This Employment Agreement involves
Title: EMPLOYMENT AGREEMENT
Governing Law: Delaware Date: 11/14/2006
THIS EMPLOYMENT AGREEMENT (the “ Agreement ”) is made and entered into as of October _____, 2006 by and between Securus Technologies, Inc., a Delaware corporation (the “ Corporation ”), and Richard Falcone (the “ Executive ”).
WHEREAS, the Executive and the Corporation, entered into an employment contract effective September 9, 2004 (the “ Former Contract ”) pursuant to which the Executive was entitled to certain compensation and benefits;
WHEREAS, the execution and delivery of this Agreement, will supersede and replace the Former Contract;
WHEREAS, the Corporation desires to employ the Executive in the capacity, hereinafter stated (referred to in Section 1 below), and the Executive desires to become employed by the Corporation in such capacity for the period and on the terms and conditions set forth herein; and
WHEREAS, the Executive and the Corporation each acknowledge and agree that the terms and conditions of employment set forth below are reasonable and necessary in order to protect the legitimate business interests of the Corporation and to compensate the Executive for information, knowledge and experience brought to or gained from the Corporation.
NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth below, the parties hereby agree as follows:
1. EMPLOYMENT / NOMINATION. Effective immediately the Corporation hereby agrees to employ the Executive as its Chairman and Chief Executive Officer, and the Executive hereby accepts such employment, on the terms and conditions hereinafter set forth. So long as the Executive continues to be employed by the Corporation, the Corporation agrees to cause the Executive to be nominated for election as a member of the Board of Directors (the “ Board ”) of the Corporation.
2. EMPLOYMENT PERIOD. The period of employment of the Executive by the Corporation hereunder (the “ Employment Period ”) shall commence on the signing of this Agreement, and the Employment Period shall terminate on the earlier of (i) January 5, 2009 (the “ Termination Date ”) or (ii) the date Executive’s employment hereunder is earlier terminated in accordance with Section 5 of this Agreement.
3. POSITION AND DUTIES. The Executive shall devote his full time, attention, skills and energies during the Employment Period exclusively to the business of the Corporation, performing such specific functions on behalf of the Corporation that are generally incident to and consistent with the Executive’s position as the Board may direct. The Executive shall hold the position of President and Chief Executive Officer of the Corporation and shall report directly to the Board and have all powers and duties which are associated with such position in the
industries in which the Corporation is engaged. The Executive shall not, without prior written consent from the Board (which consent shall not be unreasonably withheld):
(a) serve as or be a consultant to or employee, officer, agent or director of any corporation, partnership or other entity other than the Corporation and/or its subsidiaries (other than civic, charitable, or other public service organizations); or
(b) have more than a five percent (5%) ownership interest in any enterprise other than the Corporation if such ownership interest would have a material adverse effect upon the ability of the Executive to perform his duties hereunder.
Nothing herein shall preclude the Executive from performing charity work and managing his own personal investments and affairs so long as such activities do not interfere with the performance of the Executive’s duties hereunder.
COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY. During the Employment Period, the Corporation shall pay the Executive a base salary at the rate specified in Exhibit A (the “ Base Salary ”), which Base Salary shall be paid in equal installments in accordance with the Corporation’s payroll policy, subject to Section 5 below.
(b) BONUS. During the Employment Period, the Executive shall receive the bonuses as specified in Exhibit A .
(c) RESTRICTED SHARES. The Executive shall be awarded additional restricted shares of the Corporation’s Class B Common Stock, no par value, per share (the “ Class B Stock ”), of the Corporation as specified in Exhibit A .
(d) OTHER BENEFITS. During the Employment Period, the Executive shall be entitled to and eligible for group health insurance coverage and any other fringe benefits in accordance with policies applicable generally to salaried employees of the Corporation. The Executive shall also be entitled to five (5) weeks paid vacation and other paid absences during the Employment Period in accordance with policies applicable generally to salaried employees of the Corporation. The Executive shall be reimbursed for reasonable expenses incurred in connection with the business of the Corporation and the performance of his duties hereunder in accordance with the policies established by the Corporation for reimbursement of such expenses, provided that (i) such expenses constitute valid business expenses that are deductible from the Corporation’s taxable income under the Internal Revenue Code and (ii) such expenses do not exceed the amounts allocable for such expenses in budgets that are approved from time to time by the Board. In order that the Corporation reimburse the Executive for such allowable expenses, the Executive shall furnish to the Corporation, in a timely fashion, the appropriate documentation required by the Internal Revenue Code in connection with such expenses and shall furnish such other documentation and accounting as are consistent with the Corporation’s policies.
(e) AUTOMOBILE. The Executive shall be entitled to $850 per month for an automobile.
(a) TERMINATION FOR CAUSE. Prior to the end of the Employment Period, the Corporation may terminate the Executive’s employment under this Agreement for “Cause.” For purposes of this Agreement, the Corporation shall have Cause to terminate the Executive’s employment hereunder in the event: (i) the Executive becomes habitually addicted to alcohol or illegal drugs and such addiction materially and adversely affects (A) the performance of the Executive’s obligations under this Agreement or (B) the Corporation; (ii) the Executive discloses confidential information in violation of paragraph 6(a) and such disclosure has a material adverse effect on the Corporation: (iii) the Executive engages in competition in violation of paragraph 6(d) or 6(e); (iv) the Executive has committed any act of willful misconduct, embezzlement or wrongful conversion of money or property belonging to the Corporation, or any act of fraud that adversely affects the business of or relates to the Corporation; (v) the Executive is convicted of a felony at any time hereafter, which is reasonably likely to either (A) have an adverse effect on the Corporation or its business or (B) result in the incarceration of the Executive; (vi) the Executive has failed to comply with any material directive of the Board related to his employment duties promptly following notice to the Executive of such failure; (vii) the Executive has willfully and continually failed to substantially perform his duties hereunder (other than any such failure resulting from the Executive’s death or health), and such failure continues for more than 10 days after written notice thereof to the Executive; or (viii) the Executive has been convicted of any criminal act of egregious misconduct involving serious moral turpitude to the extent that the Executive’s credibility and reputation no longer conform to the standard of the Corporation’s executives. The Executive will be furnished an opportunity upon reasonable notice to state his case to the Board with counsel prior to any termination for “Cause.” If the Executive’s employment is terminated by the Corporation for Cause, the Corporation shall pay the Executive any Base Salary accrued or owing to the Executive hereunder through the date of termination and shall reimburse the Executive for any expenses incurred prior to the date of termination and otherwise reimbursable pursuant to Section 4(e), less any amounts owed by the Executive to the Corporation, and the Corporation shall have no further liability or obligation to the Executive hereunder. Any amount due under this Section 5(a) shall be paid in a lump sum within 30 days after the end of the Employment Period; provided, however, that if the Executive is a “specified employee” within the meaning of Internal Revenue Code Section 409A(a)(2)(B)(i), no Severance Payment will be made before the date that is six (6) months after the payment date provided in the previous clause.
(b) TERMINATION WITHOUT CAUSE. Prior to the end of the Employment Period; (i) the Corporation may terminate the Executive’s employment under this Agreement for a reason other than Cause or no reason whatsoever (i.e., without Cause); or (ii) the Executive may terminate his employment under this Agreement due to Constructive Discharge (as defined below) so long as the Executive gives notice of such Constructive Discharge within sixty (60) days of the occurrence thereof and such Constructive Discharge remains uncured by the Corporation thirty (30) days after the Corporation’s receipt of such notice; provided that if the Corporation has not cured a breach of this Agreement within the thirty (30) day period referenced in clause (iii) of the definition of Constructive Discharge set forth below this sentence will not be deemed to grant the Corporation an additional thirty (30) days cure period with respect to such breach. If the Executive’s employment is terminated
pursuant to this Section 5(b) prior to the expiration of the Employment Period, the Corporation shall pay to the Executive an amount equal to (A) the lesser of (1) two-times the Executive’s annual Base Salary or (2) the amount of remaining Base Salary that would have been payable to the Executive from the date of such termination of employment through the Termination Date (as defined in Section 2), plus (B) the benefits set forth in Section 4(d) which were paid to the Executive in the year prior to the year in which his employment was terminated, plus (C) a pro-rated bonus for the year in which Executive was terminated (based on the number of months the Executive was employed by the Corporation in such year), if the bonus target for such year was being achieved on the date of termination (on a pro rata basis, based on the number of months the Executive was employed by the Corporation in such year) (collectively, the “ Severance Payment ”); provided that the Severance Payment shall be conditioned upon the Executive’s voluntary execution of a commercially reasonable, written release (to be drafted and provided by the Corporation) of any and all employment-related claims, including without limitation any claims related thereto for lost wages or benefits, wrongful termination claims of any kind, stock options, compensatory damages, punitive damages, attorneys’ fees, equitable relief, or any other related form of damages or relief the Executive may assert against the Corporation; provided , however , such release will not release (i) any obligation of the Corporation to fund the Severance Payment, (ii) any obligations of the Corporation pursuant to Section 10 of this Agreement, (iii) any obligations of the Corporation pursuant to the Restricted Stock Purchase Agreement dated the date hereof, (iv) any obligations of the Corporation pursuant to the indemnification agreement contemplated by Section 10 or (v) any obligations of the Corporation to indemnify the Executive pursuant to applicable law, the Certificate of Incorporation of the Corporation or the Bylaws of the Corporation. The Corporation shall pay fifty percent (50%) of the Severance Payment in one payment within thirty (30) days after the end of the Employment Period provided that such release has been in full force and effect for at least ten (10) days, and pay the remaining portion of the Severance Payment in equal monthly installments on the 15th day of each month during the Post-Employment Non-Competition Period (defined below); provided, however, that if the Executive is a “specified employee” within the meaning of Internal Revenue Code Section 409A(a)(2)(B)(i), no Severance Payment will be made before the date that is six (6) months after the payment date provided in the previous clause. If the Corporation terminates the employment of the Executive because he has become disabled such that he is unable to perform the essential functions of his job with reasonable accommodation for a period of not less than fifteen (15) consecutive weeks, any such termination shall be deemed to be a termination without Cause pursuant to this Agreement. Similarly, the Executive’s employment shall terminate upon his death, and shall be deemed a termination by the Corporation without Cause, with payments of the Severance Payment hereunder to be made to the Executive’s estate. For purposes of this Section 5(b), the term “ Constructive Discharge ” means:
(i) a material adverse reduction in the Executive’s job function, authority, duties or responsibilities, or a similar change in the Executive’s reporting relationships;
(ii) a required relocation of Executive of more than thirty-five (35) miles from the Executive’s current job location;
(iii) any breach of any of the terms of this Agreement by the Corporation which is not cured within thirty (30) days following written notice thereof by the Executive to the Corporation; or
(iv) during the Employment Period, any failure to nominate and/or elect the Executive as a member of the Board and/or any removal of the Executive as a member of the Board (other than for cause).
(c) TERMINATION AS A RESULT OF CHANGE OF CONTROL. This contract will also terminate if a change of control occurs.
6. CONFIDENTIAL INFORMATION, REMOVAL OF DOCUMENTS, DEVELOPMENTS AND NON-COMPETITION, RELEASE.
(a) CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary capacity for the benefit of the Corporation and its subsidiaries all trade secrets, confidential information, proprietary information, knowledge and data relating to the Corporation and/or the businesses or investments of the Corporation which may have been obtained by the Executive during the Executive’s employment by the Corporation and its subsidiaries including such information with respect to any products, improvements, formulas, designs or styles, processes, services, customers, suppliers, marketing techniques, methods, know-how, data, future plans or operating practices (“ Confidential Information ”); provided that “Confidential Information” shall not include information that (i) is or becomes generally available to the public other than as a result of a disclosure by the Executive or (ii) is or becomes available to the Executive on a non-confidential basis from a source that is not known to the Executive to be prohibited from disclosing such information to the Executive by a legal, contractual or fiduciary obligation. Except as may be required or appropriate in connection with his carrying out his duties under this Agreement, the Executive shall not, without the prior written consent of the Corporation or as may otherwise be required by law or legal process, communicate or divulge any such Confidential Information to anyone other than the Corporation and those designated by the Corporation. The Corporation, understands, acknowledges and agrees that, notwithstanding this Section 6, the Executive may disclose the terms and conditions of this Agreement to the extent reasonably necessary to enforce this Agreement.
(b) REMOVAL OF DOCUMENTS. All records, files, drawings, letters, memoranda, reports, computer data, computer disks, electronic storage media, documents, models and the like relating to the business of the Corporation and/or the business of any of its subsidiaries, which the Executive prepares, uses or comes into contact with and which contain Confidential Information shall be the exclusive property of the Corporation to be used by the Executive only in the performance of his duties for the Corporation and shall not be removed by the Executive from the premises of the Corporation (without the written consent of the Corporation) during or after the Employment Period unless such removal shall be required or appropriate in connection with his carrying out his duties under this Agreement, and, if so removed by the Executive, shall be returned to the Corporation immediately upon termination of the Executive’s employment hereunder, or earlier request by the Corporation (with the Executive retaining no copies thereof nor any notes or other records relating thereto).
(c) DEVELOPMENTS. The Executive will make full and prompt disclosure to the Corporation of all inventions, improvements, discoveries, methods, developments, software and/or works of authorship relating in any way to the business, activities or affairs of the Corporation or any of its subsidiaries, whether patentable or not, which are created, made, conceived or reduced to practice (in whole or in part) by the Executive or under his direction or jointly with others during the Employment Period, whether or not during normal working hours or on the premises of the Corporation (collectively, “ Developments ”). The Executive agrees to assign and does hereby assign to the Corporation all of his right, title and interest in and to all Developments and related patents, copyrights and applications thereto. The Executive shall do all permissible things, and take all permissible action, necessary or advisable, in the Corporation’s sole discretion and at the Corporation’s expense, to cause any other person related to the Executive or an entity controlled by the Executive having an interest in a Development to assign to the Corporation all of such person’s or entity’s right, title and interest in and to such Development and related patents, copyrights and applications therefor. The Executive agrees to cooperate fully with the Corporation at the Corporation’s expense, both during and after the termination of the Employment Period, with respect to the procurement, maintenance and enforcement of copyrights and patents (both in the United States and foreign countries) relating to Developments.
(d) NON-COMPETITION. During (i) the Executive’s employment with the Corporation and (ii) the Post-Employment Non-Competition Period, the Executive (A) shall not engage, anywhere within the geographical areas in which the Corporation or any of its subsidiaries is then conducting its business operations, directly or indirectly, alone, in association with or as a shareholder, principal, agent, partner, officer, director, executive or consultant of any other organization, in any business which involves or relates to providing services to a Competitive Business (defined below); (B) shall not solicit or encourage any officer, executive, independent contractor, vendor or consultant of the Corporation or any of its subsidiaries to leave the employ of, or otherwise cease his relationship with, the Corporation or any of its subsidiaries; and (C) shall not solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the customers or accounts, of the Corporation or any of its subsidiaries, which were served by any such entity during the time the Executive was employed by the Corporation. If the Executive violates any of the provisions of this Section 6(d), following his termination of employment, the computation of the time period provided herein shall be tolled from the first date of the breach until the earlier of (i) the date judicial relief is obtained by the Corporation, (ii) the Corporation states in writing that it will seek no judicial relief for said violation, or (iii) the Executive provides satisfactory evidence to the Corporation that such breach has been remedied. If, at any time, the provisions of this Section 6(d) shall be determined to be invalid or unenforceable, by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6(d) shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and the Executive agrees that this Section 6(d) as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein. For purposes of this Section 6, Executive and the Corporation agree that:
“ Competitive Business ” shall mean (i) the inmate telephone business, (ii) the business of selling, leasing or otherwise providing law enforcement management
systems, jail management systems and/or other tracking or record systems to inmate, jail or correctional facilities, (iii) the billing, collection and/or validation business within the inmate telephone industry, and/or (iv) any material line of business that the Corporation or any of its subsidiaries are engaged in on the date of termination, expiration or non-extension of the Employment Period; provided , however , that Competitive Business shall not include an organization where the activities described in (i) through (iv) do not represent a material portion of such organization’s revenues and (I) the Executive’s primary duties do not relate to such activities or (II) the Executive does not participate to a material extent in such activities; and
“ Post-Employment Non-Competition Period ” shall mean the one-year period immediately following the expiration or earlier termination of the Employment Period; provided that if, (A) pursuant to Section 5(b), the Executive receives two-times his annual Base Salary as contemplated by clause (A)(1) of such Section’s second sentence, then “ Post-Employment Non-Competition Period ” shall mean the two-year period immediately following the expiration or earlier termination of the Employment Period or (B) the Executive receives the payment described in clause (A)(2)(II) of such Section’s second sentence, then “ Post-Employment Non-Competition Period ” shall mean the period from the expiration or earlier termination of the Employment Period until January 1, 2009.
(e) NON-COMPETITION IN EXPANSION MARKETS. Executive acknowledges that a valuable asset of the Corporation is the plan of the Corporation to extend and expand their business, by acquisition or otherwise, to areas of the United States of America which the Corporation does not yet serve as of the date hereof. Accordingly, during (i) the Executive’s employment with the Corporation and (ii) Post-Employment Non-Competition Period, the Executive shall not engage, anywhere in the United States of America, directly or indirectly, alone, in association with or as a shareholder, principal, agent, partner, officer, director, executive or consultant of any other organization, in any Competitive Business. If the Executive violates any of the provisions of this Section 6(e), following his termination of employment, the computation of the time period provided herein shall be tolled from the first date of the breach until the earlier of (i) the date judicial relief is obtained by the Corporation, (ii) the Corporation states in writing that it will seek no judicial relief for said violation, or (iii) the Executive provides satisfactory evidence to the Corporation that such breach has been remedied. If, at any time, the provisions of this Section 6(e) shall be determined to be invalid or unenforceable, by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6(e) shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and the Executive agrees that this Section 6(e) as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
(f) CONTINUING OPERATION. Any termination of the Executive’s employment or of this Agreement shall have no effect on the continuing operation of this Section 6.
(g) LEGITIMATE BUSINESS INTERESTS. The Executive has carefully read and considered the provisions of this Section 6 and, having done so, agrees that the restrictions set forth herein, including, without limitation, the time and geographic restrictions set forth above, are fair and reasonable and are reasonably required for the protection of the legitimate business interests and goodwill of the Corporation.
(h) REMEDIES. The Executive acknowledges that any violation of any of the covenants and agreements contained in this Section 6 may result in irreparable and continuing harm and damage to the Corporation which would be extremely difficult to quantify and for which money damages alone would not be adequate compensation. Consequently, the Executive agrees that, in the event he violates or threatens to violate any of these covenants and agreements, the Corporation shall be entitled to seek: (1) entry of an injunction enjoining such violation and/or requiring the Executive to return all materials or other proprietary information of the Corporation and (2) money damages insofar as they can be determined. Nothing in this Agreement shall be construed to prohibit the Corporation and its subsidiaries from also pursuing any other legal or equitable remedy, the parties having agreed that all remedies that are not inconsistent are cumulative.
7. SEVERABILITY. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement.
8. WAIVER. The rights and remedies of the parties to this Agreement are, to the extent not inconsistent, cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be waived, released or discharged by one party, in whole or in part, by a waiver, release or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
9. BINDING AGREEMENT. This Agreement shall be binding upon the Corporation and its affiliates, and the Executive and his assigns, heirs and legal representatives. Each of the Corporation’s subsidiaries shall be third party beneficiaries of this Agreement and may independently enforce and benefit from the terms hereof.
10. OTHER AGREEMENTS; INDEMNIFICATION. The Executive hereby represents that the Executive is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary information in the course of the Executive’s employment with the Corporation or to
refrain from competing, directly or indirectly, with the business of such previous employer or any other party. The Executive further represents that his performance of all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the Executive in confidence or in trust prior to the date of this Agreement, and the Executive will not disclose to the Corporation or any subsidiary or knowingly induce the Corporation or any subsidiary to use any confidential or proprietary information or material belonging to any previous employer of the Executive or to any other person or entity. The Executive hereby indemnifies and agrees to defend and hold the Corporation and its subsidiaries harmless from and against any and all damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees) resulting or arising directly from any breach of the representations and covenants contained in the immediately preceding sentence. The Executive shall be indemnified and held harmless to the fullest extent permitted by applicable law, including § 145 of the General Corporation Law of the State of Delaware, from and against any and all damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly as a consequence of the Executive’s service as an officer and/or director of the Corporation or any of its subsidiaries. Such indemnification will be provided pursuant to the terms of a mutually agreeable indemnification agreement which will obligate the Corporation to pay expenses (within thirty (30) days of invoice) incurred by the Executive in connection with any matter with respect to which the Executive reasonably claims entitlement to indemnification. The Corporation shall maintain at all times during the Employment Period and for a period of no less than two (2) years thereafter, directors and officers liability insurance (including the Executive as a beneficiary) having terms not less favorable than the policies in effect on the date hereof.
11. WITHHOLDING. Any payments provided for in this Agreement shall be paid net of any applicable withholding of taxes required under federal, state or local law.
12. RECITALS; HEADINGS; CONSTRUCTION. The Recitals set forth in the preamble of this Agreement shall be deemed to be included and form an integral part of this Agreement. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this agreement will be construed to be of such gender