1
CONSULTING AGREEMENT
THIS AGREEMENT dated as of this 10th day of October, 1995, by and
between MASADA SECURITY, INC., a Delaware corporation ("Masada") and XXXXX X.
XXXXXXX, an individual residing in the State of Louisiana ("Xxxxxxx").
WITNESSETH
WHEREAS, Masada desires to engage Xxxxxxx as a consultant to the
Company on the terms and conditions as hereinafter set forth; and
WHEREAS, Xxxxxxx desires to accept such engagement with Masada on the
terms and conditions hereafter set forth;
NOW, THEREFORE, the parties do hereby mutually agree as follows:
1. Consultation Services. Masada hereby engages Xxxxxxx to
perform and furnish such services to Masada relating to (i) the assimilation of
security alarm monitoring accounts into Masada's monitoring and accounting
systems; (ii) any ongoing service-related issues with respect to specific
security alarm monitoring accounts previously owned by Lafayette Security and
Electronics Systems, Inc. as may be periodically requested from time to time by
Masada; (iii) remote assistance with computer programming as relates to the
alarm panels; and (iv) remote troubleshooting technical service problems with
the alarm panels; provided, however that Xxxxxxx shall not be required to
perform any physical, manual labor.
2. Term of Agreement. This Agreement will begin on the date
hereof which shall be the later of: (i) the Closing Date of the transaction
between Masada and Lafayette Security and Electronics Systems, Inc. pursuant to
the Asset Purchase Agreement dated September 11, 1995; or (ii) the date the
Alarm Accounts (as defined in the Asset Purchase Agreement) and the
Contracts-in-Process (as defined in the Asset Purchase Agreement) have been
fully transferred to Masada's central monitoring station located in Birmingham,
Alabama and continue for a period of one year.
3. Time Devoted by Xxxxxxx. It is anticipated that Xxxxxxx will
be available when needed in fulfilling his obligations under this contract. The
particular amount of time may vary from day to day or week to week but is
expected to average on a yearly basis approximately 10 hours per week during
normal business hours but shall not exceed 30 hours in any one week (except for
the first week of this Agreement in which the hours shall not exceed 40 hours).
If Xxxxxxx is required to work more than 520 hours in the one year period,
Masada agrees to pay Xxxxxxx additional compensation, other than as set forth
in Section 4, at the rate of $30 per hour for each hour in excess of 520 hours;
provided, however, that for purposes of computing hours worked by Xxxxxxx,
pursuant to this Agreement, Xxxxxxx must be requested by Masada. Any time
spent by Xxxxxxx in trying to preserve the Escrow Amount (as defined in the
Asset
2
Purchase Agreement) shall not be taken into account in determining hours worked
pursuant to this Agreement.
4. Payment to Xxxxxxx. Masada will pay Xxxxxxx $43,471.25. The
payments to Xxxxxxx will be made in 12 equal installments which will be paid
monthly beginning on the date of this Agreement and continuing for the next 11
consecutive months.
5. Covenants of Xxxxxxx. Xxxxxxx hereby covenants and agrees
that, during the term of this Agreement, he will:
(a) Devote time, energy, skill, attention and effort to
the performance of his services as itemized in Paragraph 1 above; and
(b) Use his best efforts to maintain for the benefit of
Masada the quality and number of security monitoring accounts which were sold
by Lafayette Security and Electronics Systems, Inc. to Masada pursuant to an
Asset Purchase Agreement dated September 11, 1995 and to refrain from making
any negative oral or written statements or drawings concerning Masada and
Masada's business and employees.
6. Non-Disclosure and Non-Use of Confidential Information. In
consideration of the compensation to be paid to Xxxxxxx by Masada pursuant to
the terms of this Agreement, Xxxxxxx warrants and agrees that:
(a) All notes, memoranda, and records made by Xxxxxxx, or
to which he may have or have had access in connection with his engagement
hereunder, and all property, papers and documents of any nature whatsoever,
together with all copies of reproductions of any of the foregoing, are the
exclusive, confidential property of Masada, and that, upon termination of his
services hereunder, whether voluntary or involuntary, Xxxxxxx will promptly
deliver to or place in the possession of Masada, all such notes, memoranda,
records, property, papers, and documents; and
(b) Xxxxxxx shall not disclose or make available to
others, or use outside of his employment with Masada, directly or indirectly,
either during such employment or at any time thereafter, any records, data,
information, processes, plans, designs, drawings or compositions of Masada to
which Xxxxxxx may have or has had access, or of which Xxxxxxx has acquired or
may acquire knowledge, or which Xxxxxxx may have prepared by reason of his
services rendered hereunder.
7. Severability. Xxxxxxx and Masada agree that the covenants and
agreements contained in Sections 5 and 6 of this Agreement, or any of the
paragraphs of those Sections, are severable and separate and the
unenforceability of any specific covenant therein shall not affect the validity
of any other covenant set forth therein.
2
3
8. Waiver of Breach. The waiver by either party of any term or
provision or of any breach of any provision of this Agreement by the other
shall not operate or be construed as a waiver of any other term, provision or
subsequent breach nor shall any such waiver be deemed or construed as a
continuing waiver of any such term, provision or breach. The failure of either
party to require strict performance of any provision shall not diminish such
party's right thereafter to require strict performances of any provision.
9. Headings. Section headings herein are for convenience only
and shall in no case be considered in construing this Agreement.
10. Entire Agreement, Etc. This Agreement embodies the entire
agreement of the parties hereto relating to the subject matter hereof. No
amendment or modification of this Agreement shall be valid or binding upon
Masada unless made in writing, and signed by a duly authorized officer of
Masada or upon Xxxxxxx unless made in writing and signed by him.
11. Independent Contractor. Both Masada and Xxxxxxx agree that
Xxxxxxx will act as independent contractors in the performance of his services
hereunder. Accordingly, Xxxxxxx will be responsible for payment of all taxes
including federal, state and local taxes arising out of his activities in
accordance with this Agreement, including by way of illustration but not
limitation, federal and state income taxes, social security taxes, unemployment
insurance taxes, and any other taxes or business license fees as may be
required.
12. Miscellaneous.
(a) This Agreement may not be amended, transferred or
assigned by any party hereto without the written consent of the other parties
hereto.
(b) This Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective heirs, executors,
administrators, successors and permitted assigns.
(c) This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument.
(d) This Agreement shall be governed and interpreted in
accordance with the laws of the State of Louisiana.
3
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
MASADA SECURITY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Its: Vice President of Acquisitions
/s/ Xxxxx Xxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxx
4