Employment Agreement - Securacom Inc. and Ronald C. Thomas
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT 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 Ronald C. Thomas
(the "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to engage the Executive to serve as
President and Chief Executive Officer of the Company; and
WHEREAS, the Executive desires to be employed by the Company in such
capacity and to assume the duties and responsibilities set forth in this
Agreement;
THEREFORE, in consideration of the premises, and the mutual covenants,
terms and conditions contained herein, the parties hereto agree as follows:
1. Employment. Subject to the terms and conditions set forth in
this Agreement, the Company hereby employs the Executive and the Executive
hereby accepts such employment.
2. Duties and Responsibilities. (a) The Executive shall perform all the
duties and accept all of the responsibilities of the position of President and
Chief Executive Officer of the Company as may be described in the Bylaws of the
Company or assigned to him from time to time by the Board of Directors of the
Company. The Executive shall fulfill such duties and responsibilities
diligently, in good faith and in accordance with applicable laws, and shall have
such power and authority as is necessary and appropriate in order to enable him
to do so.
(b) The Executive shall devote his full time, attention and energies to
the business of the Company and shall use his best efforts to promote the
business interests of the Company. The Executive shall not work either on a
part-time or independent contractor basis for any other business or enterprise
during the term of this Agreement without the prior written consent of the Board
of Directors of the Company.
(c) The Executive's principal place of work shall be the Company's
office in Woodcliff Lake, New Jersey. He shall spend such time at such office
and undertake such business-related travel as is necessary or appropriate to
enable him to perform his duties and responsibilities hereunder.
3. Compensation. (a) In consideration of the services to be
rendered by the Executive hereunder, the Company shall pay to the Executive an
annual salary of $165,000. Salary shall be payable in installments at such
times as the Company
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customarily pays its senior management employees, and shall be subject to
withholding as required by law or agreed to by the Executive.
(b) The Executive shall be eligible to receive periodic salary
increases, awards of stock options, and bonuses for each year or portion thereof
during which the Executive is employed hereunder. The amount of salary
increases, 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 Executive for all reasonable and
necessary business expenses incurred in connection with the performance by the
Executive of his duties and responsibilities hereunder. Such expenses shall
include, in accordance with policies established by the Company, travel and
entertainment expenses and reimbursement for mileage when the Executive's
personal automobile is used for business purposes.
5. Benefits. (a) The Executive shall receive the employee
benefits, including health care, life insurance and pension benefits, generally
provided by the Company to senior management employees.
(b) The Executive shall be entitled to paid vacation and sick leave in
accordance with the policies established by the Company generally applicable to
senior management employees.
6. 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 6(d) hereof)
for "Cause" upon written notice to the Executive, 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 Executive (other than by
reason of the death or disability of the Executive), including misappropriation
of funds of the Company, willful and deliberate malfeasance, gross negligence,
or any act seriously impeding the Executive's ability to represent the Company.
(c) If this Agreement is terminated for Cause by the Company or is
terminated by the Executive, the Executive shall be entitled to receive any
unpaid salary accrued to the date of termination plus any unpaid expense
reimbursement, reduced by any claim the Company may have against the Executive
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 Executive, the Company shall
pay the Executive his
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salary at the annual rate in effect at the date of termination through the date
of expiration of the term of this Agreement, plus any bonus or portion thereof
granted by the Board of Directors and earned by the Executive but remaining
unpaid on the date of termination, plus any expense reimbursements due to the
Executive 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 Executive an additional amount equal to
two times the Executive's salary 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 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 L. P. II 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 Executive's
duties and responsibilities, (ii) a reduction in annual salary paid to the
Executive of ten percent or more of the highest annual salary previously paid to
the Executive, (iii) a change in the location of Executive's office to a place
that is more than fifty (50) miles from the location of such office on the date
hereof, or (iv) 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 Executive that any amounts
payable by the Company to the Executive 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
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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 Executive. If the Executive dies during the
term of this Agreement, the Company shall pay to the Executive's estate any
unpaid salary, any bonus or portion thereof granted by the Board of Directors
and earned by the Executive but remaining unpaid, and any unpaid expense
reimbursement due hereunder, in each case as of the date of the Executive's
death.
In the event that the Executive becomes physically or mentally disabled
during the term of this Agreement, the Executive shall receive his salary
through the date on which he is first eligible to receive payment of disability
benefits in lieu of salary under the Company's employee benefit plans as then in
effect.
7. Non-competition. During the term of this Agreement and for a period
of one year thereafter, the Executive 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 Executive 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 Executive shall not, during the period of his
employment 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). Executive agrees that all confidential
and other information, data, and products, including software and technical
systems, and other property prepared, compiled or developed by Executive while
employed by the Company hereunder shall be the property of the Company. All
files and records relating to the Company in Executive's possession shall be the
property of the Company and shall be returned to the Company upon termination of
employment hereunder.
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9. Equitable Relief. Executive 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. Executive
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 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
50 Tice Boulevard
Woodcliff Lake, New Jersey 07675
Tel: (201) 930-9500
Fax: (201) 930-9007
If to the Executive: Ronald C. Thomas
23 Carey Arthur Drive
Wayne, New Jersey 07470
Tel: (201) 616-2094
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 Executive.
(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
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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.
(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 Executive have executed this
Agreement on the dates set forth opposite their respective signatures below.
Securacom, Incorporated
May 28, 1997 By: /s/ WIRT D. WALKER, III
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Date Wirt D. Walker, III
Chairman
May 28, 1997 /s/ RONALD C. THOMAS
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Date Ronald C. Thomas
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