Exhibit 10.35
AV ALARM, INC.
EMPLOYMENT AGREEMENT
The Employment Agreement: (the "Agreement") is executed on and effective as
of October 21, 1994 (the "Effective Date") by and between AV Alarm, Inc., a
Texas corporation (the "Corporation"), and Robert N. Sherman ("Employee").
RECITAL:
The Corporation and the Employee desire to enter into an employment
agreement on the terms and subject to the conditions set forth in this
Agreement.
AGREEMENTS:
The Employee and the Corporation agree as follows:
1. Employment. The Corporation hereby employs the Employee and the Employee
hereby accepts employment with the Corporation, on the terms and conditions set
forth in the Agreement.
2. Term. The term of the Employee's employment under this Agreement shall
commence with the date hereof and terminate on October 31. 1997, provided, such
employment shall be renewable, commencing on November 1, 1997 and each November
1 thereafter, for successive one year periods expiring on October 31 of the
following year, unless written notice of nonrenewal is given by the Corporation
to the Employee on or before October 1, 1997 or October 1 during any subsequent
renewal period (the Employee's term of employment is referred to as the
"Employment Period"). If the Corporation terminates the Agreement, it will be
deemed to be a termination without "Cause", subject to section 6(c), unless the
Agreement is then being reviewed and renegotiated in good faith by the
Corporation.
3. Duties. The Employee will faithfully and to the best of his ability perform
the duties of Vice President of Operations of the Corporation or any other
duties assigned to him by the President and the board of directors of the
Corporation (the "Board of Directors") from time to time.
4. Compensation.
(a) Base Salary. The Employee shall receive a base salary of $67,500 (the
"Base Salary") (such Base Salary shall be payable in regular and equal
semi-monthly installments).
(b) Incentive Compensation. The Board of Directors shall evaluate the
Employee's performance annually. The Employee shall be eligible for such bonuses
as the Board of Directors, in its sole discretion, deems appropriate.
(c) Indemnification. The Employee shall be entitled to indemnification as
an officer and director of the Corporation to the sane extent as the other
executive officers and directors of the Corporation.
5. Fringe Benefits.
(a) Generally. The Employee shall receive such fringe benefits as are made
available by the Board of Directors to executive officers of the Corporation and
such other benefits as the Board of Directors may from time to time, in its sole
discretion, make available to the Employee.
(b) Vacation. The Employee shall be entitled to receive three (3) weeks
paid vacation annually, or more if the Corporation's vacation policy so
provides, provided that the Employee may take no more than two (2) consecutive
weeks of vacation a; a time.
6. Termination of Employment.
(a) Termination for Cause. During the term of this Agreement, the
Corporation shall be entitled to terminate the Employee's employment at any time
(subject to the 10-day notice period provided in paragraph 6(b) in the event of
Nonperformance by Employee) with Cause immediately upon written notice to the
Employee specifying the Cause, and the date of termination. For this purpose,
"Cause" shall mean (i) the Employee's death or disability as defined in the
disability insurance policy to be obtained by the Corporation for Employee or,
In the absence thereof, a disability which in the reasonable opinion of the
Board of Directors renders the Employee unable in any material respect to
perform his duties under this Agreement for a period of at least six consecutive
months, (ii) any act by Employee which renders or could reasonably be expected
to render Employee or the Corporation ineligible to obtain any material license
or other material authorization necessary to conduct the business of the
Corporation, (iii) any wrongful act to enrich Employee at the expense of the
Corporation, (iv) any act or failure to act by or of the Employee constituting
gross negligence, fraud or willful misconduct in the course of employment, (v)
Employee's commission of a felony, or (vi) Employee's repeated failure to follow
lawful and reasonable directions given by or on behalf of the Board of
Directors. A voluntary termination by Employee shall be deemed to be a
termination for "Cause." In the event of termination fur Cause, payments for
Base Salary shall be prorated to the date of termination and the Corporation
shall have no further liability to the Employee.
(b) Termination for Nonperformance by Employee. During the term of this
Agreement, the Corporation shall be entitled to terminate the Employee's
employment at any time upon ten days prior notice for a material adverse
deviation between the Corporation's actual results from operation or financial
condition as compared with the Corporation's business plan or future plans
approved on an annual basis by the Board of Directors ("Nonperformance by
Employee"). In the event of a termination for Nonperformance by Employee, as the
Employee's sole remedy against the Corporation, the Corporation shall continue
to pay the employee his semi-monthly installments of Base Salary, and provide
for health insurance at the cost of the Corporation, for a period equal to the
greater of six months or until the next anniversary date of this Agreement.
(c) Termination Without Cause. If this Agreement is terminated by the
Corporation for any reason other than for Cause or Nonperformance by Employee,
or if the Agreement is terminated by the Corporation for what the Corporation
believes is Cause and it is ultimately determined that the Employee was
terminated without Cause, as the Employee's sole remedy against the Corporation,
the Corporation shall continue to pay the employee his semi-monthly
-2-
installments of Base Salary, and provide for health insurance at the cost of the
Corporation, for a period equal to the greater of six months or until the next
anniversary date of this Agreement, and the Employee shall have such vesting
rights as may be provided under the Employee's Stock Option Agreement with the
Corporation attached hereto as Exhibit A.
(d) Duty to Mitigate; Restrictions of Ability to Pay. After any termination
to which section 6(b) or section 6(c) applies, die Employee shall as promptly as
practicable use his good faith best efforts to gain new employment or equivalent
salary and benefits The Corporation's. post-termination payment obligations
under section 6(b) or section 6(c) shall terminate upon Employee's first day of
new employment.
7. Inventions and Improvements. Concurrently with the execution and delivery of
this Agreement, as a condition to Employee's employment, the Employee and the
Corporation shall enter into the Proprietary Information Agreement attached as
Exhibit B.
8. Nondisclosure; Non-solicitation. (a) In the Employee's position of
employment, he will have access to confidential information and trade secrets
("Confidential Information") pertaining to, or arising from, the business of the
Corporation. The Employee acknowledges that such Confidential Information is
unique and valuable to the Corporation's business and that the Corporation would
suffer irreparable Injury if this information were divulged to those in
competition with the Corporation. Therefore, the Employee agrees to keep in
strict secrecy and confidence, both during and after the period of his
employment, any and all information which the Employee acquires, or to which the
Employee has access, during employment with the Corporation, that has not been
publicly disclosed by the Corporation or that is not a matter of common
knowledge by the Corporation's competitors. The Confidential Information covered
by this Agreement shall include, but shall nor be limited to, information
relating to any inventions, processes, formulae, plans, devices, compilations of
information, technical data, distribution methods, arrangements entered into
with suppliers and customers, including but not limited to pricing information,
terms of purchase and sale, proposed expansion plans of the Corporation,
marketing and pricing strategies and trade secrets of the Corporation.
(b) Except with prior written approval of the Corporation, during or after
the Employee's employment under this Agreement the Employee will neither (i)
disclose any Confidential Information to any person except authorized personnel
of the Corporation, or its subsidiaries or affiliated companies, nor (ii) use
Confidential Information in any way. Upon termination of the Employee's
employment, whether voluntary or involuntary the Employee will promptly return
to the Corporation all documents, records or other memorializations including
copies of documents and any notes which the Employee has prepared, that contain
Confidential Information or relate to the Corporation's business.
(c) Without the prior written consent of the Corporation, during the term
of Employee's employment by the Corporation and for twelve months after
termination of Employee's employment, neither the Employee nor any entity owned
or controlled by the Employee will, for the Employee's benefit or the benefit of
any third party, directly solicit the employment of any employee of the
Corporation, or any of its subsidiaries or affiliated companies or influence or
induce any such employee to leave or decline employment by the Corporation, or
any of its subsidiaries or affiliated companies. Employee shall not be
prohibited
-3-
from hiring a former employee of the Corporation as long as such employee's
employment with the Corporation has been terminated (whether by the Corporation
or by such employee) for at least one year.
9. Noncompetition.
(a) During the term of this Agreement, and for a period of two years
following termination of this Agreement for any reason, except for termination
without Cause, the Employee will Dot and will cause any Affiliate (as defined
below) of the Employee (collectively, the "Bound Parties") not to, directly or
indirectly manage, operate, control, participate or engage in, or become
interested in or connected with in any way (including, without limitation, as a
partner, stockholder, investor, owner, director, officer, employee, agent or
consultant, except the ownership of five percent or less of the outstanding
capital stock or partnership interests of a publicly traded corporation or
partnership), or lend any money to or guaranty any obligations of (except for
the ownership of five percent or less of the outstanding debt securities of a
publicly traded corporation or partnership), any person, business, firm or
entity (each a "Person") engaged in any security alarm monitoring services
business or any other related or similar activity within, based in, or into, the
Protected Market. The "Protected Market" means the United States of America and
Canada. The term "Affiliate" omeans any person directly or indirectly
controlling, controlled by, or under common control with, the person with
respect to whom the term "Affiliate" is used. The Bound Parties shall not be
bound by any covenant not to compete if Employee's employment (i) was terminated
by the Corporation without Cause or (ii) if the Employment Period is not renewed
by the Corporation, unless Employee refuses to accept an offer by the
Corporation to renew the Employment Period on terms substantially similar to
those in effect immediately prior to the expiration of the Employment Period.
(b) As consideration for the Bound Parties' agreement not to compete with
the Corporation as provided in this Agreement, the Corporation has entered into
and consummated the transactions contemplated in the Asset Purchase Agreement
dated this date between the Corporation and My Alarm, Inc., an Iowa corporation,
and the Stock Purchase Agreement dated this date between the Corporation and the
Purchasers (as defined therein).
(c) This Agreement is necessary for the protection of the legitimate
business interests of the Corporation. The scope of this Agreement in time,
geography and types and limits of activities is reasonable.
(d) Because of the confusion to the customers of the Corporation and to the
public that a breach of this Agreement would create, the Corporation will not
have an adequate remedy at law if any of the Bound Parties breaches this
Agreement. The Corporation will be entitled to apply to any court of competent
jurisdiction for an injunction prohibiting any violations of the provisions of
this Agreement, and a restraining order and/or injunction may issue against any
of the Bound Panics, in addition to any other rights the Corporation may have.
The Bound Parties hereby waive the claim or defense that an adequate remedy at
law exists, and none of the Bound Parties will urge in any such action or
proceeding that any such remedy at law exists.
10. Specific Performance. In the event of any controversy concerning the rights
or obligations of the parties under this Agreement, such rights or obligations
shall be enforceable in
-4-
a court of equity by a decree of specific performance. Such remedy, however,
shall be cumulative and nonexclusive and shall be In addition to any other
remedy to which the parties may be entitled. If either party successfully
prosecutes an action to enforce its rights under this Agreement, such party
shall be entitled to receive attorney's fees and costs in addition to any other
remedy to which it may be entitled.
11. Waiver. The failure of either party to insist, in any one or more instances,
upon performance of the terms or conditions of this Agreement shall not be
construed as a waiver or a relinquishment of any right granted under this
Agreement or of the future performance of any other remedy to which it may be
entitled.
12. Notices. Any notice to be give under this Agreement shall be deemed
sufficient if addressed in writing, and delivered by registered or certified
mall or delivered personally, in the case of the Corporation to its principal
business office and in the case of the Employee, to his address appearing on the
records of the Corporation, or to such other address as lie may have designated
in writing to the Corporation.
13. Severability. In the event that any provision shall be held to be invalid or
unenforceable for any reason whatsoever, it is agreed such invalidity or
unenforceability shall not affect any other provision of this Agreement and the
remaining covenants, restrictions and provisions hereof shall remain in full
force and effect arid any court of Competent jurisdiction may so modify the
objectionable provision as to make it valid, reasonable and enforceable.
14. Amendment. This Agreement may only be amended with the prior written consent
of the Board of Directors and by an agreement in writing signed by all of the
parties hereto.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws but not the law of conflicts of the State of
Texas.
16. Benefit. This Agreement shall be binding upon and inure to the benefit of
and shall be enforceable by and against the Corporation, its successors and
assigns, and Employee, his heirs, beneficiaries and legal representatives. It is
agreed that the rights and obligation of the Employee may not be assigned or
delegated except as specifically set forth in this Agreement.
* * *
-5-
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the Effective Date.
EMPLOYEE:
/s/ Robert N. Sherman October 21, 1994
- --------------------------------------
CORPORATION:
AV Alarm, Inc.
By: /s/ James R. Hull October 21, 1994
----------------------------------
James R. Hull
President
-6-