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EXHIBIT 10.7
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as of the
19th day of February, 1996 by and between PROTECTION ONE, INC., a Delaware
corporation with an address at 6011 Bristol Parkway, Culver City, CA 90230
(hereinafter referred to as the "Company") and BEN ENIS, an individual, having
an address at 4097 Robin Hill Road, La Canada, California 91011 (hereinafter
referred to as "Consultant").
A. The Company is engaged in the business of providing alarm monitoring
services. The Company desires to engage Consultant, who is a Professor of
Marketing at the University of Southern California, to provide consulting
services for advertising and marketing the Company's services and products.
B. Consultant desires to accept such engagement on the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
promises contained herein, the parties hereto covenant and agree as follows:
1. Consulting Services. The Company hereby engages Consultant to
provide consulting services to the Company. Such consulting services will
consist of advising and assisting the Company in the formulation and
implementation of advertising and marketing objectives and strategies for the
Company and its affiliates in the alarm monitoring and security industry. The
Consultant shall spend such a number of hours in provision of such consulting
services as shall be reasonably required to assure the satisfactory performance
of such services. Consultant hereby agrees to provide such consulting services
in consideration of the compensation specified in Section 2 of this Agreement.
The exact times and circumstances of the provision of such consulting services
will be determined by the mutual agreement of Consultant and the Company.
2. Compensation. Consultant's compensation for services performed
hereunder shall be Seven Thousand Five Hundred Dollars ($7,500.00) per month,
payable in advance on the 19th day of the month preceding the month in which
consulting services are to be rendered. Consultant shall be solely responsible
for his out-of-pocket costs and expenses related to the provision of consulting
services and the Company shall have no obligation to reimburse Consultant for
such costs and expenses, except for expenses expressly approved by an officer
of Company.
3. Term of Agreement. The term of this Agreement shall commence on the
date hereof and, and unless terminated sooner pursuant to the terms of this
Agreement, shall expire on March 31, 1997.
4. Termination. The term of this Agreement may be terminated prior
to the time set forth in Section 3 as follows:
(a) The Company shall have the right to terminate this
Agreement at any time for Cause by giving Consultant written notice of the
effective date of termination (which effective date may be the date of such
notice). For purposes of this Agreement only, Cause shall be limited solely
to: (i) fraud, misappropriation, embezzlement or other act of material
misconduct by Consultant against the Company or any of its affiliates or an
act contrary their best interests; (ii) willful neglect or gross
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negligence by Consultant in the performance of his services in accordance
with the terms of this Agreement; (iv) Consultant's breach of or failure to
perform when due any material obligation of Consultant under this Agreement,
which breach is not cured within thirty (30) days of such breach; (v)
violation of the duty of loyalty to the Company; (vi) death or disability
(which shall determined at the sole discretion of the Company) of Consultant;
(vii) conviction of or plea of nolo contendere to a felony; or (viii)
the occurrence of an event of bankruptcy with respect to Consultant.
(b) Consultant shall have the right to terminate this Agreement
by giving the Company written notice of the effective date of termination
(which effective date may be the effective date of such notice) upon the
occurrence of any of the following events: (i) the Company's breach of or
failure to perform when due any material obligation of the Company under this
Agreement, which breach is not cured within thirty (30) days of such breach;
(ii) the occurrence of an event of bankruptcy with respect to the Company; or
(iii) Consultant's death or disability (which shall be determined at the sole
discretion of Consultant).
(c) Either party can terminate this agreement at any time upon
giving the other ninety (90) days prior written notice.
Upon termination of this Agreement, neither party shall have any further
obligation or liability to the other, except as provided in Sections 5 and 6.
5. Confidentiality. The parties acknowledge that in the course of
performing this Agreement, the Company may reveal to Consultant confidential
information. "Confidential Information" shall mean business information and
trade secrets, including but not limited to, customer and vendor information,
marketing programs and plans, financial information, customer lists, price
lists, techniques and other data of the Company or its affiliates or customers
which the Consultant knows or reasonably should know should be treated as
confidential. Consultant shall hold in confidence and shall not disclose to
anyone, or otherwise exploit for his own benefit or the benefit of any person
or entity, the Confidential Information, except in connection with services to
be rendered pursuant to this Agreement. Upon the termination of this
Agreement, Consultant shall promptly return any Confidential Information and
all copies thereof to the Company. The provisions of this Section 5 and of
Section 6 shall survive the termination of this Agreement.
6. Injunctive Relief. Consultant acknowledges and agrees that the
disclosure of any aspect of Confidential Information, except as permitted
herein, will give rise to irreparable injury to the Company inadequately
compensable in damages. Accordingly, the Company may obtain injunctive relief
against the breach or threatened breach of Consultant's obligations of
confidentiality pursuant to Section 5 of this Agreement.
7. Relationship of Parties. As of the date of this Agreement,
Consultant is a director of the Company. Nothing contained herein modifies or
amends Consultant's rights (including reimbursement for expenses incurred while
acting in the capacity of director), obligations and duties as a director of
Company. In the performance of this Agreement, it is mutually understood and
agreed that Consultant is at all times acting and performing as an independent
contractor and as such he shall remain professionally and economically
independent of the Company. Consultant is not, and no act or failure to act by
either party hereto shall be construed to make or render Consultant, the
Company's partner, joint venturer, employee or associate.
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8. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes any oral or written agreements or understandings with respect to
that subject matter. This Agreement shall be binding upon and inure to the
benefit of the parties' successors and permitted assigns and may not be
modified in any way without the written consent of both parties.
9. Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or three (3) days after mailed by certified or registered
mail, postage prepaid, return receipt requested, to the parties at the
addresses set forth above (a copy to each of James M. Mackenzie, Jr., President
and John E. Mack III, Vice President in case of the Company), or at such other
addresses as the parties may designate by written notice in the manner
aforesaid.
10. Assignment. This Agreement may not be assigned by Consultant
without the prior written approval of the Company.
11. Governing Law. This Agreement and its application shall be
construed according to the laws of the State of California.
12. Waiver of Breach. The waiver by either party of the other
party's breach of any term or condition of this Agreement shall not be, or
deemed to be, a waiver of any subsequent breach by such party of the same or
any other term or condition of this Agreement, and the failure by either party
to enforce any right or remedy it might have by reason of the failure of the
other party to perform any obligation under this Agreement shall not be, or be
deemed to be, a waiver of any subsequent failure by such other party to perform
the same or any other obligation under this Agreement.
13. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
PROTECTION ONE, INC.
By: /s/ John E. Mack, III
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John E. Mack III, Vice President
/s/ Ben Enis
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BEN ENIS
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