Exhibit 99.4
EMPLOYMENT AGREEMENT
This Agreement is made and entered into effective as of February 3,
1997, by and between Primeco Inc., a Texas corporation ("Employer"), and
Xxxxxxx X. Xxxxxxxxxx ("Employee").
Employer hereby agrees to employ Employee, and Employee hereby accepts
such employment, on the terms and conditions hereinafter set forth.
1. PERIOD OF EMPLOYMENT. The period of Employee's employment under
this Agreement (the "Period of Employment") shall commence on the date hereof
(the "Effective Date") and shall expire on December 31, 1999 (the "Expiration
Date"), subject to any extension as may be agreed or any earlier termination
of Employee's employment as provided in Section 6 hereof. Upon the
expiration of the initial term of this Agreement, and each subsequent term or
extension thereof, this Agreement shall automatically be extended for an
additional term of one year, unless the Employer or the Employee shall have
notified the other party hereto of its election to terminate this Agreement
not later than 90 days prior to the scheduled Expiration Date. If Employee's
employment is terminated pursuant to Section 6 hereof, the Period of
Employment shall expire as of the Date of Termination (as hereinafter
defined).
2. DUTIES. During the Period of Employment, Employee will faithfully
perform those duties and responsibilities assigned by the Board of Directors
of the corporate parent ("Parent") of Employer (the "Board") or the Chief
Executive Officer of Employer and Employee will devote his full working time
and use his best efforts to advance the business and welfare of Employer in
furtherance of the policies established by the Board. During the Period of
Employment, Employee shall not engage in any other employment activities for
any direct or indirect remuneration without the concurrence of the Board,
except that Employee may continue to devote reasonable time to the management
of investments and to participation in community and charitable affairs, so
long as such activities do not interfere with his duties under this
Agreement. Employee shall have such title as the Board shall determine from
time to time; Employee's initial title is set forth on Exhibit A hereto.
3. COMPENSATION.
3.1. BASE SALARY. During the Period of Employment, Employer shall pay
Employee a Base Salary at the rate of $140,000 per annum payable at least as
frequently as bi-weekly and subject to payroll deductions as may be necessary
or customary in respect of Employer's salaried employees in general. The
amount of Employee's Base Salary shall be subject to annual review by the
Board, provided that the level of such Base Salary shall not be subject to
reduction.
3.2. INCENTIVE COMPENSATION. In addition to the Base Salary provided
for in Section 3.1 hereof, Employee shall be entitled to annual cash bonuses
as set forth on Exhibit B hereto. Notwithstanding the foregoing, Employee's
bonus payment, if any, for fiscal 1997 shall be based upon achievement of the
applicable targets by Employer for the entire fiscal year, but the amount of
such bonus payment shall be prorated in accordance with the number of days
during the 1997 fiscal year that Employee was employed hereunder. Employer
agrees that it will not amend or modify Exhibit B in any manner materially
adverse to Employee's interest thereunder without Employee's written consent.
4. BENEFITS. During the Period of Employment, Employee shall be
entitled to participate in all fringe benefit programs maintained by Employer
that are available to its executive officers generally. Any payments or
benefits payable to Employee hereunder under any such fringe benefit programs
in respect of any calendar year during which Employee is employed by Employer
for less than the entire year shall, unless otherwise provided in the
applicable plan or arrangement, be prorated in accordance with the number of
days in such calendar year during which he is so employed. Employee
acknowledges that he shall have no vested rights under or to participate in
any such program except as expressly provided under the terms hereof or
thereof.
5. EXPENSES. Employer will pay or reimburse Employee for such
reasonable travel, entertainment or other expenses as he may incur on behalf
of Employer during the Period of Employment in connection with the
performance of his duties hereunder but only to the extent that such expenses
were either specifically authorized by Employer or incurred in accordance
with policies established by the Board and provided that Employee shall
furnish Employer with such evidence relating to such expenses as Employer may
reasonably require to substantiate such expenses for tax purposes.
6. TERMINATION OF EMPLOYMENT.
6.1. CIRCUMSTANCES OF TERMINATION. Notwithstanding the terms set forth
in Section 1 hereof, Employee's employment shall terminate under any of the
following circumstances:
(A) DEATH. In the event of Employee's death.
(B) PERMANENT DISABILITY. If during the Period of Employment Employee
becomes physically or mentally incapacitated or disabled so that (i) he is
unable to perform for Employer substantially the same services as he
performed prior to incurring such incapacity or disability or to devote his
full working time or use his best efforts to advance the business and welfare
of Employer or otherwise to perform his duties under this Agreement and (ii)
such condition exists for an aggregate of six months in any 12 consecutive
calendar month period (Employer, at its option and expense, being entitled to
retain a physician reasonably acceptable to Employee to confirm the existence
of such incapacity or disability, and the determination of such physician
being binding upon Employer and Employee).
(C) CAUSE. At the option of Employer, because Employee: (i) has been
convicted of, or has pled guilty or nolo contendere to, a felony or a crime
involving moral turpitude, or (ii) has embezzled or misappropriated Employer
funds or property, or (iii) has continued use of alcohol or drugs to an
extent that interferes with the performance by Employee of his employment
responsibilities, or (iv) has violated Section 8.1, Section 8.2, Section 8.3
or Section 8.4 hereof, or (v) has willfully failed or refused to perform
those duties reasonably assigned or delegated to him by the Board or the
Chief Executive Officer, which failure or refusal continues following (a) the
Board giving the Employee written notice setting forth the facts or events
constituting such failure or refusal and (b) a reasonable opportunity to
correct the deficiencies or other problems specified in such notice to the
reasonable satisfaction of the Board.
(D) NOT FOR CAUSE. At the option of Employer at any time for any
reason other than those referred to above or for no reason at all, whereupon
the Employer shall become obligated to make those payments set forth in
Section 7.1(d) hereof.
6.2. NOTICE OF TERMINATION. Any termination of Employee's employment by
Employer (other than termination pursuant to Section 6.1(a) hereof) or by
Employee shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 9.2. For purposes of this Agreement,
a "Notice of Termination" shall mean a notice terminating Employee's
employment by Employer. If a Notice of Termination is given by Employer,
such notice shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances that provide a basis for termination of Employee's employment
under the provision so indicated. For purposes of this Agreement, the "Date
of Termination" shall be the date on which the Notice of Termination is
delivered except that with respect to Section 6.1(a) the "Date of
Termination" shall be the date of Employee's death.
7. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
7.1 PAYMENTS. In the event that Employee's employment is terminated
prior to the Expiration Date (including any extension thereof), the Period of
Employment shall expire as of the Date of Termination.
(a) If Employer terminates Employee's employment for Cause or if
Employee voluntarily terminates his employment, Employer's obligation to
compensate Employee shall in all respects cease as of the Date of
Termination, except that Employer shall pay Employee the Base Salary accrued
under Section 3 and the
reimbursable expenses incurred under Section 5 of this Agreement up to such
Date of Termination (the "Accrued Obligations");
(b) If Employee's employment is terminated upon the death of Employee,
Employer's obligation to compensate Employee shall in all respects cease as
of the Date of Termination, except that within thirty (30) days after the
Date of Termination Employer shall (i) pay Employee's estate or legal
representative the Accrued Obligations and a lump sum payment equal to 25% of
the Employee's annual Base Salary payable under Section 3 hereof at the rate
in effect immediately prior to such termination and (ii) continue to maintain
during the three-month period following the Date of Termination for the
benefit of the Employee's dependents, basic health and dental insurance and
related medical expenses coverage on terms no less favorable to the Employee
than Employer provides to its executive officers generally, as such benefits
may be modified from time to time during such period;
(c) If Employee's employment is terminated upon the Permanent
Disability of Employee, Employer's obligation to compensate Employee shall in
all respects cease as of the Date of Termination, except that within thirty
(30) days after the Date of Termination Employer shall (i) pay Employee
Accrued Obligations and a lump sum payment equal to 50% of the Employee's
annual Base Salary payable under Section 3 hereof at the rate in effect
immediately prior to such termination less the amount of any disability
payments payable to Employee during the six-month period following the Date
of Termination pursuant to any Employer-paid or state sponsored insurance
policy or employer self-insured program and (ii) continue to maintain during
the six-month period following the Date of Termination for the benefit of
Employee and his dependents, basic health, disability and dental insurance
and related medical expenses coverage on terms no less favorable to the
Employee than Employer provides to its executive officers generally, as such
benefits may be modified from time to time during such period provided that
the Employee shall continue to be obligated to make any contributions or
payments in connection with such benefits to the same extent as other
executive officers generally; and
(d) If Employee's employment is terminated by Employer pursuant to
Section 6.1(d), Employer's obligation to compensate Employee shall in all
respects cease, except that within thirty (30) days after the Date of
Termination Employer shall pay to Employee the Accrued Obligations and during
the period ending on the earlier of the Expiration Date or the first
anniversary of the Date of Termination (the "Severance Period"), Employer
shall (i) pay to Employee on a monthly basis the sum of one-twelfth (1/12th)
of the annual Base Salary of Employee in effect at the Date of Termination
(the "Continuation Payments") and (ii) continue to maintain, during the
Severance Period for the benefit of the Employee and his dependents, basic
health, dental and life insurance and related medical expenses coverage
(including disability and hospitalization coverage) (the "Continuation
Benefits") on terms no less favorable to the Employee than the Employer
provides to its executive officers generally, as such benefits may be
modified from time to time during the Severance Period. During the Severance
Period, Employee shall be required to make any contributions required to
maintain such Continuation Benefits, which may be withheld from the
Continuation Payments; provided that such contributions are also required to
be made by the Employer's executive officers generally. If at any time
during the Severance Period Employee shall obtain employment with a third
party (the "Substitute Employer") in which Employee is entitled to receive
basic health benefits in connection with such employment on terms provided by
the Substitute Employer to its similarly situated employees generally, the
Employer shall no longer be required to provide Continuation Benefits to the
Employee, regardless of whether such benefits differ in any respect from the
Continuation Benefits. The Employer shall be excused from its obligations to
make payments under this Section 7.1(d) if the Employee breaches its
obligations hereunder (including its obligations under Article 8 hereof).
7.2. RELEASE AND SATISFACTION. With respect to Employee, his heirs,
successors and assigns, payment by Employer of the amounts provided under
this Section 7 shall release, relinquish and forever discharge Employer and
any director, officer, employee, shareholder or agent of Employer from any
and all claims, damages, losses, costs, expenses, liabilities or obligations,
whether known or unknown (other than any such claims, damages, losses, costs,
expenses, liabilities or obligations (a) covered by any indemnification
arrangement of Employer with respect to Employee or (b) arising under any
written employee benefit plan or arrangement (whether or not tax-qualified)
covering Employee), which Employee has incurred or suffered or may incur or
suffer as a result of Employee's employment by Employer or the termination of
such employment.
7.3 EFFECT ON THIS AGREEMENT. Any termination of Employee's employment
and any expiration of the Period of Employment under this Agreement shall not
affect the continuing operation and effect of Sections 7.2, 8.1, 8.2, 8.3,
8.4 and 8.5 hereof, which shall continue in full force and effect with
respect to Employer and Employee, and its and his heirs, successors and
assigns. Nothing in Section 7.1 hereof shall be deemed to operate or shall
operate as a release, settlement or discharge of any liability of Employee to
Employer or others from any action or omission by Employee enumerated in
Section 6.1(c) hereof as a possible basis for termination of Employee's
employment for Cause.
7.4 NO DUTY TO MITIGATE. Subject to the provisions of Sections 8.1,
8.2, 8.3, 8.4 and 8.5 hereof, Employee shall be free to accept such
employment and engage in such business as Employee may desire following the
termination of his employment hereunder, and no compensation received by
Employee therefrom shall reduce or affect any payments required to be made by
Employer hereunder except to the extent expressly provided in the benefit
plans of Employer.
8. NON-DISCLOSURE OF PROPRIETARY INFORMATION, SURRENDER OF RECORDS,
INVENTIONS AND PATENTS; NON-COMPETE.
8.1 PROPRIETARY INFORMATION. Employee shall not during the Period of
Employment or at any time thereafter (irrespective of the circumstances under
which Employee's employment by Employer terminates), directly or indirectly
use for his own purpose or for the benefit of any person or entity other than
Employer, nor otherwise disclose, any proprietary information, as defined
below, to any individual or entity, unless such disclosure has been
authorized in writing by the Board or is otherwise required by law. For
purposes of this Agreement, the term "proprietary information" shall include,
but is not limited to: (a) the name or address of any customer, vendor or
affiliate of Employer or any information concerning the transactions or
relations of any customer, vendor or affiliate of Employer with Employer or
any of its shareholders; (b) any information concerning any product,
technology or procedure employed by Employer but not generally known to its
customers, vendors or competitors, or under development by or being tested by
Employer but not at the time offered generally to customers or vendors; (c)
any information relating to Employer's computer software, computer systems,
pricing or marketing methods, sales margins, cost of goods, cost of material,
capital structure, operating results, borrowing arrangements or business
plans; (d) any information which is generally regarded as confidential or
proprietary in any line of business engaged in by Employer; (e) any
information contained in any of Employer's written or oral policies and
procedures or employee manuals; (f) any information belonging to customers,
vendors or affiliates of Employer which Employer has agreed to hold in
confidence; (g) any inventions, innovations or improvements covered by
Section 8.3 below; (h) any other information which the Board has reasonably
determined by resolution and communicated to Employee to be confidential or
proprietary; and (i) all written, graphic and other material relating to any
of the foregoing. Information that is not novel or copyrighted or patented
may nonetheless be proprietary information. However, proprietary information
shall not include (i) any information that is or becomes generally known to
the industries in which Employer competes through sources independent of
Employer or through authorized publication to persons other than Employer's
employees by Employer or (ii) other non-sensitive information that may be
disclosed by Employee in the ordinary course of business, the disclosure of
which is not reasonably likely to adversely affect Employer's business
operations, their relationships with customers, vendors or employees or the
results of their operations
8.2 CONFIDENTIALITY AND SURRENDER OF RECORDS. Employee shall not
during the Period of Employment or at any time thereafter (irrespective of
the circumstances under which Employee's employment by Employer terminates),
except as required by law, directly or indirectly give any "confidential
records" (as hereinafter defined) to, or permit any inspection or copying of
confidential records by, any individual or entity other than in the course of
such individual's or entity's employment or retention by Employer, nor shall
he retain, and will deliver promptly to Employer, any of the same following
termination of his employment. For purposes hereof, "confidential records"
means all correspondence, memoranda, files, manuals, books, lists, financial,
operating or marketing records, magnetic tape, or electronic or other media
or equipment of any kind which may be in Employee's possession or under his
control or accessible to him which contain any proprietary information as
defined in Section 8.1. above. All confidential records shall be and remain
the sole property of Employer during the Period of Employment and thereafter.
8.3 INVENTIONS AND PATENTS. All inventions, innovations or
improvements in Employer's method of conducting its business (including
policies, procedures, products, improvements, software, ideas and
discoveries, whether patentable or copyrightable or not) conceived or made by
Employee, either alone or jointly with others, during the Period of
Employment belong to Employer. Employee will promptly disclose in writing
such inventions, innovations or improvements to the Board and perform all
actions reasonably requested by the Board to establish and confirm such
ownership by Employer, including, but not limited to, cooperating with and
assisting Employer in obtaining patents for Employer in the United States and
in foreign countries. Any patent application filed by Employee within a year
after termination of his employment hereunder shall be presumed to relate to
an invention which was made during the Period of Employment unless Employee
can provide evidence to the contrary.
8.4 COVENANT NOT TO COMPETE; NO SOLICITATION.
(a) Employee acknowledges and recognizes the highly competitive nature
of Employer's business and, in consideration of the payment by Employer to
Employee of amounts that may hereafter be paid to Employee pursuant to
Sections 7.1 and 8.4(d) hereof, Employee agrees that during the period (the
"Covered Time") beginning on the Date of Termination and ending (i) if
Employee's employment is terminated for any reason other than pursuant to
Section 6.1(d) hereof, on the second anniversary of the Date of Termination
or (ii) if Employee's employment is terminated pursuant to Section 6.1(d)
hereof and subject to Section 8.4(d) hereof, on the earlier of (A) the first
anniversary of the Date of Termination or (B) the last day of the Period of
Employment remaining under Section 1 hereof immediately prior to the Date of
Termination, Employee will not compete with the business of Employer, which
means that Employee will not engage, directly or indirectly, in the "Covered
Business" (as hereinafter defined) in any state of the United States of
America in which the Employer is conducting business or proposes to conduct
business as of the Date of Termination and any states contiguous therewith
(these areas are hereinafter collectively referred to as the "Covered Area").
For purposes of this Agreement, (i) "Covered Business" shall mean the
renting and selling of the following types of equipment (and parts and
supplies for such equipment): high-reach booms, forklifts, tractors, dump
trucks, air compressors and high- reach scissor lifts, and small tools such
as electrical generators, power saws and hand tools; and (ii) the phrase
"engage, directly or indirectly" shall mean engaging directly or having an
interest, directly or indirectly, as owner, partner, shareholder, independent
contractor, capital investor, lender, renderer of consultation services or
advice or otherwise (other than as the holder of less than 2% of the
outstanding stock of a publicly-traded corporation), either alone or in
association with others, in the operation of any aspect of any type of
business or enterprise engaged in any aspect of the Covered Business.
Employee shall be deemed engaged in business in the Covered Area if his place
of business is located in the Covered Area or if he solicits customers
located anywhere in, or delivers products anywhere in, the Covered Area.
(b) Employee agrees that during the term of this Agreement (including
any extensions thereof) and during the Covered Time he shall not (i) directly
or indirectly solicit or attempt to solicit any of the employees, agents or
representatives of Employer or affiliates of Employer to leave any of such
entities; (ii) directly or indirectly solicit or attempt to solicit any of
the employees, agents, consultants or representatives of Employer or
affiliates of Employer to become employees, agents, representatives or
consultants of any other person or entity; or (iii) directly or indirectly
solicit or attempt to solicit any customer, vendor or distributor of Employer
or affiliates of Employer with respect to any product or service being
furnished, made, sold, leased or rented by Employer.
(c) Employee understands that the provisions of Section 8.4(a) may
limit his ability to earn a livelihood in a business similar to the business
of Employer but nevertheless agrees and hereby acknowledges that the
consideration provided under this Agreement, including any amounts or
benefits provided under Section 7 hereof, is sufficient to justify the
restrictions contained in such provisions and in consideration thereof and in
light of Employee's education, skills and abilities, Employee agrees that he
will not assert that, and it should not be considered that, such provisions
prevent him from earning a living or otherwise are void or unenforceable or
should be voided or held unenforceable. Employee acknowledges and agrees that
his duties with Employer are of an executive nature and that he is a member
of Employer's management group.
(d) If Employee's employment is terminated pursuant to Section 6.1(d)
hereof, Employer may extend the Covered Time to extend up to and through the
second anniversary of the Date of Termination by delivering written notice to
Employee (specifying the duration of the extended Covered Time), within ten
(10) days of such Date of Termination, that Employer has elected to continue
to pay to Employee the Continuation Payments and provide the Continuation
Benefits (on terms no less favorable to Employee than Employer provides to
its executive officers generally, as such benefits may be modified from time
to time) for each month of such extended Covered Time. During the extended
Covered Time, Employee shall be required to make any contributions required
to maintain such Continuation Benefits, which may be withheld from the
Continuation Payments; provided that such contributions are also required to
be made by the Employer's executive officers generally. If at any time
during the extended Covered Time Employee shall obtain employment with a
Substitute Employer in which Employee is entitled to receive basic health
benefits in connection with such employment on terms provided by the
Substitute Employer to its similarly situated employees generally, Employer
shall no longer be required to provide Continuation Benefits to the Employee,
regardless of whether such benefits differ in any respect from the
Continuation Benefits. Employer shall be excused from its obligations to make
payments under this Section 8.4(d) if Employee breaches its obligations
hereunder.
8.5 LITIGATION ASSISTANCE. Employee agrees that after the Date of
Termination he shall, at the request of Employer, render all assistance and
perform all lawful acts that Employer considers necessary or advisable in
connection with any litigation involving Employer or any director, officer,
employee, shareholder, agent, representative, consultant, customer or vendor
of Employer. In the event that Employer requests Employee's assistance under
this Section 8.5, Employer shall pay to Employee for each day such assistance
is rendered an amount equal to the annual Base Salary of Employee in effect
at the Date of Termination divided by 250 and shall promptly pay or reimburse
Employee for such reasonable travel expenses as he may incur in connection
with rendering assistance hereunder
8.6 DEFINITION OF EMPLOYER. For purposes of this Section 8, the term
Employer shall include Employer and any and all of its subsidiaries, ventures
or affiliates, whether currently existing or hereafter formed, which are
engaged in the Covered Business or a portion thereof, as well as any person
to whom this Agreement is assigned as permitted by Section 9.8 hereof.
8.7 ENFORCEMENT.
(a) The parties hereto agree and acknowledge that the covenants and
agreements contained herein are reasonably necessary in duration and to
protect the reasonable competitive business interests of Employer, including,
without limitation, the value of the proprietary information and goodwill of
Employer.
(b) Employee agrees that the covenants and undertakings contained in
Article 8 of this Agreement relate to matters which are of a special, unique
and extraordinary character and that Employer cannot be reasonably or
adequately compensated in damages in an action at law in the event Employee
breaches any of these covenants or undertakings. Therefore, Employee agrees
that Employer shall be entitled, as a matter of course, without the need to
prove irreparable injury, to an injunction, restraining order or other
equitable relief from any court of competent jurisdiction, restraining any
violation or threatened violation of any of such terms by Employee and such
other persons as the court shall order. Employee agrees to pay costs and
legal fees incurred by Employer in obtaining such injunction.
(c) Rights and remedies provided for in this Section are cumulative and
shall be in addition to rights and remedies otherwise available to the
parties under any other agreement or applicable law.
(d) In the event that any provision of this Agreement shall to any
extent be held invalid, unreasonable or unenforceable in any circumstances,
the parties hereto agree that the remainder of this Agreement and the
application of such provision of this Agreement to other circumstances shall
be valid and enforceable to the fullest extent permitted by law. If any
provision of this Agreement, or any part thereof, is held to be unenforceable
because of the scope or duration of or the area covered by such provision,
the parties hereto agree that the court or arbitrator making such
determination shall reduce the scope, duration and/or area of such provision
(and shall
substitute appropriate provisions for any such unenforceable provisions) in
order to make such provision enforceable to the fullest extent permitted by
law, and/or shall delete specific words and phrases, and such modified
provision shall then be enforceable and shall be enforced. The parties
hereto recognize that if, in any judicial proceeding, a court shall refuse to
enforce any of the separate covenants contained in this Agreement, then that
unenforceable covenant contained in this Agreement shall be deemed eliminated
from these provisions to the extent necessary to permit the remaining
separate covenants to be enforced. In the event that any court or arbitrator
determines that the time period or the area, or both, are unreasonable and
that any of the covenants is to that extent unenforceable, the parties hereto
agree that such covenants will remain in full force and effect, first, for
the greatest time period, and second, in the greatest geographical area that
would not render them unenforceable.
9 MISCELLANEOUS.
9.1. KEY MAN INSURANCE. Employee recognizes and acknowledges that
Employer or its affiliates may seek and purchase one or more policies
providing key man life insurance with respect to Employee, the proceeds of
which would be payable to Employer or such affiliate. Employee hereby
consents to Employer or its affiliates seeking and purchasing such insurance
and will provide such information, undergo such medical examinations (at
Employer's expense), execute such documents, and otherwise take any and all
actions necessary or desirable in order for Employer or its affiliates to
seek, purchase and maintain in full force and effect such policy or policies.
9.2 NOTICE. Any notice required or permitted to be given hereunder
shall be deemed sufficiently given if sent by registered or certified mail,
postage prepaid, addressed to the addressee at his or its address last
provided the sender in writing by the addressee for purposes of receiving
notices hereunder or, unless or until such address shall be so furnished, to
the address indicated opposite his or its signature to this Agreement. For
purposes of this Agreement, notice sent in conformity with this Section 9.2
shall be deemed to have been received on the third business day following the
date on which such notices are so sent.
9.3. MODIFICATION AND NO WAIVER OF BREACH. No waiver or modification of
this Agreement shall be binding unless it is in writing signed by the parties
hereto. No waiver by a party of a breach hereof by the other party shall be
deemed to constitute a waiver of a future breach, whether of a similar or
dissimilar nature, except to the extent specifically provided in any written
waiver under this Section 9.3.
9.4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND ALL
QUESTIONS RELATING TO THE VALIDITY AND PERFORMANCE HEREOF AND REMEDIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW.
9.5. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same agreement.
9.6. CAPTIONS. The captions used herein are for ease of reference only
and shall not define or limit the provisions hereof.
9.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto relating to the matters encompassed hereby and
supersedes any prior oral or written agreements.
9.8 ASSIGNMENT. The rights of Employer under this Agreement may,
without the consent of Employee, be assigned by Employer to any person, firm,
corporation, or other business entity which at any time, whether by purchase,
merger, or otherwise, directly or indirectly, acquires all or material
portions of the stock, assets or any line of business of Employer.
9.9. NON-TRANSFERABILITY OF INTEREST. None of the rights of Employee to
receive any form of compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary disposition or by
the laws of descent and distribution upon the death of Employee.
Any attempted assignment, transfer, conveyance, or other disposition (other
than as aforesaid) of any interest in the rights of Employee to receive any
form of compensation to be made by Employer pursuant to this Agreement shall
be void.
9.10. ARBITRATION. The parties shall endeavor to settle all
disputes by amicable negotiations. Except as otherwise provided herein, any
claim, dispute, disagreement or controversy that arises among the parties
relating to this Agreement that is not amicably settled shall be resolved by
arbitration, as follows:
(a) Any such arbitration shall be heard in The City of New York, New
York, before a panel consisting of one (l) to three (3) arbitrators, each of
whom shall be impartial. Upon the written Request of Arbitration of either
party hereto to commence arbitration hereunder, the parties shall attempt to
mutually agree as to the number and identity of the arbitrator(s), within
thirty (30) days of the date of such Request. Except as the parties may
otherwise agree, all arbitrators (if not selected by the parties hereto
within thirty (30) days of a written Request for Arbitration) shall be
appointed pursuant to the commercial arbitration rules of the American
Arbitration Association. In determining the number and appropriate
background of the arbitrators, the appointing authority shall give due
consideration to the issues to be resolved, but his or her decision as to the
number of arbitrators and their identity shall be final.
(b) An arbitration may be commenced by any party to this Agreement by
the service of a written Request for Arbitration upon the other affected
parties. Such Request for Arbitration shall summarize the controversy or
claim to be arbitrated.
(c) All attorneys' fees and costs of the arbitration shall in the first
instance be borne by the respective party incurring such costs and fees, but
the arbitrators shall have the discretion to award costs and/or attorneys'
fees as they deem appropriate under the circumstances. The parties hereby
expressly waive punitive damages, and under no circumstances shall an award
contain any amount that in any way reflects punitive damages.
(d) Judgment on the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
(e) It is intended that controversies or claims submitted to
arbitration under this Section 9.10 shall remain confidential, and to that
end it is agreed by the parties that neither the facts disclosed in the
arbitration, the issues arbitrated, nor the views or opinions of any persons
concerning them, shall be disclosed to third persons at any time, except to
the extent necessary to enforce an award or judgment or as required by law or
in response to legal process or in connection with such arbitration.
(f) Any arbitration under this Section 9.10 shall be conducted pursuant
to the commercial arbitration rules of the American Arbitration Association.
9.11. JURISDICTION; VENUE. Subject to Section 9.10 hereof, the
parties hereto irrevocably and unconditionally submit to the exclusive
jurisdiction of any State or Federal court sitting in The City of New York
over any suit, action or proceeding arising out of or relating to this
Agreement. Service of any process, summons, notice or document by registered
mail addressed to any party as provided in Section 9.2 hereof shall be
effective service of process for any action, suit or proceeding brought
against such party in any such court. The parties hereto irrevocably and
unconditionally waive any objection to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. A final judgment in any suit, action or proceeding
brought in any such court shall be conclusive and binding upon the parties
and may be enforced in any other courts to whose jurisdiction a party is or
may be subject, by suit upon such judgment.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, this Agreement has been duly executed effective as
of the day and year first written above.
Address for notices: PRIMECO INC.
00000 Xxxx Xxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
President
With a copy to:
INVESTCORP International Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. X'Xxxxx
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxxxx
EXHIBIT A
Employee's initial title shall be
Corporate General Counsel and Assistant Secretary
EXHIBIT B
Cash bonuses are payable to Employee in a given year if the consolidated
net income of Prime Service, Inc., a Delaware corporation and parent of
Employer (the "Company") for such year exceeds 90% of the net income target
(the "Net Income Percentage") in the Company's budget for such year, as
approved by the Board. Earnings Before Interest, Taxes, Depreciation and
Amortization ("EBITDA")(1) targets for such years shall be as set forth in
the Company's budget for such year, as approved by the Board. EBITDA and net
income targets shall be subject to change in the discretion of the Board for
any change to the capital structure of the Company or Employer in connection
with any acquisitions, equity offerings or other transactions that would, or
would be likely to, materially affect EBITDA or net income. Upon achievement
of the Net Income Percentage, the percentage of Base Salary payable as bonus
shall be determined as follows:
% of EBITDA % of Base
Target Achieved Salary
Payable
as Bonus(2)
-------------------------------------------------------------------------------
Equal to Or But Less
Greater Than: Than:
----------------------------------------------
0 90 0
90 -- 35-50
(1) The EBITDA target for each year shall be defined by the Board in the
budget for each year.
(2) The Board in its discretion shall set the bonus percentage amount for
each fiscal year within the ranges indicated, but not less than the bottom of
the range.
