EXHIBIT 10.18
[EXECUTION COPY]
XXXXXXX XXXXX RENTAL HOLDINGS, L.P.
EXECUTIVE PURCHASE AGREEMENT
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THIS EXECUTIVE PURCHASE AGREEMENT (this "Agreement") is made as of
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July 22, 1998, by and between Xxxxxxx Xxxxx Rental Holdings, L.P., a
Pennsylvania limited partnership (the "Company"), ACR Management, L.L.C., a
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Delaware limited liability company (the "General Partner") and Xxxxxxx X. Xxxxx
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("Executive"). Any capitalized terms used herein and not otherwise defined
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shall have the meanings assigned to them in Section 5 hereof.
WHEREAS, reference is made to the Amended and Restated Limited
Partnership Agreement, dated as of July 22, 1998, by and among the Company and
its partners (the "Partnership Agreement");
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WHEREAS, reference is made to the Limited Liability Company Agreement,
dated as of July 22, 1998, by and among the General Partner and its members (the
"LLC Agreement"); and
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WHEREAS, the Company and Executive desire to enter into this Agreement
to provide for the sale to Executive by the Company of 15,497.92 of the
Company's Class A Common Units (the "Class A Common Units"); 1,721.99 of the
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Company's Class L Common Units (the "Class L Common Units"); and a 0.39%
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Percentage Interest in the General Partner the (the "Percentage Interest", and
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together with the Class A Common Units and Class L Common Units, the "Executive
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Units")
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NOW THEREFORE, in consideration for the premises contained herein and
the mutual obligations of the parties hereto, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Executive hereto agree as
follows:
1. Purchase and Sale of Executive Units.
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(a) Upon execution of this Agreement, Executive shall purchase, and
the Company shall sell, 15,497.92 Class A Common Units for an aggregate purchase
price of $15,497.92 and 1,721.99 Class L Common Units for an aggregate purchase
price of $139,481.26 and Executive shall purchase, and the General Partner shall
sell, the Percentage Interest for an aggregate purchase price of $5,020.82. The
Company shall deliver to Executive an executed copy of the Partnership Agreement
indicating Executive's ownership of such Class A Common Units and Class L Common
Units and the General Partner shall deliver to Executive an executed copy of the
LLC Agreement indicating Executive's ownership of the Percentage Interest.
(b) Representations and Warranties by Executive. In connection with
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the purchase and sale of the Executive Units hereunder, Executive represents and
warrants to the Company and the General Partner that:
(i) The Executive Units to be acquired by Executive pursuant
to this Agreement shall be acquired for Executive's own account and not
with a view to or intention of distribution thereof in violation of the
Securities Act, or any applicable state securities laws, and the Executive
Units shall not be disposed of in contravention of the Securities Act or
any applicable state securities laws.
(ii) Executive is sophisticated in financial matters and is
able to evaluate the risks and benefits of the investment in the Executive
Units.
(iii) Executive is able to bear the economic risk of his
investment in the Executive Units for an indefinite period of time because
the Executive Units have not been registered under the Securities Act and,
therefore, cannot be sold unless subsequently registered under the
Securities Act or an exemption from such registration is available.
(iv) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Executive Units and has had full access to such other information
concerning the Company as he has requested. Executive has also reviewed, or
has had an opportunity to review, the following documents: (A) the
Partnership Agreement; (B) the LLC Agreement; (C) the loan agreements,
notes and related documents with the senior and subordinated lenders of the
Company and its Subsidiaries; (D) the Securityholders Agreement and (E) the
Company's audited and unaudited financial statements.
(v) The execution, delivery and performance of this Agreement
by Executive do not and shall not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound and upon the
execution and delivery of this Agreement by the Company and the General
Partner, this Agreement shall be the legal, valid and binding obligation of
Executive, enforceable in accordance with its terms.
(vi) Executive is not a party to or bound by any employment
agreement, noncompete agreement or confidentiality agreement with any
person or entity other than the Company.
(vii) Executive has consulted with independent legal counsel
regarding his rights and obligations under this Agreement and he fully
understands the terms and conditions contained herein.
2. Restrictions on Transfer. The parties hereby agree that the
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Executive Units will be subject to the restrictions on Transfer and other
provisions contained in the Securityholders Agreement and will be considered
"Other Securities" for purposes of the Securityholders Agreement.
3. Confidential Information. Executive acknowledges that the
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information, observations and data obtained by him concerning the business or
affairs of the Company, or any of its Subsidiaries ("Confidential Information")
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are the property of the Company or such Subsidiary.
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Therefore, Executive agrees that he shall not disclose to any unauthorized
person or use for his own purposes any Confidential Information without the
prior written consent of the Board, unless and to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a result of Executive's acts or omissions. Executive shall
deliver to the Company, or at any time the Company may request, all memoranda,
notes, plans, records, reports, computer tapes, printouts and software and other
documents and data (and copies thereof) relating to the Confidential Information
or the business of the Company or any Subsidiary which he may then possess or
have under his control.
4. Enforcement. Because Executive has access to Confidential
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Information, the parties hereto agree that money damages would not be an
adequate remedy for any breach of this Agreement. Therefore, in the event a
breach or threatened breach of this Agreement, the Company or its successors or
assigns may, in addition to other rights and remedies existing in their favor,
apply to any court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce, or prevent any violations of,
the provisions hereof (without posting a bond or other security).
5. Definitions.
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"Affiliate" has the meaning assigned to it in the Partnership
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Agreement.
"Board" means the Board of Managers of the General Partner.
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"Common Units" has the meaning assigned to it in the Partnership
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Agreement and includes any equity securities issued or issuable directly or
indirectly with respect to such Common Units by way of any dividend or split or
exchange or in connection with a combination of units, recapitalization, merger,
consolidation or other reorganization.
"Executive Units" means collectively the Class A Common Units, Class
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L Common Units and Percentage Interest acquired by the Executive pursuant to
Section 1. Such Units shall continue to be Executive Units in the hands of any
holder other than Executive (except for the Company, the Investor and
transferees in a Public Sale), and except as otherwise provided herein, each
such other holder of Executive Units shall succeed to all rights and obligations
attributable to Executive as a holder of Executive Units hereunder. Executive
Units shall include interests in the Company and the General Partner issued with
respect to Executive Units by way of any split, dividend or recapitalization.
"Partnership Agreement" has the meaning set forth in the preamble.
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"Permitted Transferee" has the meaning set forth in the
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Securityholders Agreement.
"Percentage Interest" has the meaning assigned to it in the LLC
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Agreement.
"Person" shall mean an individual, a partnership, a corporation, a
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limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency, or political subdivision thereof.
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"Recapitalization Agreement" means that certain Recapitalization
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Agreement, dated as of June 1, 1998 and amended as of July 22, 1998, by and
among the Company, the purchasers listed on the Schedule of Purchasers and the
current owners listed on the Schedule of Current Owners attached thereto.
"Securities Act" means the Securities Act of 1933, as amended from
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time to time.
"Securityholders Agreement" means that certain Securityholders
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Agreement, dated as of the date hereof, by and among the Company and its
partners.
"Subsidiary" has the meaning assigned to it in the Partnership
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Agreement.
"Transfer" has the meaning assigned to it in the Securityholders
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Agreement.
6. Notices. Any notice provided for in this Agreement must be in
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writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the Company, the General Partner and
Executive at the addresses indicated below:
Notices to Executive:
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X.X. Xxxxx & Associates
00 Xxxxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Notices to the Company or the General Partner:
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c/o Bain Capital, Inc.
Two Xxxxxx Place
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxx
with a copy to:
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Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Learner
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
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7. General Provisions.
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(a) Transfers in Violation of Agreement. Any Transfer or attempted
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Transfer of any Executive Units in violation of any provision of this Agreement
shall be void, and the Company shall not record such Transfer on its books or
treat any purported transferee of such Executive Units as the owner of such
Executive Units for any purpose.
(b) Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) Complete Agreement. This Agreement, those documents expressly
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referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(d) Counterparts. This Agreement may be executed in separate
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counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(e) Successors and Assigns. Except as otherwise provided herein, this
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Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company, the General Partner and their respective successors and
assigns (including subsequent holders of Executive Units); provided that the
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rights and obligations of Executive under this Agreement shall not be assignable
except in connection with a permitted Transfer of Executive Units hereunder.
(f) Arbitration. Any controversy, dispute or claim arising out of or
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relating in any way to this Agreement that cannot be resolved by negotiation
between the Company and Executive shall be settled by arbitration in accordance
with the terms and provisions of Section 8.02 of the Recapitalization Agreement.
(g) Choice of Law. The partnership law of the Commonwealth of
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Pennsylvania shall govern all questions concerning the relative rights of the
Company and its partners. The limited liability company law of the State of
Delaware shall govern all questions concerning the relative rights of the
General Partner and its members. All other issues and questions
concerning the construction, validity, enforcement and interpretation of this
Agreement and the exhibits and schedules hereto shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Pennsylvania,
without giving effect to any choice of law or conflict of law rules or
provisions (whether of the Commonwealth of Pennsylvania or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the Commonwealth of Pennsylvania.
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(h) Remedies. Each of the parties to this Agreement (including the
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Investor) shall be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including reasonable attorney's
fees) caused by any breach of any provision of this Agreement and to exercise
all other rights existing in its favor. The parties hereto agree and
acknowledge that money damages would not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or deposit) for specific performance and/or other injunctive relief in
order to enforce or prevent any violations of the provisions of this Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may be
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amended and waived only with the prior written consent of the Company, the
General Partner and Executive.
(j) Third-Party Beneficiaries. The parties hereto acknowledge and
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agree that the Investors are third party beneficiaries of this Agreement. This
Agreement will inure to the benefit of and be enforceable by the Investor and
its successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Executive
Purchase Agreement on the date first written above.
XXXXXXX XXXXX RENTAL HOLDINGS, L.P.
By: ACR Management, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Its: Secretary
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ACR MANAGEMENT, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
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Its: Secretary
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
