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Exhibit 10.20
EMPLOYMENT, NONCOMPETITION AND CONFIDENTIALITY AGREEMENT
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THIS AGREEMENT is made as of the 10th day of November, 1992 by and
between WASTE-QUIP, INC., an Ohio corporation (the "Company"), and XXXXXXX X.
XXXXXX, an individual ("Executive"). References herein to the "Company" are to
Waste-Quip, Inc. and its subsidiaries, if any, unless the context indicates
otherwise.
WITNESSETH:
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WHEREAS, the Company and Executive are parties to a certain Employment,
Noncompetition and Confidentiality Agreement, dated as of August 4, 1989 (the
"Original Employment Agreement"), whereby the Company agreed to employ Executive
as a key employee of the
Company through December 31, 1992;
WHEREAS, in connection with such employment, Executive has been given
access to, generated or otherwise come into contact with certain proprietary
and/or confidential information concerning the Company and its customers and
suppliers, and has obtained valuable knowledge of the business of the Company;
WHEREAS, the Company desires to continue to utilize Executive's
services as a key employee in connection with certain aspects of the continued
and further development of the Company's business;
WHEREAS, the Company and Executive desire to enter into this Agreement
to govern Executive's continuing employment with the Company as a key employee;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, Executive and the Company do hereby agree as follows:
1. EMPLOYMENT.
a. OTHER EMPLOYMENT ARRANGEMENTS. In connection with Executive's
employment under this Agreement, Executive represents to the Company that he is
neither a party to any employment or noncompetition agreement with any third
party (other than the Original Employment Agreement and that certain letter
agreement with Sudbury, Inc. dated August 31, 1988), nor has he improperly
removed, taken or otherwise appropriated any customer lists, billing
information, trade secrets or any other confidential or proprietary information
of any third party. Moreover, Executive represents to the Company that he is not
in breach of such letter agreement referred to above and covenants with the
Company that he will not breach such letter agreement in the future.
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b. TERMINATION OF ORIGINAL EMPLOYMENT AGREEMENT; NEW EMPLOYMENT PERIOD.
The Original Employment Agreement is hereby terminated by the Company and
Executive effective as of the date hereof, and neither party shall have any
rights or obligations thereunder. Commencing as of the date hereof and
continuing through December 31, 1995 unless earlier terminated pursuant to and
in accordance with Section 6 below (the "Employment Period"), the Company hereby
employs Executive and Executive hereby agrees to serve the Company on a
full-time basis in the position of President and Chief Executive Officer;
provided that, at such time as the Board of Directors chooses a new President
and Chief Executive Officer and such person commences to serve in these
positions, the Executive shall thereafter serve as full-time Chairman of the
Board of Directors of the Company. Executive shall perform the duties normally
associated with such positions as well as such other reasonable and appropriate
duties as may be assigned to and requested of him by, and subject to the
direction, control and supervision of the Board of Directors of the Company. It
is anticipated that Executive's responsibilities shall include assistance with
(i) the acquisition of new businesses by the Company, (ii) the financing of such
acquisitions, (iii) marketing, and (iv) customer and corporate relations.
Executive shall report directly to the Board of Directors. Executive hereby
accepts such employment as an employee of the Company and agrees that he will
faithfully and diligently serve the Company and devote his full time, best
efforts, knowledge and skill to the business and affairs of the Company during
the Employment Period. The Company agrees that Executive will continue to serve
the Company from offices located in the greater Cleveland, Ohio area, but that
the Company shall have the right to request Executive to undertake a reasonable
amount of business travel during the Employment Period.
2. SALARY.
Executive shall receive a salary computed at the rate of One Hundred
Twenty-Five Thousand Dollars ($125,000.00) per year until December 31, 1992.
Thereafter, Executive shall receive a salary computed at a rate not less than
One Hundred Fifty Thousand Dollars ($150,000.00) per year for the remainder of
the Employment Period. Such salary shall be payable in bi-weekly installments or
otherwise as the parties shall agree, net of applicable FICA, federal, state and
local income tax withholdings and applicable worker's and unemployment
compensation amounts, throughout the Employment Period in accordance with the
Company's normal payroll practices. Such salary may be increased from time to
time, as shall be determined by the Board of Directors of the Company in their
absolute discretion. In the event Executive is discharged without just cause,
such salary (as well as the employee benefits other than bonus payments, if any,
provided to Executive under Section 4 hereof or equivalent cash payments in
substitution therefor) shall continue to be due and payable as severance pay in
accordance with the Company's normal compensation schedule through the later of
(i) the date six (6) months following such discharge, or (ii)
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December 31, 1995. In the event Executive voluntarily terminates his employment
or is discharged with just cause, such salary and benefits as in effect at the
time of termination shall be payable through the date of termination, and
thereafter such salary and benefits shall end and cease to be payable. In the
event Executive's employment with the Company is terminated as a result of
disability (as defined in Section 6) or death, such salary and benefits shall be
payable for the remainder of the month during which his employment terminated,
and thereafter such salary and benefits shall end and cease to be payable. In
the event that the Company continues to employ Executive after December 31,
1995, (the "Extended Employment Period"), the rights and obligations of the
Company and the Executive hereunder shall continue to apply during such Extended
Employment Period (and Executive's salary shall continue at the rate payable
immediately prior to the expiration of the Employment Period). The Company may
terminate the Extended Employment Period at any time upon written notice to
Executive in which event Executive shall be entitled to severance pay to the
extent provided in subparagraph 2(i) above.
3. EXPENSES.
The Company shall pay or reimburse Executive for all reasonable
business expenses incurred by him on behalf of the Company in the performance of
his duties for the Company during the Employment Period. Upon the termination of
Executive's employment with the Company, the Company shall pay such reasonable
business expenses as are incurred by Executive at the prior written request of
the Company. Executive shall furnish the Company with the appropriate
documentation required by the Internal Revenue Code and the Treasury Regulations
thereunder.
4. BENEFITS.
During the Employment Period and the Extended Employment Period, if
any, Executive shall be entitled to participate in any employee benefit plans
which are maintained or established by the Company for its employees generally,
including group medical and disability income insurance plans. During the
Employment Period and the Extended Employment Period, if any, Executive shall
also be entitled to use a Company owned vehicle furnished to him for conducting
Company business and reimbursement of Executive's Union Club dues and
assessments. Executive shall be entitled, at the Company's expense, to a term
life insurance policy payable to a beneficiary designated by Executive in an
amount not less than the lesser of (i) two (2) times the amount of Executive's
then current salary, or (ii) Two Hundred Fifty Thousand Dollars ($250,000.00).
In the event that the Company's current group term life insurance coverage is
improved during the Employment Period or the Extended Employment Period,
Executive will be entitled to receive the
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benefit of such improved coverage. Executive shall be considered for
participation in any executive bonus plan which may be established by the
Company, with the level of such participation, if any, to be determined at the
sole discretion of the Board of Directors of the Company. On or prior to August
31, 1993, the Company and Executive shall enter into a Stock Option Agreement in
the form attached hereto as Exhibit A, providing for the grant to Executive, as
of August 31, 1993, of non-qualified options to purchase up to ten thousand
(10,000) shares of Class A Common Stock of the Company at a price of Fifteen
Dollars ($15.00) per share. At the time of execution of this Agreement, the
Company, Executive and certain other parties shall enter into an Amendment of
Shareholders Agreement and Partial Waiver of Rights of Refusal in the form
attached hereto as Exhibit B, providing for the waiver by such other parties of
certain rights with respect to the shares of Class A Common Stock of the Company
now or hereafter owned of record or beneficially by Executive.
5. VACATIONS.
During the Employment Period and the Extended Employment Period, if
any, Executive shall be entitled to four (4) weeks of paid vacation per year to
be taken at such time or times as are mutually acceptable to the Company and
Executive consistent with the policies of the Company. Vacations are not
cumulative from year to year.
6. TERMINATION.
All rights and obligations of the Company and Executive hereunder shall
terminate, except for the obligations of Executive set forth in Sections 7
through 13 hereof and the obligations of the Company, if any, set forth in
Section 2 hereof (and, to the extent that Section 2 provides for severance pay
including benefits described in Section 4, Section 4 hereof), which shall
survive such termination, upon the earliest to occur of the following: (a) the
end of the month in which the Executive dies or becomes disabled; (b) the
voluntary termination by Executive of his employment with the Company; or (c)
the termination of Executive by the Company by written notice with or without
just cause. For purposes of this Agreement, "just cause" shall include the
occurrence of any of the following events during the Employment Period:
a. Executive's conviction of any felony involving an act
of moral turpitude or any other felony which results
in the inability of Executive to continue to render
services to the Company, or conviction, judicial
determination or admission of embezzlement or
misappropriation of money or other property of the
Company;
b. Executive's willful failure or willful refusal to
perform his duties on behalf of the Company which
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duties are consistent with the scope and nature of
Executive's responsibilities as set forth in Section
1 of this Agreement and with the other provisions of
this Agreement and which are not remedied by
Executive within a reasonable time period after
receipt of written notice of such alleged violative
activities from the Board of Directors of the
Company. For purposes of this subparagraph (ii), it
is understood and agreed that mere unsatisfactory
financial performance of the Company or good faith
errors in judgment or discretion made by Executive or
actions of Executive taken pursuant to directions of
the Board of Directors of the Company shall not
constitute grounds for termination for just cause
hereunder;
c. Any act of fraud, intentional dishonesty,
falsification or intentional manipulation of Company
records, or willful corporate waste by Executive
relating to the business or condition of the Company
or which affects the ability of the Executive to
perform his obligations hereunder; or
d. Any material breach of this Agreement or any material
breach of his fiduciary duties owed to the Company.
The Company agrees to use good faith in determining whether events or
circumstances constitute grounds of discharge for just cause as defined above.
For purposes of this Section 6, Executive shall be considered
"disabled" if because of a mental or physical impairment he is unable for a
continuous period of three (3) consecutive months or for an aggregate of sixty
(60) business days in any twelve (12) month period to provide services to the
Company as set forth in Section 1 of this Agreement. Executive agrees to submit,
at the Company's request and expense, to an examination by a physician who is
mutually acceptable to Executive (or his personal representatives) and the
Company and to authorize Executive's personal physician to disclose to such
selected physician all of Executive's medical records. A certificate from such
selected physician to the effect that Executive is disabled within the meaning
of this Section 6 shall be conclusive and binding upon the Company and Executive
for the purposes of this Agreement. Disability shall be deemed to occur on the
date that the Company and Executive mutually agree in writing to such effect or
on the date of the receipt by the Company and Executive of a certificate from
the physician to such effect.
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7. CONFIDENTIALITY.
Executive recognizes and acknowledges that the Company's methods of
operation (including that of all subsidiaries of the Company) and specific
business plans and acquisition targets, except to the extent that such are
widely known in the trade, are trade secrets, are confidential and are the
property of the Company. Executive further recognizes that the success of the
Company's acquisition program and development and marketing activities regarding
the business of the Company and its subsidiaries depends upon the protection of
such items from duplication or disclosure to third parties. Executive further
recognizes and acknowledges that in order to enable the Company to evaluate
acquisition targets and perform services for its and its subsidiaries'
customers, such acquisition targets and customers may furnish to the Company
confidential information concerning their business affairs, property, methods of
operation or other data; that the goodwill afforded to the Company depends upon,
among other things, the Company, its subsidiaries and their employees keeping
such services and information confidential, and that such confidential
information includes, without limitation, information relating to the Company's
acquisition program and the methods of operation developed by the Company and
its subsidiaries or by Executive for the Company and its subsidiaries as an
employee thereof within the scope of his employment, information as to sources
of, and arrangements for, services supplied to customers of the Company and its
subsidiaries, submission and proposal procedures of the Company and its
subsidiaries, financial information, sales and distribution information, price
lists, the identity and lists of actual and potential acquisition targets and
customers, all to the extent that such information is not intended by the
Company and its subsidiaries for public dissemination, is not within the
knowledge of the general public, or is not knowledge in the trade, and Executive
further agrees to consider all such information with respect to its acquisition
program, methods of operation, techniques, records, files, memoranda, reports,
price lists, customer lists, plans, documents and the like, relating to the
business of the Company and its subsidiaries with which Executive is or becomes
familiar as an employee of the Company or which Executive shall use or prepare
or come into contact with in the scope of his employment, to be confidential
information and the exclusive property of the Company and its subsidiaries which
will not be converted or disclosed to anyone for any purpose whatsoever without
the prior written permission or consent of the Company (collectively,
"Confidential Information"). Confidential Information shall not include any
information now or hereafter in the public domain, known generally in the
industry, or disclosed to third parties other than as a result of a breach by
Executive of this Agreement.
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8. NONDISCLOSURE.
Executive shall at all times during and after the Employment Period
hold in strictest confidence and shall not directly or indirectly disseminate
orally or in writing or use for his personal benefit any and all Confidential
Information, regardless of how it may have been acquired, within his knowledge
(whether acquired prior to or during the Employment Period), except for the
disclosure of such information as may be required by law or authorized in
writing by the Board of Directors of the Company. Executive agrees that, except
as directed by the Board of Directors of the Company, Executive will not at any
time, whether during or after his employment with the Company, disclose to any
person or use any Confidential Information, or permit any unauthorized person to
examine and/or make copies of any documents which contain or are derived from
Confidential Information, whether prepared by Executive or otherwise coming into
Executive's possession or control, without the prior written permission of the
Board of Directors of the Company. Executive acknowledges and agrees that upon
termination of the Employment Period he will return promptly to the Company all
memoranda, notes, records, reports, manuals and other documents (and all copies
thereof) relating to the Company's business, including, but not limited to, the
Company's acquisition program and acquisition targets, methods of operation,
services, suppliers and customers of the Company, which he may then possess or
have under his control.
9. NONCOMPETITION.
Executive agrees and covenants that because of the confidential and
sensitive nature of the trade secrets and Confidential Information and because
the use of, or even the appearance of the use of Confidential Information in
certain circumstances may cause irreparable damage to the Company and its
subsidiaries and their reputation, or to the acquisition targets and customers
of the Company and its subsidiaries, Executive shall not, without the prior
written consent of the Company, either directly or indirectly, during his
employment hereunder and until the later of (i) the expiration of the Employment
Period or (ii) one (1) year following the termination of Executive's employment
hereunder, solicit business from or compete with the Company for the acquisition
of any acquisition target previously considered by the Company, or the business
of any customer of the Company or its subsidiaries, or either directly or
indirectly operate or perform any employment, advisory or consulting services
for, invest in (other than stock in a publicly held corporation which is traded
on a recognized securities exchange or over-the-counter, provided that the
ownership of such equity interest does not give Executive the right to control
or substantially influence the policy or operational decisions of such
corporation) or otherwise operate or become associated in any capacity, with any
company, partnership, organization, proprietorship, or other entity which is
engaged in a business or performs services then in competition with the
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business of the Company or its subsidiaries as the same shall exist on the
termination date of Executive's employment with the Company. Notwithstanding the
foregoing, the provisions of this Section 9 shall not be binding upon Executive
at any time when any payment by the Company to Executive under this Agreement or
any other written compensation plan or arrangement with the Company is due and
has been due for more than thirty (30) days after written notice by Executive to
the Company that such payment was not made when due (unless Executive is in
breach of this Agreement or such plan or arrangement).
10. NONINTERFERENCE.
Executive shall not, at any time during his employment hereunder and
during the two (2) years immediately following the termination of Executive's
employment, without the prior written consent of the Company, directly or
indirectly, induce or attempt to induce any employee, agent or other
representative or associate of the Company or its subsidiaries to terminate its
relationship with the Company or its subsidiaries, or in any way directly or
indirectly interfere with such a relationship or any relationship between the
Company and its subsidiaries and any of its or their suppliers or customers, or
any other person or entity affiliated with or doing business with the Company or
its subsidiaries (or proposing to become affiliated or to do business with the
Company or its subsidiaries).
11. DISCLOSURE OF PROPRIETARY INFORMATION.
Executive will promptly disclose in writing to the Company each
modification, improvement, discovery, idea and invention relating to the
Confidential Information and the business of the Company or its subsidiaries, as
currently conducted by the Company and its subsidiaries on the date of such
discovery or as conducted by the Company since its inception on November 4,
1988, which was made or conceived by Executive, either alone or in conjunction
with others, while employed by the Company hereunder or within two (2) years
after the termination of such employment if such modification, improvement,
discovery, idea or invention results from such employment. Each such
modification, improvement, discovery, idea or invention shall be the sole and
exclusive property of, and is hereby assigned to, the Company and at the request
of the Company, Executive will, during his employment hereunder and for a two
(2) year period thereafter, provide reasonable assistance and cooperation to the
Company and any person or persons from time to time designated by the Company to
obtain for the Company copyright, trademark, patent or trade name registration
or the grant of any letters patent in the United States and/or any foreign
country, covering any such modification, improvement, discovery, idea or
invention, and will, in connection therewith, execute such applications,
statements, assignments or other documents, furnish such information and data
and take all such other reasonable action (including without limitation the
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giving of testimony) as the Company may from time to time request. Should
Executive not be an employee of the Company at the time such cooperation and
assistance is rendered, he shall be reimbursed for the time expended at the
request of the Company at a rate comparable to the salary in effect at the time
his employment terminated and for all reasonable and related out-of-pocket
expenses incurred by him while rendering such cooperation and assistance.
12. POSSESSION AND USE.
a. POSSESSION AND OWNERSHIP. Executive agrees that upon request by the
Company, and in any event upon termination of his employment hereunder,
Executive shall return promptly to the Company all documents, papers, memoranda,
records, notes, reports, manuals (and all copies thereof) or other material in
his possession or under his control which may contain or be derived from the
trade secrets and/or Confidential Information or relate to the Company's
business or that of its subsidiaries, including, but not limited to, the
services, suppliers and customers of the Company or its subsidiaries, together
with all documents, notes or other work product which is connected with or
derived from Executive's services to the Company whether or not such material is
at the date hereof in Executive's possession. Executive agrees that he shall
have no proprietary interest in any work product made, developed, created or
used by him and arising out of his employment by the Company. Executive shall,
from time to time as may be requested by the Company, at the Company's expense,
do all things which may be reasonably necessary to establish or document the
Company's ownership of any such work product, including, but not limited to,
execution of appropriate copyright, trademark, trade name or patent applications
or assignments.
b. USE. Executive further agrees that he shall not use Confidential
Information and/or trade secrets of the Company or its subsidiaries, except to
the extent necessary to provide services requested by the Company for work
prepared by him as an employee of the Company within the scope of his
employment.
13. REMEDY FOR CERTAIN BREACHES.
Executive acknowledges that Sections 7 through 12 hereof were
negotiated at arms length and are required for the fair and reasonable
protection of the Company and its subsidiaries in light of all the facts and
circumstances of the relationship between Executive and the Company. Executive
further acknowledges and agrees that a breach or threatened breach of those
obligations and agreements will result in irreparable and continuing damage to
the Company and its subsidiaries for which there will be no adequate remedy at
law and agrees that in the event of any breach or threatened breach of said
obligations and agreements, the Company and its successors and assigns shall be
entitled to injunctive relief and to such other further relief as is proper in
these
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circumstances, including (i) the right to have the provisions of this Agreement
specifically enforced by any court having jurisdiction, and (ii) to be relieved
of any further obligation to pay Executive any of the amounts due Executive by
Company under this Agreement. Executive further acknowledges and agrees that the
covenants contained herein are necessary for the protection of the Company's and
its subsidiaries' legitimate business interests and are reasonable in scope and
content. In addition, while the duration of the covenants embodied in Sections 7
through 12 hereof shall be determined generally in accordance with the terms of
those respective Sections, in the event of any breach, threatened breach or
violation by Executive of any of the covenants contained in such Sections,
Executive agrees to an extension of the covenant violated on the same terms and
conditions for an additional period of time equal to the time that elapses from
the commencement of litigation stemming from such breach or violation to the
later of the (a) termination of such breach or violation, or (b) the final
resolution of any litigation stemming from such breach or violation.
Notwithstanding the foregoing, the Company shall not be entitled to injunctive
relief and shall not be entitled to be relieved of its payment obligations
hereunder if the Company has materially breached its obligations hereunder (and
said breach has not been cured) at the time of any breach, threatened breach or
violation of the covenants in Sections 7 through 12 hereof.
14. REFORMATION OF AGREEMENT.
In the event any of the Sections 7 through 13 shall be found by a court
of competent jurisdiction to be invalid or unenforceable as against public
policy, such court shall exercise its discretion in reforming such provision to
the end that Executive shall be subject to such restrictions and obligations as
are reasonable under the circumstances and enforceable by the Company. In the
event that any other provision or term of this Agreement is found to be void or
unenforceable to any extent for any reason, it is agreed by the parties hereto
that such provision shall remain in full force and effect to the maximum extent
allowable and all nonaffected provisions shall remain fully valid and
enforceable and such finding shall in no way affect the enforceability of any
such provision at a subsequent date against a different employee.
15. INSURANCE.
Executive agrees that the Company may insure his life as a key employee
of the Company, naming the Company as beneficiary, and that he will submit to
annual physical examinations if requested by the Company at the Company's
expense in connection with the purchase by the Company of any such key man life
insurance.
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16. NOTICES.
All notices and other communications hereunder shall be in writing,
shall be personally delivered or sent by certified mail return receipt requested
and shall be deemed to have been duly given when received. Notices shall be
delivered or sent to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
a. If to the Company, to:
Waste-Quip, Inc.
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx, Halter & Xxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxx 00000-0000
b. If to Executive, to:
Xxxxxxx X. Xxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxx 00000
17. NO RIGHTS IN ANY PROPERTY OF COMPANY.
Except as otherwise provided in this Agreement, the undertakings of the
Company to pay Executive herein constitute merely the unsecured promises of the
Company. No property of the Company is or shall be, by reason of this Agreement,
held in trust for Executive. Executive shall not have, by reason of this
Agreement, any right, title or interest of any kind in or to any property of the
Company.
18. WAIVER.
Failure by the Company at any time to enforce any provision of this
Agreement or to require performance by Executive of any provision hereof shall
in no way affect the validity of this Agreement or any part hereof or the right
of the Company thereafter to enforce its rights hereunder; nor shall it be taken
to constitute a condonation or waiver by the Company of that default or any
other or subsequent default or breach.
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19. ASSIGNMENT.
Except as set forth herein, no rights of any kind under this Agreement
shall, without the prior written consent of the other party, be transferable to
or assignable, or be subject to alienation, encumbrance, garnishment,
attachment, execution or levy of any kind, voluntary or involuntary. This
Agreement shall be binding upon and shall inure to the benefit of the Company
and its successors and permitted assigns.
20. GOVERNING LAW.
This Agreement is executed in and shall be construed in accordance with
and governed by the laws of the State of Ohio, without giving effect to the
choice of law provisions thereof.
21. COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same document.
22. HEADINGS.
The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
23. ENTIRE AGREEMENT.
This Agreement constitutes the entire understanding and agreement among
the parties hereto concerning the subject matter hereof; all negotiations among
the parties hereto concerning the subject matter hereof are therefor superseded
thereby, and there are no representations, warranties, covenants, understandings
or agreements, oral or otherwise, in relation thereto among the parties hereto
other than those incorporated herein. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by the parties
hereto.
24. NO STRICT CONSTRUCTION.
The language used in this Agreement shall be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no rule of
strict construction shall be applied against either party.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first written above.
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
XXXXXXX X. XXXXXX
("Executive")
WASTE-QUIP, INC.
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx
Director and Chairman of
Executive Search Committee
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AMENDMENT NO. 1 TO EMPLOYMENT,
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NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
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THIS AMENDMENT is made as of the 15th day of November,
1994, by and between Wastequip, Inc., an Ohio corporation (the
"Company"), and Xxxxxxx X. Xxxxxx ("Executive"). References herein
to the Company are to Wastequip, Inc. and its subsidiaries, if any,
unless the context indicates otherwise.
WITNESSETH:
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WHEREAS, the Company and Executive are parties to a certain
Employment, Non-Competition and Confidentiality Agreement, dated as of November
10, 1992 (the "Employment Agreement"), whereby the Company agreed to employ
Executive as a key employee of the Company through December 31, 1995;
WHEREAS, the Company and Executive desire to extend the
term of Executive's employment with the Company;
WHEREAS, the Company and Executive desire to have Executive
serve as a consultant to the Company upon the termination of Executive's
employment with the Company provided certain liquidating events with respect to
the Company have not occurred by such time;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the Company and Executive hereby agree as follows:
1. EXTENSION OF TERM OF EMPLOYMENT. The second and third
sentences of Subsection 1(b) of the Employment Agreement are hereby deleted in
their entirety and the following sentences are substituted in lieu thereof:
Commencing as of the date hereof and continuing through
December 31, 1997 unless earlier terminated pursuant to and in
accordance with Section 6 below (the "Employment Period"), the
Company hereby employs Executive and Executive hereby agrees
to serve the Company on a full-time basis in the position of
Chairman of the Board of Directors of the Company. Executive
shall perform the duties normally associated with such
position as well as such other reasonable and appropriate
duties as may be assigned to and requested of him by, and
subject to the direction, control and supervision of, the
Board of Directors of the Company.
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2. SEVERANCE PAY. The fifth sentence of Section 2 of
the Employment Agreement is hereby deleted in its entirety and the
following sentence is substituted in lieu thereof:
In the event Executive is discharged without just cause, such
salary (as well as the employee benefits other than bonus
payments, if any, provided to Executive under Section 4 hereof
or equivalent cash payments in substitution therefor) shall
continue to be due and payable as severance pay in accordance
with the Company's normal compensation schedule through the
later of (i) the date six (6) months following such discharge,
or (ii) December 31, 1997.
3. DELETION OF REFERENCES TO THE EXTENDED EMPLOYMENT
PERIOD. All references in the Employment Agreement to the
"Extended Employment Period" are hereby deleted.
4. CONSULTING PERIOD.
a. SERVICES AND PAYMENTS. Provided no
"Liquidating Event" has occurred prior to December 31, 1997 and Executive
remains an employee of the Company at such time, during the period commencing
January 1, 1998 and ending on the earliest to occur of Executive's death,
Executive's disability, termination of Executive with just cause or December 31,
1999 (the "Consulting Period"), Executive shall, as an independent contractor,
perform such consulting services on behalf of the Company as the Company may
reasonably request; PROVIDED, HOWEVER, that in no event shall Executive be
required to spend more than eight (8) days per month in the performance of such
consulting services. The following shall constitute "Liquidating Events" for
purposes of this Amendment: (i) the closing of a firm commitment underwriting of
common stock of the Company, (ii) the sale of substantially all of the
outstanding common stock of the Company, (iii) the sale of substantially all of
the assets of the Company other than in connection with a forced liquidation of
the Company, and (iv) a merger or consolidation of the Company with or into
another entity in a transaction pursuant to which the shareholders of the
Company retain and/or receive equity securities which, in the aggregate,
constitute less than fifty percent (50%) of the combined voting power of the
surviving entity. As compensation for such consulting services and contingent
upon Executive's continued compliance with the applicable provisions of the
Employment Agreement, the Company shall (i) pay to Executive, on the first day
of each month during the Consulting Period, the sum of Six Thousand Two Hundred
Fifty Dollars ($6,250); and (ii) reimburse Executive for his reasonable
out-of-pocket expenses incurred in the performance of consulting services
requested by the Company.
b. EFFECT OF EXTENDED EMPLOYMENT. In the event
that the Company and Executive mutually agree to continue
-15-
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Executive's employment with the Company for any period after December 31, 1997,
the provisions of Section 4(a) above shall be inapplicable and Executive shall
not be entitled to receive consulting payments hereunder unless Executive and
the Company mutually agree, by an amendment to the Employment Agreement, to
reinstate a part or all of the provisions of Section 4(a).
c. EFFECT OF DEATH, DISABILITY OR TERMINATION FOR
JUST CAUSE. In the event that Executive's employment is terminated prior to
December 31, 1997 by reason of Executive's death or disability or by the Company
for just cause, the provisions of Section 4(a) above shall be inapplicable and
Executive shall not be entitled to receive any consulting payments hereunder.
IN WITNESS WHEREOF, the parties have signed this Amendment as
of the date first above written.
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
XXXXXXX X. XXXXXX
("Executive")
WASTEQUIP, INC.
(the "Company")
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxx,
President
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AMENDMENT NO. 2 TO EMPLOYMENT
-----------------------------
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
---------------------------------------------
THIS AMENDMENT is made as of the 1st day of January, 1998, by and between
Wastequip, Inc., an Ohio corporation (the "Company"), and Xxxxxxx X. Xxxxxx
("Executive"). References herein to the Company are to Wastequip, Inc. and its
subsidiaries, if any, unless the context indicates otherwise.
WITNESSETH
----------
WHEREAS, the Company and Executive and parties to a certain Employment,
Non-Competition and Confidentiality Agreement, dated as of November 10, 1992 and
modified by Amendment No. 1 dated November 15, 1994 (the "Employment
Agreement"), whereby the Company agreed to employ Executive as a key employee of
the Company through December 31, 1997;
WHEREAS, the Company and Executive desire to extend the term of Executive's
employment with the Company;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, in the Company and Executive hereby agree as follows:
1. EXTENSION OF TERM OF EMPLOYMENT. The second and third sentences of
Subsection 1(b) of the Employment Agreement are hereby deleted in their
entirety and the following sentences are substituted in lieu hereof:
Commencing as of the date hereof and continuing through December 31,
1999 unless earlier terminated pursuant to and in accordance with
Section 6 below (the "Employment Period"), the Company hereby employs
Executive and Executive agrees to serve the Company on a full-time
basis in the position of Chairman of the Board of Directors of the
Company. Executive shall perform the duties normally associated with
such position as well as such other reasonable and appropriate duties
as may be assigned to and requested of him by, and subject to the
direction control and supervision of, the Board of Directors of the
Company.
2. DELETION OF REFERENCES TO THE EXTENDED EMPLOYMENT PERIOD AND CONSULTING
PERIOD. All references in the Employment Agreement to the "Extended Employment
Period" are hereby deleted. Subsection 4 (a) of Amendment No. 1 is hereby
deleted.
18
IN WITNESS WHEREOF, the parties have signed this Amendment as of the date
first above written.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
("Executive")
WASTEQUIP, INC.
(the "Company")
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx, President
