EMPLOYMENT AGREEMENT
Exhibit
10.1
AGREEMENT,
dated as of the 31st
day of
October, 2008, by and between Essex Crane Rental Corp., a Delaware corporation
(the “Company”), Hyde Park Acquisition Corporation, a Delaware corporation
(“Hyde Park”), and Xxxxxx Xxxxx (“Employee”).
WHEREAS
the Company is an indirect, majority-owned subsidiary of Hyde Park;
WHEREAS
the Company is engaged in the business of purchasing, selling, leasing or other
provision of new and used cranes (but excluding the manufacturing of cranes)
(the “Business”); and
WHEREAS
Employee shall serve as President and Chief Executive Officer of the Company
and
President and Chief Executive Officer of Hyde Park, and Employee, the Company
and Hyde Park are desirous of formalizing their understanding for Employee’s
employment, all upon the terms and subject to the conditions hereinafter
provided.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment.
The
Company and Hyde Park agree to employ Employee, and Employee agrees to be
employed by the Company and Hyde Park, upon the terms and subject to the
conditions of this Agreement.
2. Term.
The
term
of Employee’s employment under this Agreement (the “Term”)
shall
commence on the date hereof (the “Commencement
Date”)
and
shall continue until the earlier of (i) the third anniversary of the
Commencement Date and (ii) such earlier date on which the Term is
terminated pursuant to Section 5. Unless sooner terminated in accordance
with Section 5, the Term shall automatically be renewed and extended for
successive periods of one (1) year unless either party hereto shall have
notified the other party hereto in writing that such extension shall not take
effect at least 90 days prior to the end of the initial Term or of any
extension.
3. Duties.
During
the Term, (i) the Company shall employ the Employee and the Employee shall
serve the Company as its President and Chief Executive Officer and
(ii) Hyde Park shall employ the Employee and the Employee shall serve Hyde
Park as its President and Chief Executive Officer. Subject to the authority
and
direction of the Board of Directors of the Company (the “Board” or “Board of
Directors”), the Employee shall have the duties, authorities and
responsibilities for the general management and control of the affairs and
business of the Company and of Hyde Park, and shall perform such other duties
and exercise such other authorities commensurate with Employee’s position which
are or from time to time may be delegated to him by the Board of Directors
or
the Company Bylaws, all in accordance with basic policies as established by
and
subject to the oversight of the Board. The principal location of Employee’s
employment shall be at the Company’s executive office located in Buffalo Grove,
Illinois. Employee shall devote his entire working time to the affairs of the
Company and Hyde Park and shall faithfully and to the best of his ability
perform his duties hereunder. Notwithstanding the foregoing, nothing herein
shall prohibit Employee from (i) engaging in personal investment activities
for himself and his family that do not give rise to any conflict of interests
with the Company or its affiliates; (ii) subject to prior approval of the
Board of Directors, acting as a director or in a similar role for an entity
unrelated to the Company if such role does not give rise to any conflict of
interests with the Company or its affiliates; and (iii) engaging in
charitable and civic activities, in each case and collectively to an extent
that
does not materially interfere with the performance of Employee’s duties for the
Company and Hyde Park hereunder.
Employee
shall be appointed to the Board and shall serve as a voting member of the Board
throughout the Term. In addition, the Company also agrees to use its best
efforts to cause Employee to be elected to the Board of Directors of Hyde Park
and to have the Employee serve as a member of the Board of Hyde Park throughout
the Term.
4. Compensation
and Benefits.
(a) The
Company shall pay to Employee a base salary (the “Base
Salary”)
at a
rate of $310,000 per annum, payable in accordance with the Company’s payroll
practices for its executive employees. On each anniversary of the Commencement
Date or such other appropriate date as may be agreed by the parties during
the
Term, the Company shall review the Base Salary and determine if, and by how
much, the Base Salary should be increased. Employee’s Base Salary in effect from
time to time may not be decreased without Employee’s consent. While serving as a
member of the Board of Directors of the Company or the Board of Hyde Park,
Employee shall not be entitled to Board of Directors’ fees. For the avoidance of
doubt, unless otherwise agreed to by Employee and Hyde Park, Employee shall
not
be entitled to any additional compensation from Hyde Park in connection with
his
duties pursuant to Section 3.
(b) The
Company and Hyde Park have committed to grant an aggregate number of stock
options to senior executives of the Company representing the right to purchase
not less than ten percent of the number of shares of stock of Hyde Park issued
and outstanding as of the closing date of Hyde Park’s acquisition of the
majority of the equity securities of Essex Holdings LLC (the “Closing Date”).
The Company shall commission a study to be performed by Towers Xxxxxx (or
another nationally recognized senior executive consulting firm as mutually
agreed to by the parties) of equity grants for senior executives of a comparable
group of companies. Employee shall be granted options to purchase shares of
common stock of Hyde Park in such number and on such terms and conditions as
determined by the Compensation Committee in accordance with Hyde Park’s 2008
Long Term Incentive Plan, which terms shall be no less favorable to Employee
than the terms of grants in the top quartile of senior executives as set forth
in such study. Any additional grants of options, restricted stock, share
appreciation rights or similar incentive arrangements will be at the discretion
of the Compensation Committee of Hyde Park.
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(c) For
each
calendar year ending during the Term, in addition to Base Salary, Employee
shall
be entitled to receive a cash bonus (“Bonus”) which consists of (i) a
percentage of the bonus pool set forth in Exhibit A which shall be no less
than such percentage applied in the most recent prior year, and (ii) an
equipment sale bonus as described in Footnote 1 to Exhibit A. The
Bonus will be paid by March 15 of the year following the year to which the
Bonus relates (e.g., the Bonus for calendar year 2008 will be paid by
March 15, 2009).
(d) During
the Term, Employee shall be entitled to participate in those retirement plans,
deferred compensation plans, group insurance, life, medical, dental, disability
and other benefit plans of the Company at the same level as those benefits
are
provided by the Company from time to time to other senior executives of the
Company. Also, during the Term, Employee shall be entitled to fringe benefits
and perquisites at the same level as those benefits are provided by the Company
from time to time to other senior executives of the Company
generally.
(e) The
Company shall promptly pay to Employee the approved reasonable expenses incurred
by him in the performance of his duties hereunder in accordance with the
Company’s policies in effect from time to time, including, without limitation,
those incurred in connection with business related travel or entertainment,
or,
if such expenses are paid directly by the Employee, shall promptly reimburse
him
for such payment, provided that Employee provides proper documentation thereof
in accordance with the Company’s policy. The Company acknowledges that Employee
shall commute throughout the Term from his residence in Manitowoc, Wisconsin,
or
such other location, to the Company’s facilities, including the Company’s
executive office located in Buffalo Grove, Illinois. The Company shall pay
Employee’s reasonably incurred commuting expenses consistent with past practices
in addition to the automobile lease allowance and expenses provided in
Section 4(g).
(f) Effective
as of the Commencement Date, Employee shall be entitled to seventeen (17) days
of paid vacation in any full calendar year. On each anniversary of the
Commencement Date, Employee shall be entitled to one additional day of paid
vacation effective as of the next succeeding calendar year (e.g., on the second
anniversary of the Commencement Date, Employee shall be entitled to nineteen
days of vacation in the next succeeding calendar year), capped at a maximum
of
twenty (20) days of paid vacation per annum.
(g) During
the Term, Employee shall be entitled to lease an automobile at a maximum monthly
cost of not more than $860 and to reimbursement of all related expenses related
to the business use of such automobile.
(h) Company
shall pay the reasonable costs of Employee’s memberships in work-related
professional organizations as are appropriate for one in Employee’s position
with the Company.
(i) Company
shall pay reasonable legal expenses incurred by Employee in connection with
the
negotiation and consummation of this Agreement, up to an aggregate of $10,000
post-acquisition. Such expenses shall be reimbursed as soon as administratively
feasible.
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(j) During
the Term, the Company shall pay Employee the cost of maintaining his existing
fifteen (15) year term life insurance policy. In addition, Employee shall be
entitled to receive an additional payment (a “Gross-Up Payment”) in an amount
such that after payment by Employee of all taxes related to the Company’s
payment of the insurance premium, Employee retains an amount of the Gross-Up
Payment equal to the tax imposed. Payment made to Employee pursuant to this
paragraph shall occur as soon as administratively feasible following Employee’s
payment of the insurance premium and taxes.
(k) The
Company may, at its discretion, subscribe for and maintain, on behalf of the
Company, life insurance or key-man insurance with respect to Employee in such
amount and upon such terms or conditions as the Company may deem reasonable.
Employee shall cooperate with the Company in connection with the obtaining
of
any such policies, including, without limitation, the submission to physical
examination and blood testing by a physician or other medical professional
selected by the Company. The proceeds of such insurance policies will be owned
by the Company, and neither the Employee nor his heirs will have any rights
therein or claims thereto.
5. Termination.
Employee’s
employment hereunder shall be terminated as of the applicable Termination Date
upon Employee’s death or Disability, upon expiration of the Term in the event of
delivery by either party of a notice of non-renewal pursuant to Section 2,
termination by the Company without Cause or upon Employee’s voluntarily leaving
the employ of the Company without Good Reason, and may also be terminated as
of
the applicable Termination Date by delivery of a Notice of Termination
(i) by the Company for Cause or (ii) by Employee for Good Reason, with
each such term defined as follows:
(a) For
Cause.
A
termination for “Cause”
is
a
termination evidenced by a resolution adopted by the Board after finding in
good
faith that Employee has:
(i) engaged
in gross negligence or willful misconduct in connection with or arising out
of
the performance of his duties hereunder and such negligence or misconduct has
not been cured (if curable) within a period of thirty (30) days after the
Company has given written notice to Employee;
(ii) been
under the influence of drugs (other than prescription medicine or other
medically-related drugs to the extent that they are taken in accordance with
their directions) during the performance of his duties under this
Agreement;
(iii) engaged
in behavior that would constitute grounds for liability for sexual harassment
(as proscribed by the U.S. Equal Employment Opportunity Commission Guidelines
or
any other applicable state regulatory body) or, in the reasonable opinion of
the
Board, other egregious conduct violative of laws governing the workplace;
or
(iv) been
indicted in for a criminal offense in connection with an act of fraud, larceny,
misappropriation of funds or falsification or manipulation of any records of
the
Company or embezzlement or any other felony or crimes of moral turpitude;
or
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(v) materially
breached this Agreement (in a manner not covered by any of
subparagraphs (i) through (iv) of this Section 5(a)) and such breach
has not been cured within thirty (30) days after written notice thereof has
been
given to the Employee by the Company.
(b) Good
Reason.“Good
Reason” shall mean the occurrence of any of the following conditions which
remain uncured for a period of thirty (30) days after the Company’s receipt of
written notice thereof:
(i) A
material breach by the Company of this Agreement (in a manner not covered by
any
of subparagraphs (ii) through (iv) of this Section 5(b));
(ii) A
material reduction in Base Salary or a change in the bonus program identified
in
Section 4(c) that materially reduces the Executive’s bonus
opportunity;
(iii) A
material diminution in Employee’s authorities, duties or responsibilities,
including Employee ceasing to serve on the Board of Directors of the Company
or
of Hyde Park; or
(iv) Relocation
of the Company’s executive office located in Buffalo Grove, Illinois, of greater
than twenty-five (25) miles.
(c) Disability.
A
“Disability” shall be deemed to exist if Employee has been unable to
substantially perform his duties hereunder for 90 consecutive days or for 180
days in any 365 day period by reason of any physical or mental illness or
injury.
(d) Notice
of Termination.
A
“Notice of Termination” shall mean a written notice which, to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee’s employment, and sets for
the “Termination Date” (as defined below). No purported termination by the
Company for Cause or by Employee for Good Reason shall be effective without
proper delivery of a Notice of Termination by the terminating party within
90
days of the relevant party’s initial knowledge of the existence of the condition
giving rise to the termination.
(e) Termination
Date.
“Termination Date” shall mean (i) in the case of the Employee’s death, his
date of death, (ii) in the case of Disability, the date such Disability
first exists as determined in accordance with Section 5(c) above,
(iii) in the case of a termination contemplated by Section 5(a) or
5(b) above, the date specified in the Notice of Termination, (iv) in the
case of termination by the Company without Cause or resignation by Employee
without Good Reason, the date of such termination or resignation, and
(v) following delivery of a notice of non-renewal by either party pursuant
to Section 2, the last day of the Term.
6. Effect
of Termination or Non-Renewal.
(a) Death.
In the
event of the termination of Employee’s employment as a result of his death, the
Company shall:
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(i) pay
to
his estate the Base Salary earned through the Termination Date (pro rated for
any partial month) plus accrued but unpaid vacation and any Bonus in respect
of
a prior and current year which has been earned but not yet paid;
and
(ii) reimburse
to Employee’s estate for any expenses pursuant to
Section 4(e);
and
Employee’s estate shall not have any further entitlement to any other
compensation or benefits from the Company or Hyde Park other than as expressly
provided herein or pursuant to any Company benefit plans.
(b) For
Cause by the Company.
In the
event that Employee’s employment is terminated by the Company or Hyde Park for
Cause, the Company shall:
(i) pay
to
Employee the Base Salary earned through the Termination Date (pro rated for
any
partial month) plus accrued but unpaid vacation; and
(ii) reimburse
Employee for any expenses pursuant to Section 4(e);
and
Employee shall have no further entitlement to any other compensation or benefits
from the Company or Hyde Park other than as expressly provided herein or
pursuant to any Company benefit plan.
(c) Termination
by the Company or Hyde Park without Cause, Disability of Employee, termination
by Employee with Good Reason or upon Expiration of the Term.
In the
event that (A) Employee’s employment is terminated by the Company or Hyde
Park without Cause (other than by reason of his death), (B) Employee incurs
a Disability, (C) Employee terminates his employment for Good Reason,
(D) the Term expires following delivery by Company or Hyde Park of a notice
of non-renewal pursuant to Section 2, (E) Employee’s resignation
without Good Reason, or (F) expiration of the Term following delivery by
Employee of a notice of non-renewal pursuant to Section 2, then the Company
shall:
(i) pay
to
Employee the Base Salary earned through the Termination Date (pro rated for
any
partial month) plus accrued but unused vacation and any Bonus in respect of
a
prior and current year which has been earned but not yet paid;
(ii) reimburse
Employee for any expenses pursuant to Section 4(e); and
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(iii) subject
to the terms of Section 8(a) and 8(b) below, (w) in the event of
termination due to Disability, pay Employee 100% of Base Salary and provide
health benefits in accordance with Section 4(d) for a period commencing
within 30 days of Employee’s termination of employment and ending on a date that
is twelve (12) months after the date payment commenced, (x) in the event of
expiration of the Term following delivery by Company or Hyde Park of a notice
of
non-renewal pursuant to Section 2, (A) pay Employee 100% of Base
Salary for a period commencing within 30 days of such expiration and ending
on a
date that is twelve (12) months after the date payment commenced plus
(B) pay Employee a pro rata portion of the target bonus in effect for the
year of expiration (based on the Company’s performance as of the end of the most
recently completed financial quarter) plus 50% of the actual bonus paid in
the
prior year, plus (C) provide health benefits in accordance with
Section 4(d) for the period described in (A) above, (y) at the
election of the Company or Hyde Park, in the event of expiration of the Term
following delivery by Employee of a notice of non-renewal pursuant to
Section 2, (A) pay Employee 100% of Base Salary for a period
commencing within 30 days of such expiration and ending on a date that is twelve
(12) months after the date payment commenced plus (B) pay Employee a pro
rata portion of the target bonus in effect for the year of expiration (based
on
the Company’s performance as of the end of the most recently completed financial
quarter) plus 50% of the actual bonus paid in the prior year, plus
(C) provide health benefits in accordance with Section 4(d) for the
period described in (A) above, and (z) in the event of Employee’s
termination by the Company or Hyde Park without Cause or Employee’s resignation
for Good Reason, (A) pay Employee 100% of Base Salary for a period
commencing within 30 days of Employee’s termination of employment and ending on
a date that is twelve (12) months after the date payment commenced plus
(B) pay Employee the target bonus in effect for the year of termination or,
if none, the actual bonus paid in the year prior to termination, plus
(C) provide health benefits in accordance with Section 4(d) for a
period commencing within 30 days of Employee’s termination of employment and
ending on a date that is twelve (12) months after the date payment commenced,
provided,
that
all such payments shall be payable in accordance with the Company’s normal
payroll practices for its executives and key management personnel subject to
Section 6(d) below. Notwithstanding the foregoing, in the event Employee is
a “specified employee” as defined in Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) and regulations issued thereunder, to the
extent required by Code Section 409A, payment of Base Salary and Bonus
payable pursuant to this paragraph (iii) shall instead commence on the
first day of the seventh month following termination of employment and continue
for twelve (12) months thereafter.
As
a
condition to payment of the above compensation and benefits, Employee must
deliver to the Company a general release in favor of the Company and Hyde Park
(and their respective directors, officers, employees, successors and assigns)
in
form and substance reasonably acceptable to the Company, releasing any and
all
claims of Employee arising out of or by reason of his termination of employment
hereunder (the “Release”),
and
the Release shall not have been revoked by Employee. The Employee shall be
under
no obligation to seek other employment or otherwise to mitigate the obligations
of the Company or Hyde Park under this Agreement.
(d) This
Section 6 sets forth the only obligations of the Company and Hyde Park with
respect to the termination of Employee’s employment with the Company and Hyde
Park, and Employee acknowledges that upon the termination of his employment,
he
shall not be entitled to any payments or benefits which are not explicitly
provided in this Agreement. Except as set forth in section 6(c)(iii) above,
any and all payments to Employee or his estate, as the case may be, shall be
paid within fifteen (15) business days of the applicable Termination
Date.
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7. Protection
of Confidential Information.
Employee
acknowledges and agrees that he will not divulge to anyone (other than the
Company and its affiliates or any persons employed or designated by the Company
or in connection with the Employee’s duties hereunder) any knowledge or
information of any type whatsoever of a confidential nature relating to the
business of the Company or its affiliates, including, without limitation,
non-public information concerning the financial data, strategic business plans,
product development (or other proprietary product data), customer lists,
marketing plans and other non-public, proprietary and confidential information
of the Company or its affiliates, customers or suppliers, that, in any case,
is
not otherwise available to the public (other than by Employee’s breach of the
terms hereof). The provisions of this Section 7 shall apply both during the
time that Employee is employed by the Company and thereafter.
8. Restriction
of Competition; Interference; and Non-Solicitation.
(a) As
a
significant inducement to the Company to enter into and perform its obligations
under this Agreement, during the Term and the Restricted Period (defined below),
if any, Employee shall not anywhere in the United States of America and Canada,
directly or indirectly, individually or as an employee, partner, officer,
director or shareholder or in any other capacity whatsoever own, manage,
operate, sell, control or participate in the ownership, management, operation,
sales or control of or be connected in any manner, including as an employee,
advisor or consultant or similar role, with any business engaged directly or
indirectly in the Business. Nothing contained herein shall prohibit the Employee
from being a passive owner of not more than 5% of the outstanding equity of
any
class of an entity which is publicly traded. The term “Restricted Period” shall
mean the one year period commencing on Termination Date; provided, however,
in
the case of delivery of a notice of non-renewal by the Employee pursuant to
Section 2 above, there is no Restricted Period unless the Company delivers
to
Employee within ten days of such expiration a written election agreeing to
make
payments and provide benefits set forth in Section 6(c)(iii). Notwithstanding
the foregoing, except in the case of termination by the Company for Cause
pursuant to Section 5(a) or resignation by Employee without Good Reason,
(x) the Employee’s obligations under this Section 8(a) shall terminate
in the event that the Company ceases to make payments and provide benefits
pursuant to Section 6(c)(iii), and (y) the Company’s obligation to
make payments and provide benefits pursuant to Section 6(c)(iii) shall
terminate in the event that Employee ceases to comply with his obligations
under
this Section 8(a).
(b) In
addition to, and not in limitation of, the non-competition covenants set forth
above in this Section, the Employee agrees that during the Term and the
Restricted Period (defined above), he will not, directly or indirectly,
(i) solicit, induce or attempt to induce any executive, employee,
consultant or contractor of the Company or its affiliates to terminate his
or
her employment or his or her services with the Company provided, however, the
foregoing restriction will not prohibit contact between Employee and any
individual that results from (A) such individual’s response to a general
solicitation or advertisement that is not specifically directed or targeted
to
such Person, or (B) such individual’s own initiative at any time after his
or her termination by the Company, or (ii) solicit business away from, or
attempt to sell, license or provide products or services the same as the
Business to any customer of the Company or their subsidiaries and/or affiliates.
Notwithstanding the foregoing, except in the case of termination by the Company
for Cause pursuant to Section 5(a) or resignation by Employee without Good
Reason, (x) the Employee’s obligations under this Section 8(b) shall
terminate in the event that the Company ceases to make payments and provide
benefits pursuant to Section 6(c)(iii), and (y) the Company’s
obligation to make payments and provide benefits pursuant to
Section 6(c)(iii) shall terminate in the event that Employee ceases to
comply with his obligations under this Section 8(b).
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(c) The
Employee acknowledges (i) the scope and period of restrictions to which the
restrictions imposed in this Section applies are fair and reasonable and are
reasonably required for the protection of the Company, (ii) this Agreement
accurately describes the business to which the restrictions are intended to
apply and (iii) the obligations and restrictions provided for herein are an
integral part of the consideration motivating the Company to enter into this
Agreement;
(d) It
is the
intent of the parties to this Agreement that the provisions of this Section
will
be enforced to the fullest extent permissible under applicable law. If any
particular provision or portion of this Section is adjudicated to be invalid
or
unenforceable, the Agreement will be deemed amended to revise that provision
or
portion to the minimum extent necessary to render it enforceable. Such amendment
will apply only with respect to the operation of this paragraph in the
particular jurisdiction in which such adjudication was made.
(e) In
addition, neither during the Term nor at any time thereafter shall Employee
disparage the Company or any of its officers, directors or affiliates by making
(or causing others to make) any oral or written statements or representations
that could reasonably be construed to be a false and misleading statement of
fact or a libelous, slanderous or disparaging statement of or concerning any
of
the aforementioned persons.
9. Specific
Remedies.
(a) It
is
understood by Employee and the Company that the covenants contained in this
Section 9 and in Sections 7 and 8 hereof are essential elements of
this Agreement and that, but for the agreement of Employee to comply with such
covenants, the Company would not have agreed to enter into this Agreement.
The
Company and Employee have independently consulted with their respective counsel
and have been advised concerning the reasonableness and propriety of such
covenants with specific regard to the nature of the business conducted by the
Company and all interests of the Company. Employee agrees that the covenants
contained in Sections 7 and 8 are reasonable and valid, and that a breach
by Employee of any of such covenants shall be deemed to be a breach of a
material provision of this Agreement. Employee acknowledges that the Company
will have no adequate remedy at law if Employee violates the provisions of
Sections 7 or 8 and that the Company shall have the right upon application
to any court of proper jurisdiction to a temporary restraining order,
preliminary injunction, injunction, specific performance or other equitable
relief.
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10. Indemnification;
Insurance.
In
addition to any rights to indemnification to which Employee is entitled under
the Company’s or Hyde Park’s charter and by-laws, to the extent permitted by
applicable law, the Company and Hyde Park will indemnify, from the assets of
the
Company and Hyde Park supplemented by insurance, Employee at all times, during
and after the Term, and, to the maximum extent permitted by applicable law,
shall pay Employee’s expenses (including reasonable attorneys’ fees and
expenses, which shall be paid in advance by the Company as incurred, subject
to
recoupment in accordance with applicable law) in connection with any threatened
or actual action, suit or proceeding to which Employee may be made a party,
brought by any shareholder of the Company or Hyde Park directly or derivatively
or by any third party by reason of any act or omission or alleged act or
omission in relation to any affairs of the Company or Hyde Park or any
subsidiary or affiliate of the Company or Hyde Park of Employee as an officer,
director or employee of the Company or Hyde Park or any subsidiary or affiliate
of the Company or Hyde Park. The Company and Hyde Park shall maintain during
the
Term and thereafter directors’ and officers’ liability insurance coverage
sufficient, as reasonably determined by the Board of Hyde Park, to satisfy
any
indemnification obligation of Company or Hyde Park arising under this
Section 10.
11. Independence;
Severability and Non-Exclusivity.
Each
of
the rights enumerated in Sections 7 and 8 hereof and the remedies
enumerated in Section 9 hereof shall be independent of the others and shall
be in addition to and not in lieu of any other rights and remedies available
to
the Company at law or in equity. If any provision of this Agreement, or any
part
of any of them, is hereafter construed or adjudicated to be invalid or
unenforceable, the same shall not affect the remainder of the covenants or
rights or remedies which shall be given full effect without regard to the
invalid portions. If any covenant set forth herein is held to be invalid or
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision and in its
reduced form said provision shall then be enforceable. No such holding of
invalidity or unenforceability in one jurisdiction shall bar or in any way
affect the Company’s right to the relief provided in Section 9 or otherwise
in the court of any other state or jurisdiction within the geographical scope
of
such covenants as to breaches of such covenants in such other respective states
or jurisdictions, such covenants being, for this purpose, severable into diverse
and independent covenants.
12. Compliance
with Code Section 409A.
For
the
purpose of complying with Code Section 409A, reimbursement of expenses
under Section 4 shall occur no later than December 31 of the year
following the year in which the expense was incurred, and payment of a Gross-Up
Payment under Section 4(j) shall be made no later than December 31 of
the year following the year in which occurs payment of the related tax. In
the
event of any inconsistency between any provision of this Agreement and Code
Section 409A, including any regulatory and administrative guidance issued
from time to time thereunder, the provisions of Code Section 409A shall
control. It is the intention of the parties hereto that this Agreement satisfy
the requirements of Code Section 409A, and the parties hereby agree to
amend this Agreement as and when necessary or desirable to conform to or
otherwise properly reflect any guidance issued under Code Section 409A
after the date hereof without violating Code Section 409A. In case any one
or more provisions of this Agreement fails to comply with the provisions of
Code
Section 409A, the remaining provisions of this Agreement shall remain in
effect, and this Agreement shall be administered and applied as if the
non-complying provisions were not part of this Agreement. The parties in that
event shall endeavor to agree upon a reasonable substitute for the non-complying
provisions, to the extent that a substituted provision would not cause this
Agreement to fail to comply with Code Section 409A, and, upon so agreeing,
shall incorporate such substituted provisions into this
Agreement.
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13. Successors;
Binding Agreement.
This
Agreement is personal to Employee and without the prior written consent of
the
Company shall not be assignable by Employee otherwise than by will or the laws
of descent and distribution. The Company shall be permitted to freely assign
its
rights, interests and obligations to any parent, subsidiary or affiliate, or
to
any other third party, which acquires all or substantially all of the stock
or
assets of the Company. This Agreement shall inure to the benefit of and be
enforceable by Employee’s legal representatives.
14. Notices.
Any
notice or other communications required or permitted hereunder shall be in
writing and shall be deemed effective (i) upon personal delivery, if
delivered by hand and followed by notice by mail or facsimile transmission,
(ii) three (3) days after the date of deposit in the mails, if mailed by
certified or registered mail (return receipt requested), or (iii) on the
next business day, if mailed by an overnight mail service to the parties or
sent
by facsimile transmission,
To
the
Company:
Essex
Crane Rental Corp.
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Board of Directors
Facsimile:
(000) 000-0000
To
Employee:
Xxxxxx
Xxxxx
0000
Xxxxxx Xxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
or
at
such other address or telecopy number (or other similar number) as either party
may from time to time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall have been deemed
to be given on the date of mailing, personal delivery or telecopy or other
similar means (provided the appropriate answer back is received) thereof and
shall be conclusively presumed to have been received on the second business
day
following the date of mailing or, in the case of personal delivery or telecopy
or other similar means, the day of delivery thereof, except that a change of
address shall not be effective until actually received.
11
15. Headings.
The
headings of this Agreement are for convenience of reference only and shall
not
affect in any manner any of the terms and conditions hereof.
16. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one and the same
agreement.
17. Modifications
and Waivers.
No
term,
provision or condition of this Agreement may be modified or discharged unless
such modification or discharge is authorized by the Board of Directors of the
Company and is agreed to in writing and signed by Employee. No waiver by either
party hereto of any breach by the other party hereto of any term, provision
or
condition of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any
prior or subsequent time.
18. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter herein and supersedes all prior agreements, negotiations
and
discussions between the parties hereto, there being no extraneous agreements.
This Agreement may be amended only in writing executed by the parties hereto
affected by such amendment.
19. Law
Governing.
Except
as
otherwise explicitly noted, this Agreement shall be governed by and construed
in
accordance with the laws of the State of New York (without giving effect to
the
principles of conflicts of law).
[Signature
page follows]
12
IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
on
the day and year set forth above.
|
EMPLOYEE
|
||
|
/s/
Xxxxxx Xxxxx
|
||
|
Xxxxxx
Xxxxx
|
||
|
COMPANY
|
||
|
ESSEX
CRANE RENTAL CORP.
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxx X. Xxxxx
|
||
|
Title:
Senior V.P. & CFO
|
||
|
HYDE
PARK ACQUISITION CORPORATION
|
||
|
By:
|
/s/
Xxxxxxxx Xxxx
|
|
|
Name:
Xxxxxxxx Xxxx
|
||
|
Title:
Chief Executive Officer
|
||
[Signature
page to X. Xxxxx Employment Agreement]
