CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made and entered into as of the 23rd day of
April 1997 by and between Securacom, Incorporated, a corporation organized and
existing under the laws of Delaware (the "Company") and Xxxx X. Xxxxxx, III (the
"Consultant").
W I T N E S S E T H
WHEREAS, the Company desires to engage the Consultant to assume the
responsibilities set forth in this Agreement; and
WHEREAS, the Consultant desires to assume such responsibilities;
THEREFORE, in consideration of the premises, and the mutual covenants,
terms and conditions contained herein, the parties hereto agree as follows:
1. Engagement. Subject to the terms and conditions set forth in
this Agreement, the Company hereby engages the Consultant and the Consultant
hereby accepts such engagement.
2. Responsibilities. (a) The Consultant shall provide the Company with
advice and assistance with respect to corporate development, new business
development, corporate finance, operational issues, merger and acquisition
strategy, marketing and positioning in the marketplace, strategic partnership
arrangements and other matters as requested by the Board of Directors of the
Company. The Consultant shall fulfill his responsibilities diligently and in
good faith.
(b) The Consultant shall devote such time, attention and energies to
the business of the Company as is required in order for him to fulfill his
responsibilities as set forth in Section 2(a), and shall use his best efforts to
promote the business interests of the Company.
3. Compensation. (a) In consideration of the services to be rendered by
the Consultant hereunder, the Company shall pay Consultant $140,000 per year
(such compensation, as it may be adjusted pursuant to Section 3(b), being
hereinafter referred to as "Base Compensation"). Base Compensation shall be paid
in installments at such times as the Company customarily pays its senior
management employees, and shall be subject to withholding as required by law or
agreed to by the Consultant.
(b) The Consultant shall be eligible to receive periodic increases in
Base Compensation, awards of stock options, and bonuses for each year or portion
thereof during which the Consultant is engaged hereunder. The amount of such
increases in Base
1
Compensation, stock options and bonuses, if any, shall be determined by the
Board of Directors of the Company in its sole discretion.
4. Expenses. The Company, in accordance with such rules and practices
as it may establish, shall pay or reimburse the Consultant for all reasonable
and necessary business expenses incurred in connection with the performance by
the Consultant of his responsibilities hereunder. Such expenses shall include,
in accordance with policies established by the Company, travel and entertainment
expenses and reimbursement for mileage when the Consultant's personal automobile
is used for business purposes.
5. Term and Termination. (a) This Agreement shall be effective as of the
date hereof and shall have a term of five years.
(b) The Company shall have the right to terminate this Agreement at any
time (including following a change of control pursuant to Section 5(d) hereof)
for "Cause" upon written notice to the Consultant, and such termination shall be
effective upon delivery of such notice. For purposes of this Agreement, "Cause"
shall mean a material breach of this Agreement by the Consultant (other than by
reason of the death or disability of the Consultant), including misappropriation
of funds of the Company, willful and deliberate malfeasance, gross negligence,
or any act seriously impeding the Consultant's ability to represent the Company.
(c) If this Agreement is terminated for Cause by the Company or is
terminated by the Consultant, the Consultant shall be entitled to receive any
unpaid Base Compensation accrued to the date of termination plus any unpaid
expense reimbursement, reduced by any claim the Company may have against the
Consultant for breach of this Agreement or otherwise.
(d) If this Agreement is terminated by the Company for any reason other
than for Cause or the death or disability of the Consultant, the Company shall
compensate the Consultant at the annual Base Compensation rate in effect on the
date of termination through the date of expiration of the term of this
Agreement, and pay Consultant any bonus or portion thereof granted by the Board
of Directors and earned by the Consultant but remaining unpaid on the date of
termination, plus any expense reimbursements due to the Consultant through such
date. In the event any termination described in the preceding sentence occurs
within two years following a change in control of the Company, the Company shall
pay to the Consultant an additional amount equal to three times the Consultant's
annual Base Compensation rate in effect at the time of such change in control.
For purposes of this Section 6(d), the term "change in control" shall
mean the occurrence of any of the following events: (i) a change of stock
ownership of the Company of a nature that would be required to be reported in
response to Item 6(e) of
2
Schedule 14A promulgated under the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), and any successor regulation; (ii) the acquisition
of beneficial ownership, directly or indirectly, by any person (as such term is
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) other than the
Company or a benefit plan sponsored by the Company, of securities of the Company
representing 30% or more of the combined voting power of the Company's
then-outstanding securities; or (iii) a change within any two-year period of a
majority of the members of the Board of Directors of the Company for any reason,
unless the election, or the nomination for election by the Company's
shareholders, of each director was approved by a vote of at least two-thirds of
the directors still in office who were directors prior to such change.
Notwithstanding the foregoing, no change of control shall be deemed to have
occurred by reason of (i) any merger, consolidation, sale or similar transaction
in the event that the Board of Directors approves such transaction prior to its
consummation; (ii) any distribution of shares of the Company's stock by Special
Situation Investment Holdings, Ltd. or Special Situation Investment Holdings,
X.X. XX to their partners upon dissolution or otherwise; or (iii) the
acquisition of beneficial ownership, either directly or indirectly, of
securities of the Company by KuwAm Corporation or any of its affiliates.
For purposes of this Section 6(d), termination following a change in
control of the Company shall include (i) a significant reduction of Consultant's
responsibilities, (ii) a reduction in the annual rate of Base Compensation paid
to the Consultant of ten percent or more of the highest annual rate of Base
Compensation previously paid to the Consultant, or (iii) any failure by the
Company to obtain the written assumption of this Agreement by any successor of
the Company (such assumption not relieving the Company of any liability
hereunder).
It is the intention of the Company and the Consultant that any amounts
payable by the Company to the Consultant pursuant to this Section 6(d) shall not
constitute "excess parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder. In the event that the Company's independent accountants determine
that payments hereunder would constitute excess parachute payments, such
payments shall be reduced to the maximum amount that such accountants determine
would not result in the payment of excess parachute payments.
(e) Death or Disability of Consultant. If the Consultant dies during
the term of this Agreement, the Company shall pay to the Consultant's estate any
unpaid Base Compensation, any bonus or portion thereof granted by the Board of
Directors and earned by the Consultant but remaining unpaid, and any unpaid
expense reimbursement due hereunder, in each case as of the date of the
Consultant's death.
In the event that the Consultant becomes physically or mentally
disabled during the term of this Agreement, the Consultant shall be entitled to
receive any unpaid Base
3
Compensation accrued through the date that this Agreement is terminated by
either party as the result of such disability and any bonus or portion thereof
granted by the Board of Directors and earned by the Consultant but remaining
unpaid on the date of termination plus any unpaid expense reimbursement.
7. Non-competition. During the term of this Agreement and for a period
of one year thereafter, the Consultant shall not, without the prior written
consent of the Board of Directors of the Company, directly or indirectly, own,
manage, operate, finance, join or control, or participate in the ownership,
management, operation, financing or control of, or be or become an officer,
director, employee, partner, principal, agent, representative, or consultant of,
or use or permit his name to be used in connection with, any business or
enterprise offering products or services that compete with the products and
services offered by the Company in the markets served by the Company.
Notwithstanding the foregoing, this Section 7 shall not be deemed to prohibit
the ownership by the Consultant of not more than one percent (1%) of the capital
stock of any corporation whose capital stock is publicly traded. If the
provisions of this Section 7 should be found by a court of competent
jurisdiction to exceed the time, geographic, product or other limitations
permitted by applicable law, then such provisions shall be deemed reformed to
the maximum time, geographic, product or other limitations permitted by such
law.
8. Confidentiality. The Consultant shall not, during the term of his
engagement hereunder or at any time thereafter, unless specifically authorized
by a resolution of the Board of Directors of the Company, use or disclose to any
person or entity, any confidential or secret information with respect to the
business or affairs of the Company, or any of its affiliates, including any
information concerning customers or prospective customers of the Company or its
affiliates, unless such information becomes generally available to the public
(and only after it becomes so available). Consultant agrees that all
confidential and other information, data, and products, including software and
technical systems, and other property prepared, compiled or developed by
Consultant while retained by the Company hereunder shall be the property of the
Company. All files and records relating to the Company in Consultant's
possession shall be the property of the Company and shall be returned to the
Company upon termination of Consultant's engagement hereunder.
9. Equitable Relief. Consultant acknowledges and agrees that the
restrictions contained in Sections 7 and 8 of this Agreement are reasonable and
necessary to protect the legitimate business interests of the Company.
Consultant further acknowledges and agrees that any breach of any provision of
Section 7 or 8 hereof will cause immediate and irreparable injury to the
Company, and that the Company shall be entitled to injunctive relief to prevent
any actual or threatened such breach. This Section 9 shall not be construed in
such a manner as to prevent the Company from pursuing any other remedies
4
in law or equity to which it may be entitled as the result of any such actual
or threatened breach.
10. Notices. All notices, consents, approvals, requests, instructions
and other communications required by or related to this Agreement shall be in
writing and shall be delivered personally or shall be sent by registered or
certified mail, return receipt requested, or by telex or facsimile transmission,
to the receiving party at the following address and communication numbers:
If to the Company: Securacom, Incorporated
00 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Consultant: Xxxx X. Xxxxxx, III
0000 Xxxx Xxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax:
11. Assignment. Neither party may assign its rights or obligations
hereunder without the prior written consent of the other party hereto.
12. Miscellaneous. (a) This Agreement sets forth the full and complete
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes any prior agreement, oral or written, between the parties
hereto with respect to the subject matter hereof.
(b) This Agreement may be amended or supplemented at any time only by
written instrument executed by both the Company and the Consultant.
(c) Each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by applicable law. Should any term
or provision of this Agreement be held invalid, illegal or unenforceable, the
remainder of this Agreement, including the application of such term to the
extent not invalid, illegal or unenforceable, shall not be affected thereby, and
this Agreement shall be interpreted as if such term or provision, to the extent
invalid, illegal or unenforceable, did not exist.
(d) This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Delaware.
5
(e) In the event of any litigation between the parties in connection
with this Agreement, the unsuccessful party to such litigation shall pay to the
successful party all costs and expenses, including reasonable attorneys' fees,
which costs and expenses shall be included as part of any judgment rendered in
such litigation in addition to the other relief to which the successful party
may be entitled.
(f) No waiver of any provision of this Agreement by either party hereto
shall be effective unless executed in writing or constitute a waiver of any
other provision hereof.
(g) This Agreement may be executed and delivered, including execution
and delivery by facsimile transmission, in counterparts, each of which shall be
deemed an original and both of which together shall constitute one and the same
instrument.
(h) This Agreement shall inure to the benefit of and be binding upon
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees of the parties hereto.
IN WITNESS WHEREOF, the Company and the Consultant have executed this
Agreement on the dates set forth opposite their respective signatures below.
Securacom, Incorporated
By:
Date Xxxxxx X. Xxxxxx
President
Date Xxxx X. Xxxxxx, III
6
