EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 16th day of April, 2001 by and
between Protection One, Inc., a Delaware corporation (the "Company"), and
Richard Ginsburg ("Executive").
W I T N E S S E T H
WHEREAS, the Board (as defined in Section 1) has determined that it is
in the best interests of the Company and its stockholders to secure Executive's
services; and
WHEREAS, the Company also recognizes that the possibility of a change
in control could arise which may result in the distraction of Executive to the
detriment of the Company and its shareholders, and it is important that
Executive be able to advise the Board whether a proposed change in control would
be in the best interests of the Company and its shareholders and to take action
regarding such proposal as the Board directs, without being influenced by the
uncertainties of Executive's own situation; and
WHEREAS, the Board has authorized the Company to enter into this
Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, the Company and Executive hereby
agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Cause" means (i) the willful and continued failure of
Executive to perform substantially his duties with the Company (other
than any such failure resulting from Executive's incapacity due to
physical or mental illness or any such failure subsequent to Executive
being delivered a Notice of Termination without Cause by the Company or
Executive delivering a Notice of Termination for Good Reason to the
Company) that is not remedied within 30 days after a written de-
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mand for substantial performance is delivered to Executive by the
Chairman of the Board which specifically identifies the manner in which
Executive has not substantially performed Executive's duties, or (ii)
the willful engaging by Executive in illegal conduct which is
demonstrably and materially injurious to the Company. For purposes of
this paragraph (b), no act or failure to act by Executive shall be
considered "willful" unless done or omitted to be done by Executive in
bad faith and without reasonable belief that Executive's action or
omission was in, or not opposed to, the best interests of the Company.
(c) "Change in Control" means the occurrence of any one of the
following events:
(i) individuals who, on April 16, 2001, constitute
the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any
person becoming a director subsequent to April 16, 2001, whose
election or nomination for election was approved by a vote of
at least two-thirds of the Incumbent Directors then on the
Board (either by a specific vote or by approval of the proxy
statement of the Company in which such person is named as a
nominee for director, without written objection to such
nomination) shall be an Incumbent Director; PROVIDED, HOWEVER,
that no individual initially elected or nominated as a
director of the Company as a result of an actual or threatened
election contest with respect to directors or as a result of
any other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board
shall be deemed to be an Incumbent Director; PROVIDED,
FURTHER, that if any individual is appointed to the Board with
the consent of Westar at such time as Westar is the direct or
indirect beneficial owner or has direct or indirect control
over the voting of 40% or more of the Company voting
securities, that individual shall be deemed to be an Incumbent
Director;
(ii) any "person" (as such term is defined
in Section 3(a)(9) of the Securities Exchange Act of 1934 (the
"Exchange Act") and
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as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act)
is or becomes a "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of the Company representing more than 40% of the combined
voting power of the Company's then outstanding securities
eligible to vote for the election of the Board (the "Company
Voting Securities"); PROVIDED, HOWEVER, that the event
described in this paragraph (ii) shall not be deemed to be a
Change in Control by virtue of any of the following
acquisitions: (A) by the Company, Westar, or any of their
subsidiaries, (B) by any employee benefit plan (or related
trust) sponsored or maintained by the Company, Westar, or any
of their subsidiaries, (C) by any underwriter temporarily
holding securities pursuant to an offering of such securities,
(D) pursuant to a Non-Qualifying Transaction (as defined in
paragraph (iii)), (E) pursuant to any acquisition by Executive
or any group of persons including Executive (or any entity
controlled by Executive or any group of persons including
Executive), or (F) any event in which Westar continues to be
directly or indirectly the beneficial owner of a greater
number of shares of the Company than that held by any person
as a result of the event described in this paragraph (ii) or
has the right to direct the vote of a greater number of voting
securities for directors (or the equivalent) of the Company
than any person as a result of the event described in this
paragraph (ii);
(iii) the consummation of a merger,
consolidation, statutory share exchange or similar form of
corporate transaction involving the Company or Protection One
Alarm Monitoring, Inc. (a "Business Combination"), unless
immediately following such Business Combination: (A) more than
40% of the total voting power of (x) the corporation resulting
from such Business Combination (the "Surviving Corporation"),
or (y) if applicable, the ultimate parent corporation that
directly or indirectly has beneficial ownership of 100% of the
voting securities eligible to elect directors (or the
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equivalent) of the Surviving Corporation (the "Parent
Corporation"), is represented by Company Voting Securities
that were outstanding immediately prior to such Business
Combination (or, if applicable, is represented by shares into
which such Company Voting Securities were converted pursuant
to such Business Combination), and such voting power among the
holders thereof is in substantially the same proportion as the
voting power of such Company Voting Securities among the
holders thereof immediately prior to the Business Combination;
(B) no person (other than Westar or any employee benefit plan
(or related trust) sponsored or maintained by Westar, the
Surviving Corporation or the Parent Corporation) is or becomes
the beneficial owner, directly or indirectly, of more than 40%
or more of the total voting power of the outstanding voting
securities eligible to elect directors (or the equivalent) of
the Parent Corporation (or, if there is no Parent Corporation,
the Surviving Corporation); and (C) at least a majority of the
members of the board of directors of the Parent Corporation
(or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business
Combination were Incumbent Directors at the time of the
Board's approval of the execution of the initial agreement
providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in
(A), (B) and (C) above shall be deemed to be a "Non-Qualifying
Transaction");
(iv) the stockholders of the Company approve
a plan of complete liquidation or dissolution of the Company
or consummation of a sale of all or substantially all of the
Company's assets; or
(v) a "Change in Control" as that term is
defined in this Agreement occurs at Westar Industries, Inc.
(treating Westar Industries, Inc. as if it were the "Company"
for purposes of such definition), provided that any spin-off,
split-off or other distribution of
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Westar Industries, Inc. shall not be a Change in Control.
(d) "Date of Termination" means (i) if Executive's
employment is to be terminated for Disability, 30 days after Notice of
Termination is given (provided that Executive shall not have returned
to the performance of Executive's duties on a full-time basis during
such 30 day period); (ii) if Executive's employment is to be terminated
by the Company for Cause or by Executive for Good Reason, the date
specified in the Notice of Termination; (iii) if Executive's employment
is to be terminated by the Company for any reason other than Cause, the
date specified in the Notice of Termination, which shall be 90 days
after the Notice of Termination is given, unless an earlier date has
been expressly agreed to by Executive in writing; (iv) if Executive's
employment terminates by reason of death, the date of death of
Executive; (v) if Executive's employment is terminated by Executive in
a Non-Qualifying Termination, the date specified in Executive's Notice
of Termination, but not more than 30 days after the Notice of
Termination is given, unless expressly agreed to by the Company in
writing; or (vi) in the event of a Change in Control, the date of the
Change in Control.
(e) "Disability" means termination of Executive's
employment by the Company due to Executive's absence from Executive's
duties with the Company on a full-time basis for at least one hundred
eighty (180)consecutive days as a result of Executive's incapacity due
to physical or mental illness, unless within 30 days after Notice of
Termination is given to Executive following such absence Executive
shall have returned to the full-time performance of Executive's duties.
(f) "Good Reason" shall mean termination based on any
of the following events:
(i) any change in the duties or
responsibilities (including reporting responsibilities) of
Executive that is inconsistent in any material and adverse
respect (which may be cumulative) with Executive's
position(s), duties, responsibilities or status with the
Company (including any adverse diminution of such duties or
responsibilities), PROVIDED, HOWEVER,
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that Good Reason shall not be deemed to occur upon a change in
duties or responsibilities (other than reporting
responsibilities) that is solely and directly due to the
Company no longer being a publicly traded entity as a result
of a purchase of the Company's publicly traded securities by
Westar if no other event set forth in this paragraph (f) has
occurred;
(ii) the failure to reappoint or reelect
Executive to any position held by Executive without
Executive's consent;
(iii) a reduction by the Company in
Executive's base salary;
(iv) the appointment by the Board of a Chief
Operating Officer, Chief Financial Officer or President of the
Company over Executive's written objection; or
(v) the Company's ceasing to be a publicly
traded entity (other than as a result of a purchase of the
Company's publicly traded shares by Westar).
Executive must provide notice of termination of employment
within one hundred eighty (180) days following Executive's
knowledge of an event or facts constituting Good Reason (or
the last of such events or facts if cumulative) or such event
or facts shall not constitute Good Reason under this
Agreement.
(g) "Non-Qualifying Termination" means a termination
of Executive's employment prior to the end of the Term of this
Agreement under any circumstances not qualifying as a Qualifying
Termination, including without limitation any termination by the
Company for Cause, any termination by Executive without Good Reason or
for no reason at all or any termination on account of death, Disability
or Retirement.
(h) "Notice of Termination" means a written notice of
termination of employment given by one party to the other party
pursuant to Section 15(b).
(i) "Qualifying Termination" means a termination of
Executive's employment prior to the end of
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the Term of this Agreement (i) by the Company other than for Cause;
(ii) by Executive for Good Reason; or (iii) upon the date of a Change
in Control. Termination of Executive's employment on account of death,
Disability or Retirement shall not be treated as a Qualifying
Termination.
(j) "Retirement" means Executive's termination of his
employment on or after his attainment of age 65.
(k) "Subsidiary" means any corporation or other
entity in which the Company has a direct or indirect ownership interest
of 50% or more of the total combined voting power of the then
outstanding securities or interests of such corporation or other entity
entitled to vote generally in the election of directors or in which the
Company has the right to receive 50% or more of the distribution or
profits or 50% or more of the assets upon liquidation or dissolution.
(l) "Westar" means Westar Industries, Inc., a Kansas
corporation, or any parent entity, or any of their majority owned
subsidiaries.
2. EMPLOYMENT AND DUTIES.
(a) TERM OF EMPLOYMENT. The Company agrees to employ
Executive, and Executive agrees to enter into employment with the
Company, in accordance with the terms and provisions of this Agreement,
for the Term of this Agreement, unless such employment is sooner
terminated by the Company or Executive in a Qualifying Termination or
Non-Qualifying Termination. In the event that there is a Change in
Control during the Term of this Agreement, Executive's employment under
this Agreement shall terminate on the date of such Change in Control.
Upon termination of Executive's employment (regardless of whether such
termination constitutes a Qualifying or Non-Qualifying Termination),
Executive shall be relieved of any obligation to continue to perform
the duties described in Section 2(b) effective as of the Date of
Termination. The termination of the employment relationship by either
party for any reason or for no reason at all shall not constitute a
breach of this Agreement, but certain obligations and benefits shall
survive such termination of employment as set forth in Section 18.
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(b) DUTIES. During the period of Executive's
employment under this Agreement, Executive shall serve as Chief
Executive Officer of the Company. Executive shall devote Executive's
full business time and attention to the affairs of the Company and his
duties as its Chief Executive Officer. Executive shall have such duties
as are appropriate to Executive's position as Chief Executive Officer,
and shall have such authority as required to enable Executive to
perform these duties. Consistent with the foregoing, Executive shall
comply with all reasonable instructions of the Board of Directors of
the Company. Executive shall report directly to the Chairman of the
Board of Directors. Executive may continue to reside in the State of
Florida or in any location that he wishes as long as he is able to
effectively carry out the duties contemplated by this Agreement. During
the period of Executive's employment under this Agreement, Executive
shall serve as a member of the Board of Directors of the Company. In
addition, during the period of Executive's employment under this
Agreement, Executive shall serve as an officer and/or director of a
Subsidiary or Subsidiaries if requested to do so by the Board.
3. TERM OF AGREEMENT. This Agreement shall continue for a
period of three (3) years from the date of this Agreement (the "Term");
provided, however, that Executive's employment under this Agreement (and his
obligation to perform services) may terminate prior to the expiration of the
Term as set forth in this Agreement and certain obligations and benefits shall
survive the expiration of the Term as set forth in Section 18.
4. BASE SALARY AND BENEFITS.
(a) BASE SALARY. During the period of Executive's
employment under this Agreement, the Company shall pay Executive an
annual base salary at an annual rate equal to no less than $325,000,
which shall be reviewed annually by the Compensation Committee of the
Board for the purpose of considering increases thereof. Executive's
base salary shall be paid in accordance with the standard practices for
other senior corporate executives of the Company.
(b) BONUSES. Beginning with calendar year 2001,
Executive shall be eligible to receive annually or otherwise any bonus
awards, whether payable in cash,
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shares of common stock of the Company or otherwise, which the Company,
the Compensation Committee of the Board or such other authorized
committee of the Board determines to award or grant.
(c) STOCK OPTIONS. There shall be granted to
Executive on the date of this Agreement, pursuant to action of the
Compensation Committee of the Board, an option under the Company's 1997
Long-Term Incentive Plan (the "LTIP") to purchase 875,000 shares of the
Company's common stock at an exercise price per share equal to the
average of the closing prices of the Company's common stock as quoted
on the New York Stock Exchange over the period of 20 trading days
ending on the grant date. Such option shall become exercisable as
follows: (i) 1/3 on the first anniversary of the date of grant if
Executive is employed by the Company on that anniversary date, (ii) an
additional 1/3 on the second anniversary of the date of grant if
Executive is employed by the Company on that anniversary date, and
(iii) the remaining 1/3 on the third anniversary of the date of grant
if Executive's employment has not terminated prior to the last day of
the Term of this Agreement, provided, however, that the exercisability
of such option shall be accelerated in the event of a Qualifying
Termination as described in Section 5(a)(iii) or in the event of an
acquisition of Company Voting Securities by Executive or any group of
persons including Executive (or any entity controlled by Executive or
any group of persons including Executive) that would have been a
"Change in Control" pursuant to Section 1(c)(ii) but for the exclusion
set forth in Section 1(c)(ii)(E). Such option shall have a term of 10
years from the date of grant, subject to earlier termination in the
event of termination of Executive's employment. The provisions of
Executive's option dealing with termination of employment shall be
those set forth in Sections. 1.5 through 1.8 of the form of option
agreement attached hereto as Exhibit A. In addition, the Compensation
Committee of the Board shall follow the recommendations of Executive in
making grants under the Plan of options to purchase 875,000 additional
shares of the Company's common stock to management employees of the
Company other than Executive during calendar years 2001 and 2002;
provided, however, that Executive may in his sole discretion decide not
to exercise his right to make such recommendations with respect to some
or all of these additional 875,000
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shares. Such options to management shall have terms comparable to
those applicable to the option to Executive described above (but based
on the actual grant date of such options to management rather than the
grant date of the option to Executive).
(d) BENEFIT PROGRAMS. During the period of
Executive's employment under this Agreement, Executive shall be
eligible to participate in all employee benefit plans and programs of
the Company from time to time in effect for the benefit of senior
executives of the Company (subject to meeting generally applicable
participation requirements under the applicable plan or program),
including, but not limited to, 401(k) plans, group life insurance,
hospitalization and surgical and major medical coverages, sick leave,
employee stock purchase plans, car allowances, vacations and holidays,
long-term disability, and such other benefits as are or may be made
available from time to time to senior executives of the Company. If
Executive elects not to be covered by the Company's medical plan by
reason of COBRA continuation coverage under a prior employer's medical
plan, the Company shall reimburse Executive for the lesser of: (i) the
amount payable by Executive for such COBRA continuation coverage or
(ii) the amount of the premiums that the Company would have paid (net
of any required employee contributions) for the benefits Executive
would have received under the Company's medical plan if Executive had
not elected not to be covered.
(e) BUSINESS EXPENSES AND PERQUISITES. Executive
shall be reimbursed for all reasonable expenses incurred by Executive
in connection with the conduct of the business of the Company, provided
Executive properly accounts therefor in accordance with the Company's
policies. The parties hereto acknowledge that Executive's employment
will entail substantial travel away from Executive's residence and that
Executive's reimbursable business expenses will include reasonable
travel expenses, including without limitation reasonable costs of air
travel (including use of American Airlines AAirpass or equivalent),
weekly travel to and from Florida, parking, rental cars, and hotel
accommodations incurred in travel to and from his residence and other
travel associated with the performance of his duties hereunder. During
the period of Executive's employment under this Agreement, Executive
shall also be
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entitled to such other perquisites as are customary for senior
executives of the Company.
(f) OFFICE AND SERVICES FURNISHED. During the period
of Executive's employment under this Agreement, the Company shall make
available to Executive office space at the Company's headquarters in
Topeka, Kansas (to the extent needed while he is at the Company's
headquarters), secretarial assistance and such other facilities and
services as shall be suitable to Executive's position and adequate for
the performance of Executive's duties hereunder. During the period of
Executive's employment under this Agreement, the Company shall install
and maintain, at its expense, a data circuit at the office of Guardian
International, Inc. in Hollywood, Florida for the use of Executive in
connection with the performance of his duties hereunder.
(g) TEMPORARY HOUSING, CAR. For a period of up to 6
months following the date of this Agreement, the Company will make
available to Executive temporary housing in Topeka, Kansas at the
Company's expense. Executive shall not be required to be in Topeka,
Kansas except as he may determine necessary for him to effectively
carry out the duties contemplated by this Agreement. In addition, the
Company will make available to Executive temporary use of a Company car
for periods while he is working in Topeka, Kansas.
5. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) QUALIFYING TERMINATION. If the employment of
Executive shall terminate pursuant to a Qualifying Termination, then:
(i) the Company shall provide to Executive
his base salary as described in Section 4(a) of this Agreement
for the balance of the Term of this Agreement at the times
such salary would have been payable if his employment had not
terminated;
(ii) the Company shall continue for the
balance of the Term of this Agreement to provide Executive
(and Executive's dependents, if applicable) with the same
level of medical, dental, and life insurance benefits upon
substantially the same terms and conditions as Ex-
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ecutive would have been entitled to receive if he had
continued in employment; PROVIDED, THAT, if Executive cannot
continue to participate in the Company plans providing such
benefits, the Company shall otherwise provide such benefits
on the same basis as if continued participation had been
permitted. Notwithstanding the foregoing, in the event
Executive becomes reemployed with another employer and becomes
eligible to receive benefits from such employer, the benefits
described herein shall be secondary to such benefits during
the period of Executive's eligibility, but only to the extent
that the Company reimburses Executive for any increased cost
and provides any additional benefits necessary to give
Executive the benefits provided hereunder; and
(iii) the stock options granted to Executive
pursuant to Section 4(c) shall become fully vested and
immediately exercisable.
(b) NON-QUALIFYING TERMINATION. If during the Term of
this Agreement the employment of Executive shall terminate in a
Non-Qualifying Termination, then the Company shall pay to Executive
within ten (10) days following the Date of Termination, a lump-sum cash
amount equal to the sum of (1) Executive's base salary through the Date
of Termination and (2) any accrued vacation pay and accumulated sick
leave, in each case to the extent not theretofore paid. The Company may
make such additional payments, and provide such additional benefits, to
Executive as the Company and Executive may agree in writing. Executive
shall not be in breach of this Agreement by reason of his terminating
employment in a Non-Qualifying Termination, provided that Executive
will remain subject to the obligations set forth in Sections 6, 7, 8
and 9.
6. NON-COMPETITION. Executive hereby acknowledges that the
services which he will perform for the Company are of a special and unique
nature, and that the Company would find it extremely difficult or impossible to
replace Executive. Accordingly, Executive agrees that, in consideration of this
Agreement and the payments to be received by him hereunder, from and after the
date hereof through the period during which Executive continues to be employed
by the Company and following termination of Executive's employment for any
reason until the
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later of (i) the second anniversary of such termination of employment or (ii)
the last day through which base salary is payable to Executive pursuant to
Section 5(a)(i) or 5(b), whichever is applicable (the "Non-Competition
Period"), Executive shall not, 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
Competitor (as hereinafter defined), except with the Company's prior written
consent. For purposes of this Agreement, the term "Competitor" shall mean ADT
Security Services, SecurityLink, Brinks Home Security, Inc., Honeywell Inc.
and their respective subsidiaries, affiliates and successors. Nothing in this
paragraph shall prohibit Executive 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. Notwithstanding anything which may be
to the contrary herein, (i) Executive shall not be required to cease
Participation in any business or organization which begins to compete with
the Company subsequent to the time when Executive commences such
Participation, provided that such business or organization began to compete
with the Company through no action, assistance, or plan of Executive, (ii)
Executive may continue to serve as a member of the Board of Directors of
Guardian International, Inc. and may continue to hold shares in Guardian
International, Inc., and (iii) following termination of Executive's
employment with the Company for any reason, none of the restrictions in this
Section 6 shall apply to Executive's Participation in any capacity with
Guardian International, Inc.
It is the desire and intent of the parties that the provisions
of this Section 6 shall be enforced under the laws and public policies applied
in each jurisdiction in which enforcement is sought. Accordingly, if any
particular provision of this Section 6 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.
If Executive challenges the enforceability of the provisions
of this Section 6 in whole or in part as to any Competitors, Executive shall,
immediately upon such challenge,
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forfeit any right to any payments and benefits under Section 5(a) that he has
not already received.
7. CONFIDENTIAL INFORMATION. Executive acknowledges that: (i) the
business of the Company and its Subsidiaries and affiliates is intensely
competitive and that Executive's engagement by the Company requires that
Executive have access to and knowledge of confidential information of the
Company and its Subsidiaries and affiliates, including, but not limited to, the
identify of customers, the identity of the representatives of customers with
whom the Company and its Subsidiaries and affiliates have dealt, the kinds of
services provided by the Company and its Subsidiaries and affiliates to
customers and offered to be performed for potential customers, the manner in
which such services are performed or offered to be performed, the service needs
of actual or prospective customers, pricing information, information concerning
the creation, acquisition or disposition of products and services, customer
maintenance listings, computer software applications and other programs,
personnel information and other trade secrets (the "Confidential Information");
(ii) the direct or indirect disclosure of such Confidential Information to
existing or potential competitors of the Company and its Subsidiaries and
affiliates would place the Company and its Subsidiaries and affiliates at a
competitive disadvantage and would do damage, monetary or otherwise, to the
business of the Company and its Subsidiaries and affiliates; and (iii) the
engaging by Executive in any of the activities prohibited by this Section 7 may
constitute improper appropriation and/or use of such information and trade
secrets. Notwithstanding the foregoing, Confidential Information shall not
include information which (x) is or becomes part of the public domain through a
source other than Executive, (y) is or becomes available to Executive from a
source independent of the Company and its Subsidiaries and affiliates, or (z)
constitutes general industry knowledge possessed by Executive by virtue of
Executive's employment with the Company. Executive expressly acknowledges the
trade secret status of the Confidential Information and that the Confidential
Information constitutes a protectable business interest of the Company and its
Subsidiaries and affiliates. Accordingly, the Company and Executive agree as
follows:
(a) During the Non-Competition Period, Executive shall not,
directly or indirectly, whether individually, as a director,
stockholder, owner, partner, employee, principal or agent of any
business, or in any other capacity, make known, disclose, furnish, make
available or use any of the Confidential Information,
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other than in the proper performance of the duties contemplated
herein or as required by law or by a court of competent jurisdiction
or other administrative or legislative body; provided, however, that
prior to disclosing any of the Confidential Information to a court
or other administrative or legislative body, Executive shall
promptly notify the Company so that the Company may seek a
protective order or other appropriate remedy. The provisions of this
subsection (a) do not apply to Executive's Participation (as defined
in Section 6) in any capacity with Guardian International, Inc.
(b) Executive agrees to return all Confidential Information,
including all photocopies, extracts and summaries thereof, and any such
information stored electronically on tapes, computer disks or in any
other manner to the Company at anytime upon request of the Chairman of
the Board of the Company and upon the termination of Executive's
employment for any reason.
8. NONSOLICITATION. During the Non-Competition Period,
Executive shall not, directly or indirectly, solicit, interfere with, hire,
offer to hire or induce any person who is an employee of the Company or any of
its Subsidiaries or affiliates and whose salary is in excess of $50,000 to
discontinue his or her relationship with the Company or any of its Subsidiaries
or affiliates and accept employment by, or enter into a business relationship
with, Executive or any other person or entity; PROVIDED, HOWEVER, that this
provision shall not apply to solicitation of any person who was an employee of
Guardian International, Inc. as of the date of this Agreement and who becomes an
employee of the Company or any of its Subsidiaries or affiliates during the
period of Executive's employment under this Agreement.
9. 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, Executive agrees and promises that
Executive 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
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(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
Executive during the period of his employment under this Agreement
which Executive believes to be truthful and which are made in the
performance of his duties under this Agreement.
(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 Executive or (ii) has
or would have a negative financial impact, whether directly or
indirectly, on Executive.
10. INJUNCTIVE RELIEF.
(a) Executive acknowledges that a breach of the
undertakings in Sections 6, 7, 8, or 9(a) of this Agreement would cause
irreparable damage to the Company and its Subsidiaries and affiliates,
the exact amount of which shall be difficult to ascertain, and that
remedies at law for any such breach would be inadequate. Executive
agrees that, if Executive breaches or attempts or threatens to breach
any of the undertakings in Sections 6, 7, 8, or 9(a) of this Agreement,
then the Company shall be entitled to injunctive relief without posting
bond or other security, in addition to any other remedy or remedies
available to the Company at law or in equity.
(b) The Company acknowledges that a breach of the
undertakings in Section 9(b) of this Agreement would cause irreparable
damage to Executive, the exact amount of which shall be difficult to
ascertain, and that remedies at law for any such breach would be
inadequate. The Company agrees that, if the Company or any of its
Subsidiaries or affiliates breaches or attempts or threatens to breach
any of the undertakings in Section 9(b) of this Agreement, then
Executive shall
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be entitled to injunctive relief, without posting bond or other
security, in addition to any other remedy or remedies available to
Executive at law or in equity.
11. WITHHOLDING TAXES. The Company may withhold from all
payments due to Executive (or his beneficiary or estate) hereunder all taxes
which, by applicable federal, state, local or other law, the Company is required
to withhold therefrom. Executive has represented that he is and will continue to
be a resident of the State of Florida for all purposes.
12. DIRECTORS AND OFFICERS INSURANCE; INDEMNITY. The Company
shall take all steps necessary to ensure that Executive is covered under any
directors and officers liability insurance policy in effect from time to time
for current and former directors and officers of the Company. In addition, the
Company shall hold harmless and indemnify Executive against any and all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by Executive in connection with any threatened,
pending, or completed action, suit, or proceeding whether civil, criminal,
administrative, or investigative (including an action by or in the right of the
corporation) to which Executive is, was, or at anytime becomes a party, or is
threatened to be made a party, by reason of the fact that Executive is, was, or
at anytime becomes a director, officer, employee, or agent of the Company, or
is, or was serving, or at anytime serves at the request of the Company as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise; or otherwise to the fullest extent as may
be provided to Executive by the Company under the provisions of Article IX of
the Bylaws of the Company and Article VII of The Articles of Incorporation of
the Company and Delaware law.
13. SCOPE OF AGREEMENT. Nothing in this Agreement shall be
deemed to entitle Executive to continued employment with the Company or its
Subsidiaries or shall require Executive to continue the employment relationship
against his wishes; PROVIDED, HOWEVER, that any termination of Executive's
employment during the Term of this Agreement shall be subject to all of the
provisions of this Agreement as provided in Section 18.
14. SUCCESSORS; BINDING AGREEMENT. (a) This Agreement shall
not be terminated by any sale, merger or other business combination. In the
event of any such sale, merger or other business combination, the provisions of
this Agreement shall be binding upon the surviving corporation, and such
surviving corporation shall be treated as the Company hereunder.
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(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive shall die while any amounts would be payable to Executive hereunder
had Executive continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to such
person or persons appointed in writing by Executive to receive such amounts or,
if no person is so appointed, to Executive's estate.
15. NOTICE. (a) For purposes of this Agreement, all notices
and other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given when delivered or five (5) days after
deposit in the United States mail, certified and return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Richard Ginsburg
P.O. Box 800207
Miami, Florida 33280
If to the Company:
Protection One, Inc.
818 S. Kansas Avenue
Topeka, Kansas 66612
Attention: Chairman of the Board
or to 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.
(b) A written notice of Executive's Date of Termination by the
Company or Executive, as the case may be, to the other, shall (i) indicate the
specific termination provision in this Agreement relied upon, (ii) to the extent
applicable, set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive's employment under the provision
so indicated, and (iii) specify the Date of Termination. The failure by
Executive or the Company to set forth in such notice any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any right
of Executive or the Company hereunder or preclude Executive or
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the Company from asserting such fact or circumstance in enforcing Executive's
or the Company's rights hereunder.
16. FULL SETTLEMENT; RESOLUTION OF DISPUTES. The Company's
obligation to make any payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall be in lieu and in full settlement of all
other severance payments to Executive under any other severance or employment
agreement between Executive and the Company, and any severance plan of the
Company. In no event shall Executive be obligated to seek other employment or
take other action by way of mitigation of the amounts payable to Executive under
any of the provisions of this Agreement and except as otherwise provided in
Section 5(a)(ii), such amounts shall not be reduced whether or not Executive
obtains other employment. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Wilmington, Delaware by three arbitrators in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. The arbitrators shall
determine the allocation of the costs and expenses arising in connection with
any arbitration proceeding pursuant to this Section based on the arbitrators'
assessment of the merits of the positions of the parties.
17. EMPLOYMENT WITH SUBSIDIARIES. Employment with the Company
for purposes of this Agreement shall include employment with any Subsidiary.
18. SURVIVAL. The respective obligations and benefits afforded
to the Company and Executive as provided in Sections 5, 6, 7, 8, 9, 10, 11, 12,
14, 16, 19 and 21 shall survive the termination of this Agreement.
19. GOVERNING LAW; VALIDITY. THE INTERPRETATION, CONSTRUCTION
AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO THE PRINCIPLE OF CONFLICTS OF LAWS. THE INVALIDITY OR UNENFORCEABILITY
OF ANY PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR
ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT, WHICH OTHER PROVISIONS
SHALL REMAIN IN FULL FORCE AND EFFECT.
20. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
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21. MISCELLANEOUS. No provision of this Agreement may be
modified or waived unless such modification or waiver is agreed to in writing
and signed by Executive and by a duly authorized officer of the Company. No
waiver by either party hereto at anytime 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 a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. Failure
by Executive or the Company to insist upon strict compliance with any provision
of this Agreement or to assert any right Executive or the Company may have
hereunder, including without limitation, the right of Executive to terminate
employment for Good Reason, shall not be deemed to be a waiver of such provision
or right or any other provision or right of this Agreement. Except as otherwise
specifically provided herein, the rights of, and benefits payable to, Executive,
his estate or his beneficiaries pursuant to this Agreement are in addition to
any rights of, or benefits payable to, Executive, his estate or his
beneficiaries under any other employee benefit plan or compensation program of
the Company.
22. CONDITIONS ON EFFECTIVENESS OF THIS AGREEMENT. Anything in
this Agreement to the contrary notwithstanding, the effectiveness of this
Agreement is expressly conditioned upon the execution of the following: (i)
Share Exchange Agreement between the Company and Guardian International, Inc.
("Guardian") for the exchange of 8,000 shares of Series C redeemable preferred
for 8,000 shares of Series E perpetual preferred, (ii) Option or Warrant
Agreement allowing Guardian to buy 250,000 shares of Protection One common stock
at a price per share equal to the exercise price under the option to Executive
described in Section 4(c), (iii) Consent of Heller Financial, Inc. for the
issuance of Series E perpetual preferred and the exchange referred to in (i)
above, (iv) Agreement between Guardian and Executive accepting Executive's
resignation from Guardian and releasing Executive from any non-competition
obligations under agreements between Executive and Guardian; and (v) the
Articles of Amendment to the Articles of Incorporation of Guardian relating to
the issuance of the Series E perpetual preferred.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by a duly authorized officer of the Company and Executive has
executed this Agreement as of the day and year first above written.
PROTECTION ONE, INC.
By: /s/ Douglas T. Lake
---------------------------
/s/ Richard Ginsburg
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Richard Ginsburg