1
Exhibit 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
as of June 15, 1998 by and between XXX Xxxxxxxxxxx, Inc., a Delaware
corporation ("EVI" or the "Company"), and Xxxxxx Xxxxxxxxxx, an individual
currently residing in Houston, Texas ("Xxxxxxxxxx").
RECITALS:
WHEREAS, prior to the date of this Agreement, Xxxxxxxxxx has been
employed by the Company pursuant to an Employment Agreement dated October 17,
1996, between Xxxxxxxxxx and Xxxxxxxxxxx Enterra, Inc., a predecessor to EVI
(the "Prior Agreement"); and
WHEREAS, the Prior Agreement has been terminated by Xxxxxxxxxx in
accordance with its terms and the Company and Xxxxxxxxxx wish to enter into a
new employment contract on the terms and conditions set forth;
NOW, THEREFORE, for and in consideration of the premises and the
respective covenants and agreements of the parties herein contained, the
Company and Xxxxxxxxxx hereby agree as follows:
ARTICLE 1
EMPLOYMENT
The Company hereby agrees to employ Xxxxxxxxxx, and Xxxxxxxxxx hereby
agrees to serve the Company, on the terms and conditions set forth herein.
ARTICLE 2
TERM
The term of this Agreement shall commence as of June 15, 1998 (the
"Effective Date"), and shall continue through September 30, 2008, unless sooner
terminated as hereinafter provided (the "Scheduled Term").
ARTICLE 3
POSITION AND DUTIES
3.1 Xxxxxxxxxx shall initially be employed as Chairman Emeritus of
the Board of Directors of the Company (the "Board") and shall have such
responsibilities, duties and authority reasonably accorded to and expected of a
Chairman Emeritus and as may from time to time be prescribed by the Chief
Executive Officer of the Company pursuant to the Company's bylaws. The parties
expressly agree that the Company is under no obligation to reelect Xxxxxxxxxx
as Chairman
1
2
Emeritus at any time in the future, nor is the Board required to nominate
Xxxxxxxxxx for reelection as a director upon the expiration of his current
term. Should Xxxxxxxxxx cease to be Chairman Emeritus, the Board or the Chief
Executive Officer of the Company may assign to him such other responsibilities,
duties and authority as are deemed appropriate by the Board or the Chief
Executive Officer consistent with those responsibilities currently assigned to
Xxxxxxxxxx as an executive officer of the Company.
3.2 During the term of his employment, and excluding any periods
of vacation and sick leave to which Xxxxxxxxxx is entitled, Xxxxxxxxxx shall
devote such time and efforts to the business and affairs of the Company as
shall be necessary to discharge his responsibilities and duties; provided,
however, that Xxxxxxxxxx shall be permitted to engage from time to time in and
to receive compensation for outside business activities, including the
management of businesses and investments that are not related to the business
and affairs of the Company to the extent such activities do not significantly
interfere with the performance of Xxxxxxxxxx' responsibilities to the Company
in accordance with this Agreement and do not cause Xxxxxxxxxx to be in
violation of Article 6 of this Agreement.
ARTICLE 4
COMPENSATION AND RELATED MATTERS
4.1 Salary. During the term of employment set forth in Article 2,
the Company shall pay to Xxxxxxxxxx an annual base salary of $120,000, or such
higher rate as may from time to time be determined by the Company, the base
salary to be paid in substantially equal semi-monthly installments.
4.2 Benefits. During the term of this Agreement, Xxxxxxxxxx shall
be eligible for the benefit plans and programs enumerated below:
(a) Xxxxxxxxxx shall be entitled to continue his participation in
the Company's 401(k) Savings Plan as, and to the extent, such
plan is in effect from time to time during the term of this
Agreement.
(b) Xxxxxxxxxx and Xxxxxxxxxx' eligible dependents shall be
entitled to continue to participate and shall receive all
benefits under the Company's welfare benefit plans, including,
without limitation, medical, prescription, dental, disability,
salary continuance, group life, accidental death and travel
accident insurance plans and programs, as, and to the extent
such plans and programs are, in effect from time to time
during the term of this Agreement; provided, however, that
Xxxxxxxxxx shall pay any premiums or other amounts required to
be paid for such benefits. Upon termination of Xxxxxxxxxx'
employment, he shall be entitled to health benefits pursuant
to the Consolidated Omnibus Budget Reconciliation Act
("COBRA"), provided that he shall pay any premiums owed in
connection with such health
2
3
benefits. After expiration of the COBRA benefits, Xxxxxxxxxx
shall be entitled to convert the Company's health plan, as it
relates to Xxxxxxxxxx and any eligible dependents, to an
individual policy, upon payment of the applicable conversion
fee.
(c) Xxxxxxxxxx shall be entitled to a Company telephone calling
card, a Company corporate American Express card, but only to
the extent this perquisite is afforded to other key employees
of the Company and reimbursement for his expenses related to
one mobile telephone.
(d) Xxxxxxxxxx shall be eligible to receive annual bonuses and to
participate in the Company's stock option plans that are
available to the Company's key employees.
4.3 Vacation. Xxxxxxxxxx shall be entitled to paid vacation
during each year of the Agreement, determined in accordance with the Company's
then current vacation policy. Xxxxxxxxxx shall also be entitled to all paid
holidays given by the Company to its employees.
4.4 Business Expenses. During the term of this Agreement, the
Company will reimburse Xxxxxxxxxx for authorized business expenses incurred by
Xxxxxxxxxx for Company-related business purposes, including expenses for
entertainment and business development, travel and similar items, provided such
expenses are made in accordance with the Company's policies and procedures and
are approved by the Company. The Company will reimburse Xxxxxxxxxx on a
monthly basis upon presentment by Xxxxxxxxxx of an itemized accounting of such
expenditures, including receipts setting forth (in appropriate detail the date
place, amount, names, etc.) the individual items for which reimbursement is
sought. Major expense items, such as travel, must be authorized by the Company
prior to Xxxxxxxxxx' incurring the expense.
4.5 Office and Support Staff. The Company contemplates that
Xxxxxxxxxx in performing under this Agreement may require office space,
secretarial assistance, telephone usage, facsimile, computer and other office
equipment usage and other assistance. During the term of this Agreement, the
Company shall, if requested by Xxxxxxxxxx, furnish Xxxxxxxxxx with office
space, either in one of the Company's locations or elsewhere, and supply
Xxxxxxxxxx' reasonable requirements pursuant to the terms of this Agreement, at
no expense to Xxxxxxxxxx.
ARTICLE 5
TERMINATION
5.1 Termination by the Company.
(a) Termination Due to Disability. Xxxxxxxxxx' employment
hereunder shall terminate upon his "Disability". In the event
of such termination, the Company shall (i) continue to pay to
Xxxxxxxxxx the compensation pursuant to Section 4.1 to which
he would otherwise be entitled had his employment continued
through the date indicated
3
4
in Article 2 hereof, in the same manner as paid while
Xxxxxxxxxx was employed, (ii) extend to Xxxxxxxxxx the
benefits pursuant to Section 4.2(b) in accordance with the
Company's policy with respect to Disability and the Company
shall be entitled to credit against any such benefits payable
by it any amount paid to Xxxxxxxxxx under the Company's
disability benefit programs provided for the benefit of
Xxxxxxxxxx. For purposes of this Agreement, "Disability" is
defined to mean that, as a result of Xxxxxxxxxx' incapacity
due to physical or mental illness, Xxxxxxxxxx shall have been
absent from his duties with the Company on a full-time basis
for a period of one year and a physician acceptable to the
Company is of the opinion that (i) Xxxxxxxxxx is suffering
from "total disability" as defined in the Company's long-term
disability plan, or any successor plan or program or (ii)
Xxxxxxxxxx will qualify for a social security disability
payment, and (iii) within thirty (30) days after written
notice of termination is given, Xxxxxxxxxx shall not have
returned to the full-time performance of Xxxxxxxxxx' duties.
(b) Termination Due to Death. Xxxxxxxxxx' employment hereunder
shall terminate upon his death. In the event of such
termination, the Company shall (i) continue to pay to
Xxxxxxxxxx' estate the compensation pursuant to Section 4.1 to
which he would otherwise be entitled had his employment
continued through the date indicated in Article 2 hereof, in
the same manner as paid while Xxxxxxxxxx was employed, and
(ii) extend to Xxxxxxxxxx' eligible dependents or estate, as
appropriate, the benefits pursuant to Section 4.2(b) in
accordance with the Company's policy with respect to death.
(c) Termination Without Cause. The Company, without cause, may
terminate this Agreement at any time by written notice to
Xxxxxxxxxx. In the event of such termination, the Company
shall continue to pay Xxxxxxxxxx the compensation pursuant to
Section 4.1 and extend to Xxxxxxxxxx the benefits pursuant to
Section 4.2(b) except for long-term disability to which he
would otherwise be entitled had his employment continued
through the date indicated in Article 2 hereof in the same
manner as paid or extended while Xxxxxxxxxx was employed.
(d) Termination for Cause. The Company may terminate Xxxxxxxxxx'
employment for "Cause". In the event of such termination, the
Company shall cease paying Xxxxxxxxxx compensation pursuant to
Section 4.1 and shall terminate benefits pursuant to Sections
4.2, 4.3. 4.4 and 4.5, except as required by law. For
purposes of this Agreement, the Company shall have "Cause" to
terminate Xxxxxxxxxx' employment hereunder only (i) if
termination shall have been the result of an act or acts of
dishonesty on Xxxxxxxxxx' part constituting a felony and
resulting, or intending to result, directly or indirectly, in
gain or personal enrichment at the expense of the Company, or
(ii) upon the willful and continued failure by Xxxxxxxxxx to
substantially perform his duties with the Company (other than
any such failure resulting from his incapacity due to mental
or physical illness) after demand in
4
5
writing for substantial performance is delivered to Xxxxxxxxxx
by the Board, which demand specifically identifies the manner
in which the Board believes that Xxxxxxxxxx has not
substantially performed his duties, and such failure to
perform his duties results in demonstrably material injury to
the Company, or (iii) upon the breach by Xxxxxxxxxx of Article
6, which breach remains uncorrected for 30 days following
written notice to Xxxxxxxxxx by the Company of such breach.
Xxxxxxxxxx' employment shall in no event be considered to have
been terminated by the Company for cause if such termination
took place as a result of (i) bad judgment or negligence on
his part, or (ii) any act or omission without intent of
gaining therefrom, directly or indirectly, a profit to which
Xxxxxxxxxx was not legally entitled, or (iii) any act or
omission believed by Xxxxxxxxxx in good faith to have been in
or not opposed to the interests of the Company, or (iv) any
act or omission in respect of which a determination is made
that Xxxxxxxxxx met the applicable standard of conduct
prescribed for indemnification or reimbursement or payment of
expenses under the bylaws of the Company or the laws of the
State of Texas or the directors and officers liability
insurance of the Company, in each case as in effect at the
time of such act or omission. Xxxxxxxxxx shall not be deemed
to have been terminated for cause unless and until there shall
have been delivered to Xxxxxxxxxx a copy of a resolution duly
adopted by the affirmative vote of not less than three-fourths
(3/4) of the entire membership of the Board at a meeting of
the Board called and held for the purpose (after reasonable
notice to Xxxxxxxxxx and an opportunity for Xxxxxxxxxx,
together with his counsel, to be heard before the Board)
finding that in the good faith of the Board he was guilty of
conduct set forth above in clauses (i) through (iii) of the
first sentence of this paragraph and specifying the
particulars thereof in detail.
5.2 Termination by Xxxxxxxxxx. Xxxxxxxxxx may terminate his
employment hereunder without any breach of this Agreement under any of the
following circumstances:
(a) the assignment to Xxxxxxxxxx of duties inconsistent with the
position, duties, responsibilities and status of an executive
of the Company; or
(b) the Company's breach of any provision of this Agreement which,
if correctable, remains uncorrected for 30 days following
written notice to the Company by Xxxxxxxxxx of such breach..
5.3 Date and Effect of Termination. "Date of Termination" shall
mean (i) if Xxxxxxxxxx' employment is terminated by his death, the date of his
death, (ii) if Xxxxxxxxxx' employment is involuntarily terminated pursuant to
Section 5.1(c) (other than by reason of death) or Section 5.1(d) herein, the
date specified in the notice of termination, (iii) if Xxxxxxxxxx' employment is
terminated upon his Disability, the date 30 days after the Company's notice to
Xxxxxxxxxx as contemplated in Section 5.1(a) hereof, and (iv) if Xxxxxxxxxx
voluntarily terminates his employment, the date set forth in any notice to
terminate under Section 5.2. This Agreement shall terminate on the Date of
Termination relating to a termination pursuant to Sections 5.1(a), 5.1(b),
5.1(c) or 5.2 and thereafter
5
6
neither party will have any liability or obligation to the other under this
Agreement, except for the covenants in Sections 5.1(a), 5.1(b), 5.1(c) and 6.
ARTICLE 6
NON-COMPETE
In consideration of his employment and payments hereunder and in view
of the key position in which he has previously served and is expected to serve
the Company, Xxxxxxxxxx agrees that from the date hereof through the Scheduled
Term, he will not, without the prior written consent of the Board of Directors
of the Company, directly or indirectly, own, manage, operate, control, be
employed by, participate in or be connected in any manner with the ownership,
management, operation or control of any business which competes, in the
Company's reasonable judgment, with any business conducted by the Company or
any of its subsidiaries or affiliates at the time of such termination in any
area where such business is being conducted at the time of such termination.
In addition, Xxxxxxxxxx agrees that from the date hereof through the Scheduled
Term, he will not solicit for employment any individuals currently or then
employed by the Company or any of its subsidiaries or affiliates. Breach by
Xxxxxxxxxx of this covenant while he is employed by the Company shall be deemed
to be "Cause", as defined in Section 5.1(d).
ARTICLE 7
MISCELLANEOUS
7.1 No Mitigation Required; Other Employment.
(a) If Xxxxxxxxxx' employment is terminated prior to the date
indicated in Article 2 and he is receiving compensation and
benefits hereunder, he shall not be required to mitigate the
amount of any payment or benefit provided for in Sections 4.1
or 4.2 by seeking other employment or otherwise.
(b) If Xxxxxxxxxx' employment is terminated for any reason other
than Cause and Xxxxxxxxxx obtains other employment that would
not be a breach of the non-compete covenant included in
Article 6 if he were still employed, the Company shall
continue paying the compensation owed pursuant to Section 4.1
without reduction by any compensation earned by Xxxxxxxxxx as
a result of employment by another employer after the date of
termination, or otherwise. The benefits provided for in
Section 4.2 shall terminate immediately, except as required by
law.
7.2 Existing Agreement. The parties agree that the Existing
Agreement has been terminated pursuant to the terms thereof and that neither
Xxxxxxxxxx nor the Company has any further obligation or liability thereunder.
6
7
7.3 Successors; Binding Agreement. The Company will require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance reasonably satisfactory to
Xxxxxxxxxx, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any succession shall be a breach of
this Agreement and shall entitle Xxxxxxxxxx to compensation from the Company in
the same amount and on the same terms as if he had terminated his employment
pursuant to Section 5.2, except that for purposes of implementing the
foregoing, the date on which each such succession become effective shall be the
Date of Termination. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor to its business and/or assets
as aforesaid which executes and delivers the agreement provided for in this
Section 7.3 or which otherwise becomes bound by all of the terms and provisions
of this Agreement by operation of law. This Agreement and all rights of
Xxxxxxxxxx hereunder shall inure to the benefit of and be enforceable by
Xxxxxxxxxx' personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Xxxxxxxxxx should
die while any amounts would still be payable to him hereunder if he continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Xxxxxxxxxx' designated
beneficiaries set forth in a written beneficiary designation filed with the
Company or, if there be no such designated beneficiary, to Xxxxxxxxxx' estate.
7.4 Notices. For purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company to: 0 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: General Counsel
If to Xxxxxxxxxx to: 0000 Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
7.5 Applicable Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
Texas without regard to the conflict of law principles thereof.
7.6 Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing, signed by Xxxxxxxxxx and such officer of the Company as may be
specifically designated by the Board. No waiver by either party
7
8
hereto at any time of any breach by the other party hereto of or compliance
with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same time or any prior or subsequent time.
7.7 Validity. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provisions of this Agreement, which shall remain in full force and
effect.
7.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
7.9 Entire Agreement. This Agreement, together with any exhibits
hereto, constitutes, the entire agreement of the parties with regard to the
subject matter hereof, and contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to
the employment of Xxxxxxxxxx by the Company. Each party to this Agreement
acknowledges that no representation, inducement, promise or agreement, oral or
written, has been made by either party or by anyone acting on behalf of either
party which is not embodied herein, and that no agreement, statement or promise
relating to the employment of Xxxxxxxxxx by the Company, which is not contained
in this Agreement shall be valid or binding. Any modification or amendment of
this Agreement will be effective only if it is in writing and signed by each of
the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
XXX XXXXXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------------------------------
/s/ Xxxxxx Xxxxxxxxxx
-------------------------------------------------------------
Xxxxxx Xxxxxxxxxx
8
