EXHIBIT 10.2
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement ("Agreement")
is made and entered into as of September 8, 1999 (the "Effective Date") by and
between United Road Services, Inc., a Delaware corporation (the "Company") and
Xxxxxx X. Xxxx, an individual resident of the State of New York ("Executive").
RECITALS
WHEREAS, the Company is engaged in the business of motor vehicle and
equipment towing, recovery and transport services (the "Business");
WHEREAS, the Company desires to employ Executive on a full-time basis
as Senior Vice President and Chief Financial Officer of the Company, and
Executive is willing to be employed by the Company in that capacity on the terms
and conditions set forth in this Agreement; and
WHEREAS, Executive is employed hereunder by the Company in a
confidential relationship wherein Executive, in the course of his employment
with the Company, has and will continue to become familiar with and aware of
information as to the Company's customers, pricing, accounting, finances and
specific manner of doing business, including the processes, techniques and trade
secrets utilized by the Company, and future plans with respect thereto, all of
which have been and will be established and maintained at great expense to the
Company; this information is a trade secret and constitutes the valuable
goodwill of the Company.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and Executive hereby
agree as follows:
1. Employment. The Company hereby employs Executive on the
terms set forth herein and Executive hereby accepts such employment.
2. Duties. During the period of his employment with the Company
hereunder, Executive will be employed as Senior Vice President and Chief
Financial Officer of the Company. Executive will:
(a) Devote his full business time, ability, knowledge and
attention, and give his best effort and skill solely to the
Company's business affairs and interests;
(b) Perform such services and assume such duties and
responsibilities appropriate to the positions identified above
as well as those which may from time to time be reasonably
assigned to him by the Chief Executive Officer of the Company
or by such other person to whom he may be directed to report
by the Chief Executive Officer or the Board of Directors of
the Company; and
(c) In all respects use his best efforts to further, enhance and
develop the Company's business affairs, interests and welfare.
3. Compensation. In consideration of Executive's services to the
Company during the Employment Term, the Company will pay Executive a gross base
salary of $180,000 per annum during the Employment term. Executive's base salary
will be paid in equal installments (pro rated for portions of a pay period) on
the Company's regular pay days and the Company will withhold from such
compensation all applicable federal and state income, social security,
disability and other taxes as required by applicable laws. On at least an annual
basis, the Compensation Committee of the Board of Directors (the "Compensation
Committee") will review Executive's performance and may increase such base
salary if, in its discretion, any such increase is warranted. The Company may
also pay Executive such bonuses and other incentive compensation, including
without limitation, stock options, as are determined from time to time to be
appropriate by the Board of Directors or a duly authorized committee thereof.
4. Change of Control.
(a) Operation of Section 4. This Section 4 shall be effective, but
not operative, immediately upon execution of this Agreement by
the parties hereto and shall remain in effect so long as
Executive remains employed by the Company, but shall not be
operative unless and until there has been a Change of Control,
as defined in subsection 4(b) hereof. Upon such Change of
Control, this Section 4 shall become operative immediately.
(b) Definition. For purposes of this Agreement, a "Change of
Control" means (i) the sale of all or substantially all of the
assets of the Company to any person or entity that, prior to
such sale, did not control, was not under common control with,
or was not controlled by, the Company, (ii) a merger or
consolidation or other reorganization in which the Company is
not the surviving entity or becomes owned entirely by another
entity, unless the outstanding voting securities of the
surviving or parent corporation, as the case may be,
immediately following such transaction are beneficially held
by the same persons and entities that beneficially held the
outstanding voting securities of the Company immediately prior
to such transaction in the same proportion as such persons or
entities held such voting securities immediately prior to the
transaction, (iii) any transaction or series of transactions
which results in any person or "group" becoming the beneficial
owner, directly or indirectly, of securities representing more
than fifty percent (50%) of the outstanding voting securities
of the Company, or (iv) during any period of twelve
consecutive months after the Effective Date the persons who
were directors of the Company at the beginning of such twelve
month period cease to constitute a majority of the Board of
Directors of the Company or of any successor to the Company.
(c) Executive's Election Upon Change of Control. If, while
Executive is employed by the Company, a Change of Control (as
defined in subsection (b) of Section 4) occurs and one or more
of the following events occurs:
(i) The assignment to Executive of duties,
responsibilities, or status inconsistent with his
duties, responsibilities, and status prior to the
Change of Control;
(ii) A reduction by the Company in Executive's base salary
or specified bonus (as in effect prior to the Change
of Control);
(iii) The failure to continue in effect the Company's
insurance, disability, stock option plans, or any
other Executive benefit plans, policies, practices or
arrangements in which Executive participates, or the
failure to continue Executive's participation therein
on substantially the same basis, both in terms of the
amount of benefits provided and the level of
Executive's participation relative to other
participants, as existed prior to the Change of
Control;
(iv) The failure of the Company to obtain a satisfactory
agreement from the successor to the Company to assume
and agree to perform this Agreement;
(v) Any termination by the Company of Executive's
employment other than pursuant to Section 6.2(c)
hereof; or
(vi) The persons who were directors immediately before the
transaction that constitutes the Change of Control
cease to constitute a majority of the Board of
Directors of the Company after that transaction;
Executive may, in his sole discretion, prior to the Expiration Date, give notice
to the Company that he intends to elect to exercise his right to receive the
payments provided for in Section 4(d) hereof (the "Notice of Intention"). In the
event that Executive elects to exercise such right, Executive's employment with
the Company shall terminate effective as of the date upon which the Notice of
Intention is received by the Company. Within ten (10) business days after the
Company's receipt of the Notice of Intention, payment by the Company to
Executive of the amounts set forth in Section 4(d)(i) below shall be made by
cashier's check, accompanied by a written notice to Executive setting forth the
Company's computation of the amount payable pursuant to Section 4(d). If
Executive takes exception to the Company's computation of such amount, Executive
may (but shall not be prejudiced in his right to later contest the amount
actually paid by failure to do so) give a further written notice to the Company
setting forth in reasonable detail Executive's exceptions to the Company's
computation. If the Company and Executive are unable to resolve any dispute over
the total amount to be paid to Executive pursuant to Section 4(d)(i) hereof in
accordance with Section 12 hereof within thirty (30) days after the date of the
Notice of Intention, such dispute shall be submitted for resolution to an
independent third party agreed upon between the Company and Executive and any
additional amount that is determined to be owed by the Company to Executive
pursuant to Section 4(d)(i) hereof shall be paid to Executive by cashier's check
within ten (10) business days after such dispute has been finally resolved.
(d) Compensation Upon Change of Control.
(i) If Executive gives the Notice of Intention described
in Section 4(c), or if the Company terminates
Executive's employment other than pursuant to Section
6.2(c) hereof after a Change of Control but prior to
the Expiration Date, the Company shall pay Executive
a lump sum amount equal to three times Executive's
base amount (as defined by Section 280G of the
Internal Revenue Code of 1986, as amended (the
"Code")) less one dollar ($1.00). In addition to the
foregoing, the Company will continue to provide, for
a period of three years from the effective date of
Executive's termination, medical, life, dental and
disability insurance coverage to Executive of the
type and amount provided to Executive under the
Company's insurance policies as in effect at the time
of termination; provided, however, that if such
coverage does not continue to be maintained by the
Company or is otherwise not available to Executive,
the Company shall provide for or make available to
Executive substantially similar economic benefits;
provided, however, that nothing in this subsection
(i) shall obligate the Company to provide for or make
any such similar economic benefits available to
Executive if the Company does not have such benefits
available to its other executive officers.
Notwithstanding anything in this Agreement to the
contrary, in the event that the Company determines in
good faith that any portion of the payments or other
benefits set forth in this Agreement or any other
plan, arrangement or otherwise constitutes an excess
parachute payment under Section 280G of the Code,
then the Company shall have no obligation to provide
such portion to Executive.
(ii) Payment of the amount set forth in Section 4(d)(i)
shall terminate Executive's rights to receive any and
all other payments, rights or benefits pursuant to
Sections 3, 5 and 6 of this Agreement from the date
of termination, other than any payments, rights or
benefits arising (x) pursuant to Section 14.6 of this
Agreement, or (y) from any other agreement, plan or
policy which by its terms or by operation of law
provides for the continuation of such payments,
rights or benefits after the termination of
Executive's relationship with the Company.
(iii) The lump sum payment referred to in subsection (i)
above shall be in addition to and shall not be offset
or reduced by (x) any other amounts that have accrued
or have otherwise become payable to Executive or his
beneficiaries, but have not been paid by the Company
as of the effective date of termination of
Executive's employment with the Company, including,
but not limited to, salary, consulting fees,
disability benefits, retirement benefits, life and
health insurance benefits, or any other compensation
or benefit payment that is part of any valid
previous, current, or future contract, plan or
agreement, written or oral, or (y) any
indemnification payments that may be or become
payable to Executive pursuant to the provisions of
the Company's Certificate of Incorporation, By-laws,
or similar policy, plan, or agreement relating to the
indemnification of directors or officers of the
Company under certain circumstances.
(e) Vesting of Stock Options Upon Change of Control. In the event
of a Change of Control, in addition to any benefits provided
to Executive upon a Change of Control pursuant to the relevant
stock option plan or stock option agreement governing any
grant of stock options to Executive, and regardless of whether
Executive intends to give a Notice of Intention pursuant to
Section 4(c) hereof or Executive's employment with the Company
terminates after a Change of Control), any and all stock
options granted to Executive pursuant to any of the Company's
stock option plans prior to the effective date of such Change
of Control that are unvested as of the effective date of such
Change of Control will become fully vested and exercisable
beginning two business days prior to the effective date of
such Change of Control without regard to any vesting schedules
established in the relevant option plan or option agreement.
5. Benefits and Reimbursements.
5.1 Executive will, during the Employment Term, have the right to
receive such benefits as are generally made available to full-time executive
officers of the Company, including the right to participate in any retirement
plan or executive bonus plan that the Company may create. In addition, or
inclusive of such benefits, the Company will provide Executive with the
following:
(a) The opportunity to apply for coverage under the
Company's medical, life, dental and disability plans,
if any. If Executive is accepted for coverage under
such plans, the Company will provide to Executive and
his immediate family such coverage on the same terms
as is customarily provided by the Company to the plan
participants as modified from time to time.
(b) In addition to normal holidays recognized by the
Company, Executive will be entitled to three (3)
weeks paid vacation annually; provided that any
vacation may be taken by Executive at any time
Executive deems appropriate, upon consultation with
the Chief Executive Officer, who may determine that
the best interests of the Company require otherwise.
5.2 The Company will reimburse Executive for travel and other
out-of-pocket expenses reasonably incurred by Executive in the performance of
his duties hereunder, provided that all such expenses will be reimbursed only
(i) upon the presentation by Executive to the Company of such documentation as
may be reasonably necessary to substantiate that all such expenses were incurred
in the performance of his duties, and (ii) if such expenses are consistent with
all policies of the Company in effect from time to time as to the kind and
amount of such expenses.
6. Term; Termination; Rights Upon Termination.
6.1 Term. Subject to Section 6.2 below, the Company hereby employs
Executive and Executive hereby accepts employment with the Company for a period
(the "Term") beginning on the Effective Date and ending on the earlier of (a)
February 2, 2001 and (b) the first anniversary of the effective date of the
employment agreement to be entered into between the Company and the new chief
executive officer hired to replace Xxxxxx X. Xxxxxxx (such earlier date being
referred to herein as the "Expiration Date").
6.2 Termination. This Agreement and Executive's employment may be
terminated in any one of the following ways:
(a) Expiration of Term of Agreement. This Agreement will terminate
automatically without notice upon the Expiration Date.
(b) Death or Permanent Disability of Executive. Subject to the
payment to Executive of the amounts required by Section 6.3
below, this Agreement will terminate immediately upon the
death or permanent disability of Executive, whereupon
Executive shall have no further rights or be entitled to any
other benefits of this Agreement, other than the payments and
benefits referred to in Section 6.3 below. Executive will be
deemed permanently disabled for the purpose of this Agreement
if, in the good faith determination of the Board of Directors,
based on sound medical advice, Executive has become physically
or mentally incapable of performing his duties hereunder for a
continuous period of one hundred eighty (180) days, in which
event Executive will be deemed permanently disabled upon the
expiration of such one hundred eighty (180) day period.
(c) Executive's Discharge for Cause. The Company may terminate
Executive's employment hereunder for "Cause" at any time
effective immediately upon its giving of written notice
setting forth with particularity the facts and circumstances
constituting such Cause, whereupon this Agreement will
terminate and Executive shall have no further rights or be
entitled to any other benefits of this Agreement, other than
the payments and benefits referred to in Section 6.3(a) below.
For purposes of this Agreement, "Cause" means the occurrence
of one or more of the following: (i) the commission by
Executive of any act materially detrimental to the Company,
including but not limited to fraud, embezzlement, theft, bad
faith, gross negligence, recklessness, dishonesty,
insubordination or willful misconduct; (ii) incompetence or
repeated failure or refusal to perform the duties required by
this Agreement and as may be assigned to Executive by the
Chief Executive Officer of the Company or by such other person
to whom Executive is directed to report from time to time by
the Chief Executive Officer or the Board of Directors of the
Company; (iii) conviction of a felony or of any crime of moral
turpitude; (iv) any material misrepresentation by Executive to
the Company regarding the operation of the business; or (v)
material breach of any covenant of this Agreement, provided,
that the action or conduct described in clause (ii) or clause
(v) above will constitute "Cause" only if such action or
conduct continues after the Company has provided Executive
with written notice and a reasonable opportunity (to be not
less than 30 days) to cure the same.
(d) The Company's Right to Terminate At Will. Subject to the
payment to Executive of the amounts required by Section 6.3(a)
below, the Company may, at any time during the term of this
Agreement, terminate Executive's employment with the Company
without "Cause" (as defined in Section 6.2(c) above),
effective immediately upon written notice to Executive,
whereupon this Agreement will terminate and Executive shall
have no further rights or be entitled to any other benefits of
this Agreement, other than the payments and benefits referred
to in Section 6.3(a) below.
(e) Executive's Right to Terminate At Will. Executive shall have
the right at any time during the term of this Agreement, by
giving written notice to the Company, to terminate this
Agreement and Executive's employment with the Company
effective as of the date on which such notice is given by
Executive, unless the Company advises Executive that it
requires the services of Executive for an additional period of
time, not to exceed 30 days, in which case, Executive's
employment shall cease as of the end of such period (such
effective date being hereinafter referred to as the "Executive
Termination Date"). On the Executive Termination Date, this
Agreement shall terminate and Executive shall have no further
rights under or be entitled to any other benefits of this
Agreement, other than the payments and benefits referred to in
Section 6.3(a) below.
6.3 Compensation and Benefits Upon Termination.
(a) Upon any termination of Executive's employment pursuant to
this Section 6, Executive will be entitled to: (i) the
compensation provided for in Section 3 hereof for the period
of time ending with the effective date of termination; (ii)
compensation for any unused vacation that Executive may have
accrued, as well as all earned benefits, up to and including
the effective date of termination; (iii) "COBRA" benefits to
the extent required by applicable law; and (iv) reimbursement
for such expenses as Executive may have properly incurred on
behalf of the Company as provided in Section 5.2 above prior
to the effective date of termination.
(b) If during the term of this Agreement (i) the Company
terminates Executive's employment pursuant to Section 6.2(c)
above, (ii) Executive terminates his employment following the
Company's assignment to Executive of regular duties,
responsibilities or status which the Board of Directors
determines, in good faith, to be materially inconsistent with
Executive's duties, responsibilities and status in effect
prior to such assignment, or (iii) Executive terminates his
employment within one (1) month following a relocation of the
Company's headquarters to a location more than 45 miles from
its current location, then, in addition to the amounts payable
in Section 6.3(a) above, Executive will be entitled to receive
a severance payment in an amount equal to Executive's annual
base salary in effect at the time of termination, plus the
amount of Executive's annual cash bonus for the year
immediately preceding such termination, which amount shall be
paid to Executive over a one-year period in equal installments
(pro rated for portions of a pay period) on the Company's
regular pay days, and the Company will withhold all applicable
federal and state income, social security, disability and
other taxes as required by applicable law; provided, however,
that Executive's right to receive payments pursuant to this
Section 6.3(b)(i) shall cease immediately upon a knowing
violation by Executive of any of the provisions of Sections 7,
8 or 9 hereof.
(ii) any and all stock options granted to Executive
pursuant to any of the Company's stock option plans
prior to the effective date of such termination that
are unvested as of the effective date of such
termination will continue to vest, and Executive
shall be permitted to exercise such options on the
terms set forth in the relevant option plan and
option agreement, in the same amounts and at the same
times as such options would have vested had Executive
remained employed by the Company until all such
options become fully vested (the period between the
effective date of termination and the date that all
such options become fully vested being hereafter
referred to as the "Option Vesting Period");
provided, however, that such continued vesting of
options shall immediately cease upon a knowing
violation by Executive during the Option Vesting
Period of any of the provisions of Sections 7, 8 or 9
hereof.
(iii) the Company will continue to provide, for a period of
two years from the effective date of Executive's
termination, medical, life, dental and disability
insurance coverage to Executive of the type and
amount provided to Executive under the Company's
insurance policies as in effect at the time of
termination; provided, however, that if such coverage
does not continue to be maintained by the Company or
is otherwise not available to Executive, the Company
shall provide for or make available to Executive
substantially similar economic benefits; provided,
however, that nothing in this subsection (iii) shall
obligate the Company to provide for or make any such
similar economic benefits available to Executive if
the Company does not have such benefits available to
its other Executive officers.
(c) In the event of a termination upon the death or permanent
disability of Executive as provided in Section 6.2(b) above,
Executive or his estate shall be entitled to receive from the
Company, for a period of twelve months following the effective
date of termination, 100% of Executive's annual base salary at
the rate then in effect, payable in equal installments (pro
rated for portions of a pay period) on the Company's regular
pay days, and the Company will withhold all applicable federal
and state income, social security, disability and other taxes
as required by applicable law; provided, however, that in the
case of a termination upon the permanent disability of
Executive, such payments shall be reduced by all payments in
respect of Executive's salary payable to Executive under the
Company's disability insurance, if any, for the same period.
6.4 Effect of Termination. Subject to Section 4 hereof, the payments
set forth in Section 6.3 will fully discharge all responsibilities of the
Company to Executive under this Agreement or relating to or arising out of the
termination of Executive's employment, and all other rights and obligations of
the Company and Executive under this Agreement shall cease as of the effective
date of termination, except that Executive's obligations under Sections 7, 8,
and 9 shall survive such termination.
7. Unfair Competition by Executive.
7.1 Executive agrees that all trade secrets, or confidential or
proprietary information with respect to the activities and businesses of the
Company, including, without limitation, personnel information, secret processes,
know-how, customer lists, databases, ideas, techniques, processes, inventions
(whether patentable or not), and other technical plans, business plans,
marketing plans, product plans, forecasts, contacts, strategies and information
(collectively "Proprietary Information") which were learned by Executive in the
course of his employment by the Company, and any other Proprietary Information
received, developed or learned by Executive hereafter in the course of his
future employment by or in association with the Company, are confidential and
will be kept and held in confidence and trust as a fiduciary by Executive.
Executive will not use or disclose Proprietary Information of the Company except
as necessary in the normal course of the business of the Company for its sole
and exclusive benefit, unless Executive is compelled so to disclose under
process of law, in which case Executive will first notify the Company promptly
after receipt of a demand to so disclose.
7.2 During the term of this Agreement and for the greater of (i) the
period during which Executive is receiving compensation or benefits pursuant to
Section 6.3 hereof and (ii) a period of one year following the expiration or
termination of this Agreement for any reason, Executive will not, directly or on
behalf of or in conjunction with any other person, persons, company,
partnership, corporation or business of whatever nature:
(a) engage, as an officer, director, shareholder, owner, partner,
joint venturer, financier, manager, executive, employee,
independent contractor, consultant, advisor, or sales
representative, in any business selling any products or
services in direct competition with the Company or any of its
subsidiaries within 100 miles of any geographic location in
which the Company or any of its subsidiaries conducts business
at such time (or in the case of a termination or expiration of
this Agreement, within 100 miles of any geographic location in
which the Company or any of its subsidiaries conducted
business at the time of such expiration or termination) (the
"Territory");
(b) call upon any prospective acquisition candidate on Executive's
own behalf or on behalf of any competitor of the Company or
any of its subsidiaries, which candidate was either called
upon by the Company (including its subsidiaries) or for which
the Company made an acquisition analysis, for the purpose of
acquiring such entity; provided, however, that Executive shall
not be charged with a violation of this Section 7.2(b) unless
and until Executive shall have knowledge or notice that such
prospective acquisition candidate was called upon, or that an
acquisition analysis was made, for the purpose of acquiring
such entity;
(c) call upon, contact or solicit any person who is, at that time,
an employee of the Company (including the subsidiaries
thereof) for the purpose or with the intent of enticing such
employee away from or out of the employ of the Company
(including the subsidiaries thereof); provided that Executive
shall be permitted to call upon and hire any member of his or
her immediate family;
(d) call upon any person or entity which is, at that time, or
which has been, within one (1) year prior to that time, a
customer of the Company (including the subsidiaries thereof)
within the Territory for the purpose of soliciting or selling
products or services in direct competition with the Company
within the Territory;
(e) disclose customers, whether in existence or proposed, of the
Company (or the Company's subsidiaries) to any person, firm,
partnership, corporation or business for any reason or
purpose.
(f) engage in any pattern of conduct that involves the making or
publishing of written or oral statements or remarks
(including, without limitation, the repetition or distribution
of derogatory rumors, allegations, negative reports or
comments) which are disparaging, deleterious or damaging to
the integrity, reputation or good will of the Company, its
management, or of management of corporations affiliated with
the Company.
7.3 Except for activities expressly permitted by the prior written
approval of the Board of Directors of the Company, during the term of this
Agreement, the Executive will not: (a) engage in business independent of
Executive's employment by the Company that requires any substantial portion of
Executive's time; (b) serve as an officer, general partner or member in any
for-profit corporation, partnership or firm; (c) serve as a director of any
corporation, partnership or firm having the Business as its principal
enterprise; or (d) directly, indirectly or through any Affiliate, invest in,
participate in or acquire an interest in any entity engaged in the Business. For
purposes of this Agreement, the terms: (i) "Affiliate" means as to any Person,
each other Person that directly or indirectly (through one (1) or more
intermediaries) controls, is controlled by or is under common control with such
person; and (ii) "Person" means an individual, corporation, partnership, limited
liability company, association, joint stock company, trust, associate (as
defined in regulations promulgated by the Securities and Exchange Commission) or
other legally recognizable entity. Notwithstanding anything herein to the
contrary, the limitations in Sections 7.2 and 7.3 hereof will not prohibit any
investment by the Executive of not more than 3% of the outstanding capital stock
of a company whose securities are listed on a public exchange or the National
Association of Securities Dealers Automated Quotation National Market System.
7.4 Executive and the Company acknowledge that: (i) each covenant and
restriction contained in Sections 7.1, 7.2, 7.3, 8 and 9 of this Agreement is
necessary, fundamental, and required for the protection of the Company's
business and goodwill; (ii) such covenants and restrictions relate to matters
which are of a special, unique, and extraordinary character that gives each of
them a special, unique, and extraordinary value which is difficult to measure in
economic terms; and (iii) a breach of any such covenant or restriction will
result in immediate and irreparable harm and damage to the Company which cannot
be compensated adequately by a monetary award or other remedy at law.
Accordingly, it is expressly agreed that, in addition to all other remedies
available at law or in equity, and notwithstanding anything to the contrary in
Section 12 below, the Company will be entitled to the immediate remedy of a
temporary restraining order, preliminary injunction, or such other form of
injunctive or equitable relief as may be used by any court of competent
jurisdiction to restrain or enjoin any of the parties hereto from breaching any
such covenant or restriction, or otherwise specifically to enforce the
provisions contained in Sections 7.1, 7.2, 7.3, 8, and 9 of this Agreement.
7.5 Reasonable Restraint. It is agreed by the parties hereto that the
foregoing covenants in Sections 7.1, 7.2 and 7.3 impose a reasonable restraint
on Executive in light of the activities and business of the Company (including
the subsidiaries thereof) on the date of the execution of this Agreement and the
current plans of the Company; but it is also the intent of the Company and
Executive that such covenants be construed and enforced in accordance with the
changing activities and business of the Company (including the subsidiaries
thereof) throughout the term of this Agreement. It is further agreed by the
parties that a portion of the compensation paid to Executive under this
Agreement is paid in consideration of the covenants herein contained, the
sufficiency of which consideration is hereby acknowledged. If the scope of any
restriction contained in Sections 7.1, 7.2 or 7.3 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 the parties consent that
such scope may be judicially modified accordingly in any proceeding brought to
enforce such restriction.
7.6 Independent Covenant. Each of the covenants in Sections 7, 8 and 9
shall be construed as an agreement independent of any other provisions in this
Agreement, and the existence of any claim or cause of action of Executive
against the Company (including the subsidiaries thereof), whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of such covenants. It is specifically agreed that the time
periods stated at the beginning of Sections 7.2 and 8, during which the
agreements and covenants of Executive made in Sections 7.2 and 8 shall be
effective, shall be computed by excluding from such computation any time during
which Executive is in violation of any provision of Section 7 or 8. The
covenants contained in Sections 7, 8 and 9 shall not be affected by any breach
of any other provision of this Agreement by any party hereto.
8. Proprietary Matters. Executive expressly understands and agrees that
any and all improvements, inventions, discoveries, processes, or know-how that
are generated, conceived or made by Executive, solely or jointly with another,
during the term of this Agreement or within the greater of (i) the period during
which Executive is receiving compensation or benefits pursuant to Section 8.3
hereof, and (ii) one (1) year following termination or expiration of this
Agreement, and which are directly related to the business or activities of the
Company and which Executive conceives as a result of his employment by the
Company, whether so generated or conceived during Executive's regular working
hours or otherwise, and whether patentable or not, are the sole and exclusive
property of the Company, and Executive shall promptly disclose any such
improvements, inventions, discoveries, processes or know-how to the Company.
Executive hereby assigns and agrees to assign all his interests in such
improvements, inventions, discoveries, processes, and know-how to the Company or
its nominees and agrees, whenever requested to do so by the Company (either
during the term of this Agreement or thereafter), to execute and assign any and
all applications, assignments and/or other instruments and do all things which
the Company may deem necessary or appropriate in order to apply for, obtain,
maintain, enforce and defend Letters of Patent, copyrights, trade names or
trademarks of the United States or of foreign countries for said improvements,
inventions, discoveries, processes, or know-how, or in order to assign and
convey or otherwise make available to the Company the sole and exclusive right,
title, and interest in and to said improvements, inventions, discoveries,
processes, know-how, or otherwise to protect the Company's interest therein.
9. Return of Company Property. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Executive by or on behalf of the Company or its
representatives, vendors or customers which pertain to the business of the
Company shall be and remain the property of the Company, and be subject at all
times to its discretion and control. Likewise, all correspondence, reports,
records, charts, advertising materials and other similar data pertaining to the
business, activities or future plans of the Company which is collected by
Executive shall be delivered promptly to the Company without request by it upon
termination of Executive's employment.
10. No Prior Agreements. Executive hereby represents and warrants to
the Company that the execution of this Agreement by Executive and his employment
by the Company and the performance of his duties hereunder will not violate or
be a breach of any agreement with a former employer, client or any other person
or entity. Further, Executive agrees to indemnify the Company for any claim,
including, but not limited to, attorneys' fees, costs and expenses and expenses
of investigation, by any such third party that such third party may now have or
may hereafter come to have against the Company based upon or arising out of any
non-competition agreement, invention or secrecy agreement between Executive and
such third party which was in existence as of the date of this Agreement.
11. Key-Person Insurance. Executive agrees to make himself available
and to undergo, at the Company's request and expense, any physical examination
or other procedure necessary to allow the Company to obtain a key-person
insurance policy on Executive. If the Company obtains such policy, it will
maintain the policy at its expense and all proceeds will be the sole property of
the Company.
12. Resolution of Disputes. The parties will attempt in good faith
promptly by negotiations to resolve any dispute or controversy arising out of or
relating to this Agreement or to the employment or termination of Executive by
the Company. All negotiations pursuant to this clause are confidential and will
be treated as compromise and settlement negotiations for purposes of the Federal
Rules of Evidence and state rules of evidence.
13. Indemnification. In the event Executive is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the Company
against Executive), by reason of the fact that he is or was performing services
within the course and scope of his employment with the Company under this
Agreement, then the Company shall protect, defend, indemnify and hold harmless
Executive against all expenses (including attorneys' fees, costs and expenses),
judgments, fines, costs, liabilities, damages, and amounts paid in settlement,
actually and reasonably incurred by Executive in connection therewith. Without
limiting the requirement above that Executive be performing services within the
course and scope of his employment, activities constituting violations of law or
Company policy shall not constitute services within the course and scope of
Executive's employment, and the Company shall not indemnify Executive for any
such activities. Executive agrees to immediately notify the Company of any
threatened, pending or completed matter; provided, however, that Executive's
failure to immediately notify the Company of such matter shall not relieve the
Company of any obligation hereunder, unless, and only to the extent that, the
Company is materially prejudiced by such delay or failure to give notice.
Executive agrees to accept any attorney reasonably assigned by the Company to
defend the Executive; provided that if counsel selected by the Company shall
have a conflict of interest that prevents such counsel from representing
Executive, Executive may engage separate counsel and the Company shall pay all
reasonable attorneys fees of such counsel.
14. Miscellaneous.
14.1 Governing Law; Interpretation. This Agreement will be governed by
the substantive laws of the State of New York applicable to contracts entered
into and fully performed in such jurisdiction. The headings and captions of the
Sections of this Agreement are for convenience only and in no way define, limit
or extend the scope or intent of this Agreement or any provision hereof. This
Agreement will be construed as a whole, according to its fair meaning, and not
in favor of or against any party, regardless of which party may have initially
drafted certain provisions set forth herein.
14.2 Assignment. This Agreement is personal to Executive and he may not
assign any of his rights or delegate any of his obligations hereunder without
first obtaining the prior written consent of the Board of Directors of the
Company.
14.3 Notices. Any notice, request, claim or other communication
required or permitted hereunder will be in writing and will be deemed to have
been duly given if delivered by hand or if sent by certified mail, postage and
certification prepaid, to Executive at his residence (as noted in the Company's
records), or to the Company at its address as set forth below its signature on
the signature page of this Agreement, or to such other address or addresses as
either party may have furnished to the other in writing in accordance herewith.
14.4 Severability. If any provision of this Agreement or the
application of any such provision to either of the parties is held by a court of
competent jurisdiction to be contrary to law, such provision will be deemed
amended to the extent necessary to comply with such law, and the remaining
provisions of this Agreement will remain in full force and effect unless the
result would be manifestly unjust or would deprive either party of the benefit
of its bargain.
14.5 Entire Agreement; Amendments. This Agreement and any other
exhibits and attachments hereto constitutes the final and complete expression of
all of the terms of the understanding and agreement between the parties hereto
with respect to the subject matter hereof, and this Agreement replaces and
supersedes any and all prior or contemporaneous negotiations, communications,
understandings, obligations, commitments, agreements or contracts, whether
written or oral, between the parties respecting the subject matter hereof,
including without limitation the Executive Employment Agreement between the
parties dated as of February 2, 1998 and the Amended and Restated Executive
Employment Agreement between the parties dated as of May 1, 1998. Except as
provided in Section 14.4 above, this Agreement may not be modified, amended,
altered or supplemented except by means of the execution and delivery of a
written instrument mutually executed by both parties.
14.6 Attorneys' Fees. If it becomes necessary for any party to initiate
legal action or any other proceeding to enforce, defend or construe such party's
rights or obligations under this Agreement, the prevailing party will be
entitled to its reasonable costs and expenses, including attorneys' fees,
incurred in connection with such action or proceeding.
14.7 Counterparts. This Agreement may be executed simultaneously in two
(2) or more counterparts, each of which shall be deemed an original and all of
which together shall constitute but one and the same instrument.
15. EXECUTIVE ACKNOWLEDGMENT. EXECUTIVE ACKNOWLEDGES THAT HE HAS BEEN
GIVEN THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL CONCERNING THE RIGHTS AND
OBLIGATIONS ARISING UNDER THIS AGREEMENT, THAT HE HAS READ AND UNDERSTANDS EACH
AND EVERY PROVISION OF THIS AGREEMENT, AND THAT HE IS FULLY AWARE OF THE LEGAL
EFFECT AND IMPLICATIONS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
Company: Executive:
United Road Services, Inc. Xxxxxx X. Xxxx
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxx
------------------------------- -----------------------------
Xxxxxxx X. Xxxxxxxx
Authorized Board Representative
00 Xxxxxxxx Xxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
