion.
b. In case any provision of this Agreement shall be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
COMPUDYNE CORPORATION
By:________________________________
Title:_______________________________
▇▇▇▇▇▇▇ SECURITY GROUP, INC.
By:________________________________
7
Title:_______________________________
___________________________________
▇▇▇ ▇▇▇▇▇▇▇▇
8
EXHIBIT A
Targeted initiation date: February 1, 2005
Salary, bonus, hours: First three months - paid at an annual
rate of $283,237 ("base salary").
Expected work time = 100% of "normal"
workweek of 40 - 50 hours.
Next six months - paid at an annual rate
of $254,913. Expected work time = 33
hours per week, of which up to 10 hours
may be from home.
Next fifteen months - paid at an annual
rate of $127,457. Expected work time =
25% of "normal."
Actual amount of expected work time will
be determined by Mo Boukelif, but will
not affect other rights and benefits. If
it is determined that Lucynski's efforts
are not required, then bonus will be
treated as earned.
Any hours requested to be worked in excess
of the "expected work time" will be
compensated at a gross rate of $150 per
hour or $1500 per full day out of town.
No excess hours will be worked unless
specifically requested in advance by
either the COO or CEO of CompuDyne.
Bonus determination: Balance of salary and bonus will be a
bonus, of up to i) $10,621 per quarter
for the first three quarters and ii)
$5,311 per quarter for the next five
quarters, payable quarterly, based on the
following two components:
One-half based on ISS bookings.
Target objective will be $15
million per quarter on a
cumulative basis. Calculation
will be cumulative within each
year of this arrangement so
that if a bonus is not achieved
in a particular quarter it can
be earned in subsequent
quarters during the year
One-half based on subjective
determination, as to the extent
and nature of assistance in
transitioning the management of
ISS/AP including educating
senior managers and supporting
the transition. In addition,
Lucynski will assist in the
claims management process in an
effort to maximize future claim
recoveries.
The bonus portion of the compensation will
be paid at the end of each quarter. The
amount of bonus will be determined by
agreement of Mo Boukelif, ▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇ (or their successors) and
concurrence by the CEO of CompuDyne.
A-1
Responsibilities: 1) Assist in sales and marketing, bringing
senior managers along in terms of
developing relationships with key
customers, architects and consultants.
2) Assist directly in the process of
maximizing claims received and minimizing
claims paid. 3) Assist in the education
of senior managers and in supporting the
transition of management among the
employees of ISS and AP.
Title: Director of Special Projects
Non-compete: Three year non-compete agreement at the
end of this arrangement, extending to all
markets that CompuDyne is in, anywhere in
the U.S.
Other: This arrangement supercedes and replaces
any other agreements or rights Lucynski
may have.
Lucynski will have full employee benefits,
as if he were a full time employee of
CompuDyne, for the full two years of the
arrangement with the following
exceptions: 1) When Lucynski drops below
33 hours per week of work, at the end of
nine months, he can no longer be in the
Company's health plan and he will need to
elect COBRA coverage, the Company agrees
to pay the COBRA premium less the normal
employee group health contribution
through the end of his two year
arrangement; 2) When Lucynski drops below
33 hours per week of work he will no
longer be eligible to make contributions
to the Company's 401-K plan. If CompuDyne
wishes Lucynski to work more than the
hours called for in this agreement, he
will be advised of the request, for the
coming month, by the 15th of the previous
month. If such request(s) result in
Lucynski being a 33 hour or higher
employee for longer than is currently
anticipated in this agreement, then in
those consecutive subsequent 33 hour
months Lucynski will continue to receive
normal health benefits rather than being
shifted to company supported COBRA and
may continue to contribute to the 401K
plan. Full employee benefits specifically
include, among others: 1) company car
allowance at January, 2005 rate; 2) short
term and long term disability; 3) life
insurance; 4) employee stock purchase
plan; 5)dental.
Vacation and other accruals will be based
on targeted hours (e.g. "up to" hours,
whether or not requested to be worked).
Vacation accrued and unused at the end of
this agreement will be paid at the
$283,237 salary rate.
Any unvested options at the end of the
arrangement period will be fully vested.
A-2
If CompuDyne elects to terminate
Lucynski's activities with the company,
other than for cause, death or
disability, then Lucynski will receive
100% of the compensation provided for in
this arrangement over the original term
of this arrangement.
Approval: This arrangement has been approved by the
CompuDyne Compensation Committee.
A-3