Exhibit 10.13
EXECUTION COPY
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated July 20, 2000 by and between United Road
Services, Inc., a Delaware corporation (the "Company"), and Gerald R. Riordan
(the "Executive").
WHEREAS, the Company desires to continue to employ the Executive and
to enter into an agreement embodying the terms of such continued employment;
WHEREAS, the Executive desires to accept such continued employment and
enter into such an agreement; and
WHEREAS, the Executive is willing to accept his employment on the
terms hereinafter set forth in this agreement (the "Agreement").
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties hereby agree
as follows:
1. Term of Employment. Subject to the provisions of Section 9 of
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the Agreement, the Executive shall continue to be employed by the Company
pursuant to the terms and conditions of the Agreement for a period commencing
upon the consummation of the transaction (the "Closing Date") contemplated by
the United Road Services, Inc. Shares of Series A Participating Convertible
Preferred Stock Purchase Agreement dated as of April 14, 2000 (the "KPS
Transaction"), and ending on the third anniversary of the Closing Date;
provided, however, that such term shall be automatically extended for additional
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consecutive one (1) year periods unless, no later than six (6) months prior to
the expiration of the initial period, either party hereto shall provide written
notice of its or his desire not to extend the term hereof to the other party
hereto (the initial period together with each one-year extension, if applicable
shall be referred to hereinafter as the "Employment Term"). Nothing in this
Section 1 shall limit the right of the Company or the Executive to terminate the
Executive's employment hereunder on the terms and conditions set forth in
Section 9 hereof.
2. Position.
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(a) The Executive shall serve as the Company's Chief
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Executive Officer. The Executive shall report to the Board of Director of the
Company (the "Board") During the Employment Term the Executive will (i) devote
his full business time, ability, knowledge and attention, and give his best
efforts solely to the Company's business affairs and interest, (ii) perform such
services and assume such duties and responsibilities appropriate to the
positions identified above as well as those which may from time to time be
reasonably assigned to him by the Board or its designated representative and
(iii) in all respects use his best efforts to further, enhance and develop the
Company's business affairs, interests and welfare.
(b) During the Employment Term, the Executive shall act in
accordance with the Company's general policies and procedures applicable to
other senior executives. The Executive shall devote substantially all of his
full working time, attention and energies to the performance of his duties
hereunder, provided that the Executive may serve as an officer, director or
member of any for-profit or not-for-profit corporation, partnership or firm
which does not compete with the Company; provided, however, that the Executive
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shall inform the Board prior to accepting such office, membership or
directorship.
3. Base Salary. During the Employment Term, the Company shall pay
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the Executive a base salary (the "Base Salary") at an annual rate of $350,000,
payable in regular installments in accordance with the Company's usual payroll
practices. On at least an annual basis, the Compensation Committee of the Board
(the "Compensation Committee") will review the Executive's performance and may
increase (but not decrease) the Base Salary if, in its discretion, any such
increase is warranted. The Company may also pay the Executive such bonuses and
other incentive compensation, including without limitation, stock options, as
may be determined from time to time to be appropriate by the Board or the
Compensation Committee.
4. Signing and Stay Bonuses. Upon the consummation of the KPS
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Transaction, the Company shall pay to the Executive a lump sum bonus equal to
$600,000 (the "Signing Bonus"). Subject to the Executive's continued employment
with the Company, (i) upon the first business day following the first
anniversary of the Closing Date, the Company shall pay to the Executive a lump
sum payment equal to $300,000 and (ii) upon the first business day following the
second anniversary of the Closing Date, the Company shall pay to the Executive
an additional lump sum payment equal to $300,000 (each of these payments,
individually and collectively shall be referred to as the "Stay Bonus"). In the
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event of the termination of the Executive's employment for any reason other than
pursuant to Section 9(a) of the Agreement (Termination for Cause) or Section
9(d) of the Agreement (Termination by the Executive other than for Good Reason),
prior to the last date of the Employment Term, the Company shall pay to the
Executive any Stay Bonus that has not been paid as of the date of such
termination (plus interest at 8% annually, computed from the Closing Date).
5. Bonus. The Executive shall be afforded the opportunity to earn an
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annual cash bonus payment (an "Annual Bonus") with respect to each calendar year
ending during the Employment Term. The amount of such Annual Bonus shall not
exceed 140% of the Executive's Base Salary and shall be contingent upon the
Company's achievement of certain target earnings before interest, taxes,
depreciation and amortization (the "EBITDA Target") established by the
Compensation Committee of the Board pursuant to an incentive compensation
program of the Company. Such Annual Bonus shall be paid at the same time and in
the same manner as bonuses are generally paid to other senior executives.
6. Equity Incentives.
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(a) Subject to shareholder approval, the Company shall amend the
Company's 1998 Stock Option Plan (the "1998 Plan") to permit the granting of
additional options pursuant to the 1998 Plan. Subject to such approval, the
Company shall grant to the Executive as of the Closing Date, an option to
purchase 37,500 shares of the Company's common stock at Fair Market Value (as
defined in the 1998 Plan) of such stock as of the Closing Date pursuant to a
stock option agreement to be entered into by and between the Company and the
Executive and to be governed by the terms of such agreement and of the 1998
Plan. Such options shall vest as to one-third (1/3) of the shares underlying the
option on each of the first, second and third anniversaries of the Closing Date.
In addition, the stock option agreement evidencing the options granted pursuant
to this Section 6(a) shall provide, to the extent permissible under the 1998
Plan, that such option will vest and become 100% exercisable upon death,
Disability (as defined in the 1998 Plan) or a termination of the Executive's
employment by the Company other than pursuant to Section 9(a) or Section 9(d) of
the Agreement.
(b) Subject to shareholder approval of the amendment to the 1998
Plan, referred to in Section 6(a), the Company shall grant to the
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Executive as of the Closing Date, an option to purchase 16,666 shares of the
Company's common stock at 1.50 * KPS conversion price ("Year One Options"),
16,667 shares of the Company's common stock at 2.50 * KPS conversion price
("Year Two Options") and 16,667 shares of the Company's common stock at 3.50*
KPS conversion price ("Year Three Options"); provided, however, that in all
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events, the exercise price of the option granted pursuant to this Section 6(b)
shall equal or exceed the Fair Market Value (as defined in the 1998 Plan) of
such shares of Common Stock on the date of the grant of such options. Each Year
One Option shall vest and become exercisable as of the first anniversary of the
Closing Date; each Year Two Option shall vest and become exercisable as of the
second anniversary of the Closing Date; and each Year Three Options shall vest
and become exercisable as of the third anniversary of the Closing Date.
(c) Upon the consummation of the KPS Transaction, one-half of
the Executive's unvested stock options granted to him prior to the Closing Date,
shall vest and become exercisable and the remaining one-half shall expire
without further consideration to the Executive. The options which shall vest and
those which shall expire in accordance with this Section 6 are listed on Exhibit
A annexed hereto.
Notwithstanding any of the provisions of this Section 6, in the
event that the requisite shareholder approval above is not granted or if any of
the Stock Options specified in Section 6(a) and (b) are not granted or awarded,
this paragraph 6(c) shall become inoperative and the Executive shall continue to
retain all rights and privileges to all stock options granted to him prior to
the Closing Date.
All options granted pursuant to this Section 6 shall hereinafter
be referred to as the Stock Options.
7. Employee Benefits.
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(a) During the Employment Term, the Executive shall be provided
with benefits on the same basis as employee benefits are generally made
available to other senior executives of the Company. In addition to normal
holidays recognized by the Company, the Executive will be entitled to four (4)
weeks paid vacation annually; provided that any vacation taken by the Executive
may be taken any time the Executive deems appropriate, upon consultation with
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the Chief Executive Officer and/or the Board, who may determine the best
interests of the Company require otherwise.
(b) The Executive agrees to make himself available and to undergo, at
the Company's request and expense, any physical examination or other procedure
necessary to allow the Company to obtain a key-person insurance policy on the
Executive. If the Company obtains such a policy, it shall maintain the policy
at its expense and all proceeds will be the sole property of the Company.
(c) The Company shall provide the Executive with a housing allowance
of up to $2,500 per month for a period of twenty-four (24) months commencing on
the Closing Date.
(d) At any time during the Employment Term, the Company shall
reimburse the Executive for the actual and reasonable expenses incurred by the
Executive in connection with moving his principal residence from Denver,
Colorado to a new location within reasonable proximity to the Company's
corporate headquarters. The Company agrees and acknowledges that the Executive
shall have sole discretion as to whether to move his principal residence to
within a reasonable proximity to the current or any new corporate headquarters.
In addition, in the event that the Executive moves his principal place of
residence to a new location within reasonable proximity to the Company's
corporate headquarters, and there is a Change of Control (as such term is
defined in Section 9 of the Agreement) the Company shall reimburse the Executive
for the actual and reasonable expenses incurred by the Executive in relocating
his principal residence back to Denver, Colorado or some other location
reasonably acceptable to the Company.
(e) During the Employment Term, the Executive shall have the use of a
Company automobile reasonably acceptable to the Executive.
8. Business Expenses and Perquisites. During the Employment Term, the
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Company shall reimburse the Executive for any and all travel and other out-of-
pocket expenses reasonably incurred by the Executive in the performance of his
duties hereunder.
9. Termination. Notwithstanding any other provision of the Agreement:
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(a) For Cause by the Company.
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(i) The Employment Term and the Executive's employment hereunder
may be terminated by the Company for "Cause" at any time effective immediately
upon Notice of Termination (as defined below) to the Executive. For purposes of
the Agreement, "Cause" shall mean (i) the commission by the Executive of any act
materially detrimental to the Company, including but not limited to fraud,
embezzlement, theft, bad faith, gross negligence, recklessness, dishonesty,
insubordination or gross willful misconduct; (ii) gross incompetence or repeated
failure or refusal to perform the duties required by the Agreement and as may be
assigned to the Executive by the Board; (iii) conviction of, or pleading no
contest to, a felony or any crime of moral turpitude; (iv) conviction of a
lesser crime or offense involving Company property; (v) any material
misrepresentation by the Executive to the Company regarding the operation of the
business; or (vi) material breach of any covenant of the Agreement, provided,
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that the action or conduct described in clause (ii) or clause (vi) above will
constitute "Cause" only if such action or conduct continues after the Company
has provided the Executive with written notice and a reasonable opportunity (to
be not less than 30 days) to cure the same.
(ii) If the Executive is terminated for Cause, he shall be
entitled to receive his Base Salary through the date of such termination. Upon
termination of the Executive's employment for Cause pursuant to this Section
9(a), the Executive shall have no further rights to any compensation (including
any Stay Bonus or Annual Bonus) or any other benefits under the Agreement other
than as required by applicable law. All other benefits, if any, due the
Executive following the Executive's termination of employment pursuant to this
Section 9(a) shall be determined in accordance with the plans, policies and
practices of the Company; provided, however, that the Executive shall not
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participate in any severance plan, policy or program of the Company.
(b) Disability or Death.
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(i) The Employment Term and the Executive's employment hereunder
shall terminate upon his death and if the Executive in the good faith
determination of the Board, based on sound medical advice, has become physically
or mentally incapable of performing his duties hereunder for a continuous period
of one-hundred eighty (180) days, in which event the
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Executive will be deemed permanently disabled upon the expiration of such one
hundred eighty (180) day period such incapacity to be hereinafter referred to as
"Disability."
(ii) Upon termination of the Executive's employment hereunder on
account of either Disability or death, the Executive or his estate (as the case
may be) shall be entitled to receive (A) any accrued but unpaid Base Salary
through the date of death or Disability, (B) any unpaid Stay Bonus, together
with interest calculated pursuant to Section 4 hereof, (C) compensation for any
unused vacation which the Executive may have accrued and (D) reimbursement for
such expenses as the Executive may have properly incurred on behalf of the
Company as provided in Section 8 above, prior to the effective date of the
termination. In addition, in the event of a termination on account of death or
Disability, the Executive or his estate, (as the case may be) shall continue to
receive his Base Salary as in effect as of the date of termination through one
year following the date of such termination; provided, however, that in the case
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of a termination due to Disability, such payments shall be reduced by all
payments in respect of any payments the Executive may receive under the
Company's disability insurance for the same period. Such Base Salary
continuation shall be in accordance with the Company's regular payroll
practices. All other benefits, if any, due the Executive following the
Executive's termination on account of Disability or death shall be determined in
accordance with the plans, policies and practices of the Company; provided,
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however, that the Executive (or his estate, as the case may be) shall not
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participate in any severance plan, policy or program of the Company, other than
any applicable disability benefit plan of the Company.
(c) Without Cause by the Company.
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(i) Through the date which is sixty (60) days from the Closing
Date, the Employment Term and the Executive's employment hereunder may be
terminated by the Company without "Cause" (other than by reason of his
Disability or death) and the Executive shall be solely entitled to the following
payments and benefits within 30 days after the effective date of the
termination: (A) accrued but unpaid Base Salary through the date of termination,
(B) unpaid Stay Bonus, together with interest calculated pursuant to Section 4
hereof, (C) compensation for any unused vacation the Executive may have accrued,
(D) reimbursement of such expenses as the Executive may have properly incurred
on behalf of the Company as provided in Section 8 above, prior
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to the effective date of the termination and (E) continuation of his
participation in any and all employee benefit plans or other employee benefits
provided by Section 7(a), (b) and (c) hereof to the extent permitted under the
terms of such plans or program through the third anniversary of the effective
date of such termination. In the event that the terms of the Company's health
plan do not permit the Executive to continue to participate in such plan, the
Company shall reimburse the Executive through the third anniversary of the
effective date of such termination for the cost of health care coverage (whether
through "COBRA" or such other mutually agreed upon arrangement) for the
Executive and his dependents (as such term is used in the Company health plan),
if any.
(ii) The Employment Term and the Executive's employment hereunder
may be terminated by the Company without "Cause" upon Notice of Termination (as
defined below) to the Executive. If the Executive's employment is terminated by
the Company without "Cause" (other than by reason of his Disability or death)
after the date which is sixty (60) days from the Closing Date, but prior to the
last day of the Employment Term, the Executive shall receive within 30 days
after the effective date of the termination any (A) accrued but unpaid Base
Salary through the date of termination, (B) unpaid Stay Bonus, together with
interest calculated pursuant to Section 4 hereof, (C) compensation for any
unused vacation that the Executive may have accrued, (D) a prorated payment with
respect to the Bonus with respect to the year of such termination and (E)
reimbursement for such expenses as the Executive may have properly incurred on
behalf of the Company as provided in Section 8 above, prior to the effective
date of the termination. In addition, the Executive shall (I) continue to
receive his Base Salary as in effect as of the date of such termination, through
the later of (X) the last date of the Employment Term (without regard to the
termination of employment pursuant to this Section 9(c)(i)) or (Y) one year
following the date of such termination and (II) continue to participate in any
and all employee benefit plans or other employee benefits provided by Section
7(a), (b) and (c) hereof to the extent permitted under the terms of such plans;
provided, however, that the Executive's right to continue to receive the Base
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Salary payments pursuant to this Section 9(c)(ii) shall cease immediately upon a
violation by the Executive of any provision of Sections 10, 11 or 12 of the
Agreement. Such Base Salary continuation shall be in accordance with the
Company's regular payroll practices.
(iii)Upon termination of the Executive's employment by the
Company without Cause pursuant to this Section 9(c), the
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Executive shall be entitled to reimbursement for actual and reasonable expenses
incurred by the Executive in connection with outplacement services up to a
reasonable maximum. Upon termination of the Executive's employment by the
Company without Cause pursuant to this Section 9(c), the Executive shall have no
further rights, other than those set forth in this Section 9(c), to any
compensation or any other benefits under the Agreement. The Executive's rights
with respect to the Stock Options granted to him pursuant to Section 6 hereof
shall be determined pursuant to the 1998 Plan and the stock option agreement
evidencing the grant of such options. All other benefits, if any, due the
Executive following termination pursuant to this Section 9(c) shall be
determined in accordance with the plans, policies and practices of the Company;
provided, however, that the Executive shall not participate in any severance
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plan, policy or program of the Company.
(d) Termination by the Executive. The Employment Term and the
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Executive's employment hereunder may be terminated by the Executive for any
reason upon Notice of Termination (as defined below) to the Company. In the
event of such termination (other than a termination for "Good Reason" pursuant
to Section 9(e) hereof), the Executive shall be entitled to receive his Base
Salary through the date of the termination, and he shall have no further rights
to any compensation (including any Stay Bonus) or any other benefits under the
Agreement. The Executive's rights with respect to the Stock Options granted to
him pursuant to Section 6 hereof shall be determined under the 1998 Plan and the
stock option agreement evidencing the grant of such options. All other
benefits, if any, due the Executive following the Executive's termination of
employment pursuant to this Section 9(d) shall be determined in accordance with
the plans, policies and practices of the Company; provided, however, that the
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Executive shall not participate in any severance plan, policy or program of the
Company.
(e) Termination by the Executive for Good Reason. The Employment Term
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and the Executive's employment hereunder may be terminated by the Executive for
Good Reason upon Notice of Termination (as defined below) to the Company.
(i) For purposes of the Agreement, "Good Reason" shall mean: (A)
the occurrence of a "Change of Control" (as defined below) of the Company, and
(B) (1) a material reduction in the assignment of the Executive's duties,
responsibilities, or status without the Executive's consent; (2)
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a reduction by the company in the Executive's Base Salary; (3) the failure of
the Company to pay the Stay Bonus in accordance with Section 4 hereof, (4) a
material breach of the Agreement by the Company or (5) the substantial failure
of the Company to continue in effect the Company's insurance, disability, or any
other executive benefit plans or policies in which the Executive participates.
(ii) For purposes of the Agreement "Change of Control"
shall mean the occurrence of any of the following: (A) any time that, as a
result of or in connection with a tender offer, sale of securities, merger,
consolidation, sale of assets or contested election, or any combination of such
transactions, the persons who were directors of the Company immediately before
such transaction or event cease to constitute a majority of the Board of
Directors of the Company or of any successor to the Company at any time within
one year after such transaction or event; provided, however, that any sale,
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transfer or other disposition by KPS or its affiliates (each, a "KPS Sale") of
securities acquired by KPS or its affiliates pursuant to or in connection with
the KPS Transaction including, without limitation, any KPS Sale of some or all
of the common stock of the Company received by KPS or its affiliates upon
conversion of shares of Series A Participating Convertible Preferred Stock, par
value $0.001 per share, which does not otherwise result in a Change of Control
under clauses (B), (C) or (D) of this paragraph shall not constitute a Change of
Control for purposes of this clause (A), (B) the sale of all or substantially
all of the assets of the Company to any person or entity that, prior to such
sale, did not control, was not under common control with, or was not controlled
by, the Company, (C) a merger or consolidation or other reorganization in which
the Company is not the surviving entity or becomes owned entirely by another
entity, unless at least 50% of the outstanding voting securities of the
surviving or parent corporation, as the case may be, immediately following such
transaction are beneficially held by the same persons and entities that
beneficially held the outstanding voting securities of the Company immediately
prior to such transaction in the same proportion as such persons or entities
held such voting securities immediately prior to the transaction or (D) any
transaction or series of transactions which results in any person or "group"
becoming the beneficial owner, directly or indirectly, of securities
representing more than fifty percent (50%) of the outstanding voting securities
of the Company; provided, however, that it is expressly acknowledged, agreed and
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understood by both the Executive and the Company, that the consummation of the
KPS Transaction or any transaction which occurs on or after the KPS Transaction
in which KPS or its affiliates control the Company shall not be a Change of
Control under the Agreement, any existing or future stock
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option agreements, or any other agreements whatsoever between the Executive and
the Company. Notwithstanding anything in this Section 9(e) to the contrary, if,
while the Executive is employed by the Company, a Change of Control (as defined
herein) occurs, the Executive may, in his sole discretion, within one (1) year
after the effective date of the Change of Control, give notice to the Company
that he intends to elect to exercise his right to terminate his employment for
Good Reason and receive the payments provided in Section 9(e)(iii) (the "Notice
of Intention"). In the event that the Executive elects not to exercise such
rights, the Executive's employment with the Company shall continue for the
balance of the Employment Term. In the event that the Executive does elect to
exercise such rights, the Executive's employment with the Company shall
terminate effective as of the date upon which the Notice of Intention is
received by the Company.
(iii) If the Executive terminates his employment for Good
Reason pursuant to this Section 9(e), the Executive shall receive within 30 days
after the effective date of the termination any (A) accrued but unpaid Base
Salary through the date of termination, (B) unpaid Stay Bonus, together with
interest calculated pursuant to Section 4 hereof, (C) compensation for any
unused vacation that the Executive may have accrued, and (D) reimbursement for
such expenses as the Executive may have properly incurred on behalf of the
Company as provided in Section 8 above, prior to the effective date of the
termination. In addition, the Executive shall (I) continue to receive his Base
Salary as in effect as of the date of such termination, through the later of (X)
the last date of the Employment Term (without regard to the Executive's
termination of employment pursuant to this Section 9(e), or (Y) one year
following the date of such termination and (II) continue to participate in any
and all employee plans or programs or other employee benefits provided by
Section 7(a), (b) and (c) hereof to the extent permitted under the terms of such
plans; provided, however, that the Executive's right to continue to receive the
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Base Salary payments pursuant to this Section 9(e) shall cease immediately upon
a violation by the Executive of any provision of Sections 10, 11 or 12 of the
Agreement. Such Base Salary continuation shall be in accordance with the
Company's regular payroll practices.
(iv) In the event the Executive terminates his employment
for Good Reason which is a Change of Control pursuant to Section 9(e), in
addition to any benefits provided to the Executive upon a Change of Control
pursuant to any stock option plan or stock option agreement governing any grant
of stock options to the Executive, any and all stock options granted to
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the Executive pursuant to any of the Company's stock option plans prior to the
effective date of such Change of Control that are unvested as of the effective
date of such Change of Control shall vest and become fully exercisable upon the
effective date of the Change of Control without regard to any vesting schedule
established in the relevant option plan or option agreement.
(v) In addition to the benefits and payments provided by
this Section 9(e), in the event the Executive terminates his employment for Good
Reason, he shall be entitled to reimbursement for actual and reasonable expenses
incurred by the Executive in connection with outplacement services up to a
reasonable maximum.
(f) Release of Claims. Notwithstanding any other provision of
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the Agreement, the payments required to be made under Sections 9(c) or 9(e)
shall be made only if the Executive executes a release of claims in the form
attached hereto as Exhibit I to the Agreement, or such similar form as the
Company may determine, and such release or form, as applicable, has become
effective.
(g) Notice of Termination. Except as provided in Section (1),
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any purported termination of employment by the Executive or the Company shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 15(g) hereof and within 60 days prior to such
termination; provided, however, that in the event of a termination under Section
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9(e) on account of Good Reason, notice of such termination must be given within
60 days following the consummation of the event or events which give rise to the
Good Reason, other than a Change of Control, and provided, further, however,
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that in the event of a termination under Section 9(a) on account of Cause,
notice of such termination must be given within 10 days of the effective date of
such termination. For purposes of the Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in the
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of employment under the
provision so indicated.
10. Non-Solicitation.
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(a) The Executive acknowledges and recognizes the highly
competitive nature of the business of the Company and its Affiliates
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(defined below) and accordingly agrees as follows:
(i) During the Employment Term and until the later of (i)
the last day of the Employment Term (without regard to any termination pursuant
to Section 9) or (ii) one year following the effective date of the Executive's
termination (the "Restricted Period"), the Executive will not, directly or
indirectly, solicit or encourage any employee of the Company or any Affiliate to
leave the employment of the Company or any Affiliate. For purposes of Sections
10, 11 and 12 of the Agreement, the terms: "Affiliate" means as to any Person,
each other Person that directly or indirectly (through one (1) or more
intermediaries) controls, is controlled by or is under common control with such
person; and "Person" means an individual, corporation, partnership, limited
liability company, association, joint stock company, trust, associate (as
defined in regulations promulgated by the Securities and Exchange Commission) or
other legally recognizable entity.
(ii) During the Restricted Period, the Executive will not,
directly or indirectly, solicit or encourage to cease to work with the Company
or any Affiliate or consultant under contract with the Company or any Affiliate.
11. Confidentiality.
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(a) The Executive hereby agrees that he will comply with the
Company's general policies regarding confidentiality. Without in any way
limiting the foregoing sentence, the Executive further agrees that he will not,
at any time during the Employment Term or Restricted Period, make use of or
divulge to any other person, firm or corporation any trade or business secret,
process, method or means, or any other confidential information concerning the
business or policies of the Company, which he may have learned in connection
with his employment. For purposes of the Agreement, a "trade or business secret,
process, method or means, or any other confidential information" shall mean and
include written information treated as confidential or as a trade secret by the
Company. The Executive's obligation under this Section 11 shall not apply to any
information which (i) is known publicly; (ii) is in the public domain or
hereafter enters the public domain without the fault of the Executive; (iii) is
known to the Executive prior to his receipt of such information from the
Company, as evidenced by written records of the Executive or (iv) is hereafter
disclosed to the Executive by a third party not under an obligation of
confidence to the Company. The Executive agrees not to remove from the premises
of the
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Company, except as an employee of the Company in pursuit of the business of the
Company or except as specifically permitted in writing by the Board, any
document or other object containing or reflecting any such confidential
information. The Executive recognizes that all such documents and objects,
whether developed by him or by someone else, will be the sole exclusive property
of the Company. Except as specifically authorized by the Board upon termination
of his employment hereunder, the Executive shall forthwith deliver to the
Company all such confidential information, including without limitation all
lists of customers, correspondence, accounts, records and any other documents or
property made or held by him or under his control in relation to the business or
affairs of the Company, and no copy of any such confidential information shall
be retained by him.
12. Non Competition.
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(a) During the Restrictive Period, the Executive will not,
directly or on behalf of, or in conjunction with any other Person: (i) engage,
as an officer, director, shareholder, owner, partner, joint venturer, financier,
manager, executive, employee, independent contractor, consultant, advisor, or
sales representative, in any business selling any products or services in direct
competition with the Company or its Affiliates or subsidiaries within 100 miles
of any geographic location in which the Company or any of its Affiliates or
subsidiaries conducts business at such time (or in the case of a termination or
expiration of the Agreement, within 100 miles of any geographic location in
which the Company, or any of its Affiliates or subsidiaries conducted business
at the time of such expiration or termination) (the "Territory"); (ii) call upon
any prospective acquisition candidate on the Executive's own behalf or on behalf
of any competitor of the Company, or any of its Affiliates or subsidiaries,
which candidate was either called upon by the Company (including its Affiliates
or subsidiaries), or for which the Company or any of its Affiliates or
subsidiaries made an acquisition analysis, for the purpose of acquiring such
entity; provided, however, that the Executive shall not be
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charged with a violation of this Section 12 unless and until the Executive shall
have knowledge or notice that such prospective acquisition candidate was called
upon, or that an acquisition analysis was made, for the purpose of acquiring
such entity; (iii) call upon any Person which is, at that time, or which has
been, within one (1) year prior to that time, a customer of the Company
including the Affiliates or its subsidiaries thereof within the Territory for
the purpose of soliciting or selling products or services in direct competition
with the Company within the Territory; (iv) disclose
15
customers, whether in existence or proposed, of the Company (or the Company's
subsidiaries or Affiliates) to any Person for any reason or purpose; (v) engage
in any pattern of conduct that involves the making or publishing of written or
oral statements or remarks (including, without limitation, the repetition or
distribution of derogatory rumors, allegations, negative reports or comments)
which are disparaging, deleterious or damaging to the integrity, reputation or
good will of the Company, its management, or of management of its Affiliates or
subsidiaries.
(b) Notwithstanding anything herein to the contrary, the
limitations in this Section 12 of the Agreement will not prohibit any investment
by the Executive of not more than 5% of the outstanding capital stock of a
company whose securities are listed on a public exchange or the National
Association of Securities Dealers Automated Quotation National Market System.
(c) It is expressly understood and agreed that although the
Executive and the Company consider the restrictions contained in Sections 10, 11
and 12 of the Agreement to be reasonable, if a final judicial determination is
made by a court of competent jurisdiction that the time or territory or any
other restriction contained in the Agreement is an unenforceable restriction
against the Executive, the provisions of the Agreement shall not be rendered
void but shall be deemed amended to apply as to such maximum time and territory
and to such maximum extent as such court may judicially determine or indicate to
be enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in the Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding shall
not affect the enforceability of any of the other restrictions contained herein.
13. Specific Performance. The Executive acknowledges and agrees that
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the Company's remedies at law for a breach or threatened breach of any of the
provisions of Sections 10, 11 or 12 of the Agreement would be inadequate and, in
recognition of this fact, the Executive agrees that, in the event of such a
breach or threatened breach, in addition to any remedies at law, the Company,
without posting any bond, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
14. Indemnification. In the event the Executive is made a party to
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any threatened, pending or completed action, suit or proceeding, whether civil,
16
criminal, administrative or investigative (other than an action by the Company
against the Executive), by reason of the fact that he is or was performing
services within the course and scope of his employment with the Company under
the Agreement, then the Company shall protect, defend, indemnify and hold
harmless the Executive against all expenses (including attorneys' fees, costs
and expenses), judgments, fines, costs, liabilities, damages, and amounts paid
in settlement, actually and reasonably incurred by the Executive in connection
therewith. Without limiting the requirement above that the Executive be
performing services within the course and scope of his employment, activities
constituting violations of laws or the Company policy shall not constitute
services within the course and scope of the Executive's employment, and the
Company shall not indemnify the Executive for any activities. The Executive
agrees to immediately notify the Company of any threatened, pending or completed
matter. The Executive agrees to accept any attorney reasonably assigned by the
Company to defend the Executive; provided that if counsel selected by the
Company shall have a conflict of interest that prevents such counsel from
representing the Executive, the Executive may engage separate counsel and the
Company shall pay all reasonable attorneys fees of such counsel.
15. Miscellaneous.
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(a) Governing Law. The Agreement shall be governed by and
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construed in accordance with the laws of the State of New York.
(b) Entire Agreement/Amendments. The Agreement and any other
---------------------------
exhibits and attachments hereto contains the entire understanding of the parties
with respect to the employment of the Executive by the Company, and the
Agreement replaces and supersedes any and all prior or contemporaneous
negotiations, communications, understandings, obligations, commitments,
agreements or contracts, whether written or oral, between the parties respecting
the subject matter hereof. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein. The Agreement
may not be altered, modified, or amended except by written instrument signed by
the parties hereto.
(c) No Waiver. The failure of a party to insist upon strict
---------
adherence to any term of the Agreement on any occasion shall not be considered a
waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of the Agreement.
17
(d) Severability. In the event that any one or more of the
------------
provisions of the Agreement shall be or become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions of the Agreement shall not be affected thereby.
(e) Assignment. The Agreement shall not be assignable by the
----------
Executive. The Agreement may be assigned by the Company to a company which is a
successor in interest to substantially all of the business operations of the
Company. Such assignment shall become effective when the Company notifies the
Executive of such assignment or at such later date as may be specified in such
notice provided that any assignee expressly assumes the obligations, rights and
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privileges of the Agreement. Upon such assignment, the rights and obligations of
the Company hereunder shall become the rights and obligations of such successor
company.
(f) Successors; Binding Agreement. The Agreement shall inure
-----------------------------
to the benefit of and be binding upon the Company's and the Executive's personal
or legal representatives, executors, administrators, successors, heirs,
distributes, devises and legatees.
(g) Notice. For the purpose of the Agreement, notices and all
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other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the execution page of the Agreement, provided
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that all notices to the Company shall be directed to the attention of the
Chairman of the Board, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
(h) Withholding Taxes. The Company may withhold from any
-----------------
amounts payable under the Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
(i) Counterparts. The Agreement may be signed in counterparts,
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each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
18
IN WITNESS WHEREOF, the parties hereto have duly executed the
Agreement as of the day and year first above written.
Gerald R. Riordan
/s/ Gerald R. Riordan
UNITED ROAD SERVICES, INC.
By: /s/ Michael G. Psaros
Title: Chairman of the Board
Exhibit A
Gerald R. Riordan
1. Options vested as of Closing Date:
Option to purchase 37,500 shares granted on October 11, 1999.
2. Options expired as of Closing Date:
Option to purchase 37,500 shares granted on October 11, 1999