exv10w37



 






EXHIBIT 10.37




CONSULTING AGREEMENT




     CONSULTING AGREEMENT (this “Agreement”) dated as of February 23, 2004, between GlobalSecure
Holdings Ltd. (the “Company”), a Delaware corporation, and C. Thomas McMillen (‘‘Consultant”).



     WHEREAS, the Company, directly and through subsidiaries; provides goods and services in the
homeland security industry;



     WHEREAS, Consultant has been an employee of the Company and has experience in business and
particular knowledge of industries which the Company believes will be of value to it; and



     WHEREAS, the Company desires to retain Consultant to render consulting and advisory services
to the Company, and to the Company’s clients, on the terms and conditions set forth in this
Agreement, and Consultant desires to be retained by the Company on such terms and conditions.



     NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth and
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the parties agree as follows:



     1. Retention of Consultant; Services to be Performed. The Company hereby retains
Consultant to render consulting and advisory services to the Company, including subsidiaries of the
Company (collectively, “Affiliated Companies”). Consultant hereby accepts such engagement and
agrees to perform such services for the Company upon the terms and conditions set forth in this
Agreement. During the Term (as defined in Section 2), Consultant shall devote such time,
attention, skill and energy to the business of the Company as may be reasonably required, in the
reasonable determination of Consultant, to perform the services required by this Agreement, and
shall assume and perform such duties to the best of his ability; provided however, that nothing
herein shall interfere with or prohibit Consultant from seeking or obtaining full time employment
with any person whatsoever; and further provided that Consultant shall not pursue any business
venture of any kind with any of the following companies: Boa Mauer Inc., Cappa Consulting or
Ashbritt Inc, or any successor of any of them (the “Targets”), provided, however, that Consultant
may through Washington Capital Advisors LLC or its affiliate Washington Capital Associates LLC
provide equity or debt financing to business entities
and pursue investment banking opportunities to companies other than the Targets. Consultant shall
report to the President of the Company.



     Consultant shall perform the services hereunder at such locations in the Washington, D.C.
area, or as otherwise may be agreed, as are reasonably necessary for Consultant to perform his
duties under this Agreement.



     In rendering services hereunder, Consultant shall be acting as an independent contractor and
not as an employee or agent of the Company. Nothing contained in this Agreement shall be construed
or applied to create a partnership. Consultant shall be responsible for the payment of all federal, state or local taxes payable
with respect to all amounts paid to consultant under this
Agreement; provided, however, that if the Company is determined to be liable for collection





 









 







and/or remittance of any such taxes, Consultant shall immediately reimburse the Company for
all such payments made by the Company.




     2. Term. Unless terminated at an earlier date in accordance with Section 6, this
Agreement shall commence as of the date first written above and shall terminate on February 22,
2005 (the “Term”). The Company also will pay for COBRA or its equivalent.



     3. Compensation. As compensation for Consultant’s services hereunder, the Company
will pay consultant $90,000 per annum, payable not less frequently than monthly on the last
business day of each month for the month then ended.



     4. Expenses. Subject to, in all cases, prior written approval of the President of the
Company, Consultant shall be reimbursed for all reasonable and necessary out-of-pocket expenses
that Consultant incurs in performing the services hereunder, including, without limitation,
reasonable travel expenses incurred by Consultant.



     5. Protection of Trade Secrets, Know-How and/or Other Confidential Information of the
Company.



          (a) Except as permitted or directed by the President of the Company, during the Term or at any
time thereafter Consultant shall not divulge, furnish or make accessible to anyone or use in any
way (other than in the ordinary course of the business of the Company) any confidential or secret
knowledge or information of the Company that Consultant has acquired or become acquainted with or
will acquire or become acquainted with during the Term or during engagement by the Company or any
affiliated companies prior to the Term, whether developed by Consultant or by others, concerning
any trade secrets, confidential or secret designs, processes, formulae, products or future
products, plans, devices or material (whether or not patented or patentable) directly or indirectly
useful in any aspect of the business of the Company, any customer or supplier lists of the Company,
any confidential or secret development or research work of the Company, or any other confidential
information or secret aspects of the business of the Company. Consultant acknowledges that the
above-described knowledge of information constitutes a unique and valuable asset of the Company
acquired at great time and expense by the Company and its predecessors, and that any disclosure or
other use of such knowledge or information other than for the sole benefit of the Company would be
wrongful and would cause irreparable harm to the Company. Both during and after the Term,
Consultant will refrain from any acts or omissions that would reduce the value of such knowledge or
information to the Company. The foregoing obligations of confidentiality, however, shall not apply
to any knowledge or information which is now published or which subsequently becomes generally
publicly known in the form in which it was obtained from the Company, other than as a direct or
indirect result of the breach of this Agreement by Consultant.




          (b) All know-how and trade secret information conceived or originated by Consultant which
arises out of the performance of the services hereunder or any related material or information
shall be the property of the Company, and all rights therein are hereby assigned to the Company.




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          (c) Upon termination of this Agreement, Consultant shall deliver to the Company all property
that is in his possession and that is the Company’s property or relates to the Company’s business,
including, but not limited to records, notes, data, memoranda, software, electronic information,
models, equipment, and any copies of the same. Consultant shall permanently delete all of his
electronic data containing such property.




          (d) The Provisions of Section 5(a) shall be applicable to information acquired by Consultant
from the Affiliated Companies or by the Company from, Affiliated Companies and disclosed by the
Company to Consultant.




     6. Termination. Notwithstanding any contrary provision contained elsewhere in this
Agreement, this Agreement and the rights and obligations of the Company and Consultant hereunder
shall be terminated immediately upon the occurrence of any of the following events:



          (a) Consultant’s death;




          (b) Consultant becomes physically or mentally disabled such that he is unable to adequately
perform the services hereunder for a continuous period of 90 days;




          (c) Consultant is convicted of any felony or crime of moral turpitude or engages in any
activity that constitutes a material violation of normal standards of business ethics;




          (d) Consultant willfully refuses to comply with or implement reasonable policies established
by the Company;




          (e) The other
party in breach of this Agreement and has failed to cure such breach within 30 days of the receipt
of written notice of breach from the non-breaching party; or




          (f) The other party makes any statement (written or oral) that disparages, defames, or besmirches the
reputation, character, image, products, or services of the non-breaching party or any of their past or
present directors, officers, employees, or agents.




     If this Agreement is terminated prior to the expiration of the Term all terms and provisions
which survive the expiration of the Term shall survive the earlier termination hereof



     7. Miscellaneous.



          (a) This Agreement (including the exhibits, schedules and other documents referred to herein)
contains the entire understanding between the parties hereto with respect to the subject matter
hereof and supersedes any prior understandings, agreements or representations, written or oral,
relating to the subject matter hereof.




          (b) This Agreement may be executed in separate counterparts, each of which will be an original
and all of which taken together shall constitute one and the same agreement, and any party hereto
may execute this Agreement by signing any such counterpart.




          (c) Whenever possible, each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law but if any provision of this




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Agreement is held to be invalid, illegal or unenforceable under any applicable law or rule,
the validity, legality and enforceability of the other provision of this Agreement will not be
affected or impaired thereby.




          (d) This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, personal representatives and, to the extent permitted by subsection (e),
successors and assigns.




          (e) This Agreement and the rights and obligations of the parties hereunder shall not be
assignable, in whole or in part, by either party without the prior written consent of the other
party, except it may be assigned by the Company, without Consultant’s consent in any company which
acquired all or substantially all of the Company’s business or assets or with which the Company is
merged or consolidated.




          (f) No provision of this Agreement may be modified, amended, waived or terminated except by an
instrument in writing signed by the parties to this Agreement. No course of dealing between the
parties will modify, amend, waive or terminate any provision of this Agreement or any rights or
obligations of any party under or by reason of this Agreement.




          (g) All notices, consents, requests, instructions, approvals or other communications provided
for herein shall be in writing and delivered by personal delivery, overnight courier, mail,
electronic facsimile or e-mail addressed to the receiving party at the address set forth herein.
All such communications shall be effective when received.




	 	 	 	 	 
	 

	 	If to the Company:
	 	GlobalSecure Holdings Ltd.
	 

	 	 	 	110 Wall Street
	 

	 	 	 	New York, NY 10005
	 

	 	 	 	Attention: Chairman
	 
	 	 	 	 
	 

	 	If to the Consultant:
	 	C. Thomas McMillen
	 

	 	 	 	1103 South Carolina Avenue, S.E.
	 

	 	 	 	Washington, D.C. 20003







Any party may change the address set forth above by notice to each other party given as
provided herein.



          (h) The headings and any table of contents contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of this Agreement.




          (i) ALL MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY CHOICE OF LAW PROVISIONS THEREOF.




          (j) Nothing in this Agreement, express or implied, is intended to confer upon any other person
any rights, remedies, obligations or liabilities of any nature whatsoever.




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          (k) No delay on the part of the Company in exercising any right hereunder shall operate as a
waiver of such right. No waiver, express or implied, by the Company of any right or any breach by
Consultant shall constitute a waiver of any other right or breach by Consultant.




          (l) Any claim or dispute of any nature between the parties hereto arising directly or
indirectly from the relationship created by this Agreement shall be resolved exclusively by
arbitration in New York, in accordance with the applicable rules of the American Arbitration
Association. The fees of the arbitrator(s) and other costs incurred by the parties in connection
with such arbitration shall be paid by the party which is unsuccessful in such arbitration. The
decision of the arbitrator(s) shall be final and binding upon both parties. Judgment of the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. In the
event of submission of any dispute to arbitration, each party shall, not later than 30 days prior
to the date set for hearing, provide to the other party and to the arbitrator(s) a copy of all
exhibits upon which the party intends to rely at the hearing and a list of all persons each party
intends to call at the hearing.




          (m) EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.




          (n) Remedies. The parties agree that money damages may not be an adequate remedy for
any breach of the provisions of this Agreement and that any party may, in its discretion, apply to
any court of law or equity of competent jurisdiction for specific performance and injunctive relief
in order to enforce or prevent any violations of this Agreement, and any party against whom such
proceeding is brought hereby waives the claim or defense that such party has an adequate remedy at
law and agrees not to raise the defense that the other party has an adequate remedy at law.




     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the
first paragraph.



	 	 	 	 	 	 	 
	 	 	 	 	GLOBALSECURE HOLDINGS LTD.
	 
	 	 	 	 	 	 
	  /s/ C. Thomas McMillen

	 	 	 	By:	 	    /s/ Craig R. Bandes
	 

	 	 	 	 	 	 
	C. Thomas McMillen
	 	 	 	 	 	    Craig R. Bandes
    President







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