EXHIBIT 4.13
THIS EMPLOYMENT AGREEMENT made as of this 10th day of January, 2002.
B E T W E E N:
CAPITAL ENVIRONMENTAL RESOURCE INC., an Ontario corporation having its
head office at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX X0X 0X0 ("CAPITAL")
- AND -
XXXXX X. XXXXX, an individual residing at 000 Xxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000
(the "EMPLOYEE" or "XX. XXXXX")
WHEREAS, the Corporation desires to retain Xx. Xxxxx as an employee;
AND WHEREAS, Xx. Xxxxx is desirous of being so retained;
NOW THEREFORE IN CONSIDERATION of the Employee's employment by Capital, the
mutual provisions contained herein, the compensation to be paid the Employee
either in the form of salary, other compensation or increases therein and for
good and valuable consideration more particularly set out herein, the parties
agree with each other as follows:
1. EMPLOYMENT
A. Capital hereby employs the Employee and the Employee hereby accepts
employment upon the terms and conditions of this Agreement. The
Employee shall have the title of Chief Financial Officer and shall
report to the Chief Executive Officer of Capital or his designee and
shall perform such duties, assume such responsibilities and devote
such time, attention and energy to the business of Capital and
corporations affiliated with Capital (the "Affiliated Corporations")
as Capital shall reasonably require.
2. COMPENSATION
For all services rendered by the Employee under this Agreement, Capital
agrees to compensate the Employee during the term hereof, as follows:
A. BASE SALARY. Employee's base salary shall be CDN $180,000 per annum
payable on a periodic basis consistent with Capital's payroll
procedures for executive employees. The Employee's base salary shall
be reviewed at least annually and shall be increased as agreed by
Capital and the Employee from time to time.
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B. OTHER COMPENSATION. The Employee shall be entitled to receive the
following additional compensation:
i. BONUS. For each of 2002 and 2003, Employee may receive an
annual performance bonus in an amount to be determined at the
discretion of the Chief Executive Officer.
ii. BENEFITS. If eligible, Employee shall be covered under
Capital's executive benefit plan inclusive of the matching
pension contribution to a maximum of five percent (5%) of base
salary and such other benefits as may be authorized by the
Board of Directors or Compensation Committee from time to time.
iii. VACATION. Employee shall be granted four (4) weeks vacation in
each fiscal year, to be taken at such times as mutually agreed
between the Employee and Capital. Vacation may only be taken
within the year of entitlement and may not be accumulated form
year to year unless otherwise mutually agreed.
iv. CAR.
(1) Capital shall provide the Employee with a leased vehicle
(or equivalent car allowance) commensurate with his
position;
(2) Capital shall be responsible for all costs incurred in the
operation of such vehicle including fuel, maintenance, and
insurance. Capital will compensate the Employee for any
deemed taxable benefits for his personal use of such
vehicle including taxable benefits relating to operating
costs.
v. STOCK OPTIONS. Effective upon the date of this Agreement and
with a grant date of January 10, 2002, the Employee shall be
granted 250,000 options to purchase stock in the capital of
Capital, which shall vest upon the second anniversary of the
grant date (the "Vesting Date"). The exercise price for each
optioned share shall be the price per share as listed on Nasdaq
at the close of business on January 10, 2002.
vi. MOBILE TELEPHONE. Capital shall provide the Employee with a
mobile telephone and pay all reasonable charges incurred by the
Employee in connection with the use of such telephone or
reimburse Employee for same.
C. EXPENSES. Employee shall be reimbursed for all expenses reasonably and
actually incurred in the performance of his duties, subject to
submission of appropriate documentation in accordance with Capital's
expense reimbursement policy in effect from time to time.
3. TERM, TERMINATION
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A. The Employee shall be employed for a term of two (2) years ending
December 31, 2003 (the "TERM").
B. Employee's employment hereunder shall terminate upon Employee's death.
C. The Company may terminate Employee's employment hereunder upon
Employee's becoming "Totally Disabled". For purposes of this
Agreement, Employee shall be "Totally Disabled" if Employee is
physically or mentally incapacitated so as to render Employee
incapable of performing the usual and customary duties under this
Agreement. Employee's receipt of disability benefits under the
Company's long-term disability plan or receipt of other disability
benefits shall be deemed conclusive evidence of being Totally Disabled
for the purposes of this Agreement; provided, however, that in the
absence of Employee's receipt of such long-term disability benefits or
other disability benefits, the Company may, in its reasonable
discretion (but based upon appropriate medical evidence), determine
that Employee is Totally Disabled.
D. The Employee may be terminated at any time for Cause without notice or
compensation in lieu thereof. For purposes of this Agreement, the term
"Cause" shall mean any of the following: (A) conviction of a crime
(including conviction on a guilty plea) involving an indictable
offence or, in the good faith judgment of the Company, fraud,
dishonesty, or moral turpitude; (B) deliberate and continual refusal
to perform employment duties reasonably requested by the Company or an
affiliate after five (5) days' written notice by certified mail of
such failure to perform, specifying that the failure constitutes cause
(other than as a result of vacation, sickness, illness or injury); (C)
fraud or embezzlement or material conflict of interest, determined in
accordance with the Company's normal, internal investigative
procedures consistently applied in comparable circumstances; (D) gross
misconduct or gross negligence in connection with the business of the
Company or an affiliate which has substantial effect on the Company or
the affiliate; or (E) breach of any of the covenants set forth in
Section 4 hereof.
E. Any determination of Cause under this Agreement shall be made by the
Company after giving Employee a reasonable opportunity to be heard.
F. Employee may terminate employment hereunder at any time after
providing thirty (30) days' written notice to the Company
G. On termination, without Cause, Employee shall receive:
i. by way of salary continuance of the Employee's base salary for
the greater of the remaining Term at the time of termination of
this Agreement or six (6) months (the "SEVERANCE PERIOD") Such
severance shall be paid over the Severance Period in accordance
with Capital's payroll procedures for executive employees;
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ii. entitlement to the options granted under Section 2.B.v hereof
vesting according to the preceding schedule regardless of
whether Employee's employment shall terminate prior to the
vesting of such options and shall remain exercisable for the
full Term of the Option, as such terms are defined in the
Employee Option Agreement between Capital and the Employee of
even date; and
iii. his Annual Bonus from previous year (pro-rated).
H. For greater certainty should the agreement not be renewed for a
further term, Employee shall receive (6) six months severance paid in
accordance with the above.
I. In the event that Employee's employment is terminated by reason of
Employee's death, the Company shall pay the following amounts to
Employee's beneficiary or estate:
i. Any accrued but unpaid Base Salary for services rendered to the
date of death, any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to the
date of death, and a prorated annual incentive bonus.
ii. Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 2.B.ii
hereof as determined and paid in accordance with the terms of
such plans, policies and arrangements.
J. In the event that Employee's employment is terminated by reason of
Employee being Totally Disabled as determined in accordance with
Section 3.C, the Company shall pay the following amounts to Employee:
i. Any accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expenses required
to be reimbursed under this Agreement, any vacation accrued to
the date of termination, and a prorated annual incentive bonus.
ii. Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 2.B.ii
hereof shall be determined and paid in accordance with the
terms of such plans, policies and arrangements.
iii. The Base Salary (at the rate in effect as of the date of
Employee's termination) which would have been payable to
Employee if Employee had continued in active employment until
the later of: (A) the period ending on the last day of the
Term; or (B) the end of the six (6) month period beginning
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on the date of Employee's termination. Payment shall be made at
the same time and in the same manner as such compensation would
have been paid if Employee had remained in active employment
until the end of such period. The Employee shall also be
eligible for a bonus or incentive compensation payment to the
extent bonuses are paid to similarly situated employees,
pro-rated for the year in which the Employee is terminated, and
paid when similarly situated employees are paid.
iv. The Company completely at its expense will continue for
Employee and Employee's spouse and dependents, group health
plans, programs or arrangements, in which Employee was entitled
to participate at any time during the twelve-month period prior
to the date of termination, until the earlier of: (A) last day
of period during which Employee receives payment in accordance
with clause iii above; (B) Employee's death (provided that
benefits payable to Employee's beneficiaries shall not
terminate upon Employee's death); or (C) with respect to any
particular plan, program or arrangement, the date Employee
becomes covered by a comparable benefit provided by a
subsequent employer.
K. Upon the effective date of termination or resignation, the Employee
shall promptly deliver and return to Capital all the property,
including, but not limited to, credit cards, customer lists, financial
data, letters, notes, notebooks, reports, or copies of any of the
above, any Confidential Information, as defined in Section 4.A.i.
4. NON-COMPETITION AND NON-SOLICITATION COVENANTS
A. DEFINITIONS.
i. "Confidential Information" includes information whether or not
developed by the Employee and includes, but is not limited to:
(1) names and identities of former, existing, and prospective
customers/clients of Capital not well known to the trade;
all contacts at all such customers/clients whether or not
such customers/clients are well known to the trade;
Capital's customer lists; contents of Capital's proposals
for sales, maintenance, service, license, and other
contracts; contents of all such contracts with all former,
existing and prospective customers/clients of Capital;
Capital's costing and estimation procedures and formulae
regarding proposals and other uses; information regarding
Capital's sales, profit and loss, profit margin,
production costs, overhead, and other bookkeeping and
accounting information; all information regarding
Capital's business development and marketing; names and
identities of Capital's vendors and suppliers not well
know to the trade; all contacts at all such vendors and
suppliers whether or not such vendors and suppliers
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are well know to the trade; costs and contents of
proposals and actual contracts between Capital and all
such vendors and suppliers;
(2) confidential information revealed to Capital by third
parties and which Capital is obligated to keep
confidential; and,
(3) any other information that may be considered by Capital as
Capital's confidential information under applicable laws.
ii. "Business" means the business that Capital is involved in being
the operation of collection, transportation, storage,
processing, recycling, reuse, handling and disposition of solid
and liquid, non-hazardous waste materials.
iii. "Severance Period" has the meaning ascribed thereto in Section
3.G of the Employment Agreement.
B. CONFIDENTIALITY AND NONDISCLOSURE.
i. Employee acknowledges that during Employee's employment,
Employee has had and/or will have access to and has become
and/or will or may become aware of Confidential Information.
Employee agrees to hold in confidence all Confidential
Information disclosed to Employee or developed by Employee in
connection with Employee's employment, except:
(1) information which, at the time of disclosure, is in the
public domain; or
(2) information which Employee can show was in Employee's
possession prior to entering into this Agreement and
which was not acquired, directly or indirectly, from
Capital.
ii. Employee will not, without the written permission of Capital,
use or disclose the Confidential Information which Employee is
obligated under this Agreement to maintain in confidence for
any reason other than to enable Employee to properly and
completely perform Employee's employment.
iii. For purposes of this provision, Confidential Information shall
not include information already in the public domain other than
as a result of a breach of this Agreement by the Employee. If
disclosure is required pursuant to an order of a court or other
tribunal having jurisdiction and the Employee, having consulted
with and received an opinion of his counsel, is compelled to
release such information, the Employee shall not be in breach
of this provision in complying with such order. In such
circumstances, the Employee agrees to limit such disclosure to
that information specifically required by the court or other
tribunal having jurisdiction and agrees prior to
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such disclosure to provide the Corporation with notice thereof
immediately following receipt by the Employee of such order.
iv. Employee will not reproduce or make copies of the Confidential
Information or Employee's output, except as required in the
performance of Employee's employment. Upon termination of
Employee's employment for any reason whatsoever, Employee will
promptly deliver to Capital all research, correspondence, data,
formulae, records, drawings, blueprints, manuals, letters,
notes, notebooks, reports, flow-charts, programs, proposals,
documents (collectively, "Documents") concerning Capital's
customers/clients, Documents concerning products, and all other
Documents, writings, and materials used by Employee or in the
possession or control of Employee which were used by Employee
during Employee's employment with Capital. Employee understands
that all such Documents, whether developed by Employee or
others, are and will remain the property of Capital.
v. Except as may be required by Employee's employment, Employee
will not, during or at any time subsequent to Employee's
employment, unless Capital has given prior written consent,
disclose or use the Confidential Information or engage in or
refrain from any action, where such action or inaction may
result (1) in the unauthorized disclosure of any or all such
Confidential Information to any person or entity, or (2) in the
infringement of any or all such rights in the Confidential
Information.
vi. Employee will immediately notify Capital of any information
which comes to Employee's attention which does or might
indicate that there has been any loss of confidentiality of
such Confidential Information or breach of such rights in the
Confidential Information.
vii. Employee agrees that during Employee's employment with Capital,
Employee will not breach any obligation of confidentiality that
Employee may have to others.
viii. Employee represents that Employee's performance of all the
terms of this Agreement does not and will not breach any
agreement to keep in confidence proprietary information
acquired by Employee in confidence or in trust prior to
employment by Capital. Employee warrants that Employee has
entered into no agreement, either written or oral, which
conflicts with this Agreement, and moreover, that Employee will
not enter into any such Agreement.
C. FORMER EMPLOYER CONFIDENTIAL INFORMATION.
Employee's understands that as part of the consideration for Capital's
offer of employment and Employee's continued employment hereunder,
that Employee has
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represented that Employee has not brought and will not bring and
Employee has not brought and will not bring into Capital or use in the
performance of Employee's responsibilities at Capital any equipment,
supplies, trade secrets, confidential information or otherwise of any
former employer which are not generally available to the public,
unless Employee has first obtained written authorization for its
possession and use.
D. NON-COMPETITION AND NON-SOLICITATION.
i. Employee will not, during Employee's employment and after the
termination of Employee's employment for any reason whatsoever,
directly or indirectly:
(1) solicit the trade or patronage of any of the
customers/clients or prospective customer/clients of
Capital, with respect to any of the services, products,
Confidential Information, or other matters of Capital;
and,
(2) Employee will not, during Employee's employment and within
a 75 km radius of any location where Capital or any of its
affiliates carries on the Business, where the Employee has
assumed responsibilities during the course of the last
year of his employment: (i) in the event that the
Employee's employment is terminated (other than for just
cause by Capital), for a period equivalent to the
Severance Period; and (ii) in the event that the Employee
resigns his employment or is terminated for just cause,
for a period of one (1) year from the date of such
resignation/termination (the "TERMINATION PERIOD"),
directly or indirectly:
ii. solicit the trade or patronage of any of the customers/clients
or prospective customer/clients of Capital, with respect to any
of the services, products, Confidential Information, or other
matters of Capital; and,
iii. found, work for, consult for, or assist in any way, whether in
a paid or unpaid capacity, any individual, partnership,
company, employer, business, research facility, or other entity
which competes with the Business of Capital.
iv. The restrictions set out in Section 4.D will apply during the
Employee's employment and for either the Severance Period or
the Termination Period, whichever is applicable.
v. Employee agrees that during Employee's employment and for
either the Severance Period or the Termination Period,
whichever is applicable, Employee will not solicit or in any
manner encourage any employee of Capital to leave Capital's
employ.
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E. INJUNCTIVE RELIEF AND PROOF.
i. Employee acknowledges and agrees that Capital has a material
interest in preserving the relationship it has developed with
its clients/customers against impairment by competitive
activities of a former employee and in protecting the
Confidential Information from use and dissemination.
Accordingly, Employee agrees that the restrictions, agreements,
representations, and warranties, contained in this Agreement
are of the essence to this Agreement and constitute a material
inducement to Capital to employ Employee, and that Capital
would not employ Employee absent such an inducement.
Furthermore, the existence of any claim or cause of action by
Employee against Capital whether predicated on this Agreement
or otherwise, will not constitute a defence to the enforcement
by Capital of the restrictions, agreements, representations,
and warranties contained in this Agreement, provided, however,
that if any provision will be held to be illegal, invalid or
unenforceable in any jurisdiction, the decision will not affect
any other agreement or provision of this Agreement or the
application or any other agreement or provision.
ii. Employee acknowledges and agrees that a breach of any
agreement, restriction, representation or warranty contained in
this Agreement would cause Capital irreparable harm not
compensable by damages alone. As such Employee acknowledges and
agrees that if Employee breaches any of the agreements
contained in this Agreement, Capital has the right to temporary
and permanent injunctive relief in addition to any other
appropriate relief granted by a court of competent jurisdiction
to restrain any breach of such agreements by Employee, without
the burden of proving actual damage to Capital by reason of any
such breach and without having to post security in respect of
an application for such relief. Employee acknowledges and
agrees that restricting the remedies of Capital to an action
for damages would not be sufficient to protect Capital in the
circumstances of any such breach. In the event of any such
breach, Employee agrees that Capital will be entitled to
recover its legal costs of any application to a court of
competent jurisdiction to remedy any such breach.
5. SEVERABLE PROVISIONS
In case of any one (1) or more of the provisions or parts thereof contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect (i) such invalidity, illegality or
unenforceability shall not affect any other provisions or parts thereof of
this Agreement, and (ii) this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein. Failure to insist upon strict compliance with any provision of this
Agreement shall not be deemed a waiver of such provisions or any other
provision of this Agreement.
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6. ENTIRE AGREEMENT
The Employee acknowledges receipt of a copy of this Agreement (together
with any attachments hereto), which has been executed in duplicate and
agrees that it is the entire Agreement with Capital and supersedes any and
all previous oral or written agreements or representations respecting or
relating in any way to the Employee's employment including but not limited
to its terms and conditions. It is further agreed that this Agreement can
only be amended by an agreement in writing signed by both the Employee and
an officer of Capital provided that this shall not preclude Capital or
Affiliated Corporations from granting an increase in salary or an
enhancement of benefits. For greater certainty, any oral or written
representations, understanding or agreements with Capital or Affiliated
Corporations, any of their officers or representatives in any way relating
to the Employee's employment including but not limited to its terms and
conditions are hereby declared to be void, of no effect and are superseded
by the provisions of this Agreement. The Employee further acknowledges and
agrees that neither Capital nor Affiliated Corporations is in any way
responsible or liable for any such oral or written representations,
understandings or agreements.
7. GOVERNING LAW
This Agreement shall be construed in accordance with and governed for all
purposes by the laws of the Province of Ontario subject to the mandatory
application of the statutes of any province other than Ontario where the
Employee is employed in such other province and the laws of Canada
applicable therein.
8. ASSIGNMENT
The Employee acknowledges that Capital or any of its Affiliated
Corporations may assign this Agreement amongst themselves, to any
corporation with which they are merged or amalgamated, or to any third
party acquiring all or part of any of the businesses of Capital or any of
its Affiliated Corporations.
9. OPPORTUNITY TO SEEK INDEPENDENT ADVICE
The Employee recognizes that this Agreement is an important document that
affects his legal rights. For this reason, Employee may wish to seek
independent legal advice before accepting the terms stated herein. The
Employee acknowledges that he has had an opportunity to seek such
independent legal advice. The Employee acknowledges that he has read and
understands the provisions contained herein and acknowledges receipt of a
copy of this Agreement.
SIGNATORY PAGE FOLLOWS
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date set
forth above.
CAPITAL ENVIRONMENTAL RESOURCE INC.
By: /s/ Xxxxxx X. Xxxxxx, III
---------------------------------------
Xxxxxx X. Xxxxxx, III
Secretary and General Counsel
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
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WITNESS
