EXHIBIT 10.49
[EXECUTION COPY]
101101
XXXXXXX XXXXX RENTAL, L.P.
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of October 10, 2001, between Xxxxxxx Xxxxx
Rental, L.P. d/b/a Xxxxx Xxxxx Works, a Pennsylvania limited partnership (the
"Company") and Xxxxx Xxxxxxxx ("Executive").
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In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive
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hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the date hereof and ending
as provided in paragraph 4 hereof (the "Employment Period").
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2. Position and Duties.
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(a) During the Employment Period, Executive shall serve as the Vice
President of Finance of the Company and shall render such financial and other
executive and managerial services to the Company and its Subsidiaries as the
Board of Managers of ACR Management, L.L.C., the Company's general partner (the
"Board") may from time to time direct.
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(b) During the Employment Period, Executive shall report to the
Board, the Chief Executive Officer and such other person(s) as maybe designated
by the Board or the Chief Executive Officer and shall devote his best efforts
and his full business time and attention (except for permitted vacation periods
and reasonable periods of illness or other incapacity) to the business and
affairs of the Company and its Subsidiaries. Executive shall perform his duties
and responsibilities to the Company and its Subsidiaries hereunder to the best
of his abilities in a diligent, trustworthy, businesslike and efficient manner.
(c) For purposes of this Agreement, "Subsidiaries" shall mean any
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corporation or other entity of which the securities or other ownership interests
having the voting power to elect a majority of the board of directors or other
governing body are, at the time of determination, owned by the Company, directly
or though one of more Subsidiaries.
3. Compensation and Benefits.
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(a) During the Employment Period, Executive's base salary shall be
$175,000 per annum or such higher rate as the Board may designate from time to
time (the "Base Salary"), which
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salary shall be payable in regular installments in accordance with the Company's
general payroll practices.
(b) During the Employment Period, Executive shall be entitled to
participate in all of the Company's employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally eligible.
In addition, Executive shall be entitled to the following benefits during the
Employment Period: (i) health insurance, (ii) short-term and long-term
disability coverage, (iii) life insurance of $500,000 death benefit, (iv) an
automobile allowance, including fuel, maintenance and insurance, and (v)
expenses incidental to required professional certifications.
(c) During the Employment Period, the Company shall reimburse
Executive for all reasonable expenses incurred by him in the course of
performing his duties and responsibilities under this Agreement which are
consistent with the Company's policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to the Company's
requirements with respect to reporting and documentation of such expenses.
(d) In addition to the Base Salary, the Board may, in its discretion,
award a bonus to Executive following the end of such fiscal year during the
Employment Period based upon Executive's performance and the Company's operating
results during the fiscal year. Executive is guaranteed a bonus for calendar
year 2002 equal to a minimum of $50,000.
(e) All amounts payable to Executive as compensation hereunder shall
be subject to customary withholding by the Company.
4. Term.
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(a) Unless renewed by the mutual agreement of the Company and
Executive, the Employment Period shall end on October 10, 2002 and shall be
renewed for successive one year periods thereafter unless terminated by either
party at least by 90 days prior written notice; provided that (i) the Employment
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Period shall terminate prior to such date immediately upon Executive's
resignation, death or permanent mental or physical disability or incapacity (as
determined by the Board in its good faith judgment), and (ii) the Employment
Period may be terminated by the Company at any time prior to such date for Cause
(as defined below) or without Cause. Except as otherwise provided herein, any
termination of the Employment Period by the Company or Executive shall be
effective as specified in a written notice from the Company to Executive or
Executive to the Company, as the case may be.
(b) If the Employment Period is terminated by the Company without
Cause, Executive shall be entitled to continue to receive his Base Salary
payable in regular installments from the date of termination through the end of
the Noncompete Period (as defined in paragraph 7 hereof) (the "Severance
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Period"), In addition, the Company will reimburse Employee for COBRA coverage
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under the Company's group health insurance coverage during the Severance Period.
The amount payable pursuant to this Paragraph 4(b) shall be reduced by the
amount of any compensation Executive receives with respect to any other
employment during the Severance Period; provided that the payments being
received by Executive with respect to his former employment with Xxxxx & Xxxxx
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shall not reduce the amounts payable pursuant to this Paragraph 4(b). Upon
request from time to time, Executive shall furnish the Company with a true and
complete certificate specifying any such compensation earned or received by him
during the Severance Period.
(c) If the Employment Period is terminated by the Company for Cause,
or is terminated pursuant to clause (a)(i) above or expires and is not renewed
hereunder or terminates effective at the end of the initial Employment Period
ending October 8, 2002 or any anniversary date thereof, Executive shall only be
entitled to receive his Base Salary through the date of termination or
expiration.
(d) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, fringe benefits and other compensation hereunder
which accrue or become payable after the termination or expiration of the
Employment Period shall cease upon such termination or expiration. The Company
may offset any amounts Executive owes it or its Subsidiaries against any amounts
it owes Executive hereunder.
(e) For purposes of this Agreement, "Cause" shall mean (i) the
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commission of a felony or a crime involving moral turpitude or the commission of
any other act or omission involving dishonesty, disloyalty or fraud, (ii)
conduct tending to bring the Company or any of its Subsidiaries into substantial
public disgrace or disrepute, (iii) failure to perform duties as reasonably
directed by the Board, the Chief Executive Officer or their designee, which
failure continues to exist for thirty (30) days after notice of such failure to
the Executive by the Company; (iv) gross negligence or willful misconduct
(including but not limited to failing to follow guidelines as clearly outlined
by the Board), or (v) any material breach of this Agreement by Executive.
5. Confidential Information. Executive acknowledges that the
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information, observations and data (including trade secrets) obtained by him
while employed by the Company and its Subsidiaries concerning the business or
affairs of the Company, or any other Subsidiary ("Confidential Information") are
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the property of the Company or such Subsidiary. 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 Confidential Information becomes 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 at the termination or
expiration of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer tapes,
printouts and software and other documents and data (and copies thereof)
embodying or relating to the Confidential Information, Work Product (as defined
below) or the business of the Company, or any other Subsidiaries which he may
then possess or have under his control.
6. Inventions and Patents. Executive acknowledges that all
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inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Company's or any of its Subsidiaries' actual or
anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Executive while employed
by the Company and its Subsidiaries ("Work Product") belong to the Company or
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such Subsidiary.
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Executive shall promptly disclose such Work Product to the Board and, at the
Company's expense, perform all actions reasonably requested by the Board
(whether during or after the Employment Period) to establish and confirm such
ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments).
7. Non-Compete; Non-Solicitation.
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(a) In connection with the Employment Agreement, Executive
acknowledges that in the course of his employment with the Company and its
Subsidiaries he shall become familiar with the Company's trade secrets and with
other Confidential Information concerning the Company and its Subsidiaries, and
that his services have been and shall be of special, unique and extraordinary
value to the Company and its Subsidiaries. Therefore, Executive agrees that,
during the Employment Period and for one year thereafter (the "Noncompete
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Period"), he shall not directly or indirectly own any interest in, manage,
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control, participate in, consult with, render services for, or in any manner
engage in any business involved in the business of crane and other lifting
equipment sales or rentals or competing with the businesses of the Company or
its Subsidiaries, as such businesses exist or are in process or for which the
Company has documented plans for entering on the date of the termination or
expiration of the Employment Period, within any geographical area in which the
Company or its Subsidiaries engage or plan to engage in such businesses. Nothing
herein shall prohibit Executive from being a passive owner of not more than 2%
of the outstanding stock of any class of a corporation which is publicly traded,
so long as Executive has no active participation in the business of such
corporation. At the Company's option, upon written notice to the Executive, the
Non-Compete Period may be changed to during the Employment Period and for not
less than six months nor more than one year after the Employment Period.
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another entity (i) induce any employee of the Company or any
Subsidiary to leave the employ of the Company or such Subsidiary, or in any way
interfere with the relationship between the Company or any Subsidiary and any
employee thereof, (ii) hire any person who was an employee of the Company or any
Subsidiary at any time during the Employment Period or (iii) induce or attempt
to induce any customer, supplier, licensee, licensor, franchisee or other
business relation of the Company or any Subsidiary to cease doing business with
the Company or such Subsidiary, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation with the
Company or any Subsidiary (including, without limitation, making any negative or
disparaging statements or communications regarding the Company or its
Subsidiaries).
(c) If, at the time of enforcement of this paragraph 7, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. Executive acknowledges that the restrictions
contained in this paragraph 7 are reasonable and that he has reviewed the
provisions of this Agreement with his legal counsel.
(d) In the event of the breach or a threatened breach by Executive of
any of the provisions of this paragraph 7, the Company, in addition and
supplementary to other rights and
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remedies existing in its favor, shall be entitled to specific performance and/or
injunctive or other equitable relief from a court of competent jurisdiction in
order to enforce or prevent any violations of the provisions hereof (without
posting a bond or other security). In addition, in the event of an alleged
breach or violation by Executive of this paragraph 7, the Noncompete Period
shall be tolled until such breach or violation has been duly cured.
8. Executive's Representations. Executive hereby represents and
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warrants to the Company that (i) 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, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity that would adversely
affect his ability to perform his duties on behalf of the Company and (iii) upon
the execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of Executive, enforceable in
accordance with its terms. Executive hereby acknowledges and represents that he
has had an opportunity to consult with independent legal counsel regarding his
rights and obligations under this Agreement and that he fully understands the
terms and conditions contained herein.
9. Survival. Paragraphs 5 through 17 shall survive and continue in
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full force in accordance with their terms, notwithstanding the expiration or
termination of the Employment Period.
10. Notices. Any notice provided for in this Agreement shall be in
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writing and shall be either personally delivered, sent by reputable overnight
courier service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
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Xxxxx Xxxxxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Notices to the Company:
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Xxxxxxx Xxxxx Rental, L.P.
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Xx.
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With a copy to:
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Xxxxxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxxx & Xxxxxxx, LLC
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
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, sent or mailed.
11. 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 action in 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.
12. 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.
13. No Strict Construction. The language used in this Agreement shall
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be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
14. 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.
15. Successors and Assigns. This Agreement is intended to bind and
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inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his duties or obligations hereunder without the prior
written consent of the Company.
16. Choice of Law. All issues and questions concerning the
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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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17. Amendment and Waiver. The provisions of this Agreement may be
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amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
XXXXXXX XXXXX RENTAL, L.P.
By: ACR Management, L.L.C.
Its: General Partner
By: ___________________________
Its: ___________________________
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Xxxxx Xxxxxxxx
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