EXHIBIT 10.30
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 25th day of March, 1996, by and between HI-RISE RECYCLING SYSTEMS, INC., a
Florida corporation (the "Company"), and XXXXXX XXXXX (the "Executive").
P R E L I M I N A R Y S T A T E M E N T
The Company desires to retain the Executive to serve as its Co-Chairman
of the Board of Directors ("Co-Chairman") and Chief Executive Officer ("CEO")
for such period as the Company and the Executive mutually desire and the
Executive desires to be retained by the Company in such capacity.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. EMPLOYMENT.
1.1. EMPLOYMENT AND TERM. The Company hereby agrees to employ
the Executive and the Executive hereby agrees to serve the Company, on the terms
and conditions set forth herein until such time as either the Company or the
Executive gives notice of its or his intention to terminate his employment
hereunder or until otherwise (the "Expiration Date") terminated as hereinafter
set forth. The period during which the Executive is employed is hereunder shall
be hereinafter referred to as the "Employment Period".
1.2. DUTIES OF THE EXECUTIVE. The Executive shall, during the
Employment Period, devote his full time, energies, talents and efforts to
serving in the capacities of Co-Chairman and CEO in the best interests of the
Company, and shall perform the duties consistent with those offices assigned to
him from time to time by the Board of Directors of the Company or any properly
constituted committee thereof (the "Board") faithfully, efficiently and in a
professional manner. If, at any time during the Employment Period, either the
Company or the Executive believes that it is no longer in their mutual best
interests to have the Executive serve as Co-Chairman or CEO, either may give
notice to the other and, ten (10) days thereafter the Executive shall cease
being the Company's Co-Chairman and CEO and the employment of Executive
hereunder shall terminate. Executive shall perform such services customary to
the offices described above. Executive shall report to, and shall be subject
solely to the supervision and direction of the Board. Prior to the time that the
Executive ceases to be Co-Chairman and CEO of the Company, the Executive shall,
at the request of the Board, accept election and serve as an officer or director
of the Company and/or any subsidiary of the Company, without any additional
compensation therefor other than that specified herein, subject to the
existence, to
Executive's satisfaction, of appropriate indemnification and/or insurance for
his service in such capacities. The Board may delegate certain of the duties of
the Executive set forth herein or formerly performed by the Executive for the
Company to other individuals or entities employed or retained by the Company,
without, however, diminishing in any way the compensation due to the Executive
hereunder.
1.3. PLACE OF PERFORMANCE. During the Employment Period, the
Company may request the Executive to travel in order to perform the nature and
extent of his duties hereunder. The Executive's obligation to travel at the
Company's request shall not be inconsistent with the other considerations set
forth herein. In no event shall the demands on the Executive's time be such as
would reasonably require him to change his current residence.
2. COMPENSATION. The Company shall pay to Executive compensation
for services provided hereunder as set forth in the Addendum to the Agreement
(the "Addendum"). Payments to Executive shall be less applicable social security
and withholding taxes and any other applicable payroll deductions, if any.
3. TERMINATION PROVISIONS.
3.1. TERMINATION. Either party to this Agreement shall have
the right to terminate this Agreement upon ten (10) days prior written notice to
the other party. Upon the termination of Executive's employment relationship
with the Company pursuant to this Section 3.1, the Executive shall, subject to
the other provisions of this Agreement, only be entitled to receive the
compensation specified in Sections 4.1 and 4.7 hereof.
3.2. DEATH. The Executive's employment relationship with the
Company shall terminate automatically upon the death of the Executive, without
any requirement of notice by the Company to the personal representative or
executor of the Executive's estate. Upon termination of the Executive's
employment with the Company pursuant to this Section 3.2, the Executive shall,
subject to the other provisions of this Agreement, only be entitled to the
compensation specified in Sections 4.2 and 4.4 hereof.
4. COMPENSATION AND BENEFITS UPON TERMINATION.
4.1. TERMINATION. Upon the termination of the Executive's
employment with the Company pursuant to Section 3.1 above, then the Company
shall pay the Executive any unpaid amounts of his Base Salary and accrued bonus,
if any, through the date of termination.
4.2. DEATH. Upon the Executive's death, the Company shall
pay to the person designated by the Executive in a notice filed with the Company
or, if no person is designated, to the personal representative or executor of
his estate when, as and if received by the Company, any payments to Executive's
spouse, beneficiaries or estate may be entitled to receive pursuant to any
pension or employee benefit plan or life insurance policy or other plan or
policy then maintained by the Company. Any life insurance policy currently
maintained by the Company
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for the benefit of the Executive shall remain in full force and effect and shall
not be amended or modified except to allow for any increase in benefits payable
pursuant thereto.
4.3. NO MITIGATION. The aggregate amount payable by the
Company to the Executive pursuant to the foregoing provisions shall not be
reduced or mitigated in any respect.
4.4. BONUS. If the Executive's employment is terminated with
the Company for any reason, the Executive shall be paid, solely in consideration
for services rendered by the Executive prior to such termination, any unpaid
Annual Incentive Bonus previously established in writing by the Board, or any
duly appointed committee thereof, with respect to the Company's fiscal year in
which the termination date occurs, equal to such Annual Incentive Bonus that
would have been payable to the Executive for the fiscal year if the Executive's
employment had not been terminated, multiplied by the number of days in the
fiscal year prior to and including the date of termination and divided by three
hundred sixty-five (365).
5. SUCCESSORS. This Agreement shall be binding upon, and inure
to the benefit of, the Company and its successors and assigns and any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company's assets and business. This Agreement
and the Executive's rights and obligations hereunder may not be assigned by the
Executive.
6. ENTIRE AGREEMENT. Except as otherwise provided in this Agreement,
this Agreement constitutes the entire agreement among the parties pertaining to
the subject matter hereof, and supersedes and revokes any and all prior or
existing agreements, written or oral, relating to the subject matter hereof
(which shall be void and of no further force and effect), and this Agreement
shall be solely determinative of the subject matter hereof. Notwithstanding the
foregoing, the Indemnification Agreement by and between the Executive and the
Company dated as of the date hereof shall be and remain in full force and
effect.
7. CONFIDENTIAL INFORMATION; NON-COMPETITION; EQUITABLE REMEDIES.
7.1. CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that the
Company's client list and manner of doing business is proprietary to the
Company. Except as may be required by the lawful order of a court or agency of
competent jurisdiction, the Executive shall keep secret and confidential
indefinitely all nonpublic information concerning the Company, its affiliates
and its clients which was acquired by or disclosed to the Executive during the
course of his employment with the Company including, without limitation,
information relating to the Company (including, without limitation, business
methods, business policies, procedures, techniques, trade secrets, client and/or
customer lists, compensation levels, costs, financial data and plans), the
Company's clients, and not to disclose the same, either directly or indirectly,
to any other person, firm or business entity, or to use it in any way; provided,
however, that the provisions of this paragraph 7.1 shall not apply to
information which is in the public domain; and provided further, that the
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Company recognizes that the Executive has acquired, prior to his employment with
the Company and shall acquire during the course of his employment with the
Company, certain general information not specific to the Company and its clients
which Executive may use consistent with the provisions of applicable Federal or
state laws or the provisions of paragraph 7 hereof. While he is employed by the
Company, the Executive will not make any statement or disclosure which would be
prohibited by applicable Federal or state laws nor any statement or disclosure
which is intended or reasonably likely to be detrimental to the Company or any
of its subsidiaries or affiliates, or any of their clients. Executive shall
execute Company's standard confidentiality agreement attached as Exhibit A upon
execution of this Agreement.
(b) Upon the termination of the Executive's
employment with the Company for any reason whatsoever, the Executive shall
promptly return to the Company all documents, records, notebooks and other
materials which belong to the Company or any of its affiliates, clients or
clients' customers or sponsors and which are in the possession of the Executive,
including all copies thereof.
(c) In the event that the Executive is required,
by oral questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process, to disclose nonpublic
information, the Executive shall provide the Company with prompt notice thereof
so that the Company may seek an appropriate protective order and/or waive
compliance by the Executive with the provisions hereof; provided, however, that
if in the absence of a protective order or the receipt of such a waiver, the
Executive is, in the opinion of counsel for the Company, compelled to disclose
nonpublic information not otherwise disclosable hereunder to any legislative,
judicial or regulatory body, agency or authority, or else be exposed to
liability for contempt, fine or penalty or to other censure, such nonpublic
information may be so disclosed; provided that the Executive shall disclose only
that information that is required and shall redact or withhold all information
not required to be disclosed.
7.2. NONCOMPETITION/NONSOLICITATION/NONDISPARAGEMENT.
In addition to the provisions of Section 7.1:
(i) For the period (the "Noncompetition Period")
commencing on the date hereof and continuing through the fifth anniversary of
the termination of the Executive's employment relationship hereunder, the
Executive will not serve as or be a consultant to or employee, officer, agent,
director or owner of more than five percent of another corporation, partnership
or other entity which competes in any manner with or detracts from any recycling
or solid-waste disposal business in which the Company or its subsidiaries or
affiliates then engages (the "Business") and which operates (excluding corporate
offices) within any state in which the Company conducts business.
(ii) For the period (the "Nonsolicitation
Period") commencing on the Commencement Date and ending on the second
anniversary of the date on which the Executive's employment relationship with
the Company is terminated or ceases for any reason, the Executive
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shall not (i) solicit for employment or endeavor in any way to entice away from
employment with the Company or its affiliates any employee of the Company or its
affiliates who is an officer or a manager of any division; nor (ii) solicit or
accept business competitive with the Business from any clients of the Company or
its affiliates, from any prospective clients whose business the Company or any
affiliate of the Company is in the process of soliciting at the time the
Executive's employment with the Company terminated or ceased, or from any former
clients which had been doing business with the Company within one (1) year prior
to the time the Executive's employment with the Company terminated or ceased.
(iii) For the period (the Nondisparagement
Period") commencing on the Commencement Date and ending on the fifth anniversary
of the date on which the Executive's employment relationship with the Company is
terminated or ceases for any reason, the Executive will not directly or
indirectly disparage the commercial, business or financial reputation of the
Company or any of its affiliates or clients.
(iv) During the Noncompetition Period, the
Executive shall offer to the Company any and all business opportunities in the
Business, whether or not in the same geographic regions in which the Company's
businesses operate (the "Area"). If the Company wishes to pursue such
opportunity, it shall so notify the Executive within 30 days and so long as the
Company is diligently pursuing such opportunity, the Executive shall not do so.
If the Company does not wish to pursue such opportunity and so notifies the
Executive, then, (i) if the opportunity is in the Area, the Executive may not
pursue the opportunity, (ii) if the opportunity is not in the Area, the
Executive may pursue the opportunity without being in violation hereof.
7.3. EQUITABLE REMEDIES.
(a) The Executive acknowledges that the
restrictions contained in the foregoing paragraphs 7.1 and 7.2 in view of the
nature of the business in which the Company is engaged, are reasonable and
necessary in order to protect the legitimate interests of the Company, and that
any violation thereof would result in irreparable injuries to the Company, and
the Executive therefore acknowledges that, in the event of his violation of any
of these restrictions, the Company shall be entitled to obtain from any court of
competent jurisdiction preliminary and permanent injunctive relief as well as
damages and an equitable accounting of all earnings, profits and other benefits
arising from such violation, which rights shall be cumulative and in addition to
any other rights or remedies to which the Company may be entitled.
(b) If the period of time specified in
paragraphs 7.1 and 7.2 above should be adjudged unreasonable in any proceeding,
then the period of time shall be reduced by such number of months so that such
restrictions may be enforced for such time as is adjudged to be reasonable.
8. ARBITRATION. Any dispute or controversy (except for disputes
arising under Section 7) arising under or in connection with this Agreement
shall be settled exclusively by
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arbitration in accordance with the rules of the American Arbitration Association
then in effect (except to the extent that the procedures outlined below differ
from such rules). Within seven (7) days after receipt of written notice from
either party that a dispute exists and that arbitration is required, both
parties must within seven (7) business days agree on an acceptable arbitrator.
If the parties cannot agree on an arbitrator, then the parties shall list the
"Big Six" accounting firms in alphabetical order and the first firm that does
not have a conflict of interest and is willing to serve will be selected as the
arbitrator. The parties agree to act as expeditiously as possible to select an
arbitrator and conclude the dispute. The arbitrator must render his decision in
writing within thirty (30) days of his or its appointment. The cost and expenses
of the arbitration and of legal counsel to the prevailing party shall be borne
by the non-prevailing party. Each party will advance one-half of the estimated
fees and expenses of the arbitrator. Judgment may be entered on the arbitrator's
award in any court having jurisdiction; provided that the Company shall be
entitled to seek a restraining order or injunction in any court of competent
jurisdiction to prevent any continuation of any violation of Section 7 hereof.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to its conflict
of laws principles to the extent that such principles would require the
application of laws other than the laws of the State of Florida. Venue for any
action brought hereunder shall be in Dade County, Florida and the parties hereto
waive any claim that such forum is inconvenient.
10. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or when deposited in the United States mail by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company:
00000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Chairman of the Board
If to the Executive:
Xxxxxx Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other in the aforesaid manner.
11. SURVIVAL. The provisions of paragraph 7 of this Agreement
shall survive, without limitation as to time, in accordance with their express
terms, the date on which the Executive's employment with the Company ceases or
is terminated for any reason.
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12. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
13. WAIVERS. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
14. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement. In the event that either party hereto brings any
action for the collection of any damages resulting from, or the injunction of
any action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable
arbitration or court costs and attorneys' fees of the other, whether such costs
and fees are incurred in an arbitration proceeding, a court of original
jurisdiction or one or more courts of appellate jurisdiction.
15. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
(other than the parties hereto and, in the case of the Executive, his heirs,
personal representative(s) and/or legal representative) any rights or remedies
under or by reason of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
THE COMPANY:
HI-RISE RECYCLING SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
THE EXECUTIVE:
/s/ Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx
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ADDENDUM TO AGREEMENT
THIS ADDENDUM dated as of March 25, 1996 is a part of the Employment
Agreement dated as of March 25, 1996, by and between HI-RISE RECYCLING SYSTEMS,
INC., a Florida corporation (the "Company") and XXXXXX XXXXX (the "Executive"),
as follows:
Subject to the terms and conditions of the Employment Agreement, during
the Employment Period, the Executive shall be compensated by the Company for his
services as follows:
(a) BASE SALARY. The Executive's annual salary during the
Employment Period shall be $180,000 subject to increases in
accordance with the Consumer Price Index, payable by check in
equal installments as may be in accordance with the regular
payroll policies of the Company as from time to time in
effect, less such deductions or amounts to be withheld as
shall be required by applicable law and regulations.
(b) OTHER BENEFITS. The Executive shall be entitled to maintain
his current medical/dental insurance at the Company's expense.
(c) DISCRETIONARY BONUS. The Executive may receive a discretionary
bonus during each year of the Employment Period in an amount
determined by the Compensation Committee of the Board after
its annual performance review of the Executive.
(d) AUTOMOBILE ALLOWANCE; CELLULAR PHONE. The Company shall
provide the Executive with an automobile allowance of six
hundred dollars ($600) per month. The Executive shall be
responsible for all expenses associated with such automobile,
including, without limitation, insurance, gas and repairs. The
Executive shall be provided with a cellular phone and
reimbursed therefor, up to a maximum amount of $400 per month,
in accordance with the policies of the Company as in effect
from time to time.
(e) EXPENSE REIMBURSEMENT. The Company shall pay or reimburse the
Executive for all reasonable expenses actually incurred or
paid by him in the performance of his duties hereunder,
including travel and entertainment, in accordance with Company
policy and upon the presentation by the Executive of an
itemized account of such expenditures and such documentary
evidence as the Company may reasonably require.
(f) OFFICE. The Executive shall be provided with an office and
secretarial assistance in New York City consistent with those
maintained to date by the Executive and
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the Company shall maintain at its expense, at the home of the
Executive, a computer and phone connection to the Company's
offices.
IN WITNESS WHEREOF, the parties have set their hands and seals.
THE EXECUTIVE: THE COMPANY:
HI-RISE RECYCLING SYSTEMS, INC.
/s/ Xxxxxx Xxxxx By: /s/ Xxxx X. Xxxxxxxx
----------------------------- ------------------------------
XXXXXX XXXXX
THE COMPANY:
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