EMPLOYMENT AGREEMENT
BY AND BETWEEN
CONTINENTAL WASTE INDUSTRIES, INC.
AND
XXXXXX X. XXXXXX
TABLE OF CONTENTS
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PAGE
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . .1
1. Employment Duties and Acceptance . . . . . . . . . . . . .1
1.1 Employment by Employer . . . . . . . . . . . . . . .1
1.2 Acceptance of Employment . . . . . . . . . . . . . .1
1.3 Place of Employment. . . . . . . . . . . . . . . . .1
2. Term . . . . . . . . . . . . . . . . . . . . . . . . . .1
3. Compensation . . . . . . . . . . . . . . . . . . . . . . .2
3.1 Incentive Compensation . . . . . . . . . . . . . . .2
3.2 Loans. . . . . . . . . . . . . . . . . . . . . . . .2
Benefits . . . . . . . . . . . . . . . . . . . . . . . . .3
5. Status as Employee . . . . . . . . . . . . . . . . . . . .3
6. Termination. . . . . . . . . . . . . . . . . . . . . . . .3
6.1 Termination Upon Death . . . . . . . . . . . . . . .4
6.2 Termination Upon Disability. . . . . . . . . . . . .4
6.3 Termination for Cause. . . . . . . . . . . . . . . .4
6.4 Voluntary Termination. . . . . . . . . . . . . . . .4
7. Certain Covenants of Employee. . . . . . . . . . . . . . .5
7.1 Covenants Against Competition. . . . . . . . . . . .5
7.1.1 Non-Compete . . . . . . . . . . . . . . . . .5
7.1.2 Confidential Information. . . . . . . . . . .6
7.1.3 Property of Employer. . . . . . . . . . . . .7
7.1.4 Employees of Employer . . . . . . . . . . . .7
7.1.5 Exclusions. . . . . . . . . . . . . . . . . .7
7.2 Rights and Remedies Upon Breach. . . . . . . . . . .7
7.3 Injunctive Relief. . . . . . . . . . . . . . . . . .8
7.4 Severability of Covenants. . . . . . . . . . . . . .8
7.5 Blue-Pencilling. . . . . . . . . . . . . . . . . . .8
8. Indemnification. . . . . . . . . . . . . . . . . . . . . .8
9. No Conflicting Agreement . . . . . . . . . . . . . . . . .9
10. Effective Date . . . . . . . . . . . . . . . . . . . . . .9
11. Other Provisions . . . . . . . . . . . . . . . . . . . . .9
11.1 Notices. . . . . . . . . . . . . . . . . . . . . . .9
11.2 Entire Agreement . . . . . . . . . . . . . . . . . 10
11.3 Waivers and Amendments . . . . . . . . . . . . . . 10
11.4 Governing Law. . . . . . . . . . . . . . . . . . . 10
11.5 Assignment . . . . . . . . . . . . . . . . . . . . 10
11.6 Counterparts . . . . . . . . . . . . . . . . . . . 11
11.7 Headings . . . . . . . . . . . . . . . . . . . . . 11
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . 11
EMPLOYMENT AGREEMENT
This Agreement (herein so called) is made and entered into as of the 1st
day of September, 1995, by and between the Board of Directors of Continental
Waste Industries, Inc., a Delaware corporation (said Board hereinafter referred
to as "Employer"), and Xxxxxx X. Xxxxxx (hereinafter referred to as "Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee, and Employee desires to be
employed by Employer, as its Chief Operating Officer and Chairman of the Board
of Directors, all upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 EMPLOYMENT BY EMPLOYER. Employer employs employee, for the
Employment Period (as herein defined), to render full-time services to Employer
as its Chief Operating Officer and Chairman of the Board of Directors and, in
connection therewith, to manage its operations and that of its subsidiaries.
Employee will perform the duties that are consistent with such position as he
shall reasonably be directed to perform by Employer's Board of Directors.
1.2 ACCEPTANCE OF EMPLOYMENT. Employee accepts such employment and
shall render the services described above.
1.3 PLACE OF EMPLOYMENT. Employee's principal place of employment
shall be Employer's offices in Forest Lawn Landfill and Recycling Center, 0000
X. Xxxxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxx 00000, subject to reasonable travel as
the rendering of the services hereunder may require.
2. TERM. The term of Employee's employment by Employer hereunder (the
"Employment Period") shall be for a period of three (3) years from the effective
date specified in Section 10 hereof subject to extension and subject to the
termination provisions of Sections 6.1 through 6.4 hereof. There shall be
automatic one (1) year extensions of the Employment Period thereafter unless
this Agreement is terminated upon 30 days written notice by Employer or Employee
unless superseded by subsequent Agreement by the parties.
3. COMPENSATION. During the Employment Period, for all services
rendered by Employee under this Agreement, Employer shall pay Employee a salary
at the annual rate of Two Hundred Thirty Thousand Dollars ($230,000) during the
first three years hereof, with increases as the Board of Directors of Employer
determines from time to time, such salary then in effect ("Base Salary") payable
in accordance with the customary payroll policy of Employer in effect at the
time such payment is made, or as may otherwise be mutually agreed upon by the
parties. In addition to his Base Salary, Employee will participate in a
management incentive plan, the terms of which shall be determined by the
independent directors of the Employer.
3.1 INCENTIVE COMPENSATION. Employee may receive as annual
incentive compensation a percentage of his base salary, at the time of payment,
or such other amount as determined by the Board of Directors. The payment of
incentive compensation to Employee, if any, shall be within the sole discretion
of the independent directors of the Employer.
3.2 LOANS. Employer shall from time to time as Employee may
request loans up to an aggregate of fifteen percent (15%) of Employee's annual
salary to Employee, provided that such loans may be made on a monthly basis
equal to one-twelfth of the aggregate. All such loans must be repaid in full
every eighteen months. Interest shall accrue at the applicable federal rate
defined by the Internal Revenue Code of 1986.
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4. BENEFITS. Employee shall be entitled to such paid vacation,
holidays, sick leave, and shall be eligible for participation in such group
insurance, hospitalization, major medical, dental, profit sharing, stock
options, and other fringe benefit programs as those afforded executives of
Employer; provided however, that Employer shall provide in the Employee's name
life insurance in the face amount of not less than Two Hundred Fifty Thousand
Dollars ($250,000), and subject to the provisions of Section 6.2, Employer may
elect to provide disability insurance (the "Disability Policy") with disability
benefits of not less than Two Hundred Fifty Thousand Dollars ($250,000) in the
event of permanent total disability (as defined in the insurance policy) of the
Employee. In addition, Employer agrees to reimburse Employee for all reasonable
out-of-pocket expenses incurred by Employee in the fulfillment of his duties
hereunder, including travel expenses. Such reimbursements will be made
promptly, within thirty (30) days of Employee's submission to Employer of an
itemized list of such expenses, together with receipts therefor indicating the
date upon and the purpose for which such expenses were incurred and such other
information as may be reasonably required from time to time by Employer to
substantiate such expenditures for federal income tax purposes.
5. STATUS AS EMPLOYEE. At all times during the Employment Period,
Employee shall be deemed to be an employee of Employer for purposes of
determining Employee's coverage under and eligibility to participate in, any
employee benefit plans or programs which Employer now has or may hereafter
initiate. In the event it is necessary to amend any such plan or program in
order to assure that Employee is not discriminated against thereunder, Employer
will promptly use its best efforts to make all such amendments or cause the same
to be made.
6. TERMINATION.
6.1 TERMINATION UPON DEATH. If employee dies during the Employment
Period, this Agreement shall terminate, except that the representative of
Employee's estate shall
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be entitled to receive the compensation herein provided for the month in which
death occurs, and the amount accrued and payable under Section 3.1 hereof less
the amount of any outstanding loans under Section 3.2 hereof.
6.2 TERMINATION UPON DISABILITY. If, during the Employment Period,
Employee becomes physically or mentally disabled, whether totally or partially,
so that Employee is unable substantially to perform his services hereunder for
(i) a period of six consecutive months, or (ii) for shorter periods aggregating
six months during any consecutive twelve month period, Employer may, at its
option, at any time after the last day of the six consecutive months of
disability or the day on which such shorter periods of disability during any
consecutive twelve month period equal an aggregate of six months, by written
notice to Employee, terminate Employee's employment hereunder. Upon such
termination, Employee shall be entitled to receive the compensation herein
provided for the month in which such termination occurs and the amount accrued
and payable under Section 3.1 hereof less the amount of any outstanding loans
under Section 3.2 hereof plus his Base Salary for a period of fifteen (15)
months thereafter, unless Employer elects to purchase the Disability Policy
described in Section 4.
6.3 TERMINATION FOR CAUSE. If Employee commits a fraud upon the
Employer, malfeasance against the Employer, or habitual and willful neglect of
duties properly assigned other than by reason of illness, Employer may at any
time upon thirty days written notice to Employee terminate Employee's employment
hereunder. Upon such termination, except for accrued and unpaid compensation to
the date of termination, Employee shall have no right to receive any
compensation or benefit from Employer.
6.4 VOLUNTARY TERMINATION. In the event Employee voluntarily
terminates his employment with Employer, Employee shall have no right to receive
any compensation or
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benefit from Employer hereunder, except for accrued and unpaid compensation due
on the date of such termination.
7. CERTAIN COVENANTS OF EMPLOYEE.
7.1 COVENANTS AGAINST COMPETITION. Employee acknowledges that (i)
the principal businesses (the "Business") of Employer involve brokerage of solid
waste transport and disposal, operation and management of solid waste disposal
facilities, consulting services for the solid waste industry, recycling of solid
waste and brokerage of recycling services and materials, and such other related
activities as Employer may become involved in; (ii) the Employer's Business is
national in scope; and (iii) his work for Employer has brought him and will
continue to bring him into close contact with many confidential affairs not
readily available to the public. In order to induce Employer to enter into this
Agreement, Employee covenants and agrees that:
7.1.1 NON-COMPETE. (a) Except as set forth on Schedule 2,
during Employee's employment with Employer, Employee shall not in the Eastern or
Midwestern United States, including any market region in which Employer, its
subsidiaries or affiliates has done or contemplates doing business, directly or
indirectly, (i) engage in a business which is competitive with the Employer's
Business for his own account; (ii) except for employment by Employer, its
subsidiaries or affiliates, enter the employ of, or render any services to, any
person engaged in such activities; or (iii) become interested in any person
engaged in a business which is competitive with the Employer's Business,
directly or indirectly, as an individual, partner, shareholder, officer,
director, principal, agent, employee, trustee, consultant or in any other
relationship or capacity; PROVIDED, HOWEVER, that Employee may own, directly or
indirectly, solely as an investment, securities of any entity which are traded
on any national securities exchange or in the over-the-counter market if
Employee (a) is not a controlling person
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of, or a member of a group which controls, such entity, or (b) does not,
directly or indirectly, own 2% or more of any class of securities of such
entity; and
(b) for a period of two (2) years following the termination
(whether voluntary or involuntary) of Employee's employment with Employer or any
of its affiliates or subsidiaries, Employer may elect to enforce the covenants
set forth below by paying to Employee for such two year period, an amount equal
to seventy-five percent (75%) of his Base Salary;
(i) Employee shall not in the United States of America
directly or indirectly, contact, solicit, sell to, serve or divert anyone who
was a transporter or customer of Employer or did business with Employer during
Employee's employment with Employer; or
(ii) Employee shall not within two hundred (200) miles of a
landfill owned by the Employer, its subsidiary or an affiliate, directly or
indirectly, engage in a business which is competitive with the Employer's
business for his own account or as a partner, shareholder, officer, director,
principal, agent, employee, trustee, consultant or in any other capacity.
7.1.2 CONFIDENTIAL INFORMATION. During and after the term of
Employee's employment with Employer, provided that Employer is engaged in the
Business, Employee shall keep secret and retain in strictest confidence, and
shall not use for the benefit of himself or others except in connection with the
business and affairs of Employer, all confidential matters of Employer and its
subsidiaries or affiliates, including, without limitation, trade "know-how,"
secrets, customer lists, details of contracts, pricing policies, operational
methods, marketing plans or strategies, business acquisition plans, new
personnel acquisition plans, research projects, and other business affairs of
Employer, its subsidiaries, or affiliates, heretofore or hereafter, and shall
not disclose them to anyone, either during or after employment
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by Employer, except as required in the course of performing duties hereunder or
with Employer's express written consent.
7.1.3 PROPERTY OF EMPLOYER. All memoranda, notes, lists,
records and other documents (and all copies thereof) made or compiled by
Employee or made available to Employee concerning the business of Employer, its
subsidiaries or its affiliates shall be Employer's property and shall be
delivered to Employer promptly upon the termination of Employee's employment
with Employer, or at any other time on request.
7.1.4 EMPLOYEES OF EMPLOYER. During Employee's employment
with Employer, and for a period of two years following the termination (whether
voluntary or involuntary) of Employee's employment with Employer (the
"Restricted Period"), Employee shall not, directly or indirectly, solicit or
encourage any employee of Employer, its subsidiaries or its affiliates to leave
the employment of Employer, its subsidiaries or its affiliates.
7.1.5. EXCLUSIONS. The provisions of this Article shall not
prevent Employee (i) from serving as a director of any other corporation that
does not compete with the Company, with prior notification to the Company, (ii)
from investing his assets in any entity that does not compete with the Company
in such form or manner as will not require any substantial services on his part
in the operation of the affairs of the companies in which investments are made,
or (iii) from devoting a reasonable amount of time to the affairs of charitable
or political organizations, provided that such activities or investments do not
prevent him from performing his duties under this Agreement.
7.2 RIGHTS AND REMEDIES UPON BREACH. If Employee breaches, or
threatens to commit a breach of, any of the provisions of Section 7.1 (the
"Restrictive Covenants"), Employer shall have the right to require Employee to
account for and pay over to Employer all compensation, profits, monies,
accruals, increments or other benefits (collectively, "Benefits")
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derived or received by Employee as the result of any transactions constituting a
breach of any of the Restrictive Covenants, and Employee shall account for and
pay over such Benefits to Employer.
7.3 INJUNCTIVE RELIEF. Employee acknowledges that due to the
confidential nature of his employment relationship, any breach of the
Restrictive Covenants by Employee shall cause irreparable harm to Employer and
Employer may, at its option, obtain injunctive relief. Employee further
acknowledges that the scope and content of the Restrictive Covenants are
reasonable.
7.4 SEVERABILITY OF COVENANTS. If a Court of competent
jurisdiction determines that any of the Restrictive Covenants, or any part
thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants
shall not thereby be affected and shall be given full effect, without regard to
the invalid portions.
7.5 BLUE-PENCILLING. If a Court of competent jurisdiction
construes any of the Restrictive Covenants, or any part thereof, to be
unenforceable because of the duration of such provision or the area covered
thereby, such court shall have the power to reduce the duration or area of such
provision and, in its reduced form, such provision shall then be enforceable and
shall be enforced.
8. INDEMNIFICATION. Employer shall indemnify and defend Employee if
Employee is made a party, or threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that Employee is or was
an officer or director or employee of Employer or any of its subsidiaries or
affiliates, in which capacity Employee is or was serving, against expenses
(including reasonable attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the fullest
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extent and in the manner set forth in and permitted by the general corporation
law of the state of incorporation of Employer, and any other applicable law, as
from time to time in effect.
9. NO CONFLICTING AGREEMENT. Employee represents and warrants that
there is no agreement, contract or understanding which would in any way restrict
or prohibit him from undertaking or performing his employment in accordance with
the terms and conditions of this Agreement.
10. EFFECTIVE DATE. This Agreement shall become effective as of
September 1, 1995.
11. OTHER PROVISIONS.
11.1 NOTICES. Any notice or other communication required or which
may be given hereunder shall be in writing and shall be delivered personally,
telegraphed or telexed, or sent by certified, registered or express mail,
postage prepaid, and shall be deemed given when so delivered personally,
telegraphed or telexed, or if mailed, two days after the date of mailing, as
follows:
(i) if to Employer:
Xxxxxx X. Xxxxxx
Continental Waste Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx, XX 00000
(ii) if to Employee:
Employee's home address as indicated
in the personnel records of Employer.
11.2 ENTIRE AGREEMENT. This Agreement contains the entire Agreement
between the parties with respect to the subject matter hereof and supersedes all
prior Agreements, written or oral, with respect thereto, including any prior
employment agreements with the Employer or any subsidiary or affiliate.
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11.3 WAIVERS AND AMENDMENTS. This Agreement may be amended,
modified, superseded, cancelled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder, nor any single or partial exercise
of any right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder.
11.4 GOVERNING LAW. The parties hereto have relied on New Jersey
law in negotiating this Agreement, which has been negotiated, prepared and
executed in New Jersey and it is expressly agreed that this Agreement shall be
governed and construed in accordance with the laws of the State of New Jersey
applicable to Agreements made and to be performed entirely within such State.
11.5 ASSIGNMENT. This Agreement, and the Employee's rights and
obligations hereunder, may not be assigned by Employee. Employer may assign
this Agreement and its rights, together with its obligations, hereunder in
connection with any sale, transfer or other disposition of all or substantially
all of its assets or business, whether by merger, consolidation or otherwise.
11.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
11.7 HEADINGS. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
CONTINENTAL WASTE INDUSTRIES, INC.
By:/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
Director, President and Chief Executive Officer
By:/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Employee
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