EMPLOYMENT TERMINATION AND CONSULTING AGREEMENT
This EMPLOYMENT TERMINATION AND CONSULTING AGREEMENT (the "Agreement")
is dated as of August 15, 2001 between Safety-Kleen Corp., a Delaware
corporation (including its successors and assigns, the "Company"), and Xxxxxx X.
Xxxxx, a Florida resident (the "Executive").
WHEREAS, the Executive currently serves as the Chief Operating Officer
and President and member of the Board of Directors (the "Board") of the Company
pursuant to an Employment Agreement dated as of August 23, 2000 (the "Employment
Agreement"), and the United States Bankruptcy Court for the District of Delaware
(the "Bankruptcy Court") entered an Order on August 11, 2000 authorizing the
Company to enter into said Employment Agreement;
WHEREAS, the Company and Executive desire to enter into this Agreement
to confirm the Executive's and Company's rights and obligations in connection
with the Executive's termination of his employment with the Company and its
subsidiaries and affiliates under the Employment Agreement, except for certain
continuing provisions and future obligations;
NOW, THEREFORE, in consideration of the mutual covenants set forth
below, the Executive and the Company agree as follows:
1. Effective Date and Termination of Employment. Notwithstanding
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anything herein to the contrary, the "Effective Date" of this Agreement shall be
the date this Agreement has been fully executed by both parties and has been
approved by the Bankruptcy Court, and this Agreement shall not be binding on the
parties hereto until the Effective Date. As of the Effective Date, Executive
resigns as President and as Chief Operating Officer of the Company, and from all
employment positions with the Company and its subsidiaries; provided, however,
that Executive is not resigning as a member of the Board and as a Vice-Chairman
of the Board.
2. Continued Services. As of the Effective Date, Executive is
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hereby designated, and shall be elected, as a Vice-Chairman of the Board of the
Company and, in such capacity, Executive shall report directly to the Chief
Executive Officer/Chairman of the Board (the "CEO/Chairman") of the Company.
Subject to the payment of the "Per Diem Fee" (as hereinafter defined), Executive
shall, in his capacity as a Vice-Chairman, render such services as may be
reasonably requested by the CEO/Chairman, and at times and locations that are
mutually agreeable to the Company and Executive, in connection with the sale of
the waste management business of the Company, any environmental matters
pertaining to the Company or any of its subsidiaries, any criminal proceedings
against the Company and any and all other claims or litigation against the
Company, or its directors or officers. In connection with services requested by
the CEO/Chairman, Executive shall be paid a consulting fee of up to $2,500 per
day, or portion thereof, (the "Per Diem Fee") as determined by the CEO/Chairman,
provided that such Per Diem Fee continues to be satisfactory to the CEO/Chairman
and Executive. Executive shall also be reimbursed for all reasonable business
expenses, in each case subject to such documentation as the Company may
reasonably request. Under this Agreement, Executive shall not be reimbursed for
any reimbursable business expense in excess of a reasonable threshold selected
by the CEO/Chairman, but in any event not less than $500 per such expense,
without prior authorization of the CEO/Chairman. In rendering such services,
Executive shall be an independent contractor consultant to the Company and not
an employee of the Company. Executive is free to pursue such full-time,
part-time or other employment or consulting opportunities as he shall desire.
Executive shall receive his Per Diem Fee and expense reimbursements payable in
accordance with the Company's normal payroll practices, but no less frequently
than monthly. To the extent necessary in connection with the Executive's
services hereunder, the Company shall make available to Executive reasonable
office facilities and secretarial assistance in the Company's existing offices
in Tampa, Florida.
3. Termination Compensation. Subject to the payment of, and in
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consideration of, the bonus payment pursuant to Section 4 of this Agreement and
the other Company's obligations pursuant to Section 5 of this Agreement,
Executive hereby waives any rights to any other severance benefits to which he
might otherwise be entitled under the Employment Agreement. Without limiting
the foregoing, Executive acknowledges and agrees that he will not receive any
severance or bonus payments pursuant to the terms of the Employment Agreement,
other than as required to be paid pursuant to Sections 4 and 5 hereof. The
Company shall pay to Executive, in accordance with its customary payroll
practices, an amount equal to Executive's accrued and unpaid salary, accrued and
unused vacation and other reimbursable expenses through the Effective Date
pursuant to Executive's Employment Agreement in full satisfaction thereof.
Except as provided in this Agreement, and except for any compensation or
benefits offered to Board members, Executive shall not be entitled to any other
compensation or benefits from the Company.
4. Plan of Reorganization/Sale Bonus. In consideration of the
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waiver pursuant to Section 3 hereof, the Company shall pay, and the Executive
shall receive: (a) a cash lump sum payment of $625,000 on the Effective Date of
this Agreement; and (b) an additional lump sum payment in cash of $625,000
within fifteen (15) days of the earlier to occur of: (i) the effective date (the
"Reorganization Plan Effective Date") of a plan of reorganization for the
Company under Chapter 11 of the Bankruptcy Code; or (ii) a "Triggering
Transaction" (as hereinafter defined). A "Triggering Transaction" is defined as
the date of the consummation of the sale, transfer or other disposition, whether
in one transaction or a series of transactions, and whether or not done as an
asset sale or a sale of stock of a subsidiary or merger or consolidation, of all
or substantially all of the "Operating Assets of the Chemical Services Division"
(as hereinafter defined) of the Company. For purposes hereof, the term
"Operating Assets of the Chemical Services Division" shall mean those ongoing
operating assets of the Company's Chemical Services Division, as currently
defined by the Company, and expressly excludes any assets associated with
"permitted sites" or other regulated operations where commercial operations have
ceased or which are either closed or in the process of being closed within the
next twelve (12) months.
5. Continuing Covenants, Duties and Obligations.
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a. Notwithstanding anything herein or in the Employment Agreement
to the contrary, the rights, privileges, duties and obligations of the Company
and Executive under Sections 3(e), 8 and 9 of the Employment Agreement shall
continue in accordance with the terms thereof and shall survive, in accordance
with their terms, any termination of the Employment Agreement or this Agreement.
b. In order for Executive to perform the services as set forth in
Section 2 hereof, he will need and may request that the Company furnish him with
certain records, files, drawings, documents, equipment, materials and writings
received from, created for or belonging to the Company and its subsidiaries,
including those which relate to or contain "Confidential Information" (as
defined in Section 8 of the Employment Agreement), or any copies thereof
(collectively, the "Company Work Product"). For example, Executive will retain
his computer so that he may be accessible to the Company and receive his e-mail.
The Company will determine when it no longer needs the assistance of the
Executive pursuant to Section 2 hereof, and when the Company informs the
Executive of such determination, Executive will immediately deliver such Company
Work Product to the Company or destroy same. Nothing herein shall prohibit
Executive from retaining all Company Work Product he received in his capacity as
a member of the Board or any of its committees.
c. Subject to and as a part of the services for which Executive
will be compensated pursuant to Section 2 of this Agreement, Executive shall
cooperate with and assist the Company in the investigation and prosecution of
any claims against any other person or entity.
d. Until the Reorganization Plan Effective Date, the Company shall
cause the Executive to be included in the slate of persons nominated to serve as
directors on the Board of the Company and the Company shall use its best efforts
to have the Executive elected and re-elected to the Board and continue to serve
and be elected as a Vice Chairman.
e. As soon as reasonably practicable after the date hereof, the
Company shall reimburse the Executive for all reasonable legal fees incurred by
him in connection with the negotiation, preparation and execution of this
Agreement and any related agreements up to a maximum reimbursement of $10,000.
f. In keeping with the Company's obligations set forth in Section
5(a) of the Employment Agreement, for a period not to exceed eighteen (18)
months from the Effective Date, and only until Executive obtains replacement
coverage, the Company shall continue to provide Executive and his dependents the
same coverage under the Company's group health plan as he currently has, or
fully reimburse the cost of any premiums paid by Executive pursuant to his (or
any of his eligible dependent's) election to have the Company provide
"continuation coverage" under the Company's group health plan. In addition, the
Company will cooperate with Executive's elections in connection with Executive's
accounts or balances within the Company's 401(k) plan or similar retirement or
benefits plans.
6. Acknowledgments. Executive hereby agrees and acknowledges that:
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(a) he has received and carefully read all of this Agreement;
(b) he has been provided a period of at least forty-five (45) days
within which to consider the terms of this Agreement;
(c) he has been advised by the Company to consult with an attorney of
his choosing in connection with this Agreement;
(d) he fully understands the significance of all of the terms and
conditions of this Agreement, and is signing this Agreement
voluntarily and of his own free will and assents to all the terms
and conditions contained herein; and
(e) he is releasing the Company from claims he might have against the
Company under the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Workers Adjustment and
Relocation Notification Act, the Employee Income Retirement
Security Act, and the Americans With Disabilities Act, and any
other claims of discrimination or retaliation in employment.
7. Binding Effect; Benefit. This Agreement shall inure to the
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benefit of and shall be binding upon the Company and Executive and their
respective heirs, descendants, successors and assigns.
8. Entire Agreement; Amendments. This Agreement, contains the
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entire agreement between the parties, and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
employment and termination of the Employment Agreement and the employment of
Executive, except that Sections 3(e), 8 and 9 of the Employment Agreement will
continue to survive in accordance with their respective terms. This Agreement
may be amended only by an agreement in writing signed by the Executive and a
duly authorized officer of the Company.
9. Headings. The section headings contained in this Agreement are
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for reference purposes only and shall not be deemed to be a part of this
Agreement or to affect the meaning or interpretation of this Agreement.
10. Severability. The invalidity or unenforceability of any term
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or provision of this Agreement shall not affect the validity or enforceability
of any other term or provision of this Agreement, and this Agreement shall be
construed in all other respects as if the invalid or unenforceable term or
provision were omitted.
11. Governing Law. This Agreement shall be construed both as to
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validity and performance and enforced in accordance with the laws of the State
of Delaware without giving effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement as of the date first written above to be effective as of the Effective
Date.
SAFETY-KLEEN CORP.
By:
Name:
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Title:
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"COMPANY"
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XXXXXX X. XXXXX
"EXECUTIVE
