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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of September
22, 1997 by Sam's Equipment Rental, Inc., an Ohio corporation (the "Employer"),
and Xxxx X. Xxxxxxx, an individual resident of St. Xxxxx, Florida (the
"Executive").
RECITALS
Concurrently with the execution and delivery of this Agreement,
NationsRent, Inc., a Delaware corporation (the "Buyer") is purchasing from the
Executive (individually and as Trustee of the Xxxx X. Xxxxxxx Grantor Retained
Annuity Trust Theta) and certain other parties ("Sellers"), all of the issued
and outstanding shares of Xxxxxxx Trailer Manufacturing Company, Inc., an Ohio
corporation ("Holding Corporation"), whose only asset is all of the outstanding
capital stock of the Employer, pursuant to a Stock Purchase Agreement dated
August 15, 1997 among the Buyer, Sellers, Xxxx X. Xxxxxxx, Xxxxxx Xxxxxxxxxx,
TTG Properties, Holding Corporation, and the Employer (the "Stock Purchase
Agreement"). The Buyer and the Employer desire the Executive's continued
employment with the Employer, and the Executive wishes to accept such
employment, upon the terms and conditions set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1.
"AGREEMENT"-this Employment Agreement, as amended from time to time.
"BASIC COMPENSATION"-Salary and Benefits.
"BENEFITS"-as defined in Section 3.1(B).
"BOARD OF DIRECTORS"-the board of directors of the Employer.
"CONFIDENTIAL INFORMATION"-any and all:
(a) trade secrets concerning the business and affairs of the
Employer, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes,
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customer lists, current and anticipated customer requirements, price lists,
market studies, business plans, computer software and programs (including object
code and source code), computer software and database technologies, systems,
structures, and architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information), and any other information, however
documented, that is a trade secret within the meaning of the Uniform Trade
Secrets Act as adopted by Ohio and codified at Ohio Revised Code xx.xx. 1333.61
to 1333.69 and as otherwise defined under Ohio law; and
(b) information concerning the business and affairs of the
Employer (which includes historical financial statements, financial projections
and budgets, historical and projected sales, capital spending budgets and plans,
the names and backgrounds of key personnel, personnel training and techniques
and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer containing or based. in whole or in
part, on any information included in the foregoing.
"DISABILITY"-as defined in Section 6.2.
"EFFECTIVE DATE"-the date stated in the first paragraph of the
Agreement.
"EMPLOYEE INVENTION"-any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether registerable or not), any mask work, however fixed or encoded, that is
suitable to be fixed, embedded or programmed in a semiconductor product (whether
recordable or not), and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or developed by the
Executive, either solely or in conjunction with others, during the Employment
Period, or a period that includes a portion of the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Employer, and any such item created
by the Executive, either solely or in conjunction with others, following
termination of the Executive's employment with the Employer, that is based upon
or uses Confidential Information. "EMPLOYMENT PERIOD"-the term of the
Executive's employment under this Agreement.
"FISCAL YEAR"-the Employer's fiscal year, as it exists on the Effective
Date or as changed from time to time.
"FOR CAUSE"-as defined in Section 6.3.
"PERSON"-any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
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"POST-EMPLOYMENT PERIOD"-as defined in Section 8.2.
"PROPRIETARY ITEMS"-as defined in Section 7.2(A)(iv).
"SALARY"-as defined in Section 3.1(A).
"WITHOUT CAUSE"-as defined in Section 6.4.
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
The Employer hereby employs the Executive, and the Executive hereby
accepts employment by the Employer, upon the terms and conditions set forth in
this Agreement.
2.2 TERM
Subject to the provisions of Section 6, the term of the Executive's
employment under this Agreement will be three years, beginning on the Effective
Date and ending on the third anniversary of the Effective Date. In addition,
following the initial three year term, this Agreement will automatically be
renewed for a term of one year unless the party who wishes to terminate the
Agreement has given the other party 60 days' written notice of termination.
2.3 DUTIES
The Executive will have such duties as are assigned or delegated to the
Executive by the Board of Directors or Chief Executive Officer, and will
initially serve as an officer of the Employer. The Executive will be committed
to devote at least 50% of what would be considered normal full-time employment
for an executive in a similar position and will use his good faith efforts to
promote the success of the Employer's business, and will cooperate fully with
the Board of Directors in the advancement of the best interests of the Employer.
Notwithstanding the foregoing, the Executive may perform his duties hereunder in
Ohio or from his Florida residence or at other locations in the continental
United States in pursuit of new opportunities for expansion or enhancement of
the Employer's business. Nothing in this Section 2.3 will prevent the Executive
from engaging in additional activities in connection with personal investments
and community affairs that are not inconsistent with the Executive's duties
under this Agreement. If the Executive is elected as an officer of any of its
affiliates, the Executive will fulfill his duties as such officer without
additional compensation.
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3. COMPENSATION
3.1 BASIC COMPENSATION
(A) Salary. The Executive will be paid an annual salary of
$100,000.00, subject to adjustment as provided below (the "Salary"), which will
be payable in equal periodic installments according to the Employer's customary
payroll practices, but no less frequently than monthly.
(B) Benefits. The Executive will, during the Employment Period, be
permitted to participate in such pension, profit sharing, bonus, life insurance,
hospitalization, major medical, disability, and other employee benefit plans of
the Employer that may be in effect from time to time, to the extent the
Executive is eligible under the terms of those plans (collectively, the
"Benefits")
4. FACILITIES AND EXPENSES
4.1 GENERAL
The Employer will furnish the Executive office space, equipment,
supplies, and such other facilities and personnel as the Employer deems
necessary or appropriate for the performance of the Executive's duties under
this Agreement. Office space for the Executive in Florida will be provided by
the Executive at his Florida residence.
4.2 AUTOMOBILE
The Employer will continue to provide the leased vehicle to the Executive that
is currently in the Executive's possession until the Executive turns in the
vehicle at the end of the lease or at a mutually agreed upon time. Thereafter,
the Employer will provide the Executive with a replacement automobile or an
allowance, for a replacement automobile which will be the same as or equivalent
to the Executive's existing automobile. The Employer will pay or reimburse the
Executive for all reasonable operating costs of such vehicle, including but not
limited to insurance, fuel and maintenance. The Executive is required to assure
that liability insurance is maintained on any automobile used in connection with
the Employer's business, including excess liability (umbrella) insurance
coverage in an amount not less than two million dollars per occurrence, with
underlying insurance coverage as required by such excess liability insurance
policy, whether through the Employer or otherwise. The Executive must file
expense reports with respect to such automobile in accordance with the
Employer's policies.
4.3 PERSONAL USE OF RENTAL EQUIPMENT
During the Employment Period, the Executive shall be entitled to
rent-free personal use of Rental Equipment for up to $30,000 per year (based on
the Employer's published rate list); provided, however, that any such Rental
Equipment so used by the Executive shall be used at the reasonable convenience
of the Employer and not at such time as it would otherwise be utilized by
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the Employer for its business purposes. The Executive shall have such
obligations and responsibilities with respect to such Rental Equipment to the
same extent and on the same terms and conditions as a customer of the Employer
would have with respect to such Rental Equipment.
5. VACATIONS AND HOLIDAYS
The Executive's vacation time is included in the 50% of the time that
the Executive is not expected to be working.
6. TERMINATION
6.1 EVENTS OF TERMINATION
The Employment Period and the Executive's Basic Compensation, and any
and all other rights of the Executive under this Agreement or otherwise as an
employee of the Employer will terminate (except as otherwise provided in this
Section 6):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in Section
6.2) immediately upon notice from either party to the other;
(c) for cause (as defined in Section 6.3), immediately upon notice
from the Employer to the Executive, or at such later time as such notice may
specify; or
(d) without cause (as defined in Section 6.4), immediately upon
notice from the Employer to the Executive, or at such later time as such notice
may specify.
6.2 DEFINITION OF DISABILITY
For purposes of Section 6.1, the Executive will be deemed to have a
"disability" if, for physical or mental reasons, the Executive is unable to
perform the essential functions of the Executive's duties under this Agreement
for 120 consecutive days, or 180 days during any twelve month period, as
determined in accordance with this Section 6.2. The disability of the Executive
will be determined by a medical doctor selected by written agreement of the
Employer and the Executive upon the request of either party by notice to the
other. If the Employer and the Executive cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two medical
doctors will select a third medical doctor who will determine whether the
Executive has a disability. The determination of the medical doctor selected
under this Section 6.2 will be binding on both parties. The Executive must
submit to a reasonable number of examinations by the medical doctor making the
determination of disability under this Section 6.2, and the Executive hereby
authorizes the disclosure and release to the Employer of such determination and
all supporting medical records. If the Executive is not legally competent, the
Executive's legal guardian or duly authorized attorney-in-fact will act in the
Executive's stead,
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under this Section 6.2, for the purposes of submitting the Executive to the
examinations, and providing the authorization of disclosure, required under this
Section 6.2.
6.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 6.1, the phrase "for cause" means: (a) the
Executive's material breach of this Agreement (so long as the Employer shall
have delivered to the Executive within a reasonable time (not less than 30 days)
prior to notice of termination a notice of proposed termination specifying in
reasonable detail the basis therefor and the Executive shall have failed prior
to the expiration of such reasonable period of time to have effected a cure
thereof in all material respects); (b) the appropriation (or attempted
appropriation) of a material business opportunity of the Employer, including
attempting to secure or securing any personal profit in connection with any
transaction entered into on behalf of the Employer; (c) the misappropriation (or
attempted misappropriation) of any of the Employer's funds or property; or (d)
the conviction of, the indictment for (or its procedural equivalent), or the
entering of a guilty plea or plea of no contest with respect to, any non-traffic
related offense that is a felony, the equivalent thereof, or any other crime
with respect to which imprisonment is a possible punishment.
6.4 DEFINITION OF "WITHOUT CAUSE"
For purposes of Section 6.1, the phrase "without cause" means that the
Employer terminates this Agreement for any reason other than for cause.
6.5 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer will be
obligated to pay the Executive (or, in the event of his death, his designated
beneficiary as defined below) only such compensation as is provided in this
Section 6.5, and in lieu of all other amounts and in settlement and complete
release of all claims the Executive may have against the Employer. For purposes
of this Section 6.5, the Executive's designated beneficiary will be such
individual beneficiary or trust, located at such address, as the Executive may
designate by notice to the Employer from time to time or, if the Executive fails
to give notice to the Employer of such a beneficiary, the Executive's estate.
Notwithstanding the preceding sentence, the Employer will have no duty, in any
circumstances, to attempt to open an estate on behalf of the Executive, to
determine whether any beneficiary designated by the Executive is alive or to
ascertain the address of any such beneficiary, to determine the existence of any
trust, to determine whether any person or entity purporting to act as the
Executive's personal representative (or the trustee of a trust established by
the Executive) is duly authorized to act in that capacity, or to locate or
attempt to locate any beneficiary, personal representative, or trustee.
(A) Termination by the Employer Without Cause. If the Employer
terminates this Agreement without cause, the Employer will pay the Executive the
Executive's Salary for the remainder, if any, of the calendar month in which
such termination is effective and for twelve consecutive calendar months
thereafter.
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(B) Termination by the Employer for Cause. If the Employer
terminates this Agreement for cause, the Executive will be entitled to receive
his Salary only through the date such termination is effective.
(C) Termination upon Disability. If this Agreement is terminated
by either party as a result of the Executive's disability, as determined under
Section 6.2, the Employer will pay the Executive his Salary through the
remainder of the calendar month during which such termination is effective and
for the lesser of (i) six consecutive months thereafter, or (ii) the period
until disability insurance benefits commence under the disability insurance
coverage furnished by the Employer to the Executive.
(D) Termination upon Death. If this Agreement is terminated
because of the Executive's death, the Executive will be entitled to receive his
Salary through the end of the calendar month in which his death occurs.
(E) Benefits. The Executive's accrual of, or participation in
plans providing for, the Benefits will cease at the effective date of the
termination of this Agreement, and the Executive will be entitled to accrued
Benefits pursuant to such plans only as provided in such plans. The Executive
will not receive, as part of his termination pay pursuant to this Section 6, any
payment or other compensation for any vacation, holiday, sick leave, or other
leave unused on the date the notice of termination is given under this
Agreement.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that (a) during the Employment Period and as
a part of his employment, the Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on the Employer and its business; (c) because the Executive
possesses substantial technical expertise and skill with respect to the
Employer's business, the Employer desires to obtain exclusive ownership of each
Employee Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each Employee
Invention; (d) the Buyer has required that the Executive make the covenants in
this Section 7 as a condition to its purchase of the Employer's stock; and (e)
the provisions of this Section 7 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information and to provide the
Employer with exclusive ownership of all Employee Inventions.
7.2 AGREEMENTS OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid or
provided to the Executive by the Employer under this Agreement, the Executive
covenants as follows:
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(A) Confidentiality.
(i) During and following the Employment Period, the
Executive will hold in confidence the Confidential Information and will
not disclose it to any person except with the specific prior written
consent of the Employer or except as otherwise expressly permitted by
the terms of this Agreement.
(ii) Any trade secrets of the Employer will be entitled to
all of the protections and benefits under the Uniform Trade Secrets Act
as adopted by Ohio and codified at Ohio Revised Code ss.ss.1333.61 to
1333.69 and as otherwise defined under Ohio law and any other
applicable law. If any information that the Employer deems to be a
trade secret is found by a court of competent jurisdiction not to be a
trade secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for purposes of
this Agreement. The Executive hereby waives any requirement that the
Employer submit proof of the economic value of any trade secret or post
a bond or other security.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the Executive
demonstrates was or became generally available to the public other than
as a result of a disclosure by the Executive.
(iv) The Executive will not remove from the Employer's
premises (except to the extent such removal is for purposes of the
performance of the Executive's duties at home or while traveling, or
except as otherwise specifically authorized by the Employer) any
document, record, notebook, plan, model, component, device, or computer
software or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). The Executive recognizes that,
as between the Employer and the Executive, all of the Proprietary
Items, whether or not developed by the Executive, are the exclusive
property of the Employer. Upon termination of this Agreement by either
party, or upon the request of the Employer during the Employment
Period, the Executive will return to the Employer all of the
Proprietary Items in the Executive's possession or subject to the
Executive's control, and the Executive shall not retain any copies,
abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
(B) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Executive acknowledges that all of the
Executive's writing, works of authorship, and other Employee Inventions are
works made for hire and the property of the Employer, including any copyrights,
patents, or other intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire, the Executive hereby
assigns to the Employer all of the Executive's right, title, and interest,
including all rights of copyright, patent, and other intellectual property
rights, to or in such Employee Inventions. The Executive covenants that he will
promptly:
(i) disclose to the Employer in writing any Employee
Invention;
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(ii) assign to the Employer or to a party designated by
the Employer, at the Employer's request and without additional
compensation, all of the Executive's right to the Employee Invention
for the United States and all foreign jurisdictions;
(iii) execute and deliver to the Employer such
applications, assignments, and other documents as the Employer may
request in order to apply for and obtain patents or other registrations
with respect to any Employee Invention in the United States and any
foreign jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
(v) give testimony and render any other assistance but
without expense to the Executive in support of the Employer's rights to
any Employee Invention.
7.3 DISPUTES OR CONTROVERSIES
The Executive recognizes that should a dispute or controversy arising
from or relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by the Employer, the Executive, and
their respective attorneys and experts, who will agree, in advance and in
writing, to receive and maintain all such information in secrecy, except as may
be limited by them in writing.
8. NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that: (a) the services to be performed by
him under this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; (b) the Employer competes with other businesses that are
or could be located in any part of the United States; (c) the Buyer has required
that the Executive make the covenants set forth in this Section 8 as a condition
to the Buyer's purchase of the Executive's stock in the Employer; and (d) the
provisions of this Section 8 are reasonable and necessary to protect the
Employer's business.
8.2 COVENANTS OF THE EXECUTIVE
In consideration of the acknowledgments by the Executive, and in
consideration of the compensation and benefits to be paid or provided to the
Executive by the Employer, the Executive covenants that he will not, directly or
indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period, engage or invest
in, own, manage, operate, finance, control, or participate in the ownership,
management, operation, financing, or control of, be
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employed by, associated with, or in any manner connected with, lend the
Executive's name or any similar name to, lend Executive's credit to or render
services or advice to, any business whose products or activities compete in
whole or in part with the products or activities of the Employer anywhere within
the United States; provided, however, that the Executive may purchase or
otherwise acquire up to (but not more than) one percent of any class of
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934;
(b) whether for the Executive's own account or for the account of
any other person, at any time during the Employment Period and the
Post-Employment Period, solicit business of the same or similar type being
carried on by the Employer, from any person known by the Executive to be a
customer of the Employer, whether or not the Executive had personal contact with
such person during and by reason of the Executive's employment with the
Employer;
(c) whether for the Executive's own account or the account of any
other person (i) at any time during the Employment Period and the
Post-Employment Period, solicit, employ, or otherwise engage as an employee,
independent contractor, or otherwise, any person who is or was an employee of
the Employer at any time during the Employment Period or in any manner induce or
attempt to induce any employee of the Employer to terminate his employment with
the Employer; or (ii) at any time during the Employment Period and for five
years thereafter, interfere with the Employer's relationship with any person,
including any person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of the Employer; or
(d) at any time during or after the Employment Period, disparage
the Employer or any of its shareholders, directors, officers, employees, or
agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means such period of time after the Employment Period, if any, as shall extend
to the fifth anniversary of the Closing Date.
If any covenant in this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the duration of any violation by the Executive of such covenant.
The Executive will, while the covenant under this Section 8.2 is in
effect, give notice to the Employer, within ten days after accepting any other
employment, of the identity of the Executive's employer. The Buyer or the
Employer may notify such employer that the Executive
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is bound by this Agreement and, at the Employer's election, furnish such
employer with a copy of this Agreement or relevant portions thereof.
9. GENERAL PROVISIONS
9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would be suffered by
the Employer as a result of a breach of the provisions of this Agreement
(including any provision of Sections 7 and 8) would be irreparable and that an
award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief. Without limiting the Employer's rights under
this Section 9 or any other remedies of the Employer, if the Executive breaches
any of the provisions of Section 7 or 8, the Employer will have the right to
cease making any payments otherwise due to the Executive under this Agreement.
9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS
The covenants by the Executive in Sections 7 and 8 are essential
elements of this Agreement, and without the Executive's agreement to comply with
such covenants, the Buyer would not have purchased the Executive's stock under
the Stock Purchase Agreement and the Employer would not have entered into this
Agreement or employed or continued the employment of the Executive. The Employer
and the Executive have independently consulted their respective counsel and have
been advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Employer.
The Executive's covenants in Sections 7 and 8 are independent covenants
and the existence of any claim by the Executive against the Employer under this
Agreement or otherwise, or against the Buyer, will not excuse the Executive's
breach of any covenant in Section 7 or 8.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Sections 7 and 8.
9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
The Executive represents and warrants to the Employer that the
execution and delivery by the Executive of this Agreement do not, and the
performance by the Executive of the Executive's obligations hereunder will not,
with or without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Executive; or (b) conflict with, result in
the breach of any provisions of
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or the termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound.
9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE
The obligations of the Employer hereunder, including its obligation to
pay the compensation provided for herein, are contingent upon the Executive's
performance of the Executive's obligations hereunder.
9.5 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party in
exercising any right, power, or privilege under this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
9.7 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
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If to Employer: Sam's Equipment Rental, Inc.
c/o NationsRent, Inc.
Xxxxx X. Xxxx
0000 Xxxxxx Xxxx 000
Xxxxxxx, XX 00000
With a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
If to the Executive: Xxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxx
Xx. Xxxxx, XX 00000
With a copy to: Kemp, Schaeffer, Xxxx & Xxxxxxxx Co., L.P.A.
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
9.8 ENTIRE AGREEMENT; AMENDMENTS
This Agreement, the Stock Purchase Agreement, and the documents
executed in connection with the Stock Purchase Agreement, contain the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended orally, but only by an agreement in writing signed by the parties
hereto.
9.9 GOVERNING LAW
This Agreement will be governed by the laws of the State of Ohio
without regard to conflicts of laws principles.
9.10 RESOLUTION OF DISPUTES
(a) The parties desire to avoid and settle without litigation
future disputes which may arise between them concerning the rights, duties and
obligations of the parties under this Agreement. Accordingly, any such dispute
shall be settled by arbitration administered by the American Arbitration
Association under its Arbitration Rules and the Supplemental Procedures for
Large, Complex Disputes (hereinafter "Rules") then in effect; provided, however,
that any
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party may seek injunctive or other similar equitable relief from any court of
competent jurisdiction pending settlement of the underlying dispute by such
arbitration.
(b) Three arbitrators shall be appointed in accordance with the
Rules. The place of arbitration shall be Columbus, Ohio and a stenographic
record shall be made of any arbitration hearing. The award rendered by the
arbitrators shall be in writing and shall be based on applicable law and
judicial precedent. Unless the parties otherwise agree, the award shall include
the findings of fact and conclusions of law on which the award is based.
Judgment on such award may be entered in any court having jurisdiction thereof.
(c) Upon the application by any party to a court for an order
confirming, modifying or vacating the award, the court shall have the power to
review whether, as a matter of law based on the findings of fact determined by
the arbitrator, the award should be confirmed, modified or vacated in order to
correct any errors of law made by the arbitrator. In order to effectuate such
judicial review limited to issues of law, the parties agree (and shall so
stipulate to the court) that the findings of fact made by the arbitrator shall
be final and binding on the parties and shall serve as the facts to be submitted
to and relied on by the court in determining the extent to which the award
should be confirmed, modified or vacated.
(d) A request by one party for arbitration of any dispute subject
to arbitration shall be made in writing to the American Arbitration Association
and a copy thereof shall be sent to the other party. The party requesting
arbitration shall pay any deposit required by the American Arbitration
Association subject to reimbursement, if required, from the other party in
accordance with any award by the arbitrators.
9.11 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
words or terms.
9.12 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
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9.13 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EMPLOYER: EXECUTIVE:
SAM'S EQUIPMENT RENTAL, INC.
By: /s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxx, President Xxxx X. Xxxxxxx
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