1
Exhibit 10.38
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
July 1, 1997, between NES Acquisition Corp., a Delaware corporation (the
"Company"), and Xxxxx Xxxxxx ("Executive").
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 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").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the Vice
President, Operations of the Sprintank Division of the Company and shall have
the normal duties, responsibilities and authority of a Vice President, subject
to the overall direction and authority of the Company's Chief Executive Officer
and the Company's board of directors (the "Board").
(b) Executive shall report to the Company's Chief Executive Officer (or to
such other person as the Company's Chief Executive Officer may reasonably
designate), and Executive shall devote his best efforts and his full business
time and attention to the business and affairs of the Company and its
Subsidiaries. For purposes of this Agreement, "Subsidiaries" shall mean any
corporation of which the securities having a majority of the voting power in
electing directors are, at the time of determination, owned by the Company,
directly or through one or more Subsidiaries.
3. Base Salary and Benefits.
(a) During the Employment Period, Executive's base salary shall be at least
$82,000 per annum and shall be subject to review by the Board on an annual basis
commencing January 1, 1998 (the "Base Salary"), which salary shall be payable in
regular installments in accordance with the Company's general payroll practices
and shall be subject to customary withholding. In addition, 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.
(b) The Company shall reimburse Executive for all reasonable expenses
incurred by him in the course of performing his duties under this Agreement
which are consistent with the Company's policies in effect from time to time
with respect to travel, entertainment and other
2
business expenses, subject to the Company's requirements with respect to
reporting and documentation of such expenses.
(c) In addition to the Base Salary, for the year ending December 31, 1997
Executive will receive a bonus pursuant to the bonus plan established for
Executive by Sprint Industrial Services, Inc., and for the year ending December
31, 1998 Executive will be eligible to receive a bonus pursuant to a new bonus
plan to be established by the Board.
4. Term.
(a) The Employment Period shall terminate upon the third anniversary of the
date hereof, unless earlier terminated (i) by Executive's resignation, death or
disability, (ii) by the Company for Cause or (iii) by the Company other than for
Cause.
(b) If the Employment Period is terminated pursuant to clause (a)(i) or
clause (a)(ii) above, Executive shall be entitled to receive his Base Salary
through the date of termination. If the Employment Period is terminated
pursuant to clause (a)(iii) above, Executive shall be entitled to receive his
Base Salary through the earlier of (i) the date which is six months after the
date of termination or (ii) the third anniversary of the date hereof.
(c) Notwithstanding anything in this Agreement to the contrary, the Company
shall have no obligation to pay any amounts payable under this Agreement from
and after any such time as Executive is in breach of the Noncompetition
Agreement, dated as of the date hereof, by and between Executive and the
Company.
(d) All of Executive's rights to fringe benefits and bonuses hereunder (if
any) which accrue or become payable after the termination of the Employment
Period shall cease upon such termination.
(e) For purposes of this Agreement, "Cause" shall mean (i) the commission
of a felony or any other act or omission involving dishonesty, disloyalty or
fraud with respect to the Company or any of its Subsidiaries or any of their
customers or suppliers, (ii) conduct that brings the Company or any of its
Subsidiaries into substantial public disgrace or disrepute, (iii) substantial
failure to perform duties as reasonably directed by the Board (provided that the
Company has given Executive prior written notice of such failure to perform
duties and Executive fails to cure such failure to perform duties within ten
(10) days of such notice), (iv) gross negligence or willful misconduct with
respect to the Company or any of its Subsidiaries or (v) any other material
breach of this Agreement.
5. Other Businesses. As long as Executive is employed by the Company or
any of its Subsidiaries, Executive agrees that he will not, except with the
express written consent of the Board, become engaged in, or render services for,
any business other than the business of the Company, any of its Subsidiaries or
any entity in which the Company or any of its Subsidiaries have an equity
interest.
- 2 -
3
6. Executive's Representations. Executive hereby represents and warrants
to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and will 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 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
consulted with independent legal counsel regarding his rights and obligations
under this Agreement and that he fully understands the terms and conditions
contained herein.
7. Indemnification. The Company shall indemnify and hold harmless
Executive from and against any and all liabilities and obligations related to,
resulting from or attributable to the acts or omissions of the Company (other
than liabilities or obligations related to, resulting from or attributable to
Executive's gross negligence or willful misconduct) during the term of this
Agreement.
8. Notices. Any notice provided for in this Agreement must be in 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 recipient at the address below indicated:
Notices to Executive:
Xxxxx Xxxxxx
22118 #0 Xxxxxxx Xxxxxxxx Xx.
Xxxxxxx, XX 00000
Notices to the Company:
NES Acquisition Corp.
c/o National Equipment Services
0000 Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Perl
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 will be
- 3 -
4
deemed to have been given when so delivered or sent or, if mailed, five days
after deposit in the U.S. mail.
9. Severability. Whenever possible, each provision of this Agreement
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.
10. Complete Agreement. This Agreement, those documents expressly
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.
11. No Strict Construction. The language used in this Agreement shall 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.
12. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
13. Successors and Assigns. This Agreement is intended to bind and 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 obligations hereunder without the prior written
consent of the Company.
14. Choice of Law. All 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 State of Texas, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Texas or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Texas.
15. Amendment and Waiver. The provisions of this Agreement may be 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.
* * * * *
- 4 -
5
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
NES ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxx
------------------
Its: CEO
/s/ Xxxxx Xxxxxx
---------------------
XXXXX XXXXXX
