AMENDMENT NUMBER TWO
Exhibit 10.4
This AMENDMENT NUMBER TWO (hereinafter the “Amendment”) is made and entered into as of this
10th day of October, 2006, by and between REPUBLIC SERVICES, INC., a Delaware
corporation, (hereinafter the “Company”) and XXXXX X. XXXXXXX, a Florida Resident (hereinafter the
“Employee”):
RECITALS
WHEREAS, the Company and the Employee have heretofore entered into a certain Employment
Agreement dated as of October 25, 2000 (the “Employment Agreement”); and
WHEREAS, the Company and the Employee have heretofore entered into that certain Amendment
Number One dated as of January 31, 2003 (“Amendment Number One” and, collectively, together with
the Employment Agreement, the “Agreement”); and
WHEREAS, the Company and the Employee wish to make further amendments to the Agreement to
reflect various changes that have been agreed to since October 25, 2000, including changes to
Employee’s compensation, all as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the Company and the Employee agree as follows:
A. The recitals set forth above are incorporated in this Amendment by reference thereto.
B. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Agreement.
C. For all purposes therein, clauses (a) and (b) of Section 2 of the Agreement are hereby
deleted, in their entirety, and replaced with the following:
2. Compensation.
“(a) Base Salary. In consideration for the Employee’s services
hereunder and the restrictive covenants contained herein, the Employee shall be paid
an annual base salary of $325,000 for the 2006 Fiscal Year (the “Salary” or the
“Base Salary”), payable in accordance with the Company’s customary payroll
practices. Notwithstanding the foregoing, Employee’s annual Base Salary may be
increased at anytime and from time to time to levels greater than the levels set
forth in the preceding sentence at the discretion of the Board of Directors of
the Company to reflect merit or other increases. The Base Salary for each Fiscal
Year shall become effective as of January 1 of such Fiscal year. The Employee’s Base
Salary for any Fiscal Year after 2006 shall remain as set for the 2006 Fiscal Year
unless the Board of Directors expressly provides otherwise.
(b) Bonus. In addition to the Base Salary, the Employee shall be
eligible to receive a bonus (“Bonus”) in an amount equal to 50% of the Employee’s
Base Salary during the 2006 Fiscal Year. The Bonus shall be based on the
achievement of corporate goals and objectives as established by the Compensation
Committee of the Board of Directors. The Bonus shall be subject to escalation as
provided in the Company’s Executive Incentive Plan (the “Plan”). The achievement of
said goals and objectives shall be determined by the Compensation Committee of the
Board of Directors. With respect to any Fiscal Year during which the Employee is
employed by the Company for less than the entire Fiscal Year, the Bonus shall be
prorated for the period during which the Employee was so employed. The Bonus shall
be payable within thirty (30) days after the end of the Company’s Fiscal Year. The
term “Fiscal Year” as used herein shall mean each period of twelve (12) calendar
months commencing on January 1st of each calendar year during the Employment Period
and expiring on December 31st of such year. The maximum percentage of Base Salary
which the Employee’s Bonus for any year after the 2006 Fiscal Year may represent
shall remain as set for the 2006 Fiscal Year unless the Board of Directors expressly
provides otherwise.”
D. For all purposes therein, Section 2 of the Agreement is hereby amended to insert the
following clause (m):
2. Compensation.
***
“(m) Long Term Incentive. On April 26, 2001, the Board of Directors
adopted the Republic Services, Inc. Long Term Incentive Plan, effective January 1,
2001 to provide for long term incentive cash grants for specified employees of the
Company, including the Employee. Effective January 1, 2003, the Long Term Incentive
Plan was amended, restated and renamed to the Executive Incentive Plan (as
previously defined in Section 2, clause (b), the “Plan”) to provide not only for
long term incentive cash grants but also to include the annual Bonus referred to
above. Employee has participated in the Long Term Incentive Plan and the Plan since
inception, and Employee shall be entitled to continue to participate in the Plan for
purposes of receiving long term cash incentive grants pursuant to the terms and
condition of this Agreement and the Plan.”
E. For all purposes therein, the following Sections 21 and 22 shall be added to the Agreement:
“21. Retirement Eligibility. For all stock option or restricted stock awards
(“Equity Awards”) and all monetary awards (including annual bonus and long-
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term incentive awards and retirement contributions to the deferred compensation program)
(“Monetary Awards” and together collectively with Equity Awards, “Awards”) granted to
Employee prior to July 26, 2006 (“Prior Awards”), such Employee shall be eligible to retire
for purposes of the Prior Awards upon attaining either (a) the age of fifty-five (55) and
having completed six (6) years of service with the Company or (b) the age of sixty-five (65)
without regard to years of service with the Company (the “Original Retirement Policy”). For
all Awards granted to Employee following July 26, 2006 (“Prospective Awards”), the Original
Retirement Policy shall apply provided, and only to the extent that, the Employee shall
provide the Company with not less that twelve (12) months prior written notice of Employee’s
intent to retire. Failure by Employee to provide such written notice shall cause the
Revised Retirement Policy (as hereinafter defined) to apply to Prospective Awards, but such
failure shall have no effect whatsoever on the Prior Awards, all of which shall continue to
be subject to the Original Retirement Policy. For purposes of this Agreement, “Revised
Retirement Policy” shall mean Employee has attained the age of (x) sixty (60) and has
completed fifteen (15) years of continuous service with the Company or (y) sixty-five (65)
with five (5) years of continuous service with the Company.
22. Timing of Severance Payments. Notwithstanding anything in this Agreement
to the contrary, if Employee is deemed to be a “key employee” for purposes of Internal
Revenue Code Section 409A (“Section 409A”), no Severance Payment or other payments pursuant
to, or contemplated by, this Agreement shall be made to Employee by the Company until the
amount of time has elapsed that is necessary to avoid incurring excise taxes under Section
409A. Should this result in a delay of payments to Employee, on the first day any such
payments may be made without incurring a penalty pursuant to Section 409A (the “409A Payment
Date”), the Company shall begin to make such payments as described in this Section 22,
provided that any amounts that would have been payable earlier but for the application of
this Section 22, shall be paid in a lump-sum on the 409A Payment Date.”
F. All other provisions or terms of the Agreement are hereby ratified and confirmed, including
but not limited to, the provisions and terms of Sections 5, 6, and 7 thereof.
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IN WITNESS WHEREOF, the Company and the Employee have executed this Amendment effective as of
the date first written above.
| REPUBLIC SERVICES, INC., | EMPLOYEE: | |||
| a Delaware corporation | ||||
| By: | /s/ W. Xxx Xxxxxx
|
/s/ X.X. Xxxxxxx | ||
| Its: | Chairman of the Compensation
|
XXXXX X. XXXXXXX | ||
Committee of the Board of Directors |
||||
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