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EXHIBIT 10.2
SECURITY ASSOCIATES INTERNATIONAL, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 27th day of June, 2001, by and between SECURITY
ASSOCIATES INTERNATIONAL, INC., a Delaware corporation (the "Company"), and
Xxxxx X. Xxxxxxxx ("Employee").
RECITALS
A. The Company desires to employ Employee to provide services for the
benefit of the Company and its subsidiaries and affiliates and Employee desires
to accept such employment with the Company.
B. The Company and Employee acknowledge that Employee will be a member
of the management of the Company and as such will participate in implementation
of the Company's business plan.
C. In the course of employment with the Company, Employee will have
access to certain confidential information which relates to or will relate to
the business of the Company.
D. The Company desires that any such information not be disclosed to
other parties or otherwise used for unauthorized purposes.
NOW, THEREFORE, in consideration of the parties' mutual promises and
covenants contained herein and in consideration of the Recitals, which are
incorporated herein and made a part hereof, the parties agree as follows:
1. APPOINTMENT AND DUTIES. Subject to the terms and conditions of this
Agreement, the Company hereby agrees to employ Employee and Employee hereby
agrees to accept employment with the Company as Executive Vice President of
Technology and Strategic Development. Employee shall perform such duties on
behalf of the Company as directed by the Officers and/or Board of Directors of
the Company (the "Board") commensurate with the position of an Executive Vice
President of Technology and Strategic Development.
2. EMPLOYMENT TERM. The term of employment of Employee shall be twelve
(12) months and thereafter month to month, provided that the Company shall give
ninety (90) days notice to Employee before any termination that is not for
Cause, as defined herein, shall be effective. (the period during which Employee
is employed is referred to herein as the "Term").
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3. COMPENSATION.
a) Base Salary. During the Term, the Company shall pay Employee a
base salary ("Base Salary") at the equivalent rate of One Hundred
Seventy Five Thousand and 00/100 Dollars ($175,000) per year
payable in equal installments on normal paydays of salaried
employees which shall not be less frequently than monthly.
Additionally, Employee shall also receive warrants to purchase
300,000 shares of the Company's common stock at a purchase price of
$2.50 per share, on the terms set forth in the Company's Stock
Option Plan and the Option Agreement. The warrants will vest 1/3 in
six (6) months, 1/3 in eighteen (18) months and the remaining 1/3
in thirty (30) months.
b) Vacation. Employee shall be entitled to vacation time during
each year of employment in accordance with the Company's standard
vacation policy.
c) Benefits. Employee shall be entitled to receive such medical and
dental benefits, life and disability insurance, and other insurance
and benefits which are generally provided to other employees of
similar level.
4. CONSTRUCTIVE TERMINATION. Should any of the following events occur:
i) a significant and material diminution in duties for the Company, other than
that resulting from obligations related to the effort regarding
XxxxxxxxXxxxxxx.xxx, Inc. as set forth in that certain Asset Purchase Agreement
among XxxxxxxxXxxxxxx.xxx and the Company et al. of even date herewith, and
other than as a result of Employee being directed to work for a subsidiary or
affiliate of the Company, ii) a reduction or non-payment of salary, iii) change
in title, iv) relocation of Employee's place of employment away from the New
York area without his consent, or v) failure of a successor (by purchase, merger
or otherwise) to assume this Employment Agreement; any such occurrence shall be
deemed to be a termination by the Company of the employment and Employee shall
be entitled to payment of his salary for the remainder of the then current Term
in accordance with Section 2, to be paid in equal installments on normal paydays
of salaried employees as if such termination had not occurred for the remainder
of the then current Term, as liquidated damages and not as a penalty, which
payment shall be the exclusive remedy. If such a termination occurs Employee
may, at his option, decline the payment of such liquidated damages, in which
case Company shall release Employee from the provisions of Section 6 below.
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5. TERMINATION. Notwithstanding anything to the contrary in this
Agreement, the Company may at any time terminate Employee's employment and all
of Employee's rights hereunder if said termination constitutes a Termination for
Cause or if Employee is subject to a Long-Term Disability, as defined herein.
a) Termination for Cause. For the purposes of this Agreement,
"Termination for Cause" or "Cause" shall mean:
(i) commission of a fraudulent or dishonest act by Employee in
connection with employment by the Company, as determined
reasonably and in good faith by the Company;
(ii) failure to comply with the provisions of Section 6, 7 and
9 hereof and after reasonable notice to cure such
failures;
(iii) the commission and conviction of a felony or any crime of
moral turpitude; or substance abuse;
(iv) any gross dereliction of duty, chronic insubordination,
refusal to perform the duties and responsibilities
reasonably assigned by the Officers of the Company or
malfeasance by Employee in the performance of duties, as
determined reasonably and in good faith by the Company and
after reasonable notice to cure such acts or omissions; or
(v) any other material breach of this Agreement not cured
within fifteen (15) days of receipt of written notice
thereof from the Company
b) Long-Term Disability. For the purposes of this Agreement,
"Long-Term Disability" shall mean Employee's incapacity by reason
of physical or mental impairment to perform duties hereunder for a
period greater than three (3) consecutive months or incapacity to
perform duties hereunder for a total of six (6) months within any
twelve (12) month period if such condition is reasonably expected,
based upon the medical opinion of qualified professionals, to
continue indefinitely.
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6. NON-COMPETITION. Employee covenants and agrees that he or she will
not, except with the express approval of the Company's Board of Directors during
the Term of this Agreement and for such period after termination for which
Employee receives any payments in regard to the liquidated damages set forth in
Section 4 from the Company, directly or indirectly establish, own, manage, join,
invest in, finance, control, participate in, provide consulting or advisory
services to, accept employment with or be connected with any entity that
markets, sells or provides services similar to those offered by the Company
during the Term of this Agreement. Employee further agrees during the Term of
this Agreement and for such period after termination for which Employee receives
any payments in regard to the liquidated damages set forth in Section 4 from the
Company, not to solicit any employee or customer of the Company and Employee
agrees to not in any way interfere with any existing or potential contractual
relationship that the Company has or reasonably has the prospect of entering
into with any third party.
7. NON-DISCLOSURE. Employee agrees that, except as directed by the
Company, he or she will not at any time during or after the term of this
Agreement disclose or grant access to Confidential Information (as defined
below) to any person. Employee further agrees to use Confidential Information
solely for the purpose of performing duties with the Company and further agrees
not to use Confidential Information for his or her own private use or commercial
purposes or in any way detrimental to the Company. For the purposes of this
Agreement, "Confidential Information" shall mean all confidential or proprietary
information relating to the Company and any subsidiaries or affiliates of the
Company, including but not limited to: (a) matters of a business nature such as,
but not limited to, information about technical information or know-how, costs,
purchasing, profits, services, sales, markets, lists of customers, investors or
potential investors or other financial, investment, marketing or sales
information; (b) matters pertaining to future developments such as, but not
limited to, new services or markets, innovative transaction structures, research
and development, or future investment, marketing, or business activities; (c)
any other confidential information pertaining to the affairs or interests of the
Company or any of the foregoing; and (d) any information or materials derived
from Confidential Information. All such materials or information shall be deemed
Confidential Information whether or not marked "Confidential." Confidential
information shall not include information which: (i) is or becomes part of the
public domain other than as a result of disclosure by Employee; (ii) becomes
available to Employee on a non-confidential basis from a source other than the
Company, provided that source is not bound with respect to that information by a
confidentiality agreement with the Company or is otherwise prohibited from
transmitting that information by a contractual, legal or other obligation; (iii)
was in Employees possession on a non-confidential basis prior to disclosure of
the same by the Company.
8. REASONABLENESS OF RESTRICTIONS. Employee has carefully read and
considered the provisions of Section 6 and 7 of this Agreement and, having done
so,
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agrees that the restrictions set forth in these Sections are fair and reasonable
in scope and content and are necessary for the protection of the legitimate
business interests of the Company and its officers, directors and other
employees.
9. RETURN OF MATERIALS. Employee agrees, upon termination of
employment for any reason, to return and surrender immediately to the Company
all Confidential Information in the Employees possession including but not
limited to records, books, notes, memoranda, recordings, computer printouts,
disks, and photocopies. Employee hereby acknowledges that all such materials are
the exclusive property of the Company.
10. REMEDIES FOR BREACH.
a) Injunctive Relief. Employee acknowledges that breach of the
provisions of Sections 6, 7 and 9 of this Agreement could cause
irreparable injury to the Company which by its nature would be
continuing and substantial and for which no adequate remedy at law
exists. Accordingly, in the event of an actual or threatened breach
of any of the covenants set forth in Sections 6, 7 and 9 of this
Agreement, both parties agree that the Company shall be entitled to
equitable relief without the necessity of posting bond, including
without limitation, entry of temporary, preliminary, and permanent
injunctions and order of specific performance. Such remedies shall,
however, be cumulative and not exclusive and shall be in addition
to any other legal or equitable remedy to which the Company may be
entitled.
b) Accounting for Profits. Employee covenants and agrees that if he
or she shall violate any of the covenants or agreements under
Section 6, the Company shall be entitled to an accounting and
repayment of all profits, compensation, commissions, remuneration,
or other benefits that Employee directly or indirectly has realized
and/or may realize as a result of, growing out of, or in connection
with, any such violation. Such a remedy shall, however, be
cumulative and not exclusive and shall be in addition to any
injunctive relief or other legal or equitable remedy to which the
Company is or may be entitled.
11. ATTORNEYS' FEES. In any judgement rendered in favor of a party to
this Agreement in connection with a breach or threatened breach of this
Agreement by the other party hereto, the prevailing party shall be entitled to
recover its reasonable litigation expenses, including attorneys' fees.
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12. NOTICE. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing if sent by mail, postage prepaid,
addressed to the party for whom intended at the following address (or such other
address as a party may designate by written notice to the other party):
TO COMPANY:
Security Associates International, Inc.
0000 X. Xxxxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: President
If to Employee, at Employee's home address as then reflected on the Company's
books and records. Any such notice shall be deemed effective on the third (3rd)
day after its mailing.
13. SEVERABILITY. In the event that any provision or part thereof in
this Agreement shall be finally determined by any court of proper jurisdiction
to be invalid or unenforceable as set forth herein, and if such determination is
upheld on appeal or no appeal from such determination is taken, then the parties
hereto agree that they shall amend and modify such provision or part thereof to
restrict the duration, area, scope or other terms to the minimum extent required
to make the provision or part thereof valid and enforceable and further hereby
consent to the entry of an order so restricting said provision or part thereof.
If any provision or part thereof in this Agreement shall be held invalid, the
remainder of the Agreement shall continue in full force and effect.
14. TRANSFER. This Agreement may not be assigned or transferred by
Employee without the Company's prior written approval.
15. MISCELLANEOUS.
a) Controlling Law. This Agreement shall be governed by and
interpreted, construed and enforced in accordance with the laws of
the State of Illinois.
b) Jurisdiction. The parties agree that the state and federal
courts located in County of Xxxx, Illinois are proper and shall be
the only forums for the judicial resolution of any disputes between
the parties that may arise hereunder. No party shall attempt to
change venue from any such court to a court in any other
jurisdiction.
c) Entire Agreement. This instrument contains the entire agreement
of the parties and supersedes any other agreement with respect to
its subject matter and may not be
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changed orally but only by an agreement in writing signed by the
parties hereto.
d) Failure to Enforce. The failure of either party to enforce any
of the provisions of this Agreement shall not be construed as a
waiver of such provisions. Further, any express waiver of a breach
of any provision hereunder by any party shall not constitute a
waiver of any prior or subsequent breach or of such party's right
to fully enforce thereafter each and every provision of this
Agreement.
WHEREFORE, the parties have executed this Agreement as of the date
and year first above written.
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
COMPANY:
SECURITY ASSOCIATES INTERNATIONAL, INC.
BY: /s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
ITS: PRESIDENT
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