Exhibit 10.3


 


SECOND AMENDMENT


TO EMPLOYMENT AGREEMENT


 


SECOND AMENDMENT, dated as of December 3, 2008 (this “Second
Amendment”) to the Employment Agreement (the “Employment Agreement”)
between and among Anthony Wilson (“Executive”), Protection One, Inc.,
a Delaware corporation, Security Monitoring Services, Inc. (d/b/a CMS) a
Florida corporation (the “Company”), and Protection One Alarm Monitoring, Inc.,
a Delaware corporation, dated as of July 23, 2004, as amended by the First
Amendment to Employment Agreement dated as of February 8, 2005 (the “First
Amendment”).  This Second Amendment
shall become effective upon the date of hereof (the “Effective Date”).


 


W  I  T  N
E  S  S  E  T  H :


 


WHEREAS, Section 22 of the Employment Agreement
provides that any modification of any provision of the Employment Agreement
shall be valid only if made in writing and signed by Executive and a duly
authorized officer of the Company; and


 


WHEREAS, the parties hereto desire to amend certain
provisions of the Employment Agreement as more fully set forth herein.


 


NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in consideration
of the agreements herein, the parties hereto agree as follows:


 


1.               Amendments.


 


(a)          Section 4(b) of the Employment Agreement is hereby amended by
adding to the end of such section:  “Such
bonus shall be paid, if earned, no later than March 15 of the calendar
year immediately following the calendar year to which such bonus relates.”


 


(b)         Section 5(a)(A)(III) of
the Employment Agreement is hereby removed in its entirety.


 


(c)          Section 5(a)(C) of the Employment Agreement is hereby amended
and restated in its entirety to read as follows:


 


“(C)  the Company shall continue, for a period
of one (1) year (or two (2) years in the event Executive is entitled
to payments under Sections 5(a)(B)(x) and (y)) following Executive’s Date
of Termination, to provide Executive (and Executive’s dependents, if
applicable) with substantially similar levels of medical, dental, and life
insurance benefits upon substantially similar terms and conditions as Executive
would have been entitled to receive if he had continued in employment; provided, that, if Executive cannot
continue to participate in the Company benefit plans providing such benefits,
the Company shall provide a monthly cash payment over the same one (1) year
period (or two (2) years in the event Executive is entitled to payments
under Sections 5(a)(B)(x) and (y)) to reimburse Executive for the cost of
premiums comparable to those that would be required to receive such benefits on
a substantially similar basis, plus the amount of any conversion fees required
to convert from group coverage to individual coverage under the Company’s
existing benefit plans (the “Benefits Monthly Payments”).  In the event Executive cannot continue to
participate in the Company benefit plans providing such benefits, Executive
shall present the Company with one or more benefit plans that Executive has
obtained or intends to obtain that provide benefits on a substantially similar
basis as the benefits provided to Executive prior to the Date of Termination
(and acknowledgment from the provider of such benefit plans that such benefit
plans have been or 


 


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can be obtained by Executive on those terms, including, without
limitation, at least substantially similar scope of coverage, substantially
similar deductibles and substantially similar co-payments), then the Benefits
Monthly Payment shall be made based on the premiums plus any other
administrative fees (except co-payments) charged by the company offering such
plans.  If it is determined by the
Company that any portion of the Benefits Monthly Payment constitutes taxable
wages for federal income and/or employment tax purposes, the Company agrees to
pay Executive an additional amount (the “Benefits Gross-Up Payment”)
such that the net amount retained by Executive from the Benefits Monthly
Payment and the Benefits Gross-Up Payment, after reduction for any federal,
state and local income and employment taxes on the Benefits Monthly Payment and
the Benefits Gross-Up Payment, shall equal the Benefits Monthly Payment.  Notwithstanding the foregoing, in the event Executive
becomes reemployed with another employer and becomes eligible to receive
benefits from such employer, the benefits described herein shall be secondary
to such benefits during the period of Executive’s eligibility, but only to the
extent that the
Company reimburses Executive for any increased cost and provides any additional
benefits necessary to give Executive the benefits provided hereunder; and”


 


(d)   Section 5(a)(D) is hereby amended by adding to the end
of such section “; provided that in no circumstance shall such Award be
exercisable later than the earlier of the latest date such award could have
expired by its original terms under any circumstances or the 10th anniversary
of the original date of grant of such Award.”


 


(e)          New Section 5(c) is
hereby added to read as follows:


 


“(c)  Section 409A.  Notwithstanding the timing of any payments
pursuant to Section 5 of this Agreement, if the Employee is deemed
on the date of termination to be a “specified employee” within the meaning of
that term under Code Section 409A(a)(2)(B), then each of the following
shall apply:


 


(A)    With regard to any payment that is
considered deferred compensation under Code Section 409A payable on
account of a “separation from service,” such payment shall be made on the date
which is the earlier of (A) the expiration of the six (6)-month period
measured from the date of such “separation from service” of the Employee, and (B) the
date of the Employee’s death (the “Delay Period”) to the extent required
under Code Section 409A.  Upon the
expiration of the Delay Period, all payments delayed pursuant to this Section (whether
they would have otherwise been payable in a single sum or in installments in
the absence of such delay) shall be paid to the Executive in a lump sum, and
any remaining payments and benefits due under this Agreement shall be paid or
provided in accordance with the normal payment dates specified for them herein;
and


 


(B)               To the extent any benefits provided during the first
six months after Executive’s termination are considered deferred compensation under
Code Section 409A provided on account of a “separation from service,” and
such benefits are not otherwise exempt from Code Section 409A, Executive
shall pay the cost of such benefits during the first six months following
termination and shall be reimbursed, to the extent such costs would otherwise
have been paid by the Company or to the extent such benefits would otherwise
have been provided by the Company at no cost to the Executive, the cost of such
coverage six months after Executive’s termination.


 


(f)                  New Section 26
is hereby added to read as follows:


 


“26. Section 409A.  Notwithstanding anything to the contrary in
this Agreement,


 


(a) to the extent
Executive is entitled to the reimbursement of any expenses or in-kind benefits
under this Agreement that the Company determines constitutes taxable income to
the Executive, (X) the amount of expenses eligible for reimbursement, or
the in-kind benefits provided, during a calendar year may not affect the
expenses eligible for reimbursement, or in-kind benefits to be 


 


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provided, in any other taxable year, (Y) such
reimbursement will be made on or before the last day of the calendar year
immediately following the calendar year in which such expense was incurred, and
(Z) the right to reimbursement or in-kind benefits shall not be subject to
liquidation or exchange for another benefit.


 


(b) to the extent any
provision of this Agreement provides Executive with a tax gross-up payment for
any taxes that Executive may incur as a result of such benefits provided
hereunder (a “Tax Gross-Up Payment”), such Tax Gross-Up Payment will be
made by the end of the calendar year next following the calendar year in which
the Executive remits the related taxes.


 


(c) the right to any
additional Tax Gross-Up Payment that Executive may be entitled to under this
Agreement due to a tax audit or litigation addressing the existence or amount
of the tax liability underlying the Tax Gross-Up Payment will be made by the
end of the calendar year following the calendar year in which the taxes that
are the subject of the audit or litigation are remitted to the taxing
authority, or, where as a result of such audit or litigation no taxes are
remitted, the end of the calendar year following the calendar year in which the
audit is completed or there is a final and nonappealable settlement or other
resolution of the litigation.


 


(d) For purposes of
Code Section 409A, the Employee’s right to receive any installment
payments pursuant to this Agreement shall be treated as a right to receive a
series of separate and distinct payments.


 


(e)  Whenever a payment
under this Agreement specifies a payment period with reference to a number of
days (e.g., “payment shall be made within thirty (60) days following the
date of termination”), the actual date of payment within the specified period
shall be within the sole discretion of the Company.


 


(f)  In no event shall
any payments under this Agreement that constitute “deferred compensation” for
purposes of Code Section 409A be offset by any other payment, pursuant to
this Agreement or otherwise.


 


2.     GOVERNING
LAW; VALIDITY.  THE INTERPRETATION,
CONSTRUCTION AND PERFORMANCE OF THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO THE PRINCIPLE OF CONFLICTS OF LAWS.  THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS FIRST AMENDMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY
OF ANY OTHER PROVISION OF THIS FIRST AMENDMENT, WHICH OTHER PROVISIONS SHALL
REMAIN IN FULL FORCE AND EFFECT.


 


3.     Full force and effect of Employment
Agreement.  Except as specifically
modified herein, all other provisions of the Employment Agreement shall remain
in full force and effect in accordance with its terms.  All references in the Employment Agreement to
“this Agreement” shall be deemed to refer to the Employment Agreement as
amended by this Second Amendment.


 


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IN WITNESS WHEREOF, each of the Company, Protection One
Alarm Monitoring, Inc. and Security Monitoring Services, Inc. has
caused this Agreement to be executed by a duly authorized representative, and
Executive has executed this Agreement as of the day and year first above
written.


 


	
   

  	
  PROTECTION ONE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Eric Griffin

  
	
   

  	
   

  	
  Name: J. Eric Griffin

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  
	
   

  	
  PROTECTION ONE ALARM MONITORING, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Eric Griffin

  
	
   

  	
   

  	
  Name: J. Eric Griffin

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SECURITY MONITORING SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Eric Griffin

  
	
   

  	
   

  	
  Name: J. Eric Griffin

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
             /s/
  Anthony Wilson

  
	
   

  	
  Anthony Wilson

  



 


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