EXHIBIT 10.1
RESIGNATION AND AMENDMENT AGREEMENT
April 29, 1999
Xx. Xxx X. Xxxxxxx
2 Allegheny Xxxxxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000
Dear Ray:
This letter sets forth our agreement relating to your resignation as
an officer and employee of Xxxxxxx Xxxxx Rental Holdings, L.P. and its
subsidiaries and affiliates (the "Company"), your continuing relationship with
the Company and certain other matters. Reference is made to the Amended and
Restated Recapitalization Agreement, dated as of July 22, 1999 (the
"Recapitalization Agreement"), by and among Xxxxxxx Xxxxx Rental, L.P., Xxxxxxx
Xxxxx Rental Holdings, L.P., the purchasers listed on the schedule of purchasers
and the current owners listed on the schedule of current owners. The
capitalized terms used herein and not defined herein have the meanings specified
in the Recapitalization Agreement. Our agreement consists of the following:
1. Resignation and Board Position.
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(a) Effective the date hereof, RA's employment with the Company and
its subsidiaries will be voluntarily terminated and RA will resign as an officer
and employee of the Company and its subsidiaries.
(b) The parties hereto acknowledge that RA or his designee is
absolutely and unconditionally entitled to remain as a member of the board of
managers of ACR Management pursuant to Section 4.2(a) of ACR Management's
limited liability company agreement. The parties hereto confirm that such member
of the board of managers will be entitled to expense reimbursement pursuant to
Section 4.2(f) of ACR Management's limited liability company agreement.
2. Severance Payment. RA and the Company acknowledge and agree that
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the Company does not owe RA any amounts as severance pursuant to the Employment
Agreement and that RA has no further right to any payments pursuant to the
Employment Agreement, including without limitation any bonuses and any payments
pursuant to Section 5 of the Employment Agreement.
3. COBRA Benefits. The Company hereby agrees that RA shall be
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entitled to his COBRA rights in respect of the Company and any rights
to which he is entitled in the Company's 401(k) plan.
4. Distributions from ACR Management. The parties hereto hereby amend
---------------------------------
Section 3.1 of the Limited Liability Company Agreement of ACR Management to
replace the penultimate sentence of Section 3.1 as follows:
"Unless the Board determines otherwise, distributions shall be made to
Participants pro rata based on the Percentage Interests held by each
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Participant; provided, however, that so long as Xxxxxxx Iron and Metal
Company is a Participant, distributions to Xxxxxxx Iron and Metal
Company will not be less than its pro rata share (based on its
Percentage Interest) of the aggregate amount of such distribution
without its prior written consent."
5. Employment Agreement. The parties hereby agree that the
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Employment Agreement is hereby terminated and of no further force and effect
except that paragraphs 6 and 7 shall survive and continue in force and effect
until July 22, 2003, as well as paragraphs 9 and paragraphs 11 though 21,
inclusive, but only as such paragraphs relate to paragraph 6 and 7.
6. Office Expenses. RA hereby waives any right to reimbursement or
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entitlement from the Company of his office and administrative expenses from and
after the Closing.
7. Airline Expenses and Operations. The Company hereby agrees to pay
-------------------------------
to RA an amount equal to $35,000 to reimburse RA for expenses relating to the
operations of his aircraft. RA hereby waives any further right to expense
reimbursement from the Company relating to the aircraft. In addition,
notwithstanding paragraph Section 8.03(b) of the Recapitalization Agreement, the
Company hereby agrees that RA may hire the pilots currently employed by the
Company.
8. Hummers. The Company hereby agrees to transfer ownership, at no
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charge, of the two Hummers it currently owns to RA.
9. Noncompetition. The parties hereto acknowledge and agree that the
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noncompetition provisions of Section 8.03(a) of the Recapitalization Agreement
remain in full force and effect until July 22, 2003, except that the parties
hereto agree to amend Section 8.03(a) to add the following sentences to the end
of the paragraph:
"Notwithstanding the foregoing, RA is permitted to participate (as owner,
manager, officer or otherwise) without limitation in the ownership of, and
to conduct immediately, directly or indirectly, any Competitive Business
involving the rental of cranes or equipment for use only inside the States
of Nevada and Illinois and inside the metropolitan service area of Mobile,
Alabama (a "Permitted Competitive Business"); provided, however, that such
Permitted Competitive Business will not be permitted to rent cranes or
other equipment outside such states and to the extent that the rented
cranes or equipment are used outside such states, the Company will be
entitled to damages from RA, which damages will include, but not be limited
to, 100% of the rental revenues generated from such prohibited rental.
With respect to such Permitted Competitive Business, RA agrees that he will
negotiate with
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the Company in good faith to provide the Company with a non-controlling
interest in such Permitted Competitive Business, which negotiations will be
concluded, with or without agreement, within 45 days from the date hereof.
In addition, notwithstanding the foregoing, RA may sell new or used cranes
in an amount up to $5 million in each calendar year (which sales may only
be true sales and not rent to purchase or other contingent sales)."
10. Purchaser Indemnitees. The parties hereto agree that Section
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8.01(b)(i) of the Recapitalization Agreement is hereby amended to remove the
following persons from the definition of Purchaser Indemnitees: Xxxxxxx Iron and
Metal Company (on behalf of Xxxxx Xxxxxxx), Xxxxx Xxxxxxx, Xx Xxxx and Xxxxxx
Xxxxxxxxxx.
11. Survival and Indemnification.
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(a) The parties hereby agree that the first sentence of paragraph 13
of the Indemnification Schedule to the Recapitalization Agreement is hereby
amended so that RA will not be charged by the Company for time spent by the
persons designated on such schedule which time does not exceed in the aggregate
ten full working days. In the event RA is to be charged for time spent as
described above, the charges will be $750 per day per individual.
(b) The parties hereto agree that the parenthetical starting in the
third line of Section 8.01(b)(ii) of the Recapitalization Agreement is hereby
replaced with the following:
"(except for Sections 5.02 (Authorization) and 5.03
(Capitalization))".
(c) The parties hereto agree that Section 8.01(b)(ii) of the
Recapitalization Agreement is further amended as follows:
(i) the word "fifth" in clause (2) is hereby replaced with the word
"second";
(ii) the word "fourth" in clause (3) is hereby replaced with the word
"third"; and
(iii) the word "third" in clause (4) is hereby replaced with the word
"second".
(d) The parties hereto agree that the parenthetical starting in the
second line of Section 8.01(b)(iii) of the Recapitalization Agreement is hereby
replaced with the following:
"(other than Section 5.02 (Authorization), 5.03 (Capitalization and
Related Matters) and 5.21(b) (Events Subsequent to Most Recent Fiscal
Year End))".
(e) The parties hereto agree that the second sentence of Section
8.01(b)(iii) of the Recapitalization Agreement is hereby replaced with the
following sentence:
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"Any breaches of any post-closing covenant or agreement contained
herein, including, without limitation, any breach of any covenant or
agreement contained in Section 8, will not be subject to the
Deductible or the Cap."
(f) The parties hereto agree that the Company will not be entitled to
indemnification pursuant to Item 1 of the Indemnification Schedule to the
Recapitalization Agreement with respect to the current Louisiana sales and use
tax audit until the Company incurs Losses in respect of such matter in excess of
the sum of (i) the reserve for this matter set forth on the Company's balance
sheet at Closing, (ii) the unused portion of the Deductible existing at such
time and (iii) $1.3 million.
12. Xxxxxxx Xxxxxxx Mortgage. The Company hereby agrees that it will
------------------------
use its reasonable efforts to cause Xxxxxxx Xxxxxxx, Xx. to refinance, without
RA's credit support, his mortgage obligations which are secured by a certificate
of deposit owned by RA or obtain the release of the certificate of deposit.
13. Current Owner Representative. The parties hereto agree that
----------------------------
Section 8.05 of the Recapitalization Agreement is hereby amended so that RA may
replace the Current Owner Representative or any successor Current Owner
Representative at any time and may appoint any successor Current Owner
Representative.
14. Distribution Amount Adjustment/Escrow Release. The parties
---------------------------------------------
hereto agree that the Actual Distribution Amount shall be greater than the
Estimated Distribution Amount by $1,310,000 for purposes of Section 1.04 of the
Recapitalization Agreement. Accordingly the Company agrees to pay RA such
amount pursuant to Section 1.04(c). In addition, the parties hereto agree that
$3,870,325.83 (which when added to the $129,674.77 previously distributed from
the Escrow Account aggregates $4 million) of the Escrow Amount shall be released
to the Current Owners, and the remainder of the Escrow Amount shall be released
to the Company, and the parties will direct the Escrow Agent accordingly. Xxxxx
Xxxxxxx agrees that he is not entitled to receive any portion of such payments.
Notwithstanding the foregoing, the parties hereto acknowledge and agree that the
release of the Escrow Amount shall not in any way limit the indemnification
obligations set forth in the Recapitalization Agreement. The parties hereto
acknowledge and agree that the items previously in dispute relating to the
Distribution Amount and Section 1.04 of the Recapitalization Agreement are
hereby deemed resolved and the Company shall not be entitled to any payments
relating to such items, except to the extent of its indemnification rights under
Section 8 of the Recapitalization Agreement, which indemnification rights it
hereby reserves and specifically does not waive.
15. Releases.
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(a) RA, AIM and its affiliates hereby agree to execute the release
attached hereto as Exhibit I, which release releases Xxxx Xxxxxxxxxx and Xxxxxxx
Xxxxxxx, L.L.P. from any liability in respect of the transactions contemplated
by the Recapitalization Agreement.
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(b) RA, AIM and its affiliates hereby agree to execute the release
attached hereto as Exhibit II, which release releases Xxxxxx Xxxxxxxxxx and
Xxxxx Xxxxxxx from any liability in respect of the transactions contemplated by
the Recapitalization Agreement.
(c) RA, AIM and its affiliates hereby agree to execute the release
attached hereto as Exhibit III, which release releases Xxxx, ACR Management, the
Company and their directors, officers, employees and affiliates from any
liability, other than contractual claims which RA, AIM or their affiliates may
have pursuant to the agreements which continue in force and effect after the
date of this agreement as set forth in the release.
(d) Xxxx Xxxxxxxxxx and Xxxxxxx Xxxxxxx, L.L.P. hereby agree to
execute the release attached hereto as Exhibit IV, which release releases RA,
AIM and its affiliates from any liability in respect of the transactions
contemplated by the Recapitalization Agreement.
(e) Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxxx hereby agree to execute the
release attached hereto as Exhibit V, which release releases RA, AIM and its
affiliates from any liability in respect of the transactions contemplated by the
Recapitalization Agreement.
(f) Xxxx, ACR Management and the Company hereby agree to execute the
release attached hereto as Exhibit VI, which release releases RA, AIM and its
affiliates from any liability, other than contractual claims which RA, AIM or
their affiliates may have pursuant to the agreements which continue in force and
effect after the date of this agreement as set forth in the release.
16. Non-disparagement. RA, AIM and its affiliates agree that they
-----------------
will not make any negative or disparaging statements or communications regarding
Xxxx, ACR Management, the Company or their affiliates. Xxxx, ACR Management,
the Company and their affiliates agree that they will not make any negative or
disparaging statement or communications regarding RA, AIM or its affiliates.
17. Class A Preferred Liquidity.
---------------------------
(a) The parties hereto agree that notwithstanding the provisions of
the Registration Agreement, in connection with the Company's initial public
offering of its equity securities, the Company will use its reasonable best
efforts to sell to the public all of the common stock into which the Class A
Preferred Units held by AIM are converted (which conversion will be at a value
no less than the Class A Preferred Units' Unreturned Capital and Unpaid Class A
Preferred Yield thereon), and such securities will have priority over all other
Registrable Securities in the event the underwriters require a cutback in the
offering.
(b) The parties hereto agree that, in connection with any Liquidity
Event (as defined in the Securityholders Agreement), the Class A Preferred Units
held by AIM will be sold to the purchaser in such Liquidity Event for an amount
no less than its entire Unreturned Capital and
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Unpaid Class A Preferred Yield (as such terms are defined in the limited
partnership agreement of Holdings).
18. Bank Loan Waiver. RA hereby waives any entitlement to assumption
----------------
or contribution from the Company, ACR Management or any of their affiliates
with respect to bank loans which funded real estate which was previously
contributed by RA or his affiliates to the Company.
19. Plates and Stickers. To the extent that RA, AIM or any of their
-------------------
affiliates continue to own any rights to the license to issue motor vehicle
plates and inspection stickers (and related rights), RA, AIM and their
affiliates hereby agree to transfer any such right to the licenses to the
Company and agree to cease and desist from interfering with the Company's right
to issue the plates and stickers. The Company hereby agrees to apply, on behalf
of RA, to obtain a license to issue motor vehicle plates and inspection stickers
(and related rights) for RA's motorcycle business. Upon issuance of such
license, RA will cause his affiliates to return to the Company all plates
stickers previously issued by the Company to RA or his affiliates.
20. Books and Records. The Company hereby agrees to provide RA and
-----------------
his representatives access to the Company's books and records relating to the
period prior to the date hereof upon request of RA or his representative for the
purpose of reviewing and copying such records. The Company further agrees to
permit RA or his representative access to such books and records subsequent to
the initial review at reasonable times upon reasonable notice and for reasonable
purposes. The Company agrees that RA and his representatives may copy such
records.
21. Press Releases. The parties to this letter agree that they will
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not issue any public statement regarding RA's resignation of employment with the
Company or regarding this letter without the prior written consent of the other
party hereto, except as required by law.
22. Complete Agreement. The parties hereto agree that the
------------------
Recapitalization Agreement and all other agreements entered into in connection
therewith will continue in full force and effect, except as modified by this
letter. The parties also agree that this letter supersedes all other written or
oral agreements relating to the subject matter of this letter.
23. Binding Effect. This letter agreement is binding on the parties
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hereto subject only to RA not revoking the release set forth on Exhibit III
prior to the expiration of the seven day period following RA's execution of such
release; provided that, in the event such release is revoked, the parties hereto
agree that this agreement and the releases attached hereto will cease to be in
force and effect and all monies paid to RA will be promptly returned to the
Company. Notification of revocation by RA during the seven day period must be
accomplished by hand delivered written notice of revocation to the Company at
0000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxxxx, XX, with a copy to the Company's counsel,
Xxxxx X. Learner, P.C., Xxxxxxxx & Xxxxx, 000 X. Xxxxxxxx Xxxxx, Xxxxxxx, XX
00000, before midnight of the seventh day after the execution date of such
release. No attempted revocation after the expiration of such seven day period
will have any effect on the terms of this letter agreement or such release.
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If you are in agreement with the terms of this letter, please sign in
the space provided below.
Very truly yours,
XXXXXXX XXXXX RENTAL, L.P.
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL HOLDINGS, L.P.
By_________________________
Its________________________
ACR MANAGEMENT, L.L.C.
By_________________________
Its________________________
XXXX/ACR, L.L.C.
By_________________________
Its________________________
___________________________
Xxxxx Xxxxxxx
___________________________
Xx Xxxx
___________________________
Xxxxxx Xxxxxxxxxx
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Agreed and accepted
the __ day of April, 1999:
_______________________________
XXX X. XXXXXXX
XXXXXXX IRON AND METAL COMPANY
By_____________________________
Its____________________________
XXXXXXX XXXXX RENTAL, INC.
By_____________________________
Its____________________________
XXXXXXX XXXXX RENTAL OF TEXAS, INC.
By_____________________________
Its____________________________
XXXXXXX XXXXX RENTAL OF GEORGIA, INC.
By_____________________________
Its____________________________
ACR ACQUISITIONS, INC.
By_____________________________
Its____________________________
_______________________________
XXXXXXX X. XXXXX, in his capacity as
the Current Owner Representative
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EXHIBIT I
READ CAREFULLY AND CONSULT WITH YOUR
------------------------------------
ATTORNEY BEFORE SIGNING
-----------------------
RELEASE
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1. In full consideration of the execution of this Release by the
undersigned ("Releasors"), Xxxxxxx Xxxxx Rental, L.P. and its affiliates (the
"Company") will provide Releasors with the consideration and other rights set
forth in the resignation and amendment agreement (the "Agreement") dated April
29, 1999 to which this Release is attached as Exhibit I.
2. Releasors, intending to be legally bound and for and in
consideration of the benefits described in the Agreement, do for themselves,
their heirs, executors, administrators, representatives, successors and assigns
hereby remise, release and forever discharge Xxxxxxx Xxxxxxx, L.L.P. and Xxxx
Xxxxxxxxxx and their affiliates (the "Releasees"), from any and all actions and
causes of action, claims and demands, suits, damages including liquidated
damages, attorneys' fees, expenses, debts, dues, accounts, bonds, covenants,
contracts, agreements and compensation whatsoever and from any claims for
retaliation, and from any and all other claims of any nature whatsoever against
the Releasees, whether known or unknown or whether asserted or unasserted,
arising with respect to the transactions contemplated by the Recapitalization
Agreement (as such term is defined in the Recapitalization Agreement), including
any claim for attorneys' fees and costs, from the beginning of time to the date
of the Agreement; provided, however, that in the event that Releasors
indemnifies the Company or any Purchaser Indemnitee with respect to one or more
breaches of representations and warranties pursuant to the Recapitalization
Agreement in an aggregate amount greater than $6 million, Releasors do not
release and specifically reserve their right to xxx the Releasees in the event
they or any of them knowingly caused such representations to be inaccurate, but
such right to xxx will be limited to the recovery of amounts paid by Releasors
to the Company or the Purchaser Indemnitees in excess of $6 million with respect
to such breaches of representation and warranties in the Recapitalization
Agreement.
3. Releasors certify that they have read the terms of the Agreement
and the Release, that they understand the terms and effects, and that they have
signed the Agreement and the Release voluntarily and knowingly in exchange for
the consideration described in the Agreement, which consideration Releasors
acknowledge is in addition to anything to which Releasors already are entitled
and which they acknowledge as adequate and satisfactory to them.
4. This Release shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
5. Except as provided herein, each of the provisions of this Release
is intended to be severable. If any term or provision is held to be invalid,
void or unenforceable by a court of competent jurisdiction for any reason
whatsoever, such ruling shall not effect the remainder of this Release.
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6. Releasors, intending to be legally bound, have voluntarily
executed this Release with full understanding of the contents hereof and after
having had ample time to review and study the Agreement and this Release.
Signed and executed this ____ day of April, 1999.
___________________________
XXX X. XXXXXXX
XXXXXXX IRON AND METAL COMPANY
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL, INC.
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL OF TEXAS, INC.
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL OF GEORGIA, INC.
By_________________________
Its________________________
ACR ACQUISITIONS, INC.
By_________________________
Its________________________
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EXHIBIT II
READ CAREFULLY AND CONSULT WITH YOUR
------------------------------------
ATTORNEY BEFORE SIGNING
-----------------------
RELEASE
-------
1. In full consideration of the execution of this Release by the
undersigned ("Releasors"), Xxxxxxx Xxxxx Rental, L.P. and its affiliates (the
"Company") will provide Releasors with the consideration and other rights set
forth in the resignation and amendment agreement (the "Agreement") dated April
29, 1999 to which this Release is attached as Exhibit II.
2. Releasors, intending to be legally bound and for and in
consideration of the benefits described in the Agreement, do for themselves,
their heirs, executors, administrators, representatives, successors and assigns
hereby remise, release and forever discharge Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxxxx
and their affiliates (the "Releasees"), from any and all actions and causes of
action, claims and demands, suits, damages including liquidated damages,
attorneys' fees, expenses, debts, dues, accounts, bonds, covenants, contracts,
agreements and compensation whatsoever and from any claims for retaliation, and
from any and all other claims of any nature whatsoever against the Releasees,
whether known or unknown or whether asserted or unasserted, arising with respect
to the transactions contemplated by the Recapitalization Agreement (as such term
is defined in the Recapitalization Agreement), including any claim for
attorneys' fees and costs, from the beginning of time to the date of the
Agreement; provided, however, that in the event that Releasors indemnifies the
Company or the Purchaser Indemnitees with respect to one or more breaches of
representations and warranties pursuant to the Recapitalization Agreement in an
aggregate amount greater than $6 million, Releasors do not release and
specifically reserve their right to xxx a Releasee in the event such Releasee
knowingly caused such representations to be inaccurate, but such right to xxx
will be limited to the recovery of amounts paid by Releasors to the Company or
the Purchaser Indemnitees in excess of $6 million with respect to such breaches
of representations and warranties in the Recapitalization Agreement. Releasors
specifically do not release Xxxxx Xxxxxxx with respect to any contribution
rights they may have against Xxxxx Xxxxxxx for his pro rata share of any
indemnification payments he is obligated to pay as a Current Owner pursuant to
the Recapitalization Agreement.
3. Releasors certify that they have read the terms of the Agreement
and the Release, that they understand the terms and effects, and that they have
signed the Agreement and the Release voluntarily and knowingly in exchange for
the consideration described in the Agreement, which consideration Releasors
acknowledge is in addition to anything to which Releasors already are entitled
and which they acknowledge as adequate and satisfactory to them.
4. This Release shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
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5. Except as provided herein, each of the provisions of this Release
is intended to be severable. If any term or provision is held to be invalid,
void or unenforceable by a court of competent jurisdiction for any reason
whatsoever, such ruling shall not effect the remainder of this Release.
6. Releasors, intending to be legally bound, have voluntarily
executed this Release with full understanding of the contents hereof and after
having had ample time to review and study the Agreement and this Release.
* * * * *
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Signed and executed this ____ day of April, 1999.
___________________________
XXX X. XXXXXXX
XXXXXXX IRON AND METAL COMPANY
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL, INC.
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL OF TEXAS, INC.
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL OF GEORGIA, INC.
By_________________________
Its________________________
ACR ACQUISITIONS, INC.
By_________________________
Its________________________
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EXHIBIT III
READ CAREFULLY AND CONSULT WITH YOUR
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ATTORNEY BEFORE SIGNING
-----------------------
RELEASE
-------
1. In full consideration of the execution of this Release by the
undersigned ("Releasors"), Xxxxxxx Xxxxx Rental, L.P. and its affiliates (the
"Company") will provide Releasors with the consideration and other rights set
forth in the resignation and amendment agreement (the "Agreement") dated April
29, 1999 to which this Release is attached as Exhibit III.
2. Releasors, intending to be legally bound and for and in
consideration of the benefits described in the Agreement, does for themselves,
their heirs, executors, administrators, successors and assigns hereby remise,
release and forever discharge the Company, Xxxxxxx Xxxxx Rental Holdings, L.P.,
ACR Management, L.L.C., Xxxx/ACR, L.L.C., and their successors, predecessors,
subsidiaries, affiliates, directors, members of the board of managers, officers,
agents and employees, and all persons, corporations or other entities who might
be claimed to be jointly and severally liable with them (the "Releasees"), from
any and all actions and causes of action, claims and demands, suits, damages
including back pay, front pay, employee benefits, bonuses, liquidated damages,
attorneys' fees, expenses, debts, dues, accounts, bonds, covenants, contracts,
agreements and compensation whatsoever and from any claims for retaliation, and
from any and all other claims of any nature whatsoever against the Releasees,
whether known or unknown or whether asserted or unasserted, including but not
limited to claims under the Americans with Disabilities Act of 1990 (42 U.S.C.
Section 12101 et seq.), Title VII of the Civil Rights Act of 1964 (42 U.S.C.
------
Section 2000e et seq.), the Consolidated Omnibus Budget Reconciliation Act of
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1985 (29 U.S.C. Section 1161 et seq.), and the Age Discrimination in Employment
------
Act (29 U.S.C. Section 626 et seq.), claims for breach of contract,
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discrimination, wrongful discharge, tortious interference with contract,
intentional and negligent infliction of emotional distress, fraud, conspiracy
and any other statutory or common law theories, including any claim for
attorneys' fees and costs, from the beginning of time to the date of execution
of this Release, which they or anyone claiming by, through or under them in any
way might have or could claim against the Releasees; provided that, Releasors
specifically do not release and specifically reserve all of their contractual
rights with respect to the following:
(a) the Agreement;
(b) the Securityholders Agreement;
(c) the agreement of limited partnership of Xxxxxxx Xxxxx Rental
Holdings, L.P.;
(d) the agreement of limited liability company of ACR Management,
L.L.C.; and
(e) the Registration Agreement.
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3. Releasors confirm that they have had at least twenty-one (21) day
to consider whether or not to sign this Release, it first having been presented
to Releasors on April 6, 1999. Releasors certify that they have read the terms
of the Agreement and the Release, that they understand the terms and effects,
and that they have signed the Agreement and the Release voluntarily and
knowingly in exchange for the consideration described in the Agreement, which
consideration Releasors acknowledge is in addition to anything to which
Releasors already are entitled and which they acknowledge as adequate and
satisfactory to them.
4. Releasors acknowledge that they understand they may revoke their
agreement to this release if they do so within 7 days of executing it and that
this release is not effective until that 7 day period has expired.
5. This Release shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
6. Except as provided herein, each of the provisions of this Release
is intended to be severable. If any term or provision is held to be invalid,
void or unenforceable by a court of competent jurisdiction for any reason
whatsoever, such ruling shall not effect the remainder of this Release.
7. Releasors, intending to be legally bound, have voluntarily
executed this Release with full understanding of the contents hereof and after
having had ample time to review and study the Agreement and this Release.
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Signed and executed this ____ day of April, 1999.
___________________________
XXX X. XXXXXXX
XXXXXXX IRON AND METAL COMPANY
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL, INC.
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL OF TEXAS, INC.
By_________________________
Its________________________
XXXXXXX XXXXX RENTAL OF GEORGIA, INC.
By_________________________
Its________________________
ACR ACQUISITIONS, INC.
By_________________________
Its________________________
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EXHIBIT IV
READ CAREFULLY AND CONSULT WITH YOUR
------------------------------------
ATTORNEY BEFORE SIGNING
-----------------------
RELEASE
-------
1. In full consideration of the execution of this Release by the
undersigned (the "Releasors"), Xxx X. Xxxxxxx, Xxxxxxx Iron and Metal Company,
Xxxxxxx Xxxxx Rental, Inc., Xxxxxxx Xxxxx Rental of Texas, Inc., Xxxxxxx Xxxxx
Rental of Georgia, Inc., ACR Acquisitions, Inc. and their affiliates
("Releasees") will provide the Releasors with the consideration and other rights
set forth in the resignation and amendment agreement (the "Agreement") dated
April 29, 1999 to which this Release is attached as Exhibit IV.
2. The Releasors, intending to be legally bound and for and in
consideration of the benefits described in the Agreement, do for themselves,
their heirs, executors, administrators, representatives, successors and assigns
hereby remise, release and forever discharge Releasees or other entities who
might be claimed to be jointly and severally liable with them (the "Releasees"),
from any and all actions and causes of action, claims and demands, suits,
damages including liquidated damages, attorneys' fees, expenses, debts, dues,
accounts, bonds, covenants, contracts, agreements and compensation whatsoever
and from any claims for retaliation, and from any and all other claims of any
nature whatsoever against the Releasees, whether known or unknown or whether
asserted or unasserted, arising with respect to the transactions contemplated by
the Recapitalization Agreement (as such term is defined in the Agreement), or in
any way related to their employment by or services rendered on behalf of any
entity in which Xxx Xxxxxxx engaged an ownership interest or any employment by
or services rendered on behalf of Xxx Xxxxxxx, including any claim for
attorneys' fees and costs, from the beginning of time to the date of the
Agreement.
3. The Releasors certify that they have read the terms of the
Agreement and the Release, that they understand the terms and effects, and that
they have signed the Agreement and the Release voluntarily and knowingly in
exchange for the consideration described in the Agreement, which consideration
the Releasors acknowledge is in addition to anything to which the Releasors
already are entitled and which they acknowledge as adequate and satisfactory to
them.
4. This Release shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
5. Except as provided herein, each of the provisions of this Release
is intended to be severable. If any term or provision is held to be invalid,
void or unenforceable by a court of competent jurisdiction for any reason
whatsoever, such ruling shall not effect the remainder of this Release.
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6. The Releasors, intending to be legally bound, have voluntarily
executed this Release with full understanding of the contents hereof and after
having had ample time to review and study the Agreement and this Release.
Signed and executed this ____ day of April, 1999.
XXXXXXX XXXXXXX, L.L.P.
By________________________
Its_______________________
__________________________
XXXX XXXXXXXXXX
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EXHIBIT V
READ CAREFULLY AND CONSULT WITH YOUR
------------------------------------
ATTORNEY BEFORE SIGNING
-----------------------
RELEASE
-------
1. In full consideration of the execution of this Release by the
undersigned (the "Releasors"), Xxx X. Xxxxxxx, Xxxxxxx Iron and Metal Company,
Xxxxxxx Xxxxx Rental, Inc., Xxxxxxx Xxxxx Rental of Texas, Inc., Xxxxxxx Xxxxx
of Georgia, Inc., ACR Acquisition, Inc. and their affiliates ("Releasees") will
provide the Releasors with the consideration and other rights set forth in the
resignation and amendment agreement (the "Agreement") dated April 29, 1999 to
which this Release is attached as Exhibit V.
2. The Releasors, intending to be legally bound and for and in
consideration of the benefits described in the Agreement, do for themselves,
their heirs, executors, administrators, representatives, successors and assigns
hereby remise, release and forever discharge Releasees or other entities who
might be claimed to be jointly and severally liable with them (the "Releasees"),
from any and all actions and causes of action, claims and demands, suits,
damages including liquidated damages, attorneys' fees, expenses, debts, dues,
accounts, bonds, covenants, contracts, agreements and compensation whatsoever
and from any claims for retaliation, and from any and all other claims of any
nature whatsoever against the Releasees, whether known or unknown or whether
asserted or unasserted, arising with respect to the transactions contemplated by
the Recapitalization Agreement (as such term is defined in the Agreement), or
in any way related to their employment by or services rendered on behalf of any
entity in which Xxx Xxxxxxx engaged an ownership interest or any employment by
or services rendered on behalf of Xxx Xxxxxxx, including any claim for
attorneys' fees and costs, from the beginning of time to the date of the
Agreement. In addition, Xxxxx Xxxxxxx does not release the Releasees with
respect to any contribution rights he may have against the Releasees for their
pro rata share of any indemnification payments they are obligated to pay as
Current Owners pursuant to the Recapitalization Agreement.
3. The Releasors certify that they have read the terms of the
Agreement and the Release, that they understand the terms and effects, and that
they have signed the Agreement and the Release voluntarily and knowingly in
exchange for the consideration described in the Agreement, which consideration
Releasees acknowledge is in addition to anything to which the Releasors already
are entitled and which they acknowledge as adequate and satisfactory to them.
4. This Release shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
5. Except as provided herein, each of the provisions of this Release
is intended to be severable. If any term or provision is held to be invalid,
void or unenforceable by a court of competent jurisdiction for any reason
whatsoever, such ruling shall not effect the remainder of this Release.
-19-
6. The Releasors, intending to be legally bound, have voluntarily
executed this Release with full understanding of the contents hereof and after
having had ample time to review and study the Agreement and this Release.
Signed and executed this ____ day of April, 1999.
__________________________
XXXXXX XXXXXXXXXX
___________________________
XXXXX XXXXXXX
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EXHIBIT VI
READ CAREFULLY AND CONSULT WITH YOUR
------------------------------------
ATTORNEY BEFORE SIGNING
-----------------------
RELEASE
-------
1. In full consideration of the execution of this Release by the
undersigned ("ACR"), Xxx X. Xxxxxxx, Xxxxxxx Iron and Metal Company and their
affiliates ("Releasees") will provide ACR with the consideration and other
rights set forth in the resignation and amendment agreement (the "Agreement")
dated April 29, 1999 to which this Release is attached as Exhibit VI.
2. ACR, intending to be legally bound and for and in consideration of
the benefits described in the Agreement, does for himself his heirs, executors,
administrators, representatives, successors and assigns hereby remise, release
and forever discharge Xxx X. Xxxxxxx, Xxxxxxx Iron and Metal Company and their
successors, predecessors, subsidiaries, affiliates, directors, officers, agents
and employees, and all persons, corporations or other entities who might be
claimed to be jointly and severally liable with them (the "Releasees"), from any
and all actions and causes of action, claims and demands, suits, damages
including back pay, front pay, employee benefits, bonuses, liquidated damages,
attorneys' fees, expenses, debts, dues, accounts, bonds, covenants, contracts,
agreements and compensation whatsoever and from any claims for retaliation, and
from any and all other claims of any nature whatsoever against the Releasees,
whether known or unknown or whether asserted or unasserted, including any claim
for attorneys' fees and costs, from the beginning of time to the date of
execution of this Release, which he or anyone claiming by, through or under him
in any way might have or could claim against the Releasees; provided that, ACR
specifically does not release and specifically reserves all of his rights with
respect to the following:
(a) the Agreement;
(b) the Recapitalization Agreement;
(c) the Securityholders Agreement;
(d) the agreement of limited partnership of Xxxxxxx Xxxxx Rental
Holdings, L.P.;
(e) the agreement of limited liability company of ACR Management,
L.L.C.;
(f) the Registration Agreement; and
(g) the Employment Agreement.
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3. ACR certifies that they have read the terms of the Agreement and
the Release, that they understand the terms and effects, and that they have
signed the Agreement and the Release voluntarily and knowingly in exchange for
the consideration described in the Agreement, which consideration ACR
acknowledges is in addition to anything to which ACR already is entitled and
which they acknowledge as adequate and satisfactory to them.
4. This Release shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
5. Except as provided herein, each of the provisions of this Release
is intended to be severable. If any term or provision is held to be invalid,
void or unenforceable by a court of competent jurisdiction for any reason
whatsoever, such ruling shall not effect the remainder of this Release.
6. ACR, intending to be legally bound, have voluntarily executed this
Release with full understanding of the contents hereof and after having had
ample time to review and study the Agreement and this Release.
Signed and executed this ____ day of April, 1999.
XXXXXXX XXXXX RENTAL, L.P.
By__________________________
Its_________________________
XXXXXXX XXXXX RENTAL HOLDINGS, L.P.
By__________________________
Its_________________________
ACR MANAGEMENT, L.L.C.
By__________________________
Its_________________________
XXXX/ACR, L.L.C.
By__________________________
Its_________________________
-22-
