EXHIBIT 10.11
EXECUTION COPY
FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT
This First Amendment (this "AMENDMENT"), dated as of May 26, 1999 to
the certain Employment Agreement (the "EMPLOYMENT AGREEMENT") dated as of
February 4, 1998 between ICM Equipment Company L.L.C. (the "COMPANY") and Xxxx
Xxxxxx (the "EMPLOYEE").
WHEREAS, the Company and the Employee (collectively, the "PARTIES") desire
to amend the Employment Agreement on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual agreements set forth herein,
the Parties agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings ascribed to such terms in the Employment Agreement.
2. TITLE. All references in the Employment Agreement to "President and
Chief Operating Officer" are hereby amended to read "Chief Executive Officer and
President".
3. DEFINITIONS. For purposes of this Amendment, the following terms have
the following meanings:
"CLASS A PREFERRED UNITS" means (i) the Class A Preferred Units (as such
term is defined in the LLC Agreement) or (ii) any equity securities issued with
respect to the Class A Preferred Units referred to in clause (i) above by way of
any recapitalization, merger, consolidation or other reorganization of the
Company, including pursuant to Section 12.17 of the LLC Agreement.
"HIGH YIELD DEBT OFFERING" means the consummation of either (i) a public
offering and sale of debt securities of the Company pursuant to an effective
registration statement under the Securities Act resulting in net proceeds to the
Company of at least $100,000,000 or (ii) an offering and sale of debt securities
of the Company to United States buyers who fit the requirements of Rule 144A of
the Securities Act of 1933, as amended (the "SECURITIES ACT") and/or overseas
buyers under Regulation S of the Securities Act resulting in net proceeds to the
Company of at least $100,000,000, but only if such offering and sale requires
that the Company file and effect a registration statement under the Securities
Act for such debt securities within one year after the consummation of such
offering and sale.
"LLC AGREEMENT" means the Amended and Restated Limited Liability Company
Agreement of the Company, dated as of the date hereof, as amended from time to
time.
"TERM A PERCENTAGE" means, at any time, a percentage equal to (i) 2,405.992
(such number to be appropriately adjusted for any unit or stock split, reverse
unit or stock split, stock or unit dividend or other distribution or other
subdivision or combination of Class A Preferred Units after the date hereof)
DIVIDED BY (ii) the sum of (x) the total number of Class A Preferred Units
outstanding as of such time PLUS (y) 2,405.992 (such number to be appropriately
adjusted for any unit or stock split, reverse unit or stock split, stock or unit
dividend or other distribution or other subdivision or combination of Class A
Preferred Units after the date hereof).
4. DEFERRED SIGNING BONUS. Section 4.01 of the Employment Agreement is
hereby amended by deleting Section 4.01 thereof as in effect immediately prior
to the date hereof in its entirety (the "DELETED SECTION 4.01") (and the
Employee hereby releases the Company from all obligations arising under the
Deleted Section 4.01) and replacing it with the following restated Section 4.01
(including the definitions contained in paragraph 3 hereof):
"SECTION 4.01. DEFERRED SIGNING BONUS.
(a) In consideration for entering into this Agreement, on May 26, 1999,
(x) the sum of $2,405,992 (which is in addition to and not part of the sums
identified in Article III) shall be credited to a deferred compensation account
(the "TRANCHE A ACCOUNT"), (y) $1,094,008 (which is in addition to and not part
of the sums identified in Article III) shall be credited to a deferred
compensation account (the "TRANCHE B ACCOUNT"; and collectively with the Tranche
A Account, the "ACCOUNTS"), in each case, on the books and records of the
Company on behalf of the Employee and (z) the sum of $52,739.72, which
represents accrued interest for the period beginning April 1, 1999 and ending on
May 26, 1999, shall be paid to Employee on June 30, 1999.
(b) INTEREST ACCRUALS.
(i) So long as a balance remains in the Tranche A Account, the
Tranche A Account shall be credited on each March 31, June 30, September 30
and December 31 (each, a "TRANCHE A INTEREST ACCUMULATION DATE") with an
amount of interest to be calculated at the rate of ten percent (10%) per
annum (computed on the basis of a 360-day year and the actual number of
days elapsed in any year) on the balance in the Tranche A Account during
the three month period ending on such Tranche A Interest Accumulation Date
(a "TRANCHE A INTEREST CREDIT"); PROVIDED that upon and as of the
occurrence of a High Yield Debt Offering, the interest rate on the Tranche
A Account shall immediately and permanently be increased to the rate of
thirteen percent (13%) per annum (computed on the basis of a 360-day year
and the actual number of days elapsed in any year).
(ii) So long as a balance remains in the Tranche B Account, the
Tranche B Account shall be credited on each March 31, June 30, September 30
and December 31 (each, a "TRANCHE B INTEREST ACCUMULATION DATE") with an
amount of interest to be calculated at the rate of ten percent (10%) per
annum (computed on the basis of a 360-day year and the actual number of
days elapsed in any year) on the balance in the Tranche B Account during
the
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three month period ending on such Tranche B Interest Accumulation Date (a
"TRANCHE B INTEREST CREDIT").
(c) Subject to this Article IV, on February 4, 2006, the Company shall
distribute to the Employee, from the Accounts, a cash payment in an amount equal
to the then balance in the Accounts (plus any accrued but uncredited interest);
PROVIDED, that, notwithstanding the foregoing:
(i) If at any time the Company makes a cash distribution to the
holders of the Class A Preferred Units (other than distributions pursuant
to Section 7.3 of the LLC Agreement), then immediately following such
distribution, the Company shall distribute to the Employee, from the
Tranche A Account, a cash payment in an amount equal to the lesser of (x)
the then balance in the Tranche A Account (plus any accrued but uncredited
interest) and (y) (i) the amount of such cash distribution to the holders
of the Class A Preferred Units MULTIPLIED BY (ii) the Term A Percentage at
such time. On June 1, 2000, if a High Yield Debt Offering has not
previously occurred, then this Section 4.01(c)(i) shall terminate and be of
no further force or effect.
(ii) Immediately following a High Yield Debt Offering, the Company
shall distribute to the Employee, from the Tranche B Account, a cash
payment in an amount equal to the then balance in the Tranche B Account
(plus any accrued but uncredited interest).
(d) Payments from the Accounts by the Company to the Employee are
expressly not contingent on the Employee's continuing employment with the
Company for any period of time or, except for the provisions of this Article IV,
his fulfillment of any provision of this Agreement. The amounts credited to the
Accounts and any Tranche A Interest Credit or Tranche B Interest Credit are
collectively referred to herein as the "DEFERRED COMPENSATION".
(e) CURRENT PAYMENT ELECTIONS.
(i) The Employee may elect in accordance with this Section
4.01(e)(i) (a "TRANCHE A PAYMENT ELECTION") to have the Tranche A Interest
Credit for the four quarters of the following year paid to him in cash on
the last day of each such quarter, in which case the Tranche A Account
shall not be credited with such Tranche A Interest Credit. A Tranche A
Payment Election shall be valid only if delivered to the Company by the end
of the calendar year preceding the year which is the subject of the Tranche
A Payment Election. Any Tranche A Payment Election shall remain in effect
until revoked, provided that the Tranche A Payment Election cannot be
revoked (x) for the year immediately following the year in which delivered
and (y) during any subsequent year if notice of revocation is not delivered
to the Company during the preceding year. Upon and as of the occurrence of
a High Yield Debt Offering, this Section 4.01(e)(i) shall automatically
terminate and be of no further force or effect, the Employee shall not be
entitled to make any Tranche A Payment Election for any period beginning on
or after the date of the occurrence of such High Yield Debt Offering and
any Tranche A Payment Election made by the Employee with respect to any
period beginning
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on or after the date of the occurrence of such High Yield Debt Offering
shall be deemed to be void.
(ii) The Employee may elect in accordance with this Section
4.01(e)(ii) (a "TRANCHE B PAYMENT ELECTION") to have the Tranche B Interest
Credit for the four quarters of the following year paid to him in cash on
the last day of each such quarter, in which case the Tranche B Account
shall not be credited with such Tranche B Interest Credit. A Tranche B
Payment Election shall be valid only if delivered to the Company by the end
of the calendar year preceding the year which is the subject of the Tranche
B Payment Election. Any Tranche B Payment Election shall remain in effect
until revoked, provided that the Tranche B Payment Election cannot be
revoked (x) for the year immediately following the year in which delivered
and (y) during any subsequent year if notice of revocation is not delivered
to the Company during the preceding year."
(f) The parties hereto acknowledge and agree that amounts "credited" to
any Account means only that the Company will reflect such amounts on its book
and records and does not mean that the Company will transfer any cash to any
account or otherwise set aside or transfer any cash.
5. PAYMENT ELECTION FOR 1999. The parties hereto acknowledge and agree
that Employee validly elected prior to January 1, 1999 to receive interest
payments on the Account (as such term was defined in the Employment Agreement
prior to the effectiveness of this Amendment) for calendar year 1999 and will
treat such election as a Tranche A Payment Election and a Tranche B Payment
Election for calendar year 1999.
6. NOTICE. The phrase
"TO THE COMPANY:
ICM Equipment Company, Inc.
c/o Ripplewood Holdings L.L.C.
000 Xxxxx Xxxxxx (00xx Xxxxx)
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx"
referred to in Section 11.01 is hereby amended to read as follows:
"TO THE COMPANY:
ICM Equipment Company L.L.C.
c/o Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx and
Rice Xxxxxxx
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Tel: (000) 000-0000
Fax: (000) 000-0000"
7. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Utah (without reference to its rules as
to conflicts of law).
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.
9. AGREEMENT. In all other respects the Employment Agreement is ratified
and shall, as so changed by these amendments, continue in full force and effect.
10. NO STRICT CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event that an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first set forth above.
ICM EQUIPMENT COMPANY L.L.C.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: President & CEO
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
