EXECUTIVE EMPLOYMENT AND NONCOMPETITION AGREEMENT
Exhibit 10.2
EXECUTIVE EMPLOYMENT
AND NONCOMPETITION AGREEMENT
AND NONCOMPETITION AGREEMENT
This Executive Employment and Noncompetition Agreement (“Agreement”) is entered into between
RSC Holdings Inc. and RSC Equipment Rental, Inc. (collectively, the “Company” or “RSC”) and Xxxx
Xxxxxxxx (“Executive”), effective as of March 15, 2010 (the “Effective Date”).
RECITALS
WHEREAS, the Company operates its equipment rental business which has store locations
throughout North America (such business as operated by the Company is referred to herein as the
“Business”).
WHEREAS, the Company’s life-blood is its Confidential Information, including but not limited
to customer databases, marketing and sales objectives and strategies, customer lists, information
regarding existing customer preferences, habits, and needs, information regarding prospective
customers, details of past, pending and contemplated transactions, price lists, pricing policies,
sales data, training materials, and customer proposals, information developed about the Company’s
competitors, systems, strategies, designs, processes, procedures, market data, know-how,
compilations of technical and non-technical data, advertising and promotional plans, and financial
and other projections, which information has been collected over a significant amount of time and
at great effort and expense.
WHEREAS, the Company would be placed at an unfair competitive disadvantage if Executive were
able to use the Company’s Confidential Information and goodwill for his or her own benefit, or for
the benefit of anyone other than the Company.
WHEREAS, with the assurances contained in the agreement, the Company desires to employ
Executive as a Senior Vice President, Sales, Marketing, and Corporate Operations, in which position
he will not only have access to the Company’s Confidential Information but also will have the duty
to expand and improve such information.
WHEREAS, Executive desires to be employed by the Company in this position and is willing to do
so upon the terms contained herein.
AGREEMENT
NOW, THEREFORE, as a condition of employment, and for other good and valuable consideration,
including without limitation continued employment, which Executive agrees is sufficient
consideration for this Agreement, and in consideration of the mutual promises and covenants set
forth below, the Company and Executive agree as follows:
ARTICLE I
EMPLOYMENT
Section 1.1. Employment & Position. The Company shall employ Executive as
Senior Vice President, Sales, Marketing, and Corporate Operations at the Company’s location in
Scottsdale, AZ. Executive shall report to the President and Chief Executive Officer, and the Board
of Directors of the Company. During Executive’s employment hereunder, Executive shall devote all
necessary energies, experience, skills, abilities, knowledge and productive time to the performance
of duties under this Agreement and shall not render to others services that interfere with the
performance of his duties with the Company under this Agreement. The rendering of services to
others shall be subject to the approval of the Board.
Section 1.2. Duties. Executive will be responsible for the full range of
responsibility customarily performed by an executive in the position of Senior Vice President,
Sales, Marketing, and Corporate Operations of the Company and render such services as are from time
to time necessary or requested in connection with the affairs of the Company. Executive’s primary
duties will include those customarily performed in connection with the Company’s Sales and
Marketing functions, including without limitation, overseeing the Company’s sales, marketing and
national accounts functions and the implementation of Total Control (“Primary Duties”). Executive
will also be responsible for providing oversight to the Company’s strategic development, product
management, fleet, and innovation functions, and such other responsibilities related to such
functions from time to time (“Secondary Duties”).
Section 1.3. Term of Employment. Executive shall be employed as herein set
forth, commencing on the date set forth above and continuing until terminated by either party in
accordance with section 2.5 below (the “Employment Term”).
ARTICLE II
COMPENSATION
Section 2.1. Base Salary. Executive’s salary (the “Base Salary”) shall be
four hundred fifty thousand dollars ($450,000) per annum for the term of this Agreement and/or as
increased, after review by the Board at the time and in accordance with Company policies as in
effect from time to time. Base Salary shall be payable in accordance with the standard payroll
practices of the Company.
Section 2.2. Variable Compensation. In addition to his Base Salary, Executive
will be eligible to receive Variable Compensation, in accordance with the Company’s Variable
Compensation Plan as in effect from time to time, and which will provide him with additional
incentive opportunity with a target of seventy-five percent (75%) of his eligible earnings and a
maximum of one-hundred fifty percent (150%) of his eligible earnings. However, the 2010 Variable
Compensation for Executive is guaranteed at a minimum of 75% of eligible earnings for the year.
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Section 2.3. Equity Incentive. Executive will be eligible to participate in
the Company’s discretionary long term incentive plan during the course of employment with the
Company, subject to the discretion of the Compensation Committee and/or the Board of Directors and
the terms and conditions of the applicable plan. Awards will be determined utilizing the valuation
methodology used for other similarly situated executive officers of the Company.
(a) Special Grants.
1. New Hire Restricted Stock Units. In accordance with the Company’s long term
incentive plan, on the first day of your employment, March 15, 2010, you will be granted
Restricted Stock Units (“New Hire RSUs”) in the number of whole shares approximately
equivalent to $500,000. The actual number of whole shares will be determined by dividing
$500,000 by the closing price of the Company’s stock on the date of grant. For the avoidance
of doubt, only whole shares up to $500,000 are granted with any nominal cash remaining with
the Company. These New Hire RSUs will vest over four years 25% per year from the date of
grant. However, in connection with these New Hire RSUs in the event of a termination without
Cause, as defined below, all unvested New Hire RSUs shall immediately vest.
2. Non-Qualified Stock Options. On the first day of your employment, March 15, 2010,
Executive will be granted non-qualified stock options to purchase common stock of the
Company with an aggregate value of $1,000,000, and will be evidenced by the Company’s stock
option agreement. The actual number of shares will be determined by dividing $1,000,000 by
the fair value as determined by the Black-Scholes valuation model utilizing the closing
price on the date of grant. For the avoidance of doubt, only options
to purchase whole shares up to $1,000,000 are granted with any nominal cash remaining with the Company. In
addition, the stock options shall have an exercise price equal to the fair market value of
the Company common stock on the date of grant. The grant of option shares has a ten year
term and will vest in annual installments of 25% each, with full vesting after four years.
Section 2.4. Other Benefits. During the Employment Term, Executive shall be
entitled to all benefits and conditions of employment generally provided to other RSC Company
executives, subject to the same eligibility and other reasonable conditions of Company benefit
programs and to country related differences, including, but not limited to, medical, dental, life
insurance, non-qualified deferred compensation programs, sick leave, disability, automobile
allowance ($1,200 per month) and participation in any retirement plan. In addition, benefits shall
include, but not be limited to five (5) weeks vacation per year and an annual tax and financial
planning services allowance of up to two thousand five hundred dollars ($2,500).
The Company will provide its standard executive relocation plan 2.5a benefits offered through
a third party relocation assistance firm to Executive for similarly situated executives, including,
but not limited to, professional move, temporary lodging in the Scottsdale, Arizona area and house
hunting, as well as reimbursement of reasonable commuting expenses, moving expenses, home purchase
expenses, and other associated travel and relocation related expenses.
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A summary policy statement will be provided to Executive. Any exceptions to the policy must
be made in writing by the Company’s Chief Executive Officer.
Section 2.5. Employment Separation.
(a) Severance Benefits: The Company may, at its sole discretion, terminate
Executive’s employment at any time, provided however, that if the Company xxxxxx Executive’s
employment for any reason other than For Cause or if Executive terminates his employment for Good
Reason the Company shall provide the following severance payments and benefits (collectively
“Severance Benefits”), less all applicable federal and state income and withholding taxes, in
exchange for a full and complete release of all claims against the Company, in the form customarily
used by the Company, executed by Executive, and Executive allows such release to become effective:
1. Eighteen (18) months of Base Salary (the “Severance Period”), plus a pro-rata
portion of variable compensation for the calendar year, or if variable compensation is to be
paid quarterly then for the calendar quarter, in which the severance occurs up to the
separation date, such pro rata bonus to be equal to the variable compensation Executive
would have earned had Executive remained employed through the end of the applicable period
(pro rated based on the number of days employed in such period). Executive’s entitlement to
and the amount of any variable compensation under this Section 2.5(a) (1) shall be
determined at the sole discretion of the Company. The Base Salary shall be payable in
accordance with the Company’s regular payroll practices, and the pro rata variable
compensation payments shall be payable at the time that other variable compensation payments
are made under the applicable Variable Compensation Plan. Notwithstanding the payment
schedule described in this paragraph, if Executive is a Specified Employee (as defined in
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) and becomes
entitled to the payment described in this Section 2.5 as a result of a separation of service
as defined by Section 409A(a)(2)(i) of the Code, then the portion of such payment treated as
“separation pay” for purposes of Section 409A shall not be paid prior to the date which is
six (6) months after the date of the Executive’s separation of service with the Company if
such payment would result in the imposition of an excise tax under Section 409A of the Code.
Any amount described in the preceding sentence over the applicable threshold, that is
otherwise payable during the first six months following Executive’s separation from service
shall be accumulated and paid to Executive in a lump sum amount on the first date of the
seventh month following the date of separation from service.
Executive’s entitlement to the foregoing severance payments is contingent on his
continued compliance with the confidentiality, non-competition and non-solicitation
provisions outlined in Sections 3.1, 3.2, 4.2 and 4.3 herein. Executive understands that if
the Company determines that he has violated the confidentiality provisions, covenant not to
compete or non-solicitation provisions, the Company will not make any further severance
payments, and will be entitled to reimbursement from Executive of any severance amounts
already paid to him, all in addition to any other remedy to which the Company may have.
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2. Upon his separation from service, if Executive is eligible and enrolled in the
Company’s medical and dental benefit programs, the Company will provide the necessary forms,
including COBRA notifications, to transfer the responsibility and right to continue those
benefits to Executive, which under COBRA are typically at his expense, for the time period
allowed by law or under the applicable programs. However, assuming Executive is eligible
and elects to continue those benefits, the Company will continue to pay the same proportion
of Executive’s medical and dental insurance premiums under COBRA as during active employment
(for Executive and eligible dependents) until the earlier of: (1) the expiration of the
Severance Period; or (2) the date Executive is eligible for medical and dental insurance
benefits by another employer.
3. Upon termination of employment, Executive is not eligible to continue participation
in the Company group life insurance program. The Company will therefore pay, at the
Company’s option, the premiums during the Severance Period that are either (i) applicable to
a conversion of the coverage (equal to the amount normally provided to an employee without
payment by the employee) from group to individual coverage; or (ii) that will support the
same level of coverage in a term life policy. The company’s obligation under this
sub-section is to provide the required insurance and Executive is not entitled to a cash
payment in substitution thereof.
4. The Company on the date of separation will provide professional outplacement
counseling and services consistent with other Executives at similar compensation levels. No
cash lump sum payment in lieu of outplacement services will be provided to Executive.
5. During the eighteen (18) month period during which Severance Benefits under this
Section 2.5 are paid, the Company will continue to pay for Executive’s reasonable and
necessary association fees related to Executive’s duties and responsibilities as
contemplated in Section 1.2, and only to the extent previously paid by the Company.
However, the payment of the fees within this paragraph shall cease upon the earlier of: (1)
the expiration of the Severance Period; or (2) the date Executive is employed whether
consulting, self employed or employed by another employer.
6. The Company may give the Executive 30 days’ prior written notice of termination of
employment for the purposes of providing transition services. In the event the Company
gives such notice, the Executive shall be under no obligation to render additional services
and shall be allowed to seek other employment, provided that the Severance Period
shall be reduced accordingly if Executive so ceases, for any reason, to provide services to
the Company.
“Good Reason” shall mean the occurrence, without Executive’s consent, of any of the following: (i)
a material diminution in, or assignment of, Executive’s Primary Duties as described in Section 1.2
that is materially inconsistent with Executive’s position (including status, offices, titles and
reporting relationships), (ii) a reduction in Base Salary that is not part of across-the-board
reduction, (iii) a relocation of Executive’s principal place of business to a location that is
greater than fifty (50) miles from its current location or (iv) the Company’s material breach of
the Agreement.
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(b) For Cause. The Company may, at its sole discretion, terminate Executive’s
employment at any time during the Employment Term “For Cause”. The term “For Cause” means: (1) the
failure of Executive to implement or adhere to material policies, practices, or directives of the
Company, including of the Board; (2) conduct of a fraudulent and/or criminal nature; (3) any action
of Executive outside the scope of his employment duties that results in material financial harm to
the Company, (4) conduct that is in violation of any provision of this Agreement or any other
agreement between the Company or any of its affiliates and Executive (including any noncompetition,
noninterference, nonsolicitation or confidentiality agreement); or (5) solely for purposes of this
Section 2.5 , death or disability as defined hereinafter.
(c) Disability. Within the parameters allowed by federal and state law, the Company
reserves the right to terminate Executive’s employment or place him on unpaid leave if Executive is
incapacitated due to physical or mental illness and cannot perform the essential functions of his
job with or without a reasonable accommodation.
(d) Voluntary Resignation by Executive. Executive shall have the right to terminate
this Agreement at any time. Executive agrees to provide the Company with thirty (30) days prior
written notice of any such intended resignation. The Company’s obligation to pay Executive’s Base
Salary, variable compensation and other benefits shall cease as of Executive’s date of separation.
Executive shall not be entitled to any Severance Benefits if he resigns other than for Good Reason.
(e) Cessation of Severance Benefits. Notwithstanding anything contained in this
Agreement to the contrary, in the event Executive becomes employed by, or provides consulting
services to, any third party during the Severance Period, whereby such employment or consulting
services provided are in excess of fifteen (15) hours per week, or provide Executive with weekly
compensation that is more than fifty percent (50%) of his weekly Base Salary, all Severance
Benefits will immediately terminate upon the latter of: (i) twelve (12) months from the date of
Executive’s termination of service from the Company; or (ii) the date Executive becomes employed
by, or provides such consulting services to, any third party.
Section 2.6 Limitation on Payments. In the event that the payments or other
benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute
payments” within the meaning of Section 280G of the Code, and (ii) would be subject to the excise
tax imposed by Section 4999 of the Code (the “Excise Tax”), then Executive’s benefits under this
Agreement shall be either (a) delivered in full, or (b) delivered to such lesser extent which would
result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing
amounts, taking into account the applicable federal, state and local income taxes and the Excise
Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits,
notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the
Code. If a reduction in payments or benefits constituting “parachute payments” is necessary
pursuant to the foregoing provision, reduction shall occur in the following order unless the
Executive elects in writing a different order (provided, however, that such election shall be
subject to Company approval if made on or after the date on which the event that triggers the
parachute payment occurs): reduction of cash payments; cancellation of accelerated vesting of stock
awards; reduction of employee benefits. If acceleration of vesting of stock award compensation is
to be reduced, such acceleration of vesting shall be cancelled in the
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reverse order of the date of grant of the Executive’s stock awards unless the Executive elects
in writing a different order for cancellation.
Unless the Company and Executive otherwise agree in writing, any determination required under
this Section 2.6 shall be made in writing by the Company’s independent public accountants (the
“Accountants”), whose determination shall be conclusive and binding upon Executive and the Company
for all purposes and may be relied upon by the Company. For purposes of making the calculations
required by this Section 2.6, the Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the
application of Section 280G and 4999 of the Code. The Company and Executive shall further to the
Accountants such information and documents as the Accountants may reasonably request in order to
make a determination under this Section 2.6. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this Section 2.6.
ARTICLE III
CONFIDENTIAL INFORMATION
Section 3.1. Confidential Information. Executive’s position with the Company
will, and have, necessarily give him access to, contact with and knowledge of certain trade
secrets, and confidential and proprietary business information of the Company. This information
includes but is not limited to employee information, union information, employment and union
litigation and claim information, marketing and sales objectives and strategies, customer lists,
information regarding existing customer preferences, habits and needs, information regarding
prospective customers, details of past, pending and contemplated transactions, price lists, pricing
policies, sales data, training materials, customer proposals, information developed about Company’s
competitors, systems, strategies, designs, processes, procedures, growth plans, market data,
know-how, compilations of technical and non-technical data, advertising and promotional plans and
strategies, and financial and other projections relating to the business of the Company, which are
not generally known to or readily ascertainable through legitimate means by the public or by
competitors of the Company (hereinafter collectively referred to as “Confidential Information”).
Executive shall not at any time disclose the Confidential Information to anyone, except on a
need-to-know basis in connection with Executive’s duties in carrying out the business of the
Company. Executive shall not use any Confidential Information for his own benefit, or for the
benefit of anyone other than the Company or its affiliates.
Section 3.2. Ownership of Records, Etc. All records, reports, notes,
compilations or other recorded matter, and copies or reproductions thereof, in whatever media form,
relating to the Confidential Information of the Company, operations, activities or business, made
or received by Executive during any past employment or future period of employment with the Company
are and shall be the exclusive property of the Company. Executive shall keep the same at all times
in his custody, subject to control by the Company and Executive shall surrender the same at the end
of his employment, if not before. Failure to return such property upon the request of the Company
during Executive’s Employment Term or thereafter shall be a material breach of this Agreement.
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Section 3.3. Injunctive Relief. Executive acknowledges that (a) the
provisions of Section 3.1 and Section 3.2 are reasonable and necessary to protect the legitimate
interests of the Company, and (b) any violation of Section 3.1 or Section 3.2 will result in
irreparable injury to the Company, the exact amount of which will be difficult to ascertain, and
that the remedies at law for any such violation would not be reasonable or adequate compensation to
the Company for such a violation. Accordingly Executive agrees that if he violates, or under the
then existing circumstances it seems reasonable likely that there may occur a violation of, the
provisions of Section 3.1 or Section 3.2, in addition to any other remedy which may be available at
law or in equity, the Company shall be entitled to specific performance and injunctive relief,
without posting bond or other security, and without the necessity of proving actual damages.
ARTICLE IV
COVENANT NOT TO COMPETE
Section 4.1. Recitals. Executive acknowledges and agrees that he has or will
have technical and other extensive expertise associated with the business of the Company. In
addition, Executive has or will develop valuable business contacts with employees, potential
employees, clients, and potential clients of the Company and with professionals in the equipment
rental industry. Furthermore, Executive’s reputation and goodwill are or will be an integral part
of the Company’s success throughout the areas where the business of the Company is and will be
conducted. If Executive deprives the Company of any of his goodwill or in any manner uses his
reputation and goodwill in competition with the Company, the Company will be deprived of the
benefits it has bargained for pursuant to this Agreement. Since Executive has the ability to
compete with the Company in the operation of the business of the Company, the Company therefore
desires that Executive enter into this Covenant Not To Compete.
Section 4.2. Covenant Not to Compete. Executive agrees that during his
employment with RSC and for a period of twenty-four (24) months commencing immediately after the
end of his employment (the “Time Period”), he shall not, unless acting with the Company’s prior
written consent (which may be withheld at the Company’s sole discretion), directly or indirectly
own, manage, join, operate or control, participate in the ownership, operation or control of, or be
connected as a director, officer, partner, or consultant, or permit his name to be used in
connection with any competing business, including but not limited to any of the following
businesses or organizations that rent or lease construction or construction-related equipment
within the United States, Canada, Mexico or other country the Company plans to expand into that
Executive has been involved with (collectively “the Territory”): Caterpillar, United Rentals,
Sunbelt Rentals and its parent Ashtead Group plc, Xxxx Rental, Hertz, Volvo, National Equipment
Services and Xxxxx Xxxxx Works or, in the alternative, any business or organization not listed
above that rents or leases construction or construction-related equipment or that has plans to
enter into the construction-related equipment rental or leasing business in the Territory.
Notwithstanding anything contained herein to the contrary, it is expressly agreed between the
parties that any business or organization in the financial services industry that leases equipment,
such as GE Capital, shall not be considered a competitor of the Company.
The parties agree that if a court of competent jurisdiction determines that the Time Period for
purposes of this Section 4.2 is unreasonably long and found to be an unenforceable term, the
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Time Period for purposes of this Section 4.2 shall be shortened to the maximum duration enforceable
under applicable law.
If a court of competent jurisdiction determines that the Territory is an unreasonable geographic
scope for this provision, the Territory shall be deemed reformed to include the United States and
Canada, excluding Mexico. If a court of competent jurisdiction determines that the Territory of
the United States and Canada is an unreasonable geographic scope for this provision, the Territory
shall be deemed reformed to include the United States.
Section 4.3. No Solicitation of Customers or Employees. Executive agrees
that:
(a) During his employment with RSC and for the Time Period, he shall not, directly or
indirectly, call on or solicit or divert or take away from RSC or any of its affiliates (including
by divulging to any competitor or potential competitor of RSC) any person, firm, corporation, or
other entity who is a customer of RSC or its affiliates and whom Executive had contact with through
any of his employment with RSC.
(b) During his employment with RSC and for the Time Period, he shall not, directly or
indirectly, solicit employment of any employee of RSC or any employee of any affiliate of RSC for
employment with any entity that rents or leases construction or construction-related equipment in
the Territory as defined in Section 4.2.
(c) The parties agree that if a court of competent jurisdiction determines that the Time
Period is unreasonably long and deemed unenforceable as defined herein in Sections 4.3(a) or (b),
the Time Period for purposes of Sections 4.3(a) or (b), as applicable, shall be shortened to the
maximum duration enforceable under applicable law.
Section 4.4. Severability of Provisions. In the event that the provisions of
this Section should ever be adjudicated by a court of competent jurisdiction to exceed the time or
geographic or other limitations permitted by applicable law, then such provisions shall be deemed
reformed to the maximum time or geographic or other limitations permitted by applicable law, as
determined by such court in such action. Each breach of the covenants set forth herein shall give
rise to a separate and independent cause of action.
Section 4.5. Injunctive Relief. Executive acknowledges that (a) the
provisions of Section 4.2 and Section 4.3 are reasonable and necessary to protect the legitimate
interests of the Company, and (b) any violation of Section 4.2 or Section 4.3 will result in
irreparable injury to the Company, the exact amount of which will be difficult to ascertain, and
that the remedies at law for any such violation would not be reasonable or adequate compensation to
the Company for such a violation. Accordingly, Executive agrees that if he violates, or under the
then existing circumstances it seems reasonable likely that there may occur a violation of, the
provisions of Section 4.2 or Section 4.3, in addition to any other remedy which may be available at
law or in equity, the Company shall be entitled to specific performance and injunctive relief,
without posting bond or other security, and without the necessity of proving actual damages.
Section 4.6. Equitable Tolling. The restrictive time periods referred to in
Sections 4.2 and 4.3 shall be tolled and extended by one month for each month or portion of each
month
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during which Employee is in violation of the restrictions. If Company initiates legal action
to enforce the restrictions and obtains an injunction against Employee; then the appropriate
restrictive time period(s) will begin to run on the date that the injunction is entered.
ARTICLE V
GENERAL PROVISIONS
Section 5.1. Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party without the prior written consent of the other
parties except that the Company may, without such consent, assign all such rights and obligations
to a wholly-owned subsidiary or newly created legal entity (or a partnership controlled by the
Company) or subsidiaries of the Company or to a successor in interest to the Company which shall
assume all obligations and liabilities hereunder.
Section 5.2. Sole and Entire Agreement. This Agreement constitutes the entire
existing agreement between the parties with respect to the subject matter hereof, and completely
and correctly expresses all of the rights and obligations of the parties. Executive expressly
agrees that reliance on any oral representation(s) is unreasonable.
Section 5.3. Waivers. The waiver in any particular instance or series of
instances of any term or condition of this Agreement or any breach hereof by any party shall not
constitute a waiver of such term or condition or of any breach thereof in any other instance.
Section 5.4. Amendment. This Agreement is subject to amendment only by
subsequent written agreement between, and executed by, the parties hereto.
Section 5.5. Separability. If any one or more provisions, clauses,
paragraphs, subclauses or subparagraphs contained in this Agreement shall for any reason be held to
be invalid, illegal, void or unenforceable, the same shall not affect any other provision, clause,
paragraph, subclause or subparagraph of this Agreement, but this Agreement shall be construed as if
such invalid, illegal, void or unenforceable provision, clause, paragraph, subclause or
subparagraph had never been contained herein.
Section 5.6. Time Is of the Essence. Time is of the essence in this
Agreement. Any time limit mentioned herein has been carefully considered and represents the agreed
absolute outside limit of time within which the applicable right must be exercised. The parties
may extend such time limit only by mutual agreement in writing.
Section 5.7. Duration of Obligations. Executive’s obligations under Article
III and Article IV of this Agreement (especially those relating to confidentiality, non-competition
and non-solicitation) shall continue after his employment with the Company is ended, regardless of
the nature or reason for such termination.
Section 5.8. Attorneys’ Fees. In the event of a dispute, a court or an
arbitrator may award attorneys’ fees to the prevailing party.
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Section 5.9. Captions; Definitions. Any captions of articles, sections,
subsections or paragraphs of this Agreement are solely for the convenience of the parties and are
not a part of this Agreement or to be used for the interpretation of this Agreement or any
provision hereof.
Section 5.10. Applicable Law. This Agreement shall be construed and
interpreted in accordance with the internal substantive laws, and not the choice of law rules of
the State of Arizona. Except where this Agreement provides for injunctive relief, all disputes
arising out of or in connection with this Agreement shall be finally settled under the Rules of
Arbitration of the American Arbitration Association by a single arbitrator appointed in accordance
with the said Rules.
Section 5.11. Confidentiality. The parties agree that the terms of this
Agreement are to be held confidential and shall not be disclosed to any other person or entity,
except as required by law or legal process, and except that either party may disclose the terms
thereof to its or his legal counsel or tax advisors.
Section 5.12. Voluntary Agreement and Legal Counsel. Executive has been
encouraged to review this Agreement with his legal and other expert counsel and has freely entered
into this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement or caused this
Agreement to be duly executed on their respective behalf, by their respective officers thereunto
duly authorized, all effective as of the day and year first above written.
| RSC HOLDINGS INC. AND RSC EQUIPMENT RENTAL, INC. |
EXECUTIVE: Xxxx Xxxxxxxx | |||
By:
|
/s/ Xxxx Xxxxxx | /s/ Xxxx Xxxxxxxx | ||
| Xxxx Xxxxxx | Xxxx Xxxxxxxx | |||
| President and CEO | ||||
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