January 9, 2006
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
President & Chief Financial Officer
Command Security Corporation
P.O Box ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇▇▇:
Consulting Agreement
1. Engagement
(a) This letter (this "Consulting Agreement") confirms our agreement
pursuant to which you have retained ▇▇▇▇▇▇▇▇ Security & Safety LLC (together
with its members, employees and agents, "GSS") to provide certain professional
consulting services described below (the "Engagement") to Command Security
Corporation ("Command").
(b) In consideration of the advisory fees to be paid to GSS pursuant to
this Consulting Agreement, GSS shall provide advice and assistance to Command
regarding Command's security services business ("Command's Business"), and
shall:
(i) Recommend, at an appropriate time, Command's services to appropriate
clients of GSS and of ▇▇▇▇▇▇▇▇ Partners LLC and its other
subsidiaries (collectively, "GP");
(ii) utilize Command's security personnel as GP's primary resource for
the needs of GP clients for the services provided by Command, to the
extent authorized by such clients;
(iii) advise Command on the expansion of Command's Business and scope of
services through strategic acquisitions that enhance its service
offerings;
(iv) advise Command of new technologies in the areas of security and
homeland defense and how the use of such technologies could increase
the profitability of Command's Business;
(v) make available senior executives of GSS to assist Command with
finalizing negotiations with prospective customers and acquisition
targets; and
(vi) work with Command to enhance the training of its employees,
including helping to draft and edit Command's training manuals and
materials.
(c) As part of the Engagement, GSS shall assist Command in the development
of Command's strategies with regard to:
(i) increasing Command's market presence within industry sectors in
which it currently operates and developing opportunities for
expansion into new sectors. During the Term (as defined below), GSS
will assist Command to pursue new business opportunities by
introducing Command to companies for which it currently performs no
services; and
(ii) expanding Command's Business to include an emergency services branch
to provide operational services in emergency preparedness, fire
safety, crisis management and business continuity. The emergency and
crisis management effort will be directed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the
former Commissioner of the New York City Office of Emergency
Management. The fire safety effort will be directed by ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, the former New York City Fire Commissioner.
(d) GSS initially shall assign ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as the GSS executive
with the responsibility of coordinating GSS's obligations hereunder (the "Team
Leader") and shall make available other personnel resources to perform the
Engagement and assist the Team Leader. The Team Leader will act under the
supervision of ▇▇▇ ▇'▇▇▇▇▇.
(e) GSS shall reasonably accommodate Command's requests for the services
described above consistent with GSS's and GP's other commitments and
obligations, including, without limitation, making ▇▇. ▇▇▇▇▇▇▇▇ reasonably
available, consistent with his schedule and other commitments, to provide
assistance in connection with this Consulting Agreement; provided, however, that
in no event shall GSS be required to perform any services that might reasonably
be deemed to constitute "lobbying" (or any analogous regulated activity) under
applicable law or regulations.
2. Term of the Engagement
The term of the Engagement pursuant to this Consulting Agreement (the
"Term") shall commence on the date hereof (the "Effective Date") and end on the
first anniversary of the Effective Date.
3. Advisory Fees
As compensation for GSS's performance of its obligations pursuant to this
Consulting Agreement, Command agrees to pay GSS a monthly cash fee during the
Term of one hundred seventy five thousand dollars ($175,000) payable beginning
on the Effective Date and continuing thereafter on the 15th day of each month
(or, if such day is not a business day, on the next succeeding business day).
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4. Expenses
Command agrees to promptly reimburse GSS for its out-of-pocket expenses
necessarily and reasonably incurred by GSS and its representatives in connection
with the performance of its duties pursuant to this Consulting Agreement (e.g.,
travel and lodging, but excluding any compensation paid to any employees,
partners or affiliates of GSS and any allocation of overhead or similar
expenses).
5. Confidentiality; Use of ▇▇. ▇▇▇▇▇▇▇▇'▇ Name
(a) GSS shall (i) treat and maintain as confidential and/or privileged all
information, documents, materials and work product that are, have been or shall
be generated or created by or communicated or provided to GSS by Command
relating to any activity undertaken as part of this Consulting Agreement
("Confidential Information") and shall not reveal any such Confidential
Information, document, material or work product to any person or utilize any of
them in any way except as directed or approved by Command and (ii) require its
employees, affiliates, officers, directors and shareholders to maintain
confidentiality of such Confidential Information; provided, however, that GSS
may reveal such Confidential Information, documents, materials or work product
if required by law pursuant to subpoena or other government process after prior
written notice to Command and to the extent permitted under the circumstances to
afford Command an opportunity to challenge such process at Command's sole
discretion and expense. In the alternative, should Command so direct, GSS shall
undertake to challenge such process at Command's sole expense; provided, that
such challenge is permitted by law under the circumstances.
GSS acknowledges the unique and proprietary nature of the Confidential
Information and agrees that Command's remedies at law for a breach by it of its
obligations under this paragraph 5 may be inadequate and that Command shall, in
the event of any such breach, be entitled to seek equitable relief (including,
without limitation, provisional and permanent injunctive relief and specific
performance) in addition to any other remedies under this Consulting Agreement
or available at law.
(b) Except as required by applicable securities laws, the parties shall
keep the terms of this Consulting Agreement (but not the existence of our
consulting relationship or this Consulting Agreement) strictly confidential at
all times and neither party shall make any statement regarding this Consulting
Agreement without the advance consent of the other, which consent shall not be
unreasonably withheld or delayed.
(c) The trade names and trademarks "▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇," or "▇▇▇▇▇▇▇▇
Partners LLC" or "▇▇▇▇▇▇▇▇ Security & Safety LLC" or any similar mark or
variations or derivations thereof (collectively, the "▇▇▇▇▇▇▇▇ ▇▇▇▇▇"), shall
not be used by Command without GSS's prior written consent, and upon any
termination of this Consulting Agreement, Command shall have no further right to
use or exploit the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in any fashion. Command shall not by act or
omission use the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or perform any services hereunder in any manner
that tarnishes, degrades, disparages or reflects adversely on the ▇▇▇▇▇▇▇▇
▇▇▇▇▇, GSS, its affiliates, or their business or reputation (an "Adverse
Effect"), and in the event of any such act or omission, or if the Engagement
otherwise results in an Adverse Effect, GSS shall have the right to terminate
the Engagement and this Agreement. Except as expressly provided herein, nothing
in this Consulting Agreement shall be deemed to give Command any right, title or
interest in or to any of GSS's trade names, trademarks or service marks.
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6. Promotional Materials
Command and GSS agree that each party shall submit to the other party, for
their respective review, all advertising, written sales promotion, press
releases, news clippings and other publicity matters relating to this Consulting
Agreement and the strategic relationship created hereby or containing language
from which this Consulting Agreement or such relationship may be inferred or
implied ("Promotional Materials") and not publish, disseminate or use any such
Promotional Materials without the other party's prior written consent, such
consent not to be unreasonably withheld.
7. Representations And Warranties of the Parties
As an inducement to the parties to enter into this Consulting Agreement,
each party hereto represent to the other as of the date hereof as follows:
(a) Organization, Authority and Qualification. It is a corporation,
partnership or limited liability company, as the case may be, duly organized,
validly existing and in good standing under the laws of the State of its
formation and has all necessary power and authority to enter into this
Consulting Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Consulting Agreement by it, the performance by it of its obligations hereunder
and the consummation by it of the transactions contemplated hereby have been
duly authorized by all requisite action. This Consulting Agreement has been duly
executed and delivered by it, and (assuming due authorization, execution and
delivery by the other parties) this Consulting Agreement constitutes a legal,
valid and binding obligation of it enforceable against it in accordance with its
terms.
(b) No Conflict. (i) The execution, delivery and performance of this
Consulting Agreement by it do not and will not (A) contravene, conflict with or
violate its organizational documents, (B) contravene, conflict with or violate
any Law applicable to it or by which any of its properties or assets is bound or
affected or (C) result in any breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien on any of its properties or assets pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation, except for any such
conflicts, violations, breaches, defaults or other occurrences that would not
adversely affect or materially delay its ability to carry out its obligations
under, and to consummate the transactions contemplated by, this Consulting
Agreement.
(ii) The execution, delivery and performance of this Consulting Agreement
by it do not and will not require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental entity, except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filing or notifications, would not adversely affect or materially
delay its ability to carry out its obligations under, and to consummate the
transactions contemplated by, this Consulting Agreement.
(c) Absence of Litigation. As of the date of this Consulting Agreement,
there is no action pending or, to its knowledge, threatened, before any
governmental entity or any tribunal that seeks to delay or prevent the
consummation of the transactions contemplated by this Consulting Agreement.
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8. Indemnification and Related Matters
(a) Command agrees to indemnify GSS and GP, any controlling person of GSS
or GP and each of their respective partners, shareholders, directors, officers,
employees, agents, affiliates and representatives (each, a "GSS Indemnified
Party") and hold each of them harmless against any actions, judgments, claims,
losses, damages, expenses, liabilities, joint or several, to which any GSS
Indemnified Party may become liable, directly or indirectly, arising out of, or
relating to, the Engagement or this Consulting Agreement, including but not
limited to reimbursement for all GSS or GP fees, costs, reasonable attorney's
fees and disbursements and defense or other costs associated with any such
actions, judgments or claims, unless and until it were to be finally adjudicated
that such liabilities resulted from the gross negligence or willful misconduct
of any GSS Indemnified Party. Command further agrees to reimburse each GSS
Indemnified Party immediately upon request for all expenses (including
reasonable attorneys' fees and expenses) as they are incurred in connection with
the investigation of, preparation for, defense of, or providing evidence in, any
action, claim, suit proceeding or investigation, directly or indirectly, arising
out of, or relating to, this Consulting Agreement or the Engagement. In the
event that a GSS Indemnified Party is requested or required to appear as a
witness in any action brought by or on behalf of or against Command, or any of
their affiliates in which such GSS Indemnified Party is not named as a
defendant, Command agrees to reimburse GSS or GP for all out-of-pocket expenses
incurred by it in connection with such GSS Indemnified Party's appearing and
preparing to appear as such a witness, including, without limitation, the
reasonable fees and disbursements of its legal counsel.
(b) GSS agrees to indemnify Command, any controlling person of Command and
each of their respective partners, shareholders, directors, officers, employees,
agents, affiliates and representatives (each, a "Command Indemnified Party") and
hold each of them harmless against any actions, judgments, claims, losses,
damages, expenses, liabilities, joint or several, to which any Command
Indemnified Party may become liable, directly or indirectly, arising out of, or
relating to, the Engagement or this Consulting Agreement and solely to the
extent directly and proximately caused by the gross negligence or willful
misconduct of GSS or GP (or any of their respective partners, shareholders,
directors, officers, employees, agents, affiliates and representatives) during
the Term, including but not limited to reimbursement for all of Command's fees,
costs, reasonable attorney's fees and disbursements and defense or other costs
associated with any such actions, judgments or claims, unless and until it were
to be finally adjudicated that such liabilities resulted from the gross
negligence or willful misconduct of any Command Indemnified Party. GSS further
agrees to reimburse each Command Indemnified Party immediately upon request for
all expenses (including reasonable attorneys' fees and expenses) as they are
incurred in connection with the investigation of, preparation for, defense of,
or providing evidence in, any action, claim, suit proceeding or investigation,
directly or indirectly, arising out of, or relating to, this Consulting
Agreement or GSS's services hereunder. Moreover, in no event, regardless of the
legal theory advanced, shall GSS be liable for any consequential, indirect,
incidental, punitive or special damages of any nature. In no event shall GSS'
liability (whether direct, indirect, contract or otherwise) directly or
indirectly relating to or in connection with this Consulting Agreement exceed
the fees received by GSS from Command during the months that any such liability
of GSS under this paragraph arose. In the event that a Command Indemnified Party
is requested or required to appear as a witness in any action brought by or on
behalf of or against GSS, or any of their affiliates in which such Command
Indemnified Party is not named as a defendant, GSS agrees to reimburse Command
for all out-of-pocket expenses incurred by it in connection with such Command
Indemnified Party's appearing and preparing to appear as such a witness,
including, without limitation, the reasonable fees and disbursements of its
legal counsel.
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(c) Each party agrees that, without the prior written consent of the other
party hereto, that such party will not settle, compromise or consent to the
entry of any judgment in or otherwise seek to terminate any claim, action, suit,
proceeding or investigation in respect of which indemnification could be sought
hereunder (whether or not GSS, GP, Command or any other indemnified party is an
actual or potential party to such claim, action, suit, proceeding or
investigation), unless (i) such settlement, compromise, consent or termination
includes an unconditional release of each indemnified party from any liabilities
arising out of such claim action, suit, proceeding or investigation and (ii) the
parties agree that the terms of such settlement shall remain confidential.
(d) Command shall be solely responsible for the performance of Command's
services and products. Any representation or covenant, whether express or
implied, given by Command to any customer or third party regarding the Command
services and products shall be the sole responsibility of Command, and neither
GSS nor GP shall be liable for, and each of GSS and GP shall be indemnified
against in accordance with paragraph 8(a) (without regard to any exceptions or
limitations contained in such paragraph), any failure to comply with such
representation or covenant.
9. No Other Consulting Agreements
Neither GSS nor any of its affiliates has entered into, nor shall it or
any of them enter into any consulting, partnership, joint venture or similar
agreement or arrangement with any other party that is a direct competitor of
Command; provided, however, that nothing in the foregoing shall prohibit GSS or
any of its affiliates from entering into any agreement or arrangement with (i) a
parent or other affiliate of any direct competitor of Command that is not itself
such a direct competitor (so long as the services to be performed under such
agreement will not be rendered to any such direct competitor) or (ii) a direct
competitor if such agreement or arrangement is not substantially related to the
business of such party that is in direct competition with Command. Except as set
forth in the preceding sentence, nothing in this Consulting Agreement shall
prevent GSS from entering into consulting agreements or arrangements with other
parties for any purpose, so long as GSS is not prevented by any such agreement
or arrangement from performing its obligations hereunder. During the Term, in
any circumstance in which GSS or GP either have the authority to retain, or the
opportunity to recommend to a client or other third party that they retain, a
security guard firm for services of a kind customarily performed by Command
within a geographic area customarily serviced by Command and at fair market
pricing, GP shall retain or recommend Command for such assignment, it being
understood and agreed that where GSS or GP do not have the exclusive authority
and discretion to retain the relevant security guard firm, this covenant shall
not be deemed breached merely because the client or other third party decides to
retain some other firm than Command.
10. Modification of Consulting Agreement; Non-Assignability; Entire
Consulting Agreement
(a) This Consulting Agreement may not be changed or altered except in a
writing duly executed by an authorized agent of both parties hereto.
(b) Neither party may assign any of its rights or obligations or delegate
any of its duties under this Consulting Agreement without the prior written
consent of the other party.
(c) There have been no representations, inducements, promises or
agreements of any kind that have been made by either party, or by any person
acting on behalf of either party, which are not embodied within this Consulting
Agreement. This Consulting Agreement constitutes the entire understanding and
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, between
the parties with respect to the subject matter hereof.
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11. Independent Contractor Status
In connection with this Consulting Agreement, GSS is acting as an
independent contractor and not in any other capacity, and does not have any
authority to act as an agent for, or otherwise bind Command. No partnership,
joint venture or similar legal relationship between GSS or Command shall be
created or implied by this Consulting Agreement.
12. Governing Law
All aspects of the relationship created by this Consulting Agreement shall
be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed therein, without giving
effect to any conflict of rule law or principle that would give effect to the
laws of another jurisdiction.
13. Cumulative Remedies
The rights and remedies granted by this Consulting Agreement to either
party will not be deemed to prohibit either party from exercising any other
rights or remedies provided under this Consulting Agreement or by law or equity.
14. Costs and Attorneys' Fees
Save as expressly otherwise provided in this Consulting Agreement, each of
the parties shall bear its own legal, accountancy and other costs, charges and
expenses connected with the negotiation, preparation and implementation of this
agreement and any other agreement incidental to or referred to in this
Consulting Agreement. All costs and expenses incurred by a party in any
arbitration or action to enforce this Consulting Agreement shall be borne by
such party (including attorneys' fees and expert costs), unless otherwise
determined by the arbitrator or other tribunal, as applicable, provided that the
parties shall split evenly any filing fees or arbitrators fees.
15. No Third Party Beneficiaries
Except with respect to obligations to GSS Indemnified Parties and Command
Indemnified Parties pursuant to paragraph 8, this Consulting Agreement is
intended for the benefit only of the parties hereto and not any other person or
entity.
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16. Arbitration
(a) Any dispute, controversy or claim arising out of or relating to this
Consulting Agreement or the breach, termination, enforceability or validity
hereof shall be heard and determined by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (the
"AAA"). The number of arbitrators shall be three. Each party shall select an
arbitrator from the list of names submitted to the parties by the AAA, and such
two arbitrators shall appoint the third arbitrator. The place of arbitration
shall be the City of New York.
(b) No provision of or the exercise of any rights under this Section 16
shall limit the right of any party to request and obtain from a court of
competent jurisdiction in the City of New York (which shall have exclusive
jurisdiction for purposes of this paragraph 16) provisional remedies and relief.
Each of the parties hereby submits unconditionally to the exclusive jurisdiction
of the state and federal courts located in the City of New York for purposes of
this provision, waives and agrees not to assert objection to the venue of any
proceeding in any such court or that any such court provides an inconvenient
forum and consents to the service of process upon it in connection with any
proceeding instituted under this paragraph 15(b) in the same manner as provided
for the giving of notice hereunder.
17. Survival and Interpretation
All paragraphs herein relating to compensation, expenses, ownership,
representations and warranties, actions, limitation on damages, confidentiality,
indemnification, arbitration, survival, binding nature, assignment and
delegation, non-solicitation, interpretation, governing law, and jurisdiction
and venue shall survive the expiration or termination of this Consulting
Agreement. In the event of any conflict, ambiguity, or inconsistency between
this Consulting Agreement and any exhibit hereto, this Consulting Agreement
shall govern and control.
18. Execution of the Consulting Agreement and Signatures
Your signature below on the indicated enclosed copy of this Consulting
Agreement is your representation that you are authorized to enter into this
Consulting Agreement and to agree to the terms hereof on behalf of Command. This
Consulting Agreement shall be binding on all parties and their respective heirs,
successors and permitted assigns.
* * * *
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If the foregoing correctly reflects our mutual understanding and agreement
with respect to the terms of this Consulting Agreement set forth herein, please
so confirm by executing and delivering the enclosed copy of this Consulting
Agreement to the undersigned, and upon the Effective Date, this Consulting
Agreement shall become a binding agreement upon Command and GSS in accordance
with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇ SECURITY & SAFETY LLC
By: _______________________
Name: ____________________
Title: _____________________
ACCEPTED AND AGREED:
COMMAND SECURITY CORPORATION
By: _______________________
Name: _____________________
Title: ______________________
Date: _____________________
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