EXHIBIT 10.43
AGREEMENT
AGREEMENT, dated as of the 31st day of July, 2001 (this "Agreement"),
between Guardian International, Inc., a Florida corporation (the "Company"), and
Xxxxxx X. Xxxxx ("Xxxxx").
WITNESSETH
WHEREAS, Xxxxx is a party to a Severance Agreement with the Company,
dated as of January 19, 2000 (the "Severance Agreement");
WHEREAS, the Company and Xxxxx desire that the Severance Agreement be
terminated, and that the terms and conditions set forth herein apply to Xxxxx
from and after the date hereof.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained the Company and Xxxxx do hereby agree as follows:
1. Certain Definitions. For purposes of this Agreement, the following
terms have the meanings indicated:
(a) "Award" shall mean any award granted pursuant to the terms of
the Plan and pursuant to the non-Plan Stock Option Agreement
dated October 15, 1997, including but not limited to stock
options, stock appreciation rights ("SARs") (including Limited
SARs), restricted stock, deferred stock, stock granted as a
bonus or in lieu of other awards, dividend equivalents, and
other stock-based awards.
(b) "Plan" shall mean the 1999 Stock Option Plan of Guardian
International, Inc.
2. Non-Competition.
(a) Xxxxx agrees that, in consideration of this Agreement he will
not, from and after the date hereof and for the two-year
period thereafter (the "Non-Competition Period"), directly or
indirectly, own, manage, operate, join, control or participate
in the ownership, management, operation or control of, or be
connected as a director, officer, employee, partner, lender,
consultant or Otherwise ("Participate" or a "Participation")
with, any business or organization in any part of the United
States in which the Company sells products or provides
services, which Competes with the Company (as hereinafter
defined), except with the Company's prior written consent.
Notwithstanding the provisions in this paragraph, this Section
1 shall not prohibit Xxxxx'x Participation at or with
Protection One, Inc, a Delaware corporation ("Protection
One"), or an affiliate of Protection One in any capacity. For
purposes of this Agreement, a business or organization shall
be deemed to "Compete with the Company" if such business or
entity is engaged in the residential and/or commercial
security business, and the residential and/or commercial
security business constitutes the majority of such business or
organization's business operations; provided, however, that
with respect to a business or organization in which the
residential and/or commercial security business constitutes
less than the majority of such business or organization's
business operations, Xxxxx shall be prohibited hereunder from
Participating in the division, segment or other portion of
such business or entity which is engaged in the residential
and/or commercial security business during the Non-Competition
Period. Nothing in this paragraph shall prohibit Xxxxx from
owning for investment purposes an aggregate of up to 3% of the
publicly traded securities of any corporation listed on the
New York or American Stock Exchange or whose securities are
quoted on the NASDAQ National Market, provided that there
shall be no limitation on the percentage of ownership of the
Company or any successor thereto that may be owned by Xxxxx
hereunder. Notwithstanding anything which may be to the
contrary herein, Xxxxx shall not be required to cease
Participation in any business or organization which begins to
Compete with the Company subsequent to the time when Xxxxx
commences such Participation, provided that such business or
organization began to Compete with the Company through no
action, assistance, or plan of Xxxxx.
(b) It is the desire and intent of the parties that the provisions
of Section 1 of this Agreement shall be enforced under the
laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular
provision of Section 1 of this Agreement is adjudicated to be
invalid or unenforceable or shall for any reason be held to be
excessively broad as to duration, geographic scope, activity
or subject, it shall be construed by limiting and reducing it,
so as to be enforceable to the extent compatible with
applicable law and such provision shall be deemed modified and
amended to the extent necessary to render such provision
enforceable in such jurisdiction.
(c) In the event of a breach or threatened breach by Xxxxx of the
provisions of Section 1 (a), in addition to other remedies
available to the Company at law (the amount of which shall be
limited by this Section 1 (c)) or in equity, the Company shall
be entitled to a temporary or permanent injunction or
injunctions, or temporary restraining orders or orders to
prevent breaches thereof, in each case, without the need to
post any security or bond. All remedies available for breach
of this Agreement are cumulative, and the pursuit of any
remedy shall not be construed as an election of such remedy or
as prohibiting the Company from or limiting the Company in
pursuing any other remedies available for any breach or
threatened breach of this Agreement. The parties hereto agree
and stipulate in advance that in any action brought by or on
behalf of the Company to recover damages against Xxxxx for a
breach of the provisions of Section 1(a) hereof, the maximum
damages that may be awarded in the event that Xxxxx is
ultimately adjudged to have breached such provisions shall be
limited to Xxxxx'x most recent annual salary multiplied by a
fraction, the numerator of which shall be the number of full
months that Xxxxx was finally adjudged to have been in breach
of this covenant, and the denominator of which shall be
twelve.
3. Confidentiality. Xxxxx acknowledges that the Company is engaged in a
business involving Confidential Information (as hereinafter defined) that is
proprietary to the Company. In addition, Xxxxx acknowledges that through his
performance of services to the Company, he has had access to, acquired and/or
assisted in the development of, Confidential Information regarding the Company
and its technologies, customers and plans, the disclosure of which to others
would cause the Company to suffer substantial damage. In consideration of the
obligations undertaken by the Company as set forth herein, Xxxxx will not, at
any time after the termination of his employment with the Company, publish,
disclose or use, or authorize any other person or entity to publish, disclose or
use, any Confidential Information of or about the Company of which Xxxxx has
already become aware or informed during his employment with the Company, whether
or not developed by him, except (i) as required by law (including but not
limited to judicial or administrative process) or (ii) in the event that the
Confidential Information becomes generally known to the public through no
actions (either directly or indirectly) of Xxxxx. For purposes hereof, the term
"Confidential Information" shall include, without limitation, matters of a
technical nature, "know-how," formulas, secret processes, works of authorship,
computer programs, materials, patent applications, new product plans, technical
improvements, test data, progress reports and research projects, and matters of
a business nature, such as business plans, prospects, financial information,
marketing plans and strategies, proprietary information about costs, profits,
markets, sales, lists of customers and suppliers of the Company, procurement and
promotional information, credit and financial data concerning customers or
suppliers of the Company, information relating to the management and operation
of the Company, and other information of a similar nature to the extent not
available to the public.
4. Non-Solicitation. During the two-year period which begins on the
date hereof, (the "Non-Solicitation Period"), Xxxxx shall not, directly or
indirectly (i) solicit, entice or induce any individual that currently (i.e.,
currently at the time of any such restricted action during the Non-Solicitation
Period) is an employee of the Company to become employed by any individual,
business or entity other than the Company, (ii) approach any such employee for
such purpose, or authorize or participate or assist with the taking of such
actions by any other individual, business or entity, (iii) solicit or divert
(for or in connection with any business competitive with the Company) any person
who is, or has been during the preceding 2 years, a customer of the Company or
(iv) influence or attempt to influence any provider, supplier, agent or
independent contractor that has a business relationship with the Company or any
customer of the Company to cease or adversely alter its business relations with
the Company.
5. Antidisparagement.
(a) Unless otherwise required by a court of competent
jurisdiction, pursuant to any recognized subpoena power or by
any applicable law, rule or regulation, Xxxxx agrees and
promises that Xxxxx shall not make any oral or written
statements or reveal any information to any person, company or
agency which (i) is materially negative, disparaging or
damaging to the name, reputation or business of the Company or
any of its Subsidiaries or affiliates, or any of their
shareholders, directors, officers or employees, or (ii) has or
would have a materially negative financial impact, whether
directly or indirectly, on the Company or any of its
Subsidiaries and affiliates, or any of their shareholders,
directors, officers or employees; provided that this
subsection (ii) shall not be deemed to have been violated by
statements or releases of information by Xxxxx during the
period of his employment which Xxxxx believes to be truthful
and which were made in the performance of his duties.
(b) Unless otherwise required by a court of competent
jurisdiction, pursuant to any recognized subpoena power or by
any applicable law, rule or regulation, the Company agrees and
promises that neither it nor any of its Subsidiaries and
affiliates shall make any oral or written statements or reveal
any information to any person, company or agency which (i) is
materially negative, disparaging or damaging to the name,
reputation or business of Xxxxx or (ii) has or would have a
negative financial impact, whether directly or indirectly, on
Xxxxx.
6. Stock Options. So long as Xxxxx continues to serve on the Board of
Directors of the Company, with respect to any Award granted to Xxxxx pursuant to
the Plan and/or pursuant to the non-Plan Stock Option Agreement dated October
15, 1997, which is subject to future vesting and/or other restrictions regarding
the exercisability or full enjoyment of the Award as of the date of this
Agreement, then, notwithstanding the terms of the Plan, the certificate
evidencing the Award thereunder or the non-Plan Stock Option Agreement, the
continued vesting or lapse of restrictions with respect to such Award shall not
cease but shall continue during the duration of the term of the Award in
accordance with the schedule set forth in the certificate evidencing such Award
as if Xxxxx'x service to the Company had continued throughout such vesting
and/or lapse of restriction period. In addition, so long as Xxxxx continues to
serve on the Board of Directors of the Company, with respect to each Award
granted to Xxxxx pursuant to the Plan or pursuant to the non-Plan Stock Option
Agreement dated October 15, 1997, (whether or not fully vested or free of
restrictions as of the date of this Agreement), the exercisability and the full
enjoyment of such Award shall not terminate, but shall be extended for the
duration of the entire term of the Award in accordance with the Plan and/or
non-Plan Stock Option Agreement dated October 15, 1997, and/or the certificate
evidencing such Award as if Xxxxx'x service to the Company had continued during
such entire term, notwithstanding the terms of the Plan or non-Plan Stock Option
Agreement or the certificate evidencing the Award thereunder.
7. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company:
Guardian International, Inc.
0000 X. 00xx Xxxxxxx
Xxxxxxxxx, XX 00000
If to Xxxxx:
Xxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
8. Modifications and Waivers. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the parties hereto. No waiver by any party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed to be a waiver of similar or dissimilar provision or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
9. Validity. The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10. Termination of All Prior Severance and Employment Agreements. All
prior Severance and Employment Agreements between Xxxxx and the Company are
hereby terminated, and shall be considered null and void as of the date first
above written.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
GUARDIAN INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: President and chief executive officer
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
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