AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("AGREEMENT") made as of 19th day of February, 2003
and amended as of this 2nd day of August, 2004 by and among SpectaGuard Holding
Corporation, f/k/a Gryphon SpectaGuard II, Inc. ("HOLDING"), SpectaGuard
Acquisition LLC, a Delaware limited liability company (the "COMPANY"), and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. ("EXECUTIVE").
WHEREAS, the Executive was employed as President of the Company pursuant to
an employment agreement by and between the Executive and the Company, dated
January 23, 1998 (the "EXISTING AGREEMENT"); and
WHEREAS, in connection with the acquisition of the business of the Company
by Mafco Holdings Inc. or its affiliates ("MAFCO"), Holding, the Company and the
Executive desired to enter into this Agreement, which superseded and replaced
the Existing Agreement and governs the terms of the Executive's employment with
Holding as of the Effective Date (as defined below).
WHEREAS, the parties hereto desire to amend this Agreement to account for
the termination of the Second Amended and Restated Operating Agreement of
SpectaGuard, dated February 19, 2003, as amended and the execution of the
Operating Agreement of Allied Holdings, dated August 2, 2004 (the "LLC
Agreement").
NOW, THEREFORE, the parties hereto agree as follows:
1. EFFECTIVE DATE. This Agreement shall become effective as of the
Effective Time, as such term is defined in the Agreement and Plan of Merger by
and among the Company, Mafco and Mafco Acquisition Sub LLC, dated as of January
16, 2003 (the "MERGER Agreement") (the date on which the Effective Time occurs
shall be referred to herein as the "EFFECTIVE DATE"). As of the Effective Date,
the Executive's employment with the Company shall terminate, his employment with
Holding shall commence and this Agreement shall be substituted for and shall
supersede the Existing Agreement in its entirety. This Agreement shall be void
and of no further force or effect if the Merger Agreement is terminated.
2. TITLE. As of the Effective Date, Executive is hereby appointed the Chief
Executive Officer of Holding. In addition, the Executive agrees to serve as a
member of the Board of Directors of Holding (the "BOARD").
3. DUTIES AND RESPONSIBILITIES. Executive hereby agrees to perform in good
faith and with due care all services which may be required of Executive in such
position and to be available to render such services at all reasonable times and
places in accordance with such reasonable directions and requests as the Board
may from time to time reasonably specify. Executive shall, during the Term (as
defined below), devote substantially all of his time, ability, energy and skill
to the performance of his duties and
responsibilities hereunder. Holding shall provide Executive an office and
secretary and such other assistance and work accommodations as are deemed
appropriate by the Board for the performance of Executive's duties. Executive
shall perform his responsibilities from, and his associated staff shall be
located in, the Company's principal offices currently located in King of
Prussia, PA. Executive shall be provided a computer and modem for his use at his
home office.
4. TERM. The term of this Agreement shall commence as of the Effective Date
and shall continue until the fifth anniversary of the Effective Date, or if
earlier, until the date the Executive's employment is terminated for any reason
(the "TERM").
5. COMPENSATION.
A. Base Salary. During the Term, Executive shall be paid a base
salary. The base salary for the first year of the Term shall be U.S. $400,000
per annum, and such base salary shall be increased for each subsequent year
during the Term by eight percent (8%) of the base salary with respect to the
prior year of the Term (the "BASE SALARY").
B. Method of Payment. Executive's Base Salary shall be paid in
accordance with Holding's standard payroll practices. Holding shall deduct and
withhold from Executive's compensation payable hereunder any and all applicable
foreign, federal, state and local income and employment withholding taxes and
any other amounts required to be deducted or withheld by Holding under
applicable statutes, regulations, ordinances or orders governing or requiring
the withholding or deduction of amounts otherwise payable as compensation or
wages to employees.
C. Vacation. Executive shall be entitled to four (4) weeks paid days
of vacation and such number of paid days of sick leave as the Company's sick
leave policy provides for executive officers.
D. Bonus. Executive shall be eligible to receive a bonus with respect
to each fiscal year ending during the Term (the "ANNUAL BONUS") commencing with
the fiscal year ending December 31, 2003, with a target Annual Bonus of fifty
percent (50%) of his Base Salary, which Annual Bonus shall be determined based
upon the achievement of Company EBITDA targets set with respect to the
applicable year by the Board ("EBITDA TARGETS"). Applicable EBITDA Targets will
be equitably adjusted by the Board to reflect the pro forma effect of any
acquisition which (alone or in aggregate with other acquisitions occurring in
the same calendar year) has a pro forma effect on the EBITDA of at least 20%.
E. Cancellation of Options; Equity Grants; Special Payment.
(1) Option Cancellation. Each of the options to acquire equity in
the Company held by the Executive immediately prior to the Effective Date shall
be cancelled immediately prior to the Effective Date.
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(2) Class B Units. Subject to the terms and conditions of the LLC
Agreement, and subject further and subject further to the Executive's execution
of the Capital Contribution Agreement by and among Holding, the Executive,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, OCM
Specta Holdings, Inc., Blackstone SG Mezzanine Corporation, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and Allied Security Holdings LLC ("ALLIED")
dated as of August 2, 2004 (the "CONTRIBUTION AGREEMENT"), the Executive shall
be granted 27,893.99 Class B Units (as defined in the LLC Agreement) of Allied.
(3) Class C Units. Subject to the terms and conditions of the LLC
Agreement applicable to Class C Units and the individual Award Agreement entered
into by and between Holding and the Executive (the "AWARD AGREEMENT") (attached
as Exhibit A hereto), and further subject to the Executive's execution of the
Contribution Agreement, effective as of the Effective Date, the Executive shall
be granted 40,000 unvested Class C Units of Allied. Class C Units shall vest as
follows:
(a) 20,000 Class C Units ("TIME BASED C UNITS") shall vest
(except as set forth in Section 10C) at a rate of 20% per year on December
31 of each of 2003, 2004, 2005, 2006 and 2007, provided the Executive is
employed by Holding or any of its affiliates on such applicable December
31; and
(b) 20,000 Class C Units ("PERFORMANCE C UNITS") shall vest
(except as set forth in Section 10C) at a rate of 20% per year on December
31 of each of 2003, 2004, 2005, 2006 and 2007, provided the Executive is
employed by Holding or any of its affiliates on such applicable December
31, and provided further that the EBITDA Target with respect to the
applicable fiscal year has been met. If the EBITDA Target with respect to
the applicable fiscal year is not met, then the related Performance C Units
shall be forfeited and cancelled as of the applicable December 31.
Applicable EBITDA Targets will be equitably adjusted by the Board to
reflect the pro forma effect of significant acquisitions.
(c) Notwithstanding the above, provided that the Executive
is employed by Holding or any of its affiliates on the date of such
occurrence, all unvested Class C Units then held by the Executive
(excluding, however, any previously forfeited Performance C Units) shall
vest upon the earliest to occur of: (i) a sale of all or substantially all
of the assets of the Company Offeror (as defined in the LLC Agreement) to a
Third Party (as defined in the LLC Agreement), (ii) the failure of Mafco
and the Permitted Transferees (as defined in the LLC Agreement) of Holding,
collectively, to (directly or indirectly) maintain "beneficial ownership"
(as defined in Rule 13d-3 ("RULE 13D-3") of the Securities Exchange Act of
1934, as amended) of securities of the Company Offeror representing at
least twenty percent (20%) of the combined ordinary
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voting power of the Company Offeror's then outstanding securities that are
entitled to vote generally; and (iii) (1) the failure of Mafco and the
Permitted Transferees of Holding, collectively, to (directly or indirectly)
maintain beneficial ownership of securities of the Company Offeror
representing at least fifty percent (50%) of the combined ordinary voting
power of the Company Offeror's then outstanding securities that are
entitled to vote generally and (2) any "person" (as defined in Rule 13d-3)
or "persons" acting in concert, is or becomes the beneficial owner,
directly or indirectly, of securities of the Company Offeror representing a
greater percentage of the combined ordinary voting power of the Company
Offeror's then outstanding securities that are entitled to vote generally
than owned by Mafco and the Permitted Transferees of Holding, collectively.
Notwithstanding the immediately preceding sentence, unvested Class C Units
then held by the Executive shall not vest as a result of the consummation
of a Conversion Transaction (as defined in the LLC Agreement).
(4) Special Payment. The Executive shall receive a cash payment
from Holding in the amount of $4,260,402 (net of any applicable withholding)
(augmented, if applicable, in accordance with Section 5.E(5)) upon the
occurrence of the earliest of: i) a Realization Event (as defined below), ii)
expiration of the originally scheduled Term, or iii) termination of Executive's
employment by the Company without Cause (as defined below), by the Executive for
Good Reason (as defined below), or due to Death (as defined below) or Disability
(as defined below) (the "SPECIAL PAYMENT").
For purposes of this Agreement, a "Realization Event" shall mean the first to
occur of any of the following during the Term: (i) the consummation by the
Company Offeror of an underwritten public offering of its Registrable Securities
(as defined in the LLC Agreement) pursuant to an effective registration
statement filed under the Securities Act of 1933, as amended (an "IPO"); (ii)
the sale of all or substantially all of the assets of the Company Offeror to a
Third Party; and (iii) the failure of Mafco and the Permitted Transferees of
Holding, collectively, to (directly or indirectly) maintain beneficial ownership
of securities of the Company Offeror representing at least fifty percent (50%)
of the combined ordinary voting power of the Company Offeror's then outstanding
securities that are entitled to vote generally; provided, however, that, for the
avoidance of doubt, a Conversion Transaction shall not be deemed to constitute a
Realization Event.
(5) Gross-Up Payment. When the Special Payment is paid to the
Executive, if any portion of such Special Payment is taxed to the Executive at a
federal rate of tax higher than the highest applicable federal capital gains tax
rate as then set forth and in effect in Section 1(h) of the Internal Revenue
Code of 1986, as amended (the "CODE") (excluding rates on capital gains from
special categories of property), then Holding shall make a gross-up payment (the
"GROSS-UP PAYMENT") to the Executive. The Gross-Up Payment shall be made in the
amount that together with the Special Payment (net of all federal, state and
local taxes imposed on Executive with respect to the Gross-Up Payment and the
Special Payment) equals the Special Payment
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net of all federal, state and local taxes that would have been imposed on
Executive with respect to such payment if it had been taxed at capital gains
rates; provided however, that such Gross-Up Payment shall be payable only in the
event that the Special Payment and the Gross-Up Payment are allowed as
deductions in calculating the net income of Holding for federal income tax
purposes.
(6) The obligations of the Company under this Section 5 are
unsecured and constitute a mere promise by the Company to make payments in the
future. To the extent that the Executive acquires a right to receive payments
from the Company under this Section 5, such right shall be no greater than the
right of any general unsecured creditor of the Company. The obligations under
this Section 5 are not intended to be funded obligations for purposes of the
Code or the Employee Retirement Income Security Act of 1974, as amended, and
shall be construed consistently with this intent. Any payment under this Section
5 shall be made out of the general assets of the Company.
6. BUSINESS EXPENSE REIMBURSEMENT. Executive shall be entitled, in
accordance with Holding's written expense reimbursement policies in effect from
time to time, to receive reimbursement from Holding for all travel and other
reasonable business expenses incurred by Executive in the performance of his
duties hereunder, provided Executive furnishes Holding with vouchers, receipts
and other details of such expenses in accordance with the Holding's written
expense reimbursement policies. Executive shall be provided with a corporate
credit card for his business use, and will be reimbursed within fifteen (15)
days of presentation for appropriate business expenses as provided above.
7. BENEFITS.
A. During the Term, Holding shall provide Executive and his dependents
with coverage under the Company's applicable medical, dental and/or vision plans
and other employee benefits as are applicable to senior executives of Holding or
the Company.
B. The Executive shall be entitled to participate in any qualified
retirement plan or supplemental retirement plan for employees of Holding or the
Company. The plan or plans for all eligible participants shall be in accordance
with the projections and budget agreed upon annually by the Board and shall in
no event cost in excess of one million dollars ($1,000,000) annually in the
aggregate.
C. During the Term, Holding will pay the premiums on a term life
insurance policy providing the Executive with a life insurance benefit for a
term of fifteen (15) years in the amount of five million dollars ($5,000,000).
The policy shall permit the Executive to designate the beneficiary and Holding
will allow the Executive to maintain the policy, at his expense, following any
termination of employment.
8. RESTRICTIVE COVENANT.
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A. For the purposes of this Section 8, any reference to the "Company"
shall mean Holding, the Company and their respective subsidiaries, collectively.
In view of the fact that the Executive's work for the Company brings the
Executive into close contact with many confidential affairs of the Company not
readily available to the public, and plans for further developments, the
Executive agrees:
(1) To keep and retain in the strictest confidence all
confidential matters of the Company, including, without limitation, "know how,"
trade secrets, customer lists, pricing policies, operational methods, technical
processes, formulae, inventions and research projects, and other business
affairs of the Company, learned by the Executive heretofore or hereafter, and
not to disclose them to anyone outside of the Company, either during or after
the Executive's employment with the Company, except in the course of performing
the Executive's duties hereunder or with the Company 's express written consent;
and
(2) To deliver promptly to the Company on termination of the
Executive's employment by the Company, or at any time the Company may so
request, all memoranda, notes, records, reports, manuals, drawings, blueprints
and other documents (and all copies thereof) relating to the Company's business
and all property associated therewith, which the Executive may then possess or
have under the Executive's control.
B. During the period of the Executive's employment and, following
termination of such employment for Cause by the Company or without Good Reason
by the Executive, for the longer of the remainder of the originally scheduled
Term and two years following the date of such termination, and following any
other termination of employment for as long as the period in respect of which
the Executive is entitled to receive severance, the Executive shall not,
directly or indirectly, enter the employ of, or render any services to, any
person, firm or corporation engaged in any business competitive with the
business of the Company (provided that after the termination of employment the
business shall be defined as the business on the date of the termination); the
Executive shall not engage in such business on the Executive's own account; and
the Executive shall not become interested in any such business, directly or
indirectly, as an individual, partner, shareholder, director, officer,
principal, agent, employee, trustee, consultant, or in any other relationship or
capacity provided, however, that nothing contained in this Section 8B shall be
deemed to prohibit the Executive from acquiring, solely as an investment, up to
five percent (5%) of the outstanding shares of capital stock of any public
corporation.
C. If the Executive commits a breach, or threatens to commit a breach,
of any of the provisions of Section 8 hereof, the Company shall have the
following rights and remedies:
(1) The right and remedy to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
6
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company; and
(2) The right and remedy to require the Executive to account for
and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits (collectively, "BENEFITS") derived or received by
the Executive as the result of any transactions constituting a breach of any of
the provisions of the preceding paragraph, and the Executive hereby agrees to
account for and pay over such Benefits to the Company.
Each of the rights and remedies enumerated above shall be independent of the
other, and shall be severally enforceable, and all of such rights and remedies
shall be in addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity.
D. If any of the covenants contained in Sections 8A or 8B or any part
thereof, hereafter are construed to be invalid or unenforceable, the same shall
not affect the remainder of the covenant or covenants, which shall be given full
effect, without regard to the invalid portions.
E. If any of the covenants contained in Sections 8A or 8B, or any part
thereof, are held to be unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision and, in its reduced form, said provision shall then be enforceable.
F. The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 8A and 8B upon the courts of any
state within the geographical scope of such covenants. In the event that the
courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect the Company's right to the relief provided above in the courts of any
other states within the geographical scope of such covenants as to breaches of
such covenants in such other respective jurisdictions, the above covenants as
they relate to each state being for this purpose severable into diverse and
independent covenants.
9. INVENTIONS; PATENTS; INTELLECTUAL PROPERTY. For purposes of this Section
9, any reference to the "Company" shall mean Holding, the Company, Mafco and
their respective affiliates, collectively.
A. Inventions and Patents. The Executive agrees that all processes,
technologies and inventions (collectively, "INVENTIONS"), including new
contributions, improvements, ideas and discoveries, whether patentable or not,
conceived, developed, invented or made by him during the Term shall belong to
the Company, provided that such Inventions grew out of the Executive's work with
the Company, are related to the business (commercial or experimental) of the
Company or are conceived or
7
made on the Company 's time or with the use of facilities or materials of the
Company. The Executive shall further: (1) promptly disclose such Inventions to
the Company; (2) assign to the Company, without additional compensation, all
patent and other rights to such Inventions for the United States and foreign
countries; (3) sign all papers necessary to carry out the foregoing; and (4)
give testimony in support of the Executive's inventorship.
(1) If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Executive within two
(2) years after the termination of the Executive's employment by the Company, it
is to be presumed that the Invention was conceived or made during the Term.
(2) The Executive agrees that the Executive will not assert any
rights to any Invention as having been made or acquired by the Executive prior
to the date of this Agreement, except for Inventions, if any, disclosed to the
Company in writing prior to the date hereof.
B. Intellectual Property. The Company shall be the sole owner of all
the products and proceeds of the Executive's services hereunder, including, but
not limited to, all materials, ideas, concepts, formats, suggestions,
developments, arrangements, packages, programs and other intellectual properties
that the Executive may acquire, obtain, develop or create in connection with and
during the Term, free and clear of any claims by the Executive (or anyone
claiming under the Executive) of any kind or character whatsoever (other than
the Executive's right to receive payments hereunder). The Executive shall, at
the request of the Company, execute such assignments, certificates or other
instruments as the Company may from time to time deem necessary or desirable to
evidence, establish, maintain, perfect, protect, enforce or defend its right,
title or interest in or to any such properties.
10. TERMINATION OF EMPLOYMENT.
A. Method of Termination. Executive's employment pursuant to this
Agreement shall terminate upon the first of the following to occur:
(1) The fifth anniversary of the Effective Date;
(2) Executive's death ("DEATH");
(3) the date that written notice is deemed given or made by
Holding to the Executive of his inability to perform his services. Such notice
may be issued when the Board has reasonably determined that Executive has become
unable to substantially perform his services and duties hereunder because of
physical or mental illness, injury or disability, that as a result thereof
Executive has failed to substantially perform his services and duties hereunder
for a period of one hundred and eighty (180) days in any twelve month period and
that it is reasonably likely that he will not be able to substantially resume
performing his services and duties on substantially the terms and conditions as
set forth in this Employment Agreement; such termination of employment by
Holding being referred to herein as a termination for "DISABILITY";
8
(4) the date that final written notice is deemed given or made by
Holding to the Executive of termination for Cause (as defined below). For
purposes of this Employment Agreement, "CAUSE" shall mean the occurrence of any
one of the following:
(a) gross negligence by the Executive in the performance of
his duties and responsibilities, (b) any breach by Executive of his
fiduciary duties to Holding or the Company, which failure or breach
continues for a period of thirty (30) days after written notice of such
failure is given to Executive and which failure has a material adverse
effect on Holding's or the Company's operations, prospects, reputation or
business, (c) any intentional act or acts or omission or omissions (other
than acts or omissions involving business judgment or at the direction of
the Board or an executive officer of Mafco) by Executive that have a
material adverse effect on Holding's or the Company's operations,
prospects, reputation or business, (d) the Executive's willful failure or
refusal to comply with lawful directives of the Board not cured within
thirty (30) days after written notice, (e) the conviction of Executive for
a felony involving dishonesty by Executive or (f) fraud or embezzlement
involving assets of Holding or any of its affiliates including the Company
or other material misappropriation of Holding's or any of its affiliates'
assets or funds.
(5) Executive's resignation or voluntary departure as an officer
or employee of Holding, upon not less than sixty (60) days written notice to
Holding (a "VOLUNTARY RESIGNATION") without Good Reason (as defined below).
(6) Executive's resignation or voluntary departure as an officer
or employee of Holding for any reason that constitutes Good Reason (as defined
below). For purposes of this Agreement, "GOOD REASON" shall mean the occurrence
of either of the following: (a) a reduction in the Executive's duties,
responsibilities or compensation which is not cured within a period of thirty
(30) days after written notice of such material reduction is given by Executive
to the Board, (b) relocation of the Executive's principal place of employment to
a location that is more than fifty (50) miles from the Executive's principal
place of employment as of the date hereof, or (c) material uncured breach of the
Agreement by Holding or the Company.
(7) Holding's termination of Executive's employment for any
reason other than for Cause or Disability upon not less than sixty (60) days
written notice to Executive (an "INVOLUNTARY TERMINATION").
B. Effect of Termination for Cause, Death, Disability or Voluntary
Resignation. Upon the termination of Executive's employment (1) by Holding for
Cause, (2) due to the Executive's Death or Disability, or (3) by Executive in a
Voluntary Resignation, Holding shall pay or cause to be paid to the Executive
any accrued and owing Base Salary and Annual Bonus as of the date of termination
of Executive's employment pursuant to this section ("Accrued Obligations");
provided,
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however, that if Executive is terminated due to Disability and at any time prior
to two years after the date of Executive's termination Executive ceases to
receive disability payments from insurance providers, then Holding shall pay
Executive, in equal installments over a two year period commencing on the date
the Executive ceases to receive such disability, payments; an amount equal to
(x) two (2) times the Executive's Base Salary at the time of such termination
minus (y) all amounts received by Executive from other parties for services
rendered during the two (2) year period after the termination and all disability
payments received by Executive during such two (2) year period. All of
Executive's unvested Class C Units shall be forfeited and cancelled as of the
date of such termination of employment.
C. Effect of Involuntary Termination or Termination for Good Reason.
Upon termination of the Executive's employment (1) by Holding or the Company as
an Involuntary Termination, or (2) by the Executive for Good Reason, so long as
Executive is not in breach or default of any of the covenants set forth in
Sections 8 and 9 hereof, then Holding shall pay or cause to be paid to the
Executive (subject to the execution by the Executive of a release of claims
against Holding and its affiliates including the Company in a form prescribed by
Holding for such purpose) (i) the Accrued Obligations, (ii) Base Salary for the
remainder of the originally scheduled Term, plus (iii) Executive's target Annual
Bonus for the year in which termination of employment occurs. The amounts
referenced in (i) and (iii) above shall be paid as soon as practicable following
the execution of the applicable release. The amount referenced in (ii) above
shall continue to be paid in accordance with Holding's standard payroll
practices. The Executive shall become fully vested in his Time Based Class C
Units as of the date of termination of employment pursuant to this Section 10C.
All of the Executive's Performance C Units, the vesting of which relates to any
year subsequent to the year in which the date of termination occurs, shall be
forfeited as of the date of such termination of employment. The Executive's
Performance C Units, the vesting of which relates to the year in which such
termination of employment occurs, shall vest on December 31 of such year if the
applicable performance criteria for such vesting are met with respect to such
year and shall be forfeited and cancelled as of such December 31 otherwise. The
Executive shall also be entitled to receive the medical benefits and life
insurance benefits described in Section 7 hereof (offset by any similar benefits
received from a subsequent employer) during the remainder of the originally
scheduled Term.
11. SUCCESSORS AND ASSIGNS. This Agreement, and the Executive's rights and
obligations hereunder, may not be assigned by the Executive. Holding or the
Company may each assign its rights, together with its obligations, hereunder to
third parties in connection with any sale, transfer or other disposition of all
or substantially all of its business or assets; in any event the obligations of
Holding and the Company hereunder shall be binding on each of its successors or
assigns, whether by merger, consolidation or acquisition of all or substantially
all of its business or assets.
12. GOVERNING DOCUMENT. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof, including, without limitation, the
Existing
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Agreement between the Company and the Executive, including all Appendices and
Amendments thereto, which Existing Agreement is deemed terminated in accordance
with Section 1 of this Agreement and shall be of no further force or effect. No
representation, promise or inducement has been made by either party that is not
embodied in this Agreement, and neither party shall be bound by or liable for
any alleged representation, promise or inducement not so set forth.
13. APPLICABLE LAW. This Agreement shall, in all respects, be governed by
the laws of the State of Delaware applicable to agreements executed and to be
wholly performed within the State of Delaware.
14. ARBITRATION. Any and all disputes between Executive and (i) Holding or
(ii) the Company, or any of their employees, which arise out of Executive's
employment or under the terms of this Agreement shall be resolved through final
and binding arbitration. This shall include, without limitation, disputes
relating, to this Agreement, Executive's employment by Holding or the
termination thereof, claims for breach of contract or breach of the covenant of
good faith and fair dealing, and any claims of discrimination or other claims
under Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, or any other foreign,
federal, state or local law or regulation now in existence or hereinafter
enacted and as amended from time to time concerning in any way the subject of
the Executive's employment with Holding or its termination. The only claims not
covered by this Agreement are claims for benefits under the workers'
compensation or unemployment insurance laws, which will be resolved pursuant to
those laws. Final and binding arbitration will be conducted in Philadelphia,
Pennsylvania, in accordance with the rules and regulations of the American
Arbitration Association. Each party will pay 50% of the cost of the arbitration
filing and hearing fees, and the cost of the arbitrator; each side will bear its
own attorneys' fees, that is, the arbitrator will not have authority to award
attorneys' fees unless a statutory section at issue in the dispute authorizes
the award of attorneys' fees to the prevailing party, in which case the
arbitrator has authority to make such award as permitted by the statute in
question. Executive understands and agrees that the arbitration shall be instead
of any civil litigation and that this means that he is waiving his right to a
jury trial as to such claims. The parties further understand and agree that the
arbitrator's decision shall be final and binding to the fullest extent permitted
by law and enforceable by any court having jurisdiction thereof.
15. COUNTERPARTS. This Agreement may be executed in more than one
counterpart, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year written above.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. SPECTAGUARD ACQUISITION LLC
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer and
Treasurer
SPECTAGUARD HOLDING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
