EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of August 28, 1998 (the
"Agreement"), is made by and between KTI, INC., a New Jersey corporation (the
"Company"), and XXXXX X. XXXXXX, a resident of Charlotte, North Carolina (the
"Employee").
WHEREAS, the Company is a diversified processor of solid waste
including, but not limited to, the recycling of paper metals, glass and plastics
and owns business enterprises which utilize these recycled materials in the
production of various products; and
WHEREAS, the Company and the Employee are mutually desirous that the
Company employ the Employee, and the Employee accept employment, as Chief
Financial Officer of the Company, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, the Company
and the Employee hereby agree as follows:
1. Duties.
1.1 During the Agreement Term (as defined below), the Employee shall
be the Chief Financial Officer of the Company (or such other and comparable
titles and positions as shall be given the Employee by the Executive Committee
of the Company (the "Executive Committee") and shall faithfully perform for the
Company the duties of said office. The Employee shall have such corporate power
and authority as are necessary to perform the duties of such office and any
other office(s) that are so assigned to him. The Employee shall report directly
to the Executive Committee. Without further compensation, the Employee agrees
to serve as an officer or director of any subsidiary or affiliate of the
Company; provided, however, if other senior executives of the Company are paid
directors' fees for service as a director, the Employee shall also be entitled
to such fees. The Employee shall devote substantially all of his business time
and effort to the performance of his duties hereunder, shall use his best
efforts to advance the best interests of the Company and shall not engage in
outside business activities which materially interfere with the performance of
his duties hereunder; provided, however, that nothing in this Agreement shall
preclude the Employee from devoting reasonable periods required for
participating in professional, educational, philanthrapolic, public interest,
charitable, social or community activities; provided further, that such ventures
and activities do not constitute Competitive Business (as defined below).
1.2 The duties to be performed by the Employee hereunder shall be
performed primarily in Charlotte, North Carolina, subject to reasonable travel
requirements on behalf of the Company. The Company shall not relocate the
Employee outside of Charlotte, North Carolina, without his prior written
consent.
2. Term. The Company hereby employs the Employee, and the Employee
hereby accepts such employment, for an initial term commencing as of the date
hereof and ending on the third anniversary of such date, unless sooner
terminated in accordance with the provisions of Section 4 (said initial three-
year term, unless sooner terminated in accordance with the provisions of Section
4, being hereinafter referred to as the "Initial Term"). The term of this
Agreement shall be automatically extended for an additional year at the
expiration of the Initial Term or any succeeding term, unless written notice of
non-extension is provided by either party to the other party at least 120 days
prior to the expiration of the Initial Term or the succeeding term, as the case
may be (said Initial Term and any succeeding terms, being hereinafter referred
to as the "Agreement Term").
3. Compensation.
3.1 Base Salary. During the Agreement Term and subject to the next
sentence of this Section 3.1, the Employee shall be compensated at the annual
rate of $140,000 ("Base Salary"), payable on a monthly basis in accordance with
the Company's standard payroll procedures, less such deductions or amounts as
are required to be deducted or withheld by applicable laws or regulations,
voluntary deductions for employee contributions to welfare benefits provided by
the Company to the Employee and less such other deductions or amounts, if any,
as are authorized by the Employee. On each anniversary of the date hereof, the
Base Salary will be increased by an amount which will not be less than the
product (if positive) of (i) the Base Salary in effect immediately prior to such
anniversary and (ii) the percentage (if positive) by which the Consumer Price
Index (All Items less shelter) for Urban Wage Earners and Clerical Workers, for
the South Region/Population Size B, published by the United States Government
for the month preceding such anniversary exceeds such index for the comparable
month in the preceding year.
3.2 Incentive Compensation. In addition to the Base Salary, the
Employee shall be entitled to receive a bonus ("Bonus") consisting of (i) cash,
(ii) stock options of the Company or (iii) a combination of both cash and stock
options in an amount to be determined prior to the conclusion of each fiscal
year of the Company during the Agreement Term in the sole discretion of the
Compensation Committee (the "Compensation Committee") of the Board of Directors
of the Company (the "Board"). Any Bonus to which the Employee is entitled under
this Section 3.2 shall be paid to the Employee in a manner consistent with the
Company's past practice with respect to payment of bonuses and such Bonus shall
be on terms and conditions at least as favorable as provided to other senior
executives of the Company.
3.3 Expenses. Upon submission of appropriate invoices or vouchers,
the Company shall pay or reimburse the Employee for all reasonable expenses
actually incurred or paid by him during the Agreement Term in the performance of
his duties hereunder.
3.4 Participation in Benefit Plans. The Employee shall be entitled
to participate in any health benefit or other employee benefit plans available
to the Company's senior executives as in effect from time to time, including,
without limitation, any qualified or non-qualified pension, profit sharing and
savings plans, any death and disability benefit plans, any medical, dental,
health and welfare plans and any stock purchase programs, on terms and
conditions at least as favorable as provided to other senior executives, to the
extent that he may be eligible to do so under the applicable provisions of any
such plan. Following the termination of the Employee hereunder or the
expiration of any Severance Benefits (as defined in Section 4.4.1) and for the
lifetime of the Employee, the Employee and his eligible dependents shall be
entitled to continue participating (at the Employee's sole expense) in the
Company's group medical, dental, disability and life insurance coverages, with
the Employee's cost to be determined on a basis consistent with the method of
determining employee payments under the health care continuation requirements of
the Consolidated Omnibus Reconciliation Act of 1985 ("COBRA").
3.5 Vacation. The Employee shall be entitled to an annual paid
vacation of 20 business days per calendar year, prorated for any partial periods
of a calendar year and shall be subject to the Company's standard vacation
policy applicable to someone of his position and seniority. Unused vacation
shall not be carried over into any subsequent year during the Agreement Term.
The Company shall have no obligation to pay the Employee for any unused
vacation.
3.6 Fringe Benefits and Perquisites. The Employee shall be entitled
to all fringe benefits and perquisites that are generally made available to
senior executives of the Company from time to time and that are approved by the
Compensation Committee.
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4. Termination. The Employee's employment hereunder may be
terminated only upon the expiration of the Agreement Term of this Agreement
pursuant to Section 2 above or under the following circumstances:
4.1 Death. The Employee's employment hereunder shall terminate
automatically upon his death, in which event the Company shall pay to the
Employee's written designee or, if he has no written designee, to his spouse or,
if he leaves no spouse and has no written designee, to his estate, (i) Severance
and the Acceleration Payment (as such terms are defined in Section 4.4.1 below)
immediately upon death, (ii) Severance Benefits to the Employee's eligible
dependents for a one-year period from the date of death and (iii) all reasonable
expenses actually incurred or paid by the Employee in the performance of his
duties hereunder prior to the date of death.
4.2 Disability. If, during the Agreement Term, the Employee has a
Disability (as defined in this Section 4.2), the Company may terminate the
Employee's employment hereunder, by written notice to the Employee, if the
Employee has disability coverage provided by (i) the Company or any of its
subsidiaries or affiliates or (ii) pursuant to the laws or regulations of any
governmental entity. In the event the Company terminates the Employee for the
reason specified in this Section 4.2, the Company shall pay to the Employee (i)
Severance and the Acceleration Payment, (ii) Severance Benefits to the Employee
for a one year period from the date of termination due to disability and (iii)
all reasonable expenses actually incurred or paid by the Employee in the
performance of his duties hereunder prior to the date of termination due to his
disability. All benefits provided by the Company to the Employee shall
terminate upon the Employee's Disability, except for those employee welfare
plans which, in accordance with their terms, continue beyond the Disability of
the Employee, which welfare plans shall continue for the period specified in
each such welfare plan.
For purposes of this Section 4.2, the term "Disability" shall mean the
inability of the Employee to perform his duties hereunder and pursuant to the
By-laws of the Company because of a physical or mental disability not caused by
misconduct, which disability shall have existed for any exclusion period under a
long-term disability plan maintained by the Company or any of its subsidiaries
or affiliates for the benefit of the Employee, which exclusion period currently
is either 90 consecutive days or any aggregate of 120 days in any 365-day
period. The fact of whether or not a Disability exists shall be determined by
appropriate medical experts selected by the Board. The existence of a
Disability means that the Employee's mental or physical condition substantially
interferes with the Employee's performance of his duties for the Company, its
subsidiaries or its affiliates as specified in this Agreement and cannot be
reasonably accommodated.
4.3 Termination by the Company.
4.3.1 The Company (i) shall have "cause" to terminate the
Employee's employment hereunder upon the Employee (A) being convicted of a
felony, a crime of moral turpitude or any crime involving the Company (other
than pursuant to actions taken at the direction or with the approval of the
Executive Committee), (B) being found by reasonable determination of the
Company, made in good faith, to have engaged in (1) willful misconduct which has
a material adverse effect on the Company, (2) willful or gross neglect which has
a material adverse effect on the Company, (3) fraud involving the Company,
(4) misappropriation involving the Company or (5) embezzlement in the
performance of his duties hereunder or (C) having breached in any material
respect the terms and provisions of this Agreement and failed to cure such
breach after written notice from the Company specifying such breach and after
having been given a reasonable opportunity to be heard and (ii) may terminate
the Employee's employment on written notice given to the Employee at any time
following the occurrence of any of the events described in clauses (i)(A) and
(i)(B) above and on written notice given to the Employee. In the event the
Employee's employment is terminated by the Company for "cause", the Employee
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shall be entitled to continue to receive Base Salary accrued but unpaid and
expenses incurred but not repaid to the Employee, in each case only until the
effective date of such termination.
4.3.2 In the event the Employee's employment is terminated by the
Company other than for "cause", the Employee shall be entitled to (i) Severance
and the Acceleration Payment immediately upon termination and (ii) Severance
Benefits for each year during the Severance Term (as such capitalized terms are
defined in Section 4.4 below).
4.4 Termination by the Employee.
4.4.1 Definitions. For purposes of this Section 4.4, the
following terms shall have the respective meanings set forth below:
(a) "Affiliate" means, with respect to the Company, any entity
directly or indirectly controlled, controlling or under common control with
the Company.
(b) "Acceleration Payment" means an amount in cash equal to the value
of (i) any Base Salary accrued but unpaid prior to the date of termination
(ii) Bonus accrued but unpaid prior to the date of termination and (iii)
any vacation accrued but unused prior to the date of termination.
(c) "Change of Control" means: (i) a person, corporation, entity or
group acquires, directly or indirectly, the beneficial ownership of 40% or
more of the issued and outstanding stock of the Company in a single
transaction or series of transactions, (ii) the Company is a party to a
merger, consolidation or similar transaction and following such transaction
40% or more of the issued and outstanding securities of said party is
beneficially owned by a person, corporation, entity or group other than the
Company or an Affiliate of the Company, (iii) the Company sells or
transfers 40% or more of its assets to any other person or persons other
than an Affiliate of the Company, (iv) the shareholders of the Company
approve a plan or proposal for the liquidation or dissolution of the
Company or (v) during any two-year period, individuals who comprise a
majority of the Board at the beginning of such two-year period do not
comprise a majority of the Board at the end of such two-year period.
(d) "Good Reason" means: (i) the assignment to the Employee of any
duties inconsistent with his status as Chief Financial Officer of the
Company or which require travel significantly more time consuming than that
required at commencement of this Agreement or a material adverse alteration
in the nature or status of his responsibilities from those provided herein
or the transfer of a significant portion of such responsibilities to one or
more other persons; (ii) the failure by the Company to pay or provide to
the Employee, within 30 days of a written demand therefor, any amount of
compensation or any benefit which is due, owing and payable pursuant to the
terms hereof or of any applicable plan, program, arrangement or policy;
(iii) the breach in any material respect by the Company of any of its other
obligations or agreements set forth herein and the failure by the Company
to cure such breach within 30 days after written notice thereof from the
Employee; (iv) the occurrence of a Change of Control; or (v) a notice of
non-extension of the Agreement Term given by the Company to the Employee as
set forth in Section 2 hereof prior to the expiration of the Initial Term.
(e) "Severance" means (i) in the event the Employee is terminated
as described in Section 4.4.1(g)(i) below, (A) the sum of (1) the highest
Base Salary that was paid to the Employee at any time prior to the
termination by the Employee for Good Reason or prior to when the Employee's
employment is terminated for "cause" and (2) the higher of (x) the most
recent Bonus paid to the Employee prior to termination for Good Reason or
prior to when the Employee's employment is terminated by the Company other
than for "cause" or (y) 50% of the Employee's Base Salary immediately prior
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to such termination, multiplied by (B) the number of years remaining from
the date of termination until the expiration of the Agreement Term
(including any partial periods of any calendar year) and (ii) in the event
the Employee is terminated as described in Section 4.4.1(g)(ii) below, two
times the sum of (A) the highest Base Salary that was paid to the Employee
at any time prior to termination by the Employee for Good Reason or prior
to when the Employee's employment is terminated by the Company other than
for "cause" and (B) the higher of (1) the most recent Bonus paid to the
Employee prior to termination by the Employee for Good Reason or prior to
when the Employee's employment is terminated by the Company other than for
"cause" or (2) 50% of the Employee's Base Salary immediately prior to such
termination.
(f) "Severance Benefits" means the benefits contemplated by Section
3.4 of this Agreement.
(g) "Severance Term" means (i) if Employee is terminated during the
Agreement Term and not pursuant to Section 4.4.1(g)(ii) below, the time
period remaining from the date Employee elects to terminate his employment
for Good Reason, or the Employee's employment is terminated by the Company
other than for "cause" until the expiration of the Agreement Term or (ii)
if Employee is terminated during the Agreement Term in connection with, or
after a Change of Control, two years from the date Employee elects to
terminate his employment for Good Reason, or the Employee's employment is
terminated by the Company other than for "cause".
4.4.2 At the election of the Employee for Good Reason, the
Employee may terminate his employment immediately upon written notice to the
Company; provided, however, that Employee must make such election to terminate
his employment for Good Reason within 90 days of the occurrence of such event
that qualifies as Good Reason under Section 4.4.1(d) of this Agreement. If
during the Agreement Term the Employee's employment is terminated by the
Employee for Good Reason, the Employee shall be entitled to receive from the
Company (i) Severance and the Acceleration Payment immediately upon termination,
(ii) Severance Benefits for each year during the Severance Term and (iii) a cash
payment in an amount equal to the amount of any excise tax imposed on Employee
under Section 4999 of the Internal Revenue Code of 1986, as amended ("Section
4999"), increased by the additional federal and state income taxes on such
amount, such that, after payment of this additional cash payment, the Employee's
Severance, Acceleration Payment and Severance Benefits after federal and state
income taxes are equal to the amount that Employee would have received but for
the imposition of the excise tax under Section 4999.
4.4.3 Upon 90 days' prior written notice, the Employee may
terminate his employment with the Company other than for Good Reason. If the
Employee voluntarily terminates his employment with the Company other than for
Good Reason, no further payment shall be due the Employee pursuant to Section 3
above (other than payments for accrued and unpaid Base Salary and expenses
incurred but not repaid to the Employee, in each case prior to such
termination).
4.5 Effect of Termination on Certain Obligations. No termination of
the employment of the Employee, whether voluntary or involuntary, shall
terminate, affect or impair any of the obligations or rights of the parties set
forth in Sections 4, 6, 7, 8 and 9 of this Agreement, all of which obligations
and rights shall survive any termination of employment of the Employee
hereunder.
5. Representation and Warranty by the Employee. The Employee
represents and warrants to the Company, the same being part of the essence of
this Agreement that, as of the date hereof, to the knowledge of the Employee, he
is not a party to any agreement, contract or understanding, and that no facts or
circumstances exist which would in any way restrict or prohibit him in any
material way from undertaking or performing any of his obligations under the
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Agreement. The foregoing representation and warranty shall remain in effect
throughout the Term.
6. Covenant Not to Disclose Confidential Information. The Employee
acknowledges that during the course of his affiliation with the Company he has
or will have access to and knowledge of certain information and data which the
Company considers confidential and the release of such information or data to
unauthorized persons would be extremely detrimental to the Company. As a
consequence, the Employee hereby agrees and acknowledges that he owes a duty to
the Company not to disclose, and agrees that without
the prior written consent of the Company, at any time, either during or after
his employment with the Company, he will not communicate, publish or disclose,
to any person anywhere or use, any Confidential Information (as hereinafter
defined), except as may be necessary or appropriate to conduct his duties
hereunder, provided the Employee is acting in good faith and in the best
interest of the Company. The Employee will use his best efforts at all times to
hold in confidence and to safeguard any Confidential Information from falling
into the hands of any unauthorized person and, in particular, will not permit
any Confidential Information to be read, duplicated or copied. The Employee
will return to the Company all Confidential Information in the Employee's
possession or under the Employee's control when the duties of the Employee no
longer require the Employee's possession thereof, or whenever the Company shall
so request, and in any event will promptly return all such Confidential
Information if the Employee's relationship with the Company is terminated for
any or no reason and will not retain any copies thereof. For purposes hereof
the term "Confidential Information" shall mean any information or data used by
or belonging or relating to the Company that is not known generally to the
industry in which the Company is or may be engaged, including without
limitation, any and all trade secrets, proprietary data and information relating
to the Company's business and products, price list, customer lists, processes,
procedures or standards, know-how, manuals, business strategies, records,
drawings, specifications, designs, financial information, whether or not reduced
to writing, or information or data which the Company advises the Employee should
be treated as confidential information.
7. Covenant Not to Compete. The Employee acknowledges that he, at the
expense of the Company, has been and will be specially trained in the business
of the Company, has established and will continue to establish favorable
relations with the customers, clients and accounts of the Company and will have
access to trade secrets of the Company. Therefore, in consideration of such
training and relations and to further protect trade secrets, directly or
indirectly, of the Company, the Employee agrees that during the term of his
employment by the Company and for a period of three (3) years from and after the
voluntary or involuntary termination of such employment for any or no reason
(provided, however, it shall be for a period of two (2) years from such
termination in the event such termination occurs in connection with or after a
Change of Control), he will not, directly or indirectly, without the express
written consent of the Company:
(a) own or have any interest in or act as an officer, director,
partner, principal, employee, agent, representative, consultant or
independent contractor of, or in any way assist in, any business
located in or doing business in the United States of America which is
engaged, directly or indirectly, in (i) the solid waste processing
business, (ii) the utilization of recyclable materials business or
(iii) any other business the Company is engaged in or proposes to
engage in on the date this Agreement is terminated (the businesses
described in clauses (a)(i), (ii) and (iii) are collectively referred
to as the "Competitive Businesses"); provided, however, that
notwithstanding the above, the Employee may own, directly or
indirectly, solely as an investment, securities of any such person
which are traded on any national securities exchange or NASDAQ if the
Employee (A) is not a controlling person of, or a member of a group
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which controls, such person and (B) does not, directly or indirectly,
own 5% or more of any class of securities of such person;
(b) solicit clients, customers (who are or were customers of the
Company within the twelve (12) months prior to termination) or
accounts of the Company for, on behalf of or otherwise related to any
such Competitive Businesses or any products related thereto; or
(c) solicit, employ or in any manner influence or encourage any
person who is or shall be in the employ or service of the Company to
leave such employ or service for any other employment opportunity.
Notwithstanding the foregoing, the terms of this covenant not to compete shall
be enforceable against Employee only to the extent that during Employee's
employment the Company continues to pay Employee compensation equal to the
salary level set forth in Section 3 of this Agreement and after termination of
Employee's employment the Company continues to pay Employee any and all
termination payments and benefits as required under Section 4 of this Agreement.
Furthermore, if any court determines that the covenant not to compete, or any
part thereof, is unenforceable because of the duration of such provision or the
geographic area or scope covered thereby, such court shall have the power to
reduce the duration, area or scope of such provisions and, in its reduced form,
such provision shall then be enforceable and shall be enforced.
8. Ideas and Programs. If, during the Term, the Employee invents or
develops any ideas or the like, relating to or useful in connection with the
business of the Company, any subsidiary or affiliate (as described in Section
7(a) hereof) he will promptly deliver all copies of the same to the Company,
such subsidiary or affiliate, as may be appropriate, assign his interest therein
to the Company and execute such documents as the Company's counsel may request
to convey title to the Company, such subsidiary or affiliate, as may be
appropriate. Employee shall not be entitled to any additional compensation for
carrying out his obligations under this Section 8.
9. Specific Performance. Recognizing that irreparable damage will
result to the Company in the event of the breach or threatened breach of any of
the foregoing covenants and assurances by the Employee contained in Sections 5
or 6 hereof, and that the Company's remedies at law for any such breach or
threatened breach will be inadequate, the Company and its successors and
assigns, in addition to such other remedies which may be available to them,
shall be entitled to an injunction, including a mandatory injunction, to be
issued by any court of competent jurisdiction ordering compliance with this
Agreement or enjoining and restraining the Employee, and each and every person,
firm or company acting in concert or participation with him, from the
continuation of such breach and, in addition thereto, he shall pay to the
Company all ascertainable damages, including costs and reasonable attorneys'
fees sustained by the Company by reason of the breach or threatened breach of
said covenants and assurances.
10. Potential Unenforceability of Any Provision. The Employee
acknowledges and agrees that he has had an opportunity to seek advice of counsel
in connection with this Agreement. If a final judicial determination is made
that any provision of this Agreement is an unenforceable restriction against the
Employee, the provisions hereof shall be rendered void only to the extent that
such judicial determination finds such provisions unenforceable, and such
unenforceable provisions shall automatically be reconstituted and become a part
of this Agreement, effective as of the date first written above, to the maximum
extent in favor of the Company that is lawfully enforceable. A judicial
determination that any provision of this Agreement is unenforceable shall in no
instance render the entire Agreement unenforceable, but rather the Agreement
will continue in full force and effect absent any unenforceable provision to the
maximum extent permitted by law.
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11. Indemnification. To the fullest extent permitted or
required by the laws of the State of New Jersey, the Company shall indemnify and
hold harmless (including the advance payment of expenses) the Employee, in
accordance with the terms of such laws, if the Employee is made a party, or
threatened to be made a party, to any threatened, pending, or contemplated suit
or proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that the Employee is or was an officer or director of the
Company or any subsidiary or affiliate of the Company, against expenses
(including reasonable attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with any such
action, suit or proceeding. The Company's obligations under this paragraph will
survive the termination of this Agreement for any reason whatsoever.
12. WAIVER OF JURY TRIAL AND AGREEMENT TO ARBITRATE. THE EMPLOYEE
AND THE COMPANY HEREBY WAIVE THE RIGHT TO A TRIAL, INCLUDING A TRIAL BY JURY,
AND AGREE TO ARBITRATE ANY DISPUTE THAT MAY ARISE UNDER THIS AGREEMENT. This
agreement to arbitrate is subject to the following terms:
(a) Submission to Arbitration: The parties agree to submit any disputes or
claims between or among them relating in any manner to this Agreement or
the Employee's employment by the Company (a "Dispute") to resolution by
arbitration (the "Arbitration").
(b) Applicable Procedures: Except as otherwise provided herein, the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association, as revised and amended as of the date one party
informs the other in writing that a dispute exists shall apply to this
Arbitration (the "Rules").
(c) Additional Rules: In addition to any other remedies available at law
or in equity, the Company shall have the following rights and remedies,
each of which shall be independent of the other, and shall be severally
enforceable, and all of which shall be in addition to, and not in lieu of,
any other rights and remedies available to the Company at law or in equity:
(i) the right and remedy to have the provisions of Section 12 of this
Agreement specifically enforced, it being acknowledged by
Employee that any such breach or threatened breach will or may
cause irreparable injury to the Company and that money damages
will or may not provide an adequate remedy to the Company; and
(ii) the right and remedy to require Employee to account for and pay
over to the Company all compensation, profits, monies,
increments, things of value or other benefits, derived or
received by Employee as the result of any act or transaction
constituting a breach of any of the provisions of Section 12 of
this Agreement, and Employee hereby agrees to account for and pay
over all such compensation, profits, monies, increments, things
of value or other benefits to the Company.
(d) Single Arbitrator: The Arbitration shall proceed before a single
arbitrator to be selected by mutual written Agreement of the parties. If
the parties are unable to agree upon the single arbitrator, the provisions
of the Rules shall govern the selection of that arbitrator.
(e) Venue: The Arbitration hearing shall take place in Charlotte, North
Carolina or in such other location as the parties may otherwise agree upon.
(f) Discovery and Hearing: The parties shall have ninety (90) days from
service of a demand to conduct and complete discovery. In the event that
the parties cannot agree on the scope and means of discovery, the
Arbitrator shall resolve any discovery issues. The parties desire to
exchange information in the least expensive and most cost efficient method
possible which assures that the information exchanged between them is true,
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accurate and complete. Any discovery disputes shall be resolved by the
Arbitrator.
(g) Continued Performance: During the pendency of the Arbitration, the
parties shall continue to perform their obligations, if any, under this
Agreement.
(h) Confidentiality: The parties anticipate that during the course of the
Arbitration, they will disclose to one another and to the Arbitrator (the
"Recipients") certain of their confidential or proprietary information,
including, without limitation, research, memoranda, reports, photographs,
correspondence and other data (hereinafter "Information"). The Information
produced or made available will remain the property of the producing party
and all copies of such Information shall be returned to the party that
produced it upon request. Recipients will hold in confidence and protect
the Information and prevent unauthorized use, dissemination or publication
of any of the Information to any third party. Recipients will use the
Information only for the purpose of resolving the Dispute in the
Arbitration, The Recipients will resist the disclosure of any Information
in connection with such subpoena or other process by all legal means,
unless disclosure is authorized by the producing party in writing, If any
Recipient receives legal process seeking Information, that Recipient shall
give prompt written notice to the party producing the Information. This
Arbitration Agreement shall be signed by the Arbitrator noting his/her
agreement to be bound by the terms of this sub-paragraph. The obligations
under this subparagraph are in addition to any other confidentiality
provisions contained in this Agreement or which arise under common law and
statute, and shall in no manner decrease the Employee's obligation with
respect to the protection of the Company's Information, confidences and
trade secrets.
(i) Other Arbitration Administration Services: In the event that the
American Arbitration Association declines to provide the administrative
services necessary to administer the Arbitration for any reason, the
provision of this Agreement relating to the Arbitration shall remain in
full force and effect and the parties shall contract with an alternative
source of administrative services with costs and expenses to be borne as
otherwise provided herein.
(j) Res Judicata: The decision of the Arbitrator shall be final and
binding as between the parties. Any claim or Dispute which is the subject
of the Arbitration shall be res judicata between the parties.
13. Notice. Any notice or other communication hereunder shall be in
writing and shall be mailed or delivered to the respective parties hereto as
follows:
(a) If to the Company:
KTI, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
(b) If to the Employee:
Xxxxx X. Xxxxxx
c/o FCR, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
The addresses of either party hereto above may be changed by written notice to
the other party.
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14. Amendment; Waiver. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended and the terms of covenants hereof may
be waived, only by a written instrument executed by the party against whom such
modification or waiver is sought to be enforced. The failure of either party at
any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by
either party of the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
15. Benefit and Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company, but
shall be personal to and not assignable by the Employee. The obligations of the
Company hereunder are personal to the Employee or where applicable to his spouse
or estate, and shall be continued only so long as the Employee shall be
personally discharging his duties hereunder. The Company may assign its
rights, together with its obligations, to any corporation which is a direct or
indirect wholly-owned subsidiary of the Company; provided, however, that the
Company shall not be released from its obligations hereunder without the prior
written consent of the Employee, which consent shall not be unreasonably
withheld.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW JERSEY REGARDLESS OF THE LAWS THAT MIGHT BE APPLICABLE UNDER
PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES WAIVE THE RIGHT TO A JURY OR AN
ADVISORY JURY IN ANY PROCEEDING AT LAW OR IN EQUITY ARISING OUT OF OR RELATING
TO THIS AGREEMENT. THIS WAIVER IS EQUALLY APPLICABLE TO CLAIMS ARISING OUT OF
BOTH FEDERAL OR STATE LAW.
17. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one and
the same instrument. Each counterpart may consist of two copies hereof each
signed by one of the parties hereto.
18. Headings. The headings in this Agreement are for reference only
and shall not affect the interpretation of this Agreement.
19. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof,
superseding all negotiations, prior discussions and preliminary agreements. No
subsequent modification may be made to this Agreement except by signed writing
of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
Witness:________________________ /s/ Xxxxx X. Xxxxxx (SEAL)
Xxxxx X. Xxxxxx
KTI, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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