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EXHIBIT 10.10
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of the 4th day of February, 1998, by and between ICM
Equipment Company L.L.C., a Delaware limited liability company
(the "Company"), and GARY BAGLEY, an individual resident of the
State of Utah (the "Employee").
W I T N E S S E T H :
WHEREAS the Company is engaged in the business of selling, renting and
servicing industrial, construction and mining equipment (the "Business"); and
WHEREAS the Company wishes to employ Employee as its President and
Chief Operating Officer, and Employee wishes to accept such employment, on the
following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound hereby, the parties hereby agree as
follows:
ARTICLE I
EMPLOYMENT; TERM
SECTION 1.01. EMPLOYMENT. The Company hereby employs Employee and
Employee accepts employment by the Company, on the terms and conditions
contained in this Agreement.
SECTION 1.02. TERM. The employment of Employee pursuant hereto
shall commence on the date of this Agreement (the "Effective Date"), and shall
remain in effect for an initial term expiring on the fifth anniversary of the
Effective Date (the "Initial Term"), unless sooner terminated pursuant to the
provisions of Article VII. After the Initial Term, the Agreement and the
employment of Employee hereunder shall continue and remain in effect until the
THIRTIETH DAY after either party has given the other party written notice of its
intent to terminate this Agreement, unless sooner terminated pursuant to the
provisions of Article VII. The period of time between the Effective Date and the
termination of this Agreement pursuant to its terms is herein referred to as the
"Term."
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ARTICLE II
DUTIES AND EXTENT OF SERVICE
Employee shall serve the Company as its President and Chief Operating
Officer and shall perform such services and duties for the Company as the Board
of Directors of the Company may assign or delegate to him from time to time
commensurate with Employee's education and experience or as provided in the
Amended and Restated Operating Agreement of the Company dated as of February 4,
1998 (as it may be amended from time to time, the "Operating Agreement"). SO
LONG AS EMPLOYEE SHALL SERVE THE COMPANY AS ITS PRESIDENT AND CHIEF OPERATING
OFFICER, EMPLOYEE SHALL ALSO SERVE AS A MEMBER OF THE BOARD OF DIRECTORS OF THE
COMPANY. Employee shall devote his full business time, attention, skill and
effort exclusively to the performance of his duties for the Company and the
promotion of its interests. Employee's duties hereunder shall be performed at
such place or places as the interests, needs, businesses or opportunities of the
Company shall require.
ARTICLE III
COMPENSATION
SECTION 3.01. BASE SALARY. Employee shall be paid base salary (the
"Base Salary") of $275,000 per annum, to be increased on January 1 of each year
by an amount equal to 5% of the Base Salary for the prior year, less deductions
and withholdings required by applicable law. The Base Salary shall be paid to
Employee bi-weekly.
SECTION 3.02. BONUS. Employee shall receive a bonus ("Bonus") in
such amount as may be proposed by the officers of the Company and approved
annually by the Company's Board of Directors.
SECTION 3.03. FRINGE BENEFITS. Employee shall be entitled to
participate in such medical, dental, disability, life insurance, deferred
compensation and other benefit plans (such as pension and profit sharing plans)
as the Company shall maintain from time to time for the benefit of employees of
the Company, on the terms and subject to the conditions set forth in such plans.
In addition, Employee shall be entitled to participate in a long-term disability
plan approved by the Board of Directors.
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ARTICLE IV
DEFERRED COMPENSATION
SECTION 4.01. DEFERRED SIGNING BONUS. (a) In consideration for
entering into this Agreement the sum of $3,500,000 (which is in addition to and
not part of the sums identified in Article III) shall be credited as of the date
hereof to a deferred compensation account (the "Account") established on the
books and records of the Company on behalf of Employee. The Account shall also
be credited at the end of each quarter with a sum equal to the product of (i)
the amount credited to the Account as of the day before the end of the quarter
and (ii) 2.5% (the "Interest Credit" for such quarter); PROVIDED THAT Employee
may elect in accordance with Section 4.01(b) to have the Interest Credit for a
quarter paid to him in cash on the last day of that quarter, in which case the
Account shall not be credited with such Interest Credit. Subject to this Article
IV, the amount credited to the Account shall be distributed in a cash lump sum
to Employee on the eighth anniversary of the Effective Date. The payment of the
Account is expressly not contingent on the Employee's continuing in employment
with the Company for any period of time or, except for the provisions of this
Article IV, his fulfillment of any provision of this Agreement. The amount
credited to the Account and any Interest Credit for any quarter are collectively
referred to herein as the "Deferred Compensation".
(b) An election to receive a cash payment of an Interest Credit shall
be valid only if it is provided to the Company by the end of the calendar year
preceding the year of distribution. Any such election shall remain in effect for
the entire subsequent year and may not be modified during that year. Employee's
election shall remain in effect until revoked. A revocation shall be subject to
the same rules described above in this Section 4.01(b). Notwithstanding the
foregoing, with respect to any Interest Credits to be credited in 1998, Employee
shall provide an election, if any, to receive a cash payment of any such
Interest Credits within 10 days of the date of this Agreement; PROVIDED that any
such election shall remain in effect for the entire year and may not be modified
during that year.
SECTION 4.02. DEFINITION.
"Senior Indebtedness" means all principal, premium (if any), interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for
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reorganization relating to the Company or any subsidiary thereof whether or not
a claim for post-filing interest is allowed or allowable in any such
proceedings), fees, charges, expenses (including but not limited to expenses in
connection with claims and litigation), damages, reimbursement obligations,
guarantees and all other amounts payable under or in respect of (x) the Credit
Agreement dated as of the date hereof, as amended, waived or otherwise modified
from time to time, among the Company, Bankers Trust Company, General Electric
Capital Corporation, The CIT Group/Equipment Financing, Inc. and the lenders
party thereto from time to time, or any refinancings or replacements thereof,
including any indebtedness that refinances or replaces any such refinancing or
replacement (whether or not in any such cases any such refinancings or
replacements are greater than, equal to or less than the aggregate principal
amount then outstanding of the indebtedness being refinanced or replaced)
(collectively, the "Refinancing Indebtedness"), and (y) any other indebtedness
if the Credit Agreement or the instrument creating or evidencing any Refinancing
Indebtedness expressly permits such indebtedness to be superior in right of
payment to this Note or if the lenders to the Credit Agreement or any
Refinancing Indebtedness consent to permitting such indebtedness to be superior
in right of payment to this Note (such consent to be obtained in accordance with
the terms of the Credit Agreement or any such instrument).
SECTION 4.03. SUBORDINATION. (a) Employee hereby agrees that its
rights to receive payment of the Deferred Compensation are expressly subordinate
and junior, to the extent and in the manner provided in this Article IV, to the
full and complete payment of the Senior Indebtedness.
(b) So long as no default exists under any Senior Indebtedness, and
notwithstanding the immediate and complete subordination of the Deferred
Compensation to the Senior Indebtedness, payment by the Company to Employee of
the regularly scheduled payments of the Deferred Compensation pursuant to the
terms of this Agreement shall be permitted. Notwithstanding the foregoing, in
the event that Employee has elected to have the Interest Credit for a quarter
paid to him in cash and the provisions of this Article IV prohibit the payment
of such Interest Credit in cash such Interest Credit shall be credited to the
Account (without further action by the Company or Employee).
(c) If any payment of the Deferred Compensation is prohibited at any
given time by this Article IV, Employee shall not demand, collect, or receive
any payments with
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respect to the Deferred Compensation. Employee further agrees that if any
payment of the Deferred Compensation not permitted by the terms of this
Agreement is received by or on behalf of Employee, Employee shall forthwith pay
the same to the holders of Senior Indebtedness as their interests may appear.
The Company shall not make any payments of the Deferred Compensation so long as
a default under any Senior Indebtedness exists. The Company shall deliver to
Employee written notice of a payment default under any Senior Indebtedness
promptly following such default. Holders of Senior Indebtedness may, but shall
not be obligated to, send notice of any such default to Employee.
(d) Upon any distribution of the assets of the Company or upon any
dissolution, winding up, liquidation or reorganization of the Company, whether
in bankruptcy, insolvency, reorganization, arrangement or receivership
proceedings or otherwise, or upon any assignment for the benefit of creditors or
any other marshaling of the assets and liabilities of the Company, or otherwise:
(i) holders of Senior Indebtedness shall first be entitled to receive
indefeasible payment in full in cash of such Senior Indebtedness (whenever
arising) before Employee shall be entitled to receive any payment on
account of the Deferred Compensation; and
(ii) any payment by, or on behalf of, or distribution of the assets
of, the Company of any kind or character, whether in cash, property or
securities, to which Employee would be entitled except for the provisions
of this Article IV shall be paid or delivered by the person making such
payment or distribution (whether a trustee in bankruptcy, a receiver,
custodian or liquidating trustee or otherwise) directly to holders of
Senior Indebtedness as their interests may appear, until the indefeasible
payment in full of all Senior Indebtedness.
(e) Employee agrees that until the payment in full of the Senior
Indebtedness, it will not attempt to sell, assign, or otherwise transfer or
further encumber all or some of its right to receive the Deferred Compensation
herein.
(f) The Company will not give, or permit to be given, and Employee
will not receive, accept or demand, (i) any security of any nature whatsoever
for the Deferred Compensation, on any property or assets, whether now existing
or hereafter acquired, of the Company or any subsidiary thereof or (ii) any
guarantee, of any nature
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whatsoever, by the Company or any subsidiary thereof, of the Deferred
Compensation.
(g) Employee agrees that it will not exercise any remedies or take
any action or proceeding to enforce the payment of any Deferred Compensation if
the payment of the Deferred Compensation is then prohibited by this Article IV,
and Employee further agrees not to file, or to join with any other creditors of
the Company in filing, any petition commencing any bankruptcy, dissolution,
insolvency, reorganization, arrangement or receivership proceeding or any
assignment for the benefit of creditors against or in respect of the Company or
any other marshaling of the assets and liabilities of the Company. Employee
further agrees, to the fullest extent permitted under applicable law, that it
will not cause the Company to file any petition commencing any bankruptcy,
dissolution, insolvency, reorganization, arrangement or receivership proceeding
or make any assignment for the benefit of creditors until all Senior
Indebtedness has been indefeasibly paid in full in cash.
SECTION 4.04. WAIVERS AND CONSENTS.
(a) Employee waives the right to compel that any collateral or any
other property of the Company or the property of any guarantor of any Senior
Indebtedness or any other person be applied in any particular order to discharge
such Senior Indebtedness. Employee expressly waives the right to require holders
of Senior Indebtedness to proceed against the Company, any collateral or any
guarantor of any Senior Indebtedness or any other person, or to pursue any other
remedy in any such holder's power which Employee cannot pursue and which would
lighten Employee's burden, notwithstanding that the failure of any holder of
Senior Indebtedness to do so may thereby prejudice Employee. Any holder's of
Senior Indebtedness vote to accept or reject any plan of reorganization relating
to the Company, any collateral, or any guarantor of such Senior Indebtedness or
any other person, or any holder's of Senior Indebtedness receipt on account of
all or part of any Senior Indebtedness of any cash, property or securities
distributed in any bankruptcy, reorganization or insolvency case, shall not
discharge, exonerate or reduce the obligations of Employee hereunder to any
holder of Senior Indebtedness.
(b) Employee waives all rights and defenses arising out of an
election of remedies by any holder of Senior Indebtedness, even though that
election of remedies, including without limitation any nonjudicial foreclosure
with respect to security for such Senior Indebtedness, has impaired the value of
Employee's rights of subrogation,
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reimbursement or contribution against the Company or any guarantor of any Senior
Indebtedness or any other person.
(c) Employee agrees that, without the necessity of any reservation of
rights against it, and without notice to or further assent by it, any demand for
payment of any Senior Indebtedness made by a holder thereof may be rescinded in
whole or in part by such holder, and any Senior Indebtedness may be continued,
and such Senior Indebtedness, or the liability of the Company or any of its
subsidiaries or any other guarantor or any other party upon or for any part
thereof, or any collateral or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
modified, accelerated, compromised, waived, surrendered or released by the
holders of such Senior Indebtedness, in each case without notice to or further
assent by Employee and without impairing, abridging, releasing or affecting the
subordination provided for herein.
(d) Employee waives any and all notice of the creation, renewal,
extension or accrual of any Senior Indebtedness and notice of or proof of
reliance by any holder of Senior Indebtedness upon the provisions of this
Article IV. Any Senior Indebtedness shall be deemed conclusively to have been
created, contracted or incurred and the consent given to create the obligations
of the Company in respect of the Deferred Compensation in reliance upon the
provisions of this Article IV, and all dealings between the Company and any
holder of Senior Indebtedness shall be deemed to have been consummated in
reliance upon the provisions of this Article. Employee waives notice of or proof
of reliance on the provisions of this Article IV and protest, demand for payment
and notice of default.
SECTION 4.05. WAIVER OF CLAIMS. (a) Employee, for itself and on
behalf of its successors and assigns, hereby waives any and all now existing or
hereafter arising rights it may have to require any holder of Senior
Indebtedness to marshal assets for the benefit of Employee, or to otherwise
direct the timing, order or manner of any sale, collection or other enforcement
of any collateral. The holders of Senior Indebtedness are under no duty or
obligation, and Employee hereby waives any right it may have to compel any
holder of Senior Indebtedness, to pursue any guarantor or other person who may
be liable for such Senior Indebtedness, or to enforce any lien or security
interest in any collateral.
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(b) Employee hereby waives and releases all rights which a guarantor
or surety with respect to any Senior Indebtedness could exercise.
(c) Employee hereby waives any duty on the part of any holder of
Senior Indebtedness to disclose to it any fact known or hereafter known by such
holder relating to the operation or financial condition of the Company or any
guarantor of such Senior Indebtedness or their respective businesses.
SECTION 4.06. EMPLOYEE'S CAPACITY. Notwithstanding the foregoing,
employee agrees to the provisions of this Article IV in his capacity as the
recipient of the payments of the Deferred Compensation but not in his capacity
as an employee, officer, representative or member of the Company.
ARTICLE V
NONDISCLOSURE
SECTION 5.01. DEFINITION. "Confidential Information" shall mean all
business information (whether or not in written form) which relates to the
Company, any of its affiliates or their respective businesses or products and
which is not known to the public generally, including but not limited to
technical notebooks and technical records; technical reports; trade secrets;
unwritten knowledge and "know-how"; formulas; operating instructions; training
manuals; customer lists; customer buying records and habits; product sales
records and documents, and product development, marketing and sales strategies;
territory listings; market surveys; marketing plans; profitability analyses;
product cost; long-range plans; information relating to pricing, competitive
strategies and new product development; information relating to any forms of
compensation and other personnel-related information; contracts; and supplier
lists.
SECTION 5.02. ACCESS. The parties hereto agree that during the
course of his employment by the Company, Employee will have access to, and will
gain knowledge with respect to, the Company's Confidential Information. The
parties acknowledge that unauthorized disclosure or misuse of such Confidential
Information would cause irreparable damage to the Company. Accordingly, Employee
agrees to the nondisclosure covenants in this Article V.
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SECTION 5.03. NONDISCLOSURE. Employee agrees that he shall not
(except as may be required by law), without the prior written consent of the
Company during his employment with the Company under this Agreement, and any
extension or renewal hereof, and thereafter for so long as it remains
Confidential Information, use or disclose or knowingly permit any unauthorized
person to use, disclose or gain access to, any Confidential Information;
PROVIDED that Employee may disclose Confidential Information to a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by Employee of his duties under this Agreement.
SECTION 5.04. RETURN OF DOCUMENTS. Upon termination of this
Agreement for any reason, Employee shall return to the Company the original and
all copies of all documents and correspondence in his possession relating to the
business of the Company or any of its affiliates and shall not be entitled to
any lien or right of retention in respect thereof.
ARTICLE VI
NONCOMPETITION
SECTION 6.01. DEFINITIONS. (a) "Noncompete Period" or
"Nonsolicitation Period" shall mean the period beginning on the Effective Date
and ending on the third anniversary of the date of termination of Employee's
employment with the Company; PROVIDED that if Employee's employment hereunder is
terminated as a result of the occurrence of a No Cause Termination Event (as
defined below), such period shall end on the later of (x) the second anniversary
of the date of termination of Employee's employment with the Company and (y) the
scheduled expiration of the Term.
(b) "Territory" shall mean (i) the Inter-Mountain Region which
includes Utah, Colorado, Arizona, New Mexico, Nevada, Idaho, Montana, Wyoming
and El Paso, Texas and (ii) without limiting the foregoing, the areas within 200
miles of the area where the Company or its affiliates conducted its business
within one year prior to termination of Employee's employment including any
areas where customers or actively sought customers of the Company were present.
SECTION 6.02. TRADE NAME. During the Noncompete Period, Employee
agrees that he shall not, directly or indirectly, own, manage, operate, join,
control or participate in the ownership, management, operation or
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control of any business conducted under any corporate or trade name of the
Company or any name similar thereto without the prior written consent of the
Company.
SECTION 6.03. NONCOMPETITION. During the Noncompete Period, and to
the fullest extent permitted under applicable law, Employee agrees that he shall
not, directly or indirectly, own, manage, operate, join, control or participate
in the ownership, management, operation or control of any business engaged in
the activities of selling, renting or servicing industrial, construction or
mining equipment (except for the ownership of a less than 5% stock interest in
(x) a publicly traded corporation or (y) Eagle High Reach Equipment, Inc., a
California corporation ("Eagle High Reach"), or owning an equity interest in the
Company). In addition, so long as Employee's employment hereunder shall
continue, to the extent Employee has knowledge of any potential conflict between
the business interest or opportunities of the Company and Eagle High Reach,
Employee shall notify the Company's Board of Directors of such potential
conflict promptly after becoming aware of such potential conflict.
SECTION 6.04. NONSOLICITATION. During the Nonsolicitation
Period, Employee agrees that he shall not, in any manner (other than as an
employee of or a consultant to the Company), directly or indirectly:
(a) solicit or attempt to solicit any business from any of the
Company's customers, including actively sought prospective customers, with
whom Employee had material contact during Employee's employment hereunder
for purposes of providing products or services that are competitive with
the Company's products or services; or
(b) solicit or attempt to solicit for employment, on Employee's
behalf or on behalf of any other person, firm or corporation, any other
employee of the Company or its affiliates with whom Employee had material
contact during his employment hereunder.
SECTION 6.05. SEVERABILITY. If a judicial determination is made
that any of the provisions of this Article VI constitutes an unreasonable or
otherwise unenforceable restriction against Employee, the provisions of this
Article VI shall be rendered void only to the extent that such judicial
determination finds such provisions to be unreasonable or otherwise
unenforceable. In this regard, the parties hereby agree that any judicial
authority construing this Agreement shall be empowered to sever any portion of
the Territory, any prohibited business activity
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or any time period from the coverage of this Article VI and to apply the
provisions of this Article VI to the remaining portion of the Territory, the
remaining business activities and the remaining time period not so severed by
such judicial authority. Moreover, notwithstanding the fact that any provision
of this Article VI is determined not to be specifically enforceable, the Company
shall nevertheless be entitled to recover monetary damages as a result of
Employee's breach of such provision. The time period during which the
prohibitions set forth in this Article VI shall apply shall be tolled and
suspended for a period equal to the aggregate quantity of the time during which
Employee violates such prohibitions in any respect.
SECTION 6.06. COVERAGE. Employee agrees that the foregoing
territorial and time limitations are reasonable and properly required for the
adequate protection of the business and the goodwill of the Company.
ARTICLE VII
TERMINATION OF EMPLOYMENT
The employment of Employee hereunder shall terminate prior to the
scheduled expiration of the Term upon the occurrence of any of the following
events:
(a) the death or total disability of Employee (total disability
meaning the failure of Employee to perform his normal required services
hereunder for a period of three consecutive months during the term hereof
by reason of Employee's mental or physical disability) (a "Disability
Termination Event");
(b) termination by the Company of Employee's employment hereunder,
upon 10 days prior written notice to Employee, for "Good Cause", which
shall exist upon the occurrence of any of the following: (i) Employee is
convicted of, pleads guilty to, confesses to, or enters a plea of nolo
contendere to, any felony or any crime that involves moral turpitude or any
act of fraud, misappropriation or embezzlement; (ii) Employee has engaged
in a fraudulent act to the damage or prejudice of the Company or any
affiliate of the Company; (iii) any act or omission by Employee involving
malfeasance or gross negligence in the performance of Employee's duties to
the Company and, within 10 days after written notice from the Company of
any such act or omission, Employee has not corrected such act or omission;
or (iv) Employee otherwise fails to comply
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with the terms of this Agreement or deviates from any written policies or
directives of the Board of Directors and, within 10 days after written
notice from the Company of such failure or deviation, Employee has not
corrected such failure (in any such case, a "Good Cause Termination
Event");
(c) termination by the Company of Employee's employment hereunder,
upon 10 days prior written notice to Employee, for any reason other than as
a result of a Good Cause Termination Event or Disability Termination Event
(a "No Cause Termination Event"); or
(d) voluntary termination by Employee of Employee's employment
hereunder (a "Voluntary Termination Event").
ARTICLE VIII
RESULT OF TERMINATION
SECTION 8.01. DISABILITY TERMINATION EVENT. If Employee's
employment hereunder is terminated as a result of the occurrence of a Disability
Termination Event, as of the date of termination of Employee's employment
hereunder, the Company shall have no further obligation to pay Employee any Base
Salary or any other additional benefits pursuant to this Agreement (other than
medical insurance). The Company shall provide medical insurance substantially
similar to the medical insurance provided to Employee and to his covered
dependents (or exclusively to his covered dependents in the case of his death)
prior to the termination of his employment for the three consecutive months
immediately following such termination. Employee shall be entitled to receive a
portion of the Bonus, if any, for the year in which Employee's termination of
employment occurs prorated to the date on which Employee's employment is
terminated. If such termination occurs prior to the end of any pay period,
Employee shall be entitled to receive a portion of the Base Salary for such pay
period prorated to the date on which Employee's employment is terminated.
SECTION 8.02. TERMINATION UPON THE SCHEDULED EXPIRATION OF THE TERM
OR AS RESULT OF VOLUNTARY OR GOOD CAUSE TERMINATION EVENTS. If Employee's
employment hereunder is terminated upon the scheduled expiration of the Term or
as a result of the occurrence of a Voluntary Termination Event or a Good Cause
Termination Event, as of the date of the termination of Employee's employment,
the Company shall have no further obligation to pay to Employee
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any Base Salary, Bonus or any other additional benefits pursuant to this
Agreement. If such termination occurs prior to the end of any pay period,
Employee shall be entitled to receive a portion of the Base Salary for such pay
period prorated to the date on which Employee's employment is terminated.
SECTION 8.03 TERMINATION AS RESULT OF NO CAUSE TERMINATION. If
Employee's employment hereunder is terminated as a result of the occurrence of a
No Cause Termination Event, the Company shall pay to Employee as severance pay
his Base Salary, at the annual base rate in effect immediately prior to the date
on which Employee's employment is terminated for the period from such date of
termination through the later of (x) the last day of the Noncompete Period (it
being agreed that the Company may in its sole discretion on 30 days notice to
Employee waive all Employee's obligations under Article VI in which case the
last day of the Noncompete Period shall be deemed to be the date such waiver
becomes effective) and (y) the scheduled expiration of the Term, and a portion
of the Bonus, if any, for the year in which Employee's termination of employment
occurs prorated to the date on which Employee's employment is terminated;
PROVIDED that the Company may, at any time, pay to Employee in a single lump sum
an amount equal to the net present value (as determined in good faith by the
Board of Directors of the Company) of the aggregate Base Salary remaining to be
paid to Employee, calculated using a discount rate equal to The Chase Manhattan
Bank's prime lending rate per annum in effect 30 days prior to such lump sum
payment. In addition, the Company shall provide medical insurance substantially
similar to the medical insurance provided to Employee prior to the termination
of his employment for the three consecutive months immediately following such
termination.
ARTICLE IX
INJUNCTIVE RELIEF WITH RESPECT TO COVENANTS
Employee acknowledges and agrees that the covenants and obligations
of Employee with respect to non-competition, non-disclosure, non-solicitation,
confidentiality and the property of the Company and its affiliates relate to
special, unique and extraordinary matters and that, notwithstanding any other
provision of this Agreement to the contrary, a violation of any of the terms of
such covenants and obligations will cause the Company and its affiliates
irreparable injury for which adequate remedies are not available at law.
Therefore,
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Employee expressly agrees that the Company and its affiliates (which shall be
express third-parry beneficiaries of such covenants and obligations) shall be
entitled to an injunction (whether temporary or permanent), restraining order or
such other equitable relief (including the requirement to post bond) as a court
of competent jurisdiction may deem necessary or appropriate to restrain Employee
from committing any violation of the covenants and obligations contained in
Articles V and VI. These injunctive remedies are cumulative and in addition to
any other rights and remedies the Company or any such affiliate may have at law
or in equity. Further, Employee represents that his experience and capabilities
are such that the provisions of Articles V and VI will not prevent him from
earning his livelihood.
ARTICLE X
TERMINATION; SURVIVAL
This Agreement shall terminate upon the earlier of (x) the scheduled
expiration of the Term and (y) the termination of Employee's employment
hereunder pursuant to Article VII. Notwithstanding the foregoing Articles IV, V,
VI and IX and, if Employee's employment terminates in a manner giving rise to a
payment under Article VIII, Article VIII shall survive the termination of this
Agreement.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01 NOTICE. Any notice to be given hereunder shall be
deemed given when personally delivered to the party to receive such notice, or
three business days after being mailed, postage prepaid, by registered or
certified mail, as follows:
If to the Company:
ICM Equipment Company L.L.C.
c/o Ripplewood Holdings L.L.C.
712 Fifth Avenue (49th Floor)
New York, NY 10019
Attention: John Duryea
If to Employee:
Gary Bagley
9 Altawood Drive
Sandy, UT 84092
Such addresses may be changed by notice in writing to the other party
as aforesaid.
SECTION 11.02. BINDING EFFECT. This Agreement shall inure to the
benefit of and shall be binding upon Employee and his executor, administrator,
heirs, personal representative and assigns, and the Company and its successors
and assigns; PROVIDED, HOWEVER, that Employee shall not be entitled to assign or
delegate any of his rights or obligations hereunder without the prior written
consent of the Company.
SECTION 11.03. INTERPRETATION. This Agreement shall be deemed to be
made in, and in all respects shall be interpreted, construed and governed by and
in accordance with, the laws of the State of Utah, without regard to the
conflicts of law principles of such State. No provision of this Agreement or any
related document shall be construed against or interpreted to the disadvantage
of any party hereto by any court or other governmental or judicial authority by
reason of such party having or being deemed to have structured or drafted such
provision.
SECTION 11.04. AMENDMENTS. Except as provided in Section 8.03, no
provision of this Agreement may be modified, waived or discharged unless such
modification, waiver or discharge is approved by the Board of Directors
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and is agreed to in writing by Employee. No waiver by any party hereto at any
time of any breach by any other parry 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 or at any prior or subsequent time. No waiver of any provision of this
Agreement shall be implied from any course of dealing between the parties hereto
or from any failure by any party hereto to assert its rights hereunder on any
occasion or series of occasions. Notwithstanding the foregoing, no modification
or waiver may make any change that adversely affects the rights under Section
4.02, 4.03, 4.04 or 4.05 of any holder of Senior Indebtedness then outstanding
unless the holders of such Senior Indebtedness (or any group or representative
thereof authorized to give a consent) consent to such change.
SECTION 11.05. HEADINGS. The Article and Section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 11.06. COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
SECTION 11.07. ENTIRE AGREEMENT. This Agreement, together with the
Operating Agreement, constitutes the entire agreement between the Company and
Employee, and supersedes all prior agreements, if any, whether written or
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oral, between them, relating to Employee's employment by the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed the day and year first above written.
ICM EQUIPMENT COMPANY L.L.C.,
by /s/ John Duryea
--------------------------
Name: John Duryea
Title: Attorney-in-Fact
EMPLOYEE,
/s/ Gary Bagley
--------------------------
Name: Gary Bagley