EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of February
16, 1998, between ATC Group Services Inc., a Delaware Corporation ("Employer" or
"Company"), Acquisition Holdings, Inc., a Delaware corporation ("Holdings") and
Xxxxxxxxxxx X. Xxxxxx ("Executive").
WHEREAS, Acquisition Corp. has entered into an Agreement and
Plan of Merger dated November 26, 1997 (the "Merger Agreement") to, among other
things, acquire all of outstanding shares of common stock of the Company;
WHEREAS, in connection with the acquisition, Executive has
agreed to enter into an employment contract with the Company upon the terms and
conditions set forth herein;
WHEREAS, Holdings has agreed to grant certain options and
restricted stock to the Executive in connection with his employment with the
Company upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. Employment Term. The term of Executive's employment under
this Agreement shall commence on the date hereof and expire on February 28, 2001
(the "Employment Term"); it being understood, however, that to the extent
Executive's employment is terminated pursuant to Section 6, the Employment Term
shall cease. This Agreement shall automatically extend for successive one year
periods unless either party provides written notice of its intent not to renew
no later than ninety days prior to the expiration of the then current term.
2. Position, Duties, Responsibilities.
(a) Position. Executive hereby accepts employment with the
Company as its Chief Operating Officer in accordance with the terms and
conditions herein. Executive shall devote his best efforts and his full
professional time and attention (except for vacation, sick leave and other
excused leaves of absence) to the performance of the services customarily
incident to such office and consistent with past practices and customs at the
Company and of such other duties as may be reasonably assigned to the Executive
from time to time by the Board of Directors of the Company (the "Board").
Company will provide office facilities, secretarial and
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clerical support consistent with past practices and customs of the Company.
(b) Other Activities. Except upon the prior written consent
of the Board, during the Employment Term, Executive will not (i) accept any
other employment, or (ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that is competitive
with, or that places him in a competing position to that of Company. This clause
shall not prohibit Executive from investing his assets in a publicly traded
company, so long as such investment does not include the performance of services
by Executive in the operation or affairs of the companies in which such
investments are made, or teaching, writing or publicly speaking, so long as
these activities do not interfere or conflict with Executive's duties hereunder.
3. Compensation, Benefits, Expenses.
(a) Compensation. In consideration of the services
to be rendered hereunder, Executive shall be paid a salary at the rate of
$200,000 per year until March 1, 1998, and thereafter an annual salary of not
less than $250,000, payable in accordance with the Company's payroll practices
in effect during the course of this Agreement. Each year (commencing in 1999),
effective March 1, Executive's annual salary shall increase by the percentage
increase of the
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Consumer Price Index (All items) ("CPI") for the area during the twelve month
period prior to such date.
(b) Bonus. As further compensation for the services of
Executive, the Company shall pay Executive annual cash bonuses determined as
follows and payable within ninety (90) days of the end of the relevant fiscal
year:
(i) Executive shall be eligible to receive with respect to
each fiscal year during the term hereof a cash bonus in an aggregate amount
equal to the Target Bonus Amount. For any fiscal year the Target Bonus Amount
shall be equal to $100,000 if the Company achieves EBITDA equal to the Lower
EBITDA Target for such fiscal year and $250,000 if the Company achieves EBITDA
equal to or in excess of the Higher EBITDA Target for such fiscal year. If the
Company achieves EBITDA for any fiscal year between the Lower EBITDA Target and
Higher EBITDA Target, the Target Bonus Amount shall equal $150,000 times a
fraction, the numerator of which is the amount of EBITDA achieved by the Company
during such fiscal year in excess of the Lower EBITDA Target for such fiscal
year and the denominator of which is the Higher EBITDA Target for such fiscal
year minus the Lower EBITDA Target for such fiscal year. If the Company achieves
EBITDA of less than the Lower EBITDA Target in any fiscal year, the Target Bonus
Amount for such fiscal year shall equal zero. For fiscal 1999, the Lower EBITDA
Target and Higher EBITDA Target shall be $27 million and $30 million,
respectively; and for each
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fiscal year thereafter the Lower EBITDA Target and Higher EBITDA Target shall
equal 115% of the Lower EBITDA Target and Higher EBITDA Target, respectively,
for the prior fiscal year; provided that if revenues for any fiscal year
increase by more than 20% from the prior fiscal year as a result of one or more
acquisitions or mergers, then the Lower EBITDA Target and Higher EBITDA Target
for such fiscal year shall be determined in good faith by the Board in
consultation with Executive. The EBITDA between and including the Lower EBITDA
Target and Higher EBITDA Target is hereinafter referred to as the "EBITDA
Target".
(ii) For all purposes of this Agreement, EBITDA shall mean
income before income taxes, depreciation, amortization and interest expense
computed from the audited annual financial statements of the Company. Other
operating target results for the 1999 fiscal year and future fiscal years shall
be determined in good faith by the Board in consultation with Executive and may
include, for example, among other things, maintaining the Company's technical
capacity and high quality customer service, installation of a new MIS system,
hiring a chief financial officer and, if appropriate, completing acquisitions.
The parties will use their best efforts to establish other operating targets for
fiscal 1999 within 30 days after the date hereof.
(iii) For purposes of calculating actual annual bonus amounts
to be paid hereunder for any fiscal
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year, 66 2/3% of the Target Bonus Amount for such fiscal year shall be paid to
Executive based upon achievement of the Lower EBITDA Target for such fiscal year
and 33 1/3% of the Target Bonus Amount for such fiscal year shall be paid to
Executive based upon achievement of both the EBITDA Target and other operating
targets for such fiscal year.
(c) Benefits. As he becomes eligible therefor, the Company
shall provide Executive with the right to participate in and to receive benefits
from all present and future life, vacation, accident, disability, medical,
pension, and savings plans and all similar benefits made available generally to
executives of the Company. The amount and extent of benefits to which Executive
is entitled shall be governed by any applicable benefit plan, as it may be
amended from time to time.
(d) Automobile Allowance. The Company shall provide Executive
during the Employment Term with an automobile allowance of $750 per month.
(e) Expenses. The Company shall reimburse Executive for
reasonable travel and other business expenses incurred by Executive in the
performance of his duties hereunder in accordance with Company's general
policies, as they may be amended from time to time during the course of this
Agreement.
(f) Repayment of Loan. This Agreement shall not impact
Executive's obligation to repay the Company an
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outstanding loan in the amount of $7,657.50, which loan was extended to
Executive by the Company pursuant to a loan agreement.
(g) Options. Holdings shall grant to Executive, on or before
March 31, 1998, options ("New Options") to purchase Holdings common stock, par
value $0.01 per share ("Holdings Common Stock"), representing a maximum of 3.41%
of the then common equity of Holdings on a fully diluted basis. The New Options
shall have an initial exercise price of $12 per share and shall be subject to
adjustment upon any stock split, subdivision, combination or other similar
event. The New Options, Holdings Common Stock issued upon exercise thereof and
the Holdings Restricted Common Stock referred to in Section 4 shall be subject
to restrictions on transfer and subject to the right of repurchase by Holdings
on the same terms as those applicable to Holdings Common Stock contained in the
Employee Subscription Agreements dated January 20, 1998 (except to the extent
otherwise provided herein with respect to the price to be paid to Executive upon
any such repurchase as set forth herein).
(i) One half of the New Options, exercisable for 1.7% of the
then common equity of Holdings on a fully diluted basis (the "Time Vested
Options"), shall vest in equal 25% increments over a four year period, such
vesting to occur on each of the first four anniversary dates of the
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commencement of the term of this Agreement; provided that all of such Time
Vested Options shall vest upon a Change of Control and provided further that to
the extent this Agreement is terminated pursuant to Section 6(e) and a Change of
Control occurs within six months of such termination (x) any of such Time Vested
Options as well as any other options that vest based on time that had been
forfeited upon such termination shall be reinstated and immediately vest and (y)
Executive shall have the right to receive for each share of Holdings Common
Stock theretofore purchased by Holdings upon such termination the difference
between the amount Executive received from Holdings pursuant to such purchase
and the amount, if any, to be paid for one share of Holdings Common Stock in
such Change of Control. For purposes of this Agreement, Change of Control shall
have the meaning set forth in the Indenture, dated January 29, 1998, between
Acquisition Corp. and State Street Bank and Trust Company, as trustee.
(ii) With respect to the other half of the New Options,
exercisable for the other 1.7% of the then common equity of Holdings on a fully
diluted basis (the "Performance Based Options"), such Performance Based Options
shall vest effective as of each of the first four anniversary dates of the
commencement of the term of this Agreement, if the Company has achieved EBITDA
for the immediately preceding fiscal year equal to at least the mid-point of the
Lower EBITDA Target and Higher EBITDA Target for such fiscal year.
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If the Company does not achieve such EBITDA for such immediately preceding
fiscal year, the Performance Based Options eligible to vest for the fiscal year
in question shall be forfeited.
(iii) Executive shall have the right to exercise any vested
New Option within ten (10) business days of a termination of employment pursuant
to Section 6, but not thereafter. Notwithstanding the provisions of the Employee
Subscription Agreement dated January 20, 1998, in the event of termination
pursuant to Section (6)(d) or (e), the purchase price to be paid by Holdings to
Executive for any Holdings Common Stock whether or not issued upon exercise of
any options (including the New Options) shall be the greater of the purchase
price of such Holdings Common Stock or the Fair Market Value thereof.
"Fair Market Value" shall mean, at any time, per share of
Holdings Common Stock (a) the arithmetic average of the daily last sale prices
of the Holdings Common Stock for twenty consecutive trading days ending
immediately prior to such time or, if no such sale takes place on such dates,
the average of the closing bid and asked prices on such dates, in each case as
officially reported on the principal national securities exchange on which the
Holdings Common Stock is then listed or admitted to trading, (b) if such
Holdings Common Stock is not then listed or admitted to trading on any national
securities exchange, but is
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designated as a national market system security by the NASD, the arithmetic
average of the daily last trading prices of the Holdings Common Stock for twenty
consecutive trading days ending immediately prior to such time, or if there
shall have been no trading on such date, the average of the reported closing bid
and asked prices on such dates as shown by the NASDAQ, (c) if the Holdings
Common Stock is being offered in an initial public offering at or within 20 days
prior to such time, the average price of such Holdings Common Stock per share,
net of underwriter's discount and expenses, sold in such initial public
offering, and (d) if the Holdings Common Stock is not then listed or admitted to
trading on any national exchange or quoted in the over-the-counter market and
not then being offered in the initial public offering, the fair market value of
the Holdings Common Stock as determined in good faith by Holdings Board of
Directors; provided that Executive shall have the right, within 7 days of
receiving the Fair Market Value, to select a nationally recognized investment
bank reasonably acceptable to Holdings to determine the Fair Market Value. To
the extent that Executive elects to so retain such an investment bank, then Fair
Market Value shall mean the fair market value chosen by such investment bank,
provided that the cost and expense of such investment bank shall be borne by
Executive if the fair market value determined by such investment bank shall be
5% or more greater than or less than the fair market value
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previously determined in good faith by Holdings Board of Directors.
4. Grant of Holdings Restricted Common Stock. On February 5,
1998, the effective date of the merger of Acquisition Corp. with and into the
Company, Holdings issued to Executive 33,896 shares of Holdings Restricted
Common Stock which shall vest on the dates set forth below; provided that on any
such date Executive shall then be employed by the Company and to the extent
Executive's employment is terminated prior to any such date, the Holdings
Restricted Common Stock scheduled to vest on such date shall be forfeited.
Number of Shares
of Holdings Restricted
Common Stock
8,474. . . . . . . . .March 1, 1999
8,474. . . . . . . . .March 1, 2000
8,474. . . . . . . . .March 1, 2001
8,474. . . . . . . . .March 1, 2002
For purposes of Holding's repurchase right with respect to
such Holdings Restricted Common Stock, the original per share purchase price for
purposes of calculating Adjusted Purchase Price, as set forth in the Employee
Subscription Agreement dated as of January 20, 1998, shall be deemed to be $12
per share.
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5. Special Bonus.
(a) Payment of Fiscal Year 1997 Bonus. The Company shall pay
to the Executive a special bonus (the "Fiscal Year 1997 Bonus") (x) no later
than June 1, 1998 or (y) to the extent the Company meets its budget for the
first fiscal quarter of 1999, during the first fiscal quarter of 1999. The
Fiscal Year 1997 Bonus shall equal $168,000.
(b) Release. Upon receipt of the Fiscal Year 1997 Bonus and
Holdings Restricted Common Stock specified in Section 4 (whether or not any
Holdings Restricted Common Stock ultimately vests), Executive on behalf of
himself and his heirs, successors and assigns, hereby releases and forever
discharges the Company, its affiliates, and its former, present and future
shareholders, officers, directors, successors, assigns and predecessors (the
"Released Parties") of any and all claims, actions, causes of action, demands,
rights, damages, debts, compensation, costs or other expenses, including without
limitation attorneys' fees, of any nature whatsoever, known or unknown, which
Executive ever had or has against the Released Parties arising out of any
payments (including bonuses) for services rendered to the Released Parties for
all prior periods.
6. Termination of Employment.
(a) By Death. If Executive dies prior to the expiration of
the Employment Term, his base salary, bonus pursuant to Section 3(b) (if any)
and accrued but unused
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vacation will be prorated through the day of his death, and paid to his
beneficiaries or estate. Thereafter, Company's obligations hereunder shall
terminate.
(b) By Disability. If Executive becomes "Permanently
Disabled" (as defined below) prior to the expiration of the Employment Term,
Company shall be entitled to terminate his employment, subject to the
requirements of applicable law, and Executive shall be entitled to receive
disability benefits in accordance with any applicable disability policy
maintained by Company as of the date of such disability. In the event of such
termination, Executive's base salary and bonus pursuant to Section 3(b)(if any)
will be prorated through the date of termination and paid to him, and Executive
shall receive a cash lump sum payment for accrued but unused vacation for the
year of termination. Upon such termination, Company shall have no further
obligations to the Executive hereunder other than to provide the Executive with
the benefits as set forth in this subparagraph. For the purposes of this
subparagraph, Executive shall be deemed "Permanently Disabled" when, and only
when the Company determines, after consultation with Executive's physician, that
Executive suffers a physical or mental disability that prevents Executive from
performing the essential duties of his position with reasonable accommodations
as may be required by law (i) for a period of one hundred twenty (120)
consecutive days; or (ii) for an
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aggregate of one hundred fifty (150) business days in any twelve (12) month
period.
(c) By Company For Cause. If the Company terminates the
Executive for "Cause" (as defined below), Company shall thereafter have no
obligations to the Executive hereunder. "Cause" shall mean termination by
Company of Executive's employment because of (i) any act or omission that
constitutes a material breach by Executive of any of his obligations under this
Agreement, or under any other material agreement with, or material written
policy of Company, which act or omission is not cured within thirty days of the
Company providing Executive with notice of the act, omission or failure deemed
to constitute Cause; (ii) the failure or refusal by Executive to follow any
lawful reasonable written direction of the Board, which failure or refusal is
not cured within thirty days of the Company providing Executive with reasonably
detailed written notice of the failure or refusal deemed to constitute Cause;
(iii) the conviction by Executive of a felony, a crime involving moral turpitude
or the perpetration by Executive of a common law fraud; or (iv) any other
willful act or omission by Executive, which is or will be materially injurious
to the financial condition or business reputation of, or is otherwise materially
injurious to Company, which act or omission is not cured within thirty days of
the Company providing Executive with reasonably detailed written notice of the
act or omission deemed to
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constitute Cause. The parties hereto hereby agree that notwithstanding the
provisions in the Employee Subscription Agreement between Executive and
Holdings, dated as of January 20, 1998, the term "Cause" in such Employee
Subscription Agreement shall be interpreted to mean Cause as defined in this
Agreement.
(d) By Executive For Good Reason. Executive may terminate,
without liability, the Employment Term for "Good Reason" (as defined below) upon
thirty (30) business days' advance written notice to Company. Company shall pay
Executive the annual salary to which he is entitled pursuant to Section 3(a) for
1 year from the date of such termination (the "Section 6(d) Termination
Period"), less the amount of compensation, income or benefits earned or paid to
Executive as an employee or consultant from any entity other than the Company
during the Section 6(d) Termination Period; provided that in no event shall
Executive be entitled to receive less than $125,000. In addition, the Company
shall pay to Executive (x) all amounts due to Executive up to the date of
termination under Sections 3(c) and 3(f) of this Agreement and (y) Executive's
bonus pursuant to Section 3(b)(if any) prorated through the date of such
termination. The Company shall have no obligations to Executive other than those
set forth herein. Good Reason shall exist if: (i) there is an assignment to the
Executive of any duties materially inconsistent with or which constitute a
material adverse
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diminution in the Executive's position, duties, responsibilities, or status with
Company, or a material adverse diminution in the Employee's reporting
responsibilities, title, or offices; or (ii) there is a material breach by
Company of this Agreement or any other material agreement between the Company
and Executive. If Executive terminates his employment without Good Reason,
Company shall thereafter have no obligations to Executive hereunder, except as
otherwise required by law. Upon termination by Executive of his employment under
this Section 6(d), Executive shall in good faith seek to obtain alternative
employment in a comparable senior executive position and to otherwise mitigate
the amount payable to Executive pursuant to this Section 6(d).
(e) Termination By the Company Other Than By Reason of Death,
Disability or Cause. If the Company terminates Executive's employment for any
reason other than death, disability or Cause, Company shall pay to Executive the
compensation he is entitled to pursuant to Section 3(a) for 1 year from the date
of such termination (the "Section 6(e) Termination Period"), less the amount of
compensation, income or benefits earned or paid to Executive as an employee or
consultant from any entity other than the Company during the Section 6(e)
Termination Period; provided that in no event shall Executive be entitled to
receive less than $125,000. In addition, the Company shall pay to Executive
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all amounts due to Executive up to the date of termination under Sections 3(c)
and 3(f) of this Agreement. The payments and benefits provided for in this
Section 6(e) are contingent on Executive executing a general release on behalf
of the Company in the form attached hereto as Exhibit A. Upon termination of
Executive under this Section 6(e), Executive shall in good faith seek to obtain
alternative employment in a comparable senior executive position and to
otherwise mitigate the amount payable to Executive pursuant to this Section
6(e).
(f) Bonus Calculation. The pro rata bonus pursuant to Section
3(b) (if any) payable to Executive pursuant to Section 6(a), (b) or (d) shall be
calculated at the end of the fiscal year in question and be determined based on
the portion of such fiscal year Executive was employed by Company pursuant to
this Agreement and whether or not the Company obtained its EBITDA Target and
other operating targets for such fiscal year.
7. Proprietary Information.
(a) Defined. "Proprietary Information" is all proprietary,
secret or confidential information pertaining to the business of the Company.
(b) General Restrictions on Use. Executive agrees to hold all
Proprietary Information in strict confidence and trust for the sole benefit of
Company and not directly or indirectly, to disclose, use, copy, publish,
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summarize, or remove from Company's premises any Propriety Information except
(i) during the Employment Term to the extent necessary to carry out Executive's
responsibilities under this Agreement, and (ii) after termination of the
Employment Term as specifically authorized in writing by the Board.
(c) Interference with Business: Competitive Activities. In
consideration of his employment under this Agreement, Executive agrees that for
a period of one (1) year after termination of the Employment Term (or any
renewal term, if applicable), he shall not, for himself or for any third party,
directly or indirectly (i) divert or attempt to divert from Company any business
of any kind in which it is engaged, including, without limitation, the
solicitation or interference with any of its suppliers or customers; (ii)
employ, solicit for employment, or recommend for employment any person employed
by Company during the period of such person's employment and for a period of one
(1) year thereafter, or (iii) engage in any business activity that is or may be
competitive with the Company; provided that notwithstanding the foregoing, if
Executive is terminated pursuant to Section 6(d) or 6(e), Executive shall be
required to comply with the provisions of this Section 7(c) only for such time
as Executive is receiving amounts he is entitled to pursuant to Section 3(a) in
accordance with such Section 6(d) or 6(e), as the case may be. If the scope of
any of the
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restrictions set forth above is too broad to permit enforcement of such
restriction to its full extent, then such restriction shall be enforced to the
maximum extent permitted by law, and Executive hereby consents and agrees that
such scope may be judicially modified accordingly in any proceeding brought to
enforce such restriction.
8. No Assignment.
(a) Neither this Agreement nor any right or interest
hereunder shall be assignable by Executive, his beneficiaries or legal
representatives, without Company's prior written consent; provided, however,
that nothing in this subsection 8(a) shall preclude Executive from designating a
beneficiary to receive upon his death any benefit payable hereunder, or the
executors, administrators or other legal representatives of Executive's estate
from assigning any rights hereunder to the person or persons entitled thereto.
(b) Except as otherwise required by law, without Company's
prior written consent, no right to receive payments under this Agreement shall
be subject to anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge, or hypothecation, or to exclusion, attachment, levy
or similar process or assignment by operation of law, and any attempt, voluntary
or involuntary, to effect any such action shall be null, void and of no effect.
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9. Registration Rights.
(a) "Piggy-Back" Registrations. If Holdings proposes to
register any shares of Holdings Common Stock under the Securities Act of 1933,
as amended (the "Securities Act"), in connection with any offering of its
securities, whether or not for its own account, Holdings shall furnish prompt
written notice to Executive of its intention to effect such registration and the
intended method of distribution in connection therewith. Upon the written
request of Executive made to Holdings within 30 days after the receipt of such
notice by Holdings, Holdings shall include in such registration in accordance
with the other provisions of this Section 9, the requested number of Executive's
Registrable Securities (a "Piggy-Back Registration").
(b) Underwriting Requirements. In connection with any
offering involving an underwriting of Holdings Common Stock, Holdings shall not
be required under Section 9(a) to include any of the securities of Executive in
the registration of the securities to be included in such underwriting, or in
such underwriting itself, unless Executive accepts the terms of the underwriting
as agreed upon between Holdings and the underwriters selected by it, and then
only in such quantity as the underwriters determine in their sole discretion
will not jeopardize the success of the offering by Holdings. If the total amount
of securities, including Registrable Securities, requested by Executive and
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any other stockholder of Holdings to be included in such offering, exceeds the
number of securities that the underwriters determine in their sole discretion is
compatible with the success of the offering, then Holdings shall be required to
include in the offering only such number of Registrable Securities as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering. In connection with any such offering, Holdings shall include in
such registration (to the extent of the number which Holdings is so advised can
be sold), first the securities, if any, being sold by Holdings, and second the
securities proposed to be registered by WPG Corporate Development Associates V,
L.P. or its affiliates, Xxxxxxx National Life Insurance Company or its
affiliates and any similar third party investors granted piggy-back registration
rights, and third, Executive and any other stockholders (including other
employees of the Company) of Holdings not included in the foregoing second
priority. The Registrable Securities so included shall be apportioned among
Executive and any other stockholders of Holdings pro rata in proportion to the
total number of Registrable Securities and shares of Holdings Common Stock owned
by them, respectively. Notwithstanding anything herein to the contrary, to the
extent the underwriters in any such Piggyback Registration determine that
Executive must sell lesser pro rata shares than any other stockholder or no
shares, Executive shall sell
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such lesser amount of shares or no shares as determined by such underwriters
and the fact that Executive was required to sell such lesser amount of shares
or no shares shall not affect the right of any other stockholders to include
Holdings Common Stock in such registration.
(c) Expenses of Registration. With respect to a Piggy-back
Registration, Holdings shall bear and pay all expenses incurred in connection
with any registration, filing or qualification of Registrable Securities with
respect to the registrations made pursuant to Section 9(a), including (without
limitation) all registration, filing, and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for Holdings, but excluding
fees and disbursements of counsel to holders of Registrable Securities and
underwriting discounts and commissions relating to Registrable Securities.
As used in Section 9, the following shall have the following
meaning: "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement.
"Registrable Securities" shall mean any and all shares of
Holdings Common Stock whenever acquired. As to any particular Registrable
Securities, such securities shall
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cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of by Executive in
accordance with such registration statement or (ii) such securities may be sold
pursuant to Rule 144 of the Securities Act.
10. Notices. All notices, requests, claims, demands and other
communications under this agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such address for a
party as shall be specified by like notice): (i) if to Company, to the addresses
therefor specified in Section 10.02 of the Merger Agreement, (ii) if to
Executive, 0 Xxxxxxxxxx Xxxx, Xxxxx Xxxxxxx, XX 00000.
11. Entire Agreement. The terms of this Agreement are
intended by the parties to be the final expression of their agreement with
respect to the employment of Executive by Company and may not be contradicted by
evidence of any prior or contemporaneous agreement. The parties further intend
that this Agreement shall constitute the complete and exclusive statement of its
terms and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding involving this Agreement.
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12. Amendments; Waivers. This Agreement may not be modified,
amended, or terminated except by an instrument in writing, signed by the
Executive and by a duly authorized representative of Company other than
Executive. By an instrument in writing similarly executed, either party may
waive compliance by the other party with any provision of this Agreement that
such other party was or is obligated to comply with or perform; provided,
however, that such waiver shall not operate as a waiver of, or estoppel with
respect to, any other or subsequent failure. No failure to exercise and no delay
in exercising any right, remedy, or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, or power
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, or power provided herein or by law or in equity.
13. Confidentiality. Executive agrees that the terms and
conditions of this Agreement are confidential and shall not be disclosed by
Executive to any third parties, other than Executive's lawyers and other
professional advisors, unless such disclosure is required by law.
14. Governing Law. The validity, interpretation,
enforceability, and performance of this Agreement shall be governed by and
construed in accordance with the law of the State of New York.
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15. Employee Acknowledgment. Executive acknowledges (i) that
he has consulted with or has had the opportunity to consult with independent
counsel of his own choice concerning this Agreement and has been advised to do
so by Company, and (ii) that he has read and understands the Agreement, is fully
aware of its legal effect, and has entered into it freely based on his own
judgment.
16. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the Corporation and its respective successors and
assigns, but the rights and obligation of Executive are personal and may not be
assigned or delegated without the Company's prior written consent.
17. Arbitration. Any dispute between the parties arising
under this Agreement or Executive's employment with the Company (or the
termination thereof) shall not be decided in court, but instead shall be
submitted to final, binding arbitration before the American Arbitration
Association in New York City.
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The parties have duly executed this Agreement as of the date
first written above.
ATC GROUP SERVICES INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Chief Executive Officer
ACQUISITION HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: President
EXECUTIVE
/s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------
Xxxxxxxxxxx X. Xxxxxx
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Exhibit A
GENERAL RELEASE
In consideration of the payment of _____________________
received from ATC Group Services Inc. ("Employer"), _____________________
("Employee") and except for all accrued but unpaid compensation, benefits and
rights of Employee provided under Section 6(e) of that certain Employment
Agreement between Employee, Employer and Acquisition Holdings, Inc., dated as of
February 16, 1998 and all amendments and extensions thereto which the parties
may adopt, Employee, on behalf of himself and his heirs, executors,
administrators, successors and assigns, hereby releases, relieves and forever
discharges Employer, its former and present subsidiaries, affiliates, branches,
successors and assigns, and their former and present officers, directors,
trustees, employees, agents and attorneys, (collectively, the "Released
Parties"), from any and all claims, actions, causes of action, demands, rights,
damages, debts, compensation, costs or other expenses, including without
limitation attorneys' fees, of any nature whatsoever, whether known or unknown,
which Employee ever had, now has, or which he, his heirs, executors,
administrators, successors and assigns hereinafter can, shall or may have
against the Released Parties arising out of any matter, cause, acts, conduct,
claim or event, including without limitation all matters relating to Employee's
employment with the Employer, including without limitation
contract claims, tort claims, claims for compensation or benefits, personal
injury claims and claims for attorneys' fees, and further includes all claims
arising under the Age Discrimination in Employment of 1967, as amended, 29
U.S.C. ss. 621 et seq., National Labor Relations Act, as amended, 29 U.S.C. ss.
151 et seq., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
ss. 2000e et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. ss.
12191 et seq., the Civil Rights Act of 1866, 42 U.S.C. ss. 1981, the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C. ss. 1001 et seq.,
or any other federal, state and local law or principal of contract law or common
law; provided, however, that this General Release shall not operate to prohibit
Employee from commencing an action to enforce the terms of his Employment
Agreement.
Employee represents that he has not and will not file any
complaints, grievances, or charges relating to his employment against any of the
Released Parties.
Employee warrants that he is signing this General Release
voluntarily, and that no promises or inducements for this General Release have
been made, and he enters into this General Release without reliance upon any
statement or representation by any of the Released Parties or any other person,
concerning any fact material to this General Release. Employee acknowledges that
he is not otherwise entitled to receive the consideration set forth above.
2
The Employer hereby advises the Employee to consult with
legal counsel concerning this General Release. The Employee acknowledges that he
has had at least twenty-one days in which to consider this General Release and
has had the opportunity to obtain legal counsel concerning this General Release.
Employee represents and warrants that he fully understands the terms of this
General Release, and that he knowingly and voluntarily, of his own free will
without any duress, being fully informed and after due deliberation, accepts its
terms and signs the same as his own free act for the purpose of making full
withdrawal, compromise and settlement of all claims.
This General Release contains the entire agreement among
the parties hereto and the terms of this General Release are contractual and not
a mere recital.
The Employee understands that he has seven (7) days to
revoke this General Release after signing. Employee agrees that in the event he
elects to revoke this General Release, he will provide the Employer with a
written revocation by the close of business on the seventh day following his
execution of this General Release.
PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, EXCEPT AS SPECIFICALLY
PROVIDED HEREIN.
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EMPLOYEE
0
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On _________ , 1997 before me personally came _________ ,
to me known, and known to me to be the individual described herein, and who
executed the foregoing General Release, and duly acknowledged to me that he
executed the same of his own free will without any duress.
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NOTARY PUBLIC
