EXHIBIT 4.10
THIS EMPLOYMENT AGREEMENT made as of this 24th day of September, 2001.
B E T W E E N:
CAPITAL ENVIRONMENTAL RESOURCE INC., an Ontario corporation having
its head office at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX X0X 0X0
("CAPITAL")
- AND -
XXXXXX XXXXXX, an individual residing at 0000 Xxxxxxxxxx Xxxxx,
Xxxxxxxxxx, XX X0X 0X0
(the "EMPLOYEE" or "XX. XXXXXX")
WHEREAS, Xx. Xxxxxx has been employed by Capital since February 17, 1999
and the parties wish to renegotiate and continue that relationship.
AND WHEREAS, this Agreement replaces and supercedes all previous
employment agreements between the parties.
NOW THEREFORE IN CONSIDERATION of the Employee's continued employment by
Capital, the mutual provisions contained herein, the compensation to be paid the
Employee either in the form of salary, other compensation or increases therein
and for good and valuable consideration more particularly set out herein, the
parties agree with each other as follows:
1. EMPLOYMENT
A. Capital hereby employs the Employee and the Employee hereby accepts
employment upon the terms and conditions of this Agreement. The
Employee shall have the title of Vice President, Operations to be
officed in the greater Toronto/Burlington/Oakville Ontario area and
shall report to the Chief Executive Officer of Capital or his
designee and shall perform such duties, assume such responsibilities
and devote such time, attention and energy to the business of
Capital and corporations affiliated with Capital (the "Affiliated
Corporations") as Capital shall reasonably require.
B. The Employee shall not, during the term of his employment hereunder,
be engaged in any other activities if such activities interfere
materially with the Employee's duties and responsibilities for
Capital.
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2. COMPENSATION
For all services rendered by the Employee under this Agreement, Capital
agrees to compensate the Employee during the term hereof, as follows:
A. BASE SALARY. Employee's base salary shall be CDN $185,000 per annum
payable on a periodic basis consistent with Capital's payroll
procedures for executive employees. The Employee's base salary shall
be reviewed at least annually and shall be increased as agreed by
Capital and the Employee from time to time.
B. OTHER COMPENSATION. The Employee shall be entitled to receive the
following additional compensation:
i. BONUS. The Employee shall receive a bonus for 2001 of CDN
$92,500 to be paid in the first pay period following the
release of Capital's 2001 financial statements, provided, that
Employee has not resigned his employment or been terminated
prior thereto. For each of 2002 and 2003, Employee may receive
an annual discretionary performance bonus of up to 50% of his
base salary.
ii. BENEFITS. Employee and his dependants shall continue to be
covered under Capital's executive benefit plan inclusive of
the matching pension contribution to a maximum of five percent
(5%) of base salary and such other benefits as may be
authorized by the Board of Directors or Compensation Committee
from time to time.
iii. VACATION. Employee shall be granted our (4) weeks vacation in
each fiscal year, to be taken at such times as mutually agreed
between the Employee and Capital. Vacation may only be taken
within the year of entitlement and may not be accumulated form
year to year unless otherwise mutually agreed.
iv. CAR.
(1) Capital shall provide the Employee with a leased vehicle
(or equivalent car allowance) commensurate with his
position;
(2) Capital shall be responsible for all costs incurred in
the operation of such vehicle including fuel,
maintenance, and insurance. Capital will compensate the
Employee for any deemed taxable benefits for his
personal use of such vehicle including taxable benefits
relating to operating costs; and
(3) Capital shall purchase at its cost a transponder for the
Employee to use while commuting from and to his home to
and from Capital's offices.
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v. STOCK OPTIONS. Effective upon the date of this Agreement, the
Employee shall be granted 75,000 options to purchase stock in
the capital of Capital, which shall vest upon the second
anniversary of this Agreement (the "Vesting Date"). The
exercise price for each optioned share shall be the price per
share as listed on Nasdaq at the close of business on the date
of this Agreement. Capital agrees that the Employee shall
remain entitled to such options vesting according to the
preceding schedule regardless of whether Employee's employment
shall terminate prior to the vesting of such options. In the
event of termination of the Employee, the options may be
exercised on the greater of ninety (90) days after such
termination or ninety (90) days from the Vesting Date (but not
beyond the Term of the Option). In all other circumstances,
the exercise of such options shall be governed by the stock
option plan, a copy of which is marked as EXHIBIT A attached
hereto and is hereby incorporated and shall form part of this
Agreement.
vi. MOBILE TELEPHONE. Capital shall provide the Employee with a
mobile telephone and pay all reasonable charges incurred by
the Employee in connection with the use of such telephone.
C. EXPENSES. Employee shall be reimbursed for all expenses reasonably
and actually incurred in the performance of his duties, subject to
submission of appropriate documentation in accordance with Capital's
expense reimbursement policy in effect from time to time.
X. XXXXX CARD. Employee shall be reimbursed for maintaining his U.S.
emigration status (i.e., Green Card) inclusive of "alternative
minimum taxes" payable to the Internal Revenue Service of the United
States of America as well as reimbursement for the costs of
obtaining Green Card status for his spouse and two (2) children.
E. PROMISSORY NOTE. The Employee and Capital agree that the Employee's
promissory notes dated May 19, 1999 in the amount of CDN $85,000 and
August 6, 1999 in the amount of CDN 15,000 shall be cancelled and
that the Employee shall grant to Capital a replacement promissory
note in the sum of CDN $100,000 and such note shall be payable in
full without interest upon the second anniversary of this Agreement;
provided that, in the event the Note or any portion thereof remains
outstanding, the after-tax proceeds of any exercise of options by
the Employee shall be applied to the amount then owing pursuant to
the terms of the Note.
F. ESCROW AGREEMENT.
i. Whereas, Capital, Xx. Xxxxxx and Torys entered into an Escrow
Agreement dated September 4, 2001 (the "ESCROW AGREEMENT");
and, whereas, pursuant to the terms of the Escrow Agreement,
the first of two (2) payments of CDN $194,250 have been paid
to Xx. Xxxxxx; in consideration of the execution of this
Agreement and, in particular, the granting of stock options to
the Employee as set out in Section 2.B.v herein, the Employee
agrees to
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amend the Escrow Agreement by directing Torys to pay to
Capital the remaining payment of CDN $194,250 plus accrued
interest.
ii. The Employee hereby agrees to release Capital from all his
claims and entitlement to such second payment.
3. TERM, TERMINATION
A. The Employee shall be employed for a term of two (2) years ending
September 23, 2003 (the "TERM").
B. The Employee may be terminated at any time for just cause without
notice or compensation in lieu thereof.
C. In the absence of just cause, the Employee's employment may be
terminated by Capital upon the payment by way of salary continuance
of the Employee's base salary for the greater of the remaining Term
at the time of termination of this Agreement or six (6) months (the
"SEVERANCE PERIOD"). Such severance shall be paid over the Severance
Period in accordance with Capital's payroll procedures for executive
employees. For greater certainty should the agreement not be renewed
for a further term Employee shall receive (6) six months severence
paid in accordance with the above.
D. Upon the effective date of termination or resignation, the Employee
shall promptly deliver and return to Capital all the property,
including, but not limited to, credit cards, customer lists,
financial data, letters, notes, notebooks, reports, or copies of any
of the above, any Confidential Information, as defined in Section
1.1 of the Non-Competition and Non-Solicitation Agreement which is
attached hereto as EXHIBIT B, which is incorporated into and forms a
part of this Agreement (the "NON-COMPETITION AND NON-SOLICITATION
AGREEMENT").
4. NON-COMPETITION AND NON-SOLICITATION COVENANTS
In consideration of the execution of this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Employee agrees to enter into the Non-Competition and
Non-Solicitation Agreement.
5. SEVERABLE PROVISIONS
In case of any one (1) or more of the provisions or parts thereof
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect (i) such invalidity, illegality or
unenforceability shall not affect any other provisions or parts thereof of
this Agreement, and (ii) this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein. Failure to insist upon strict compliance with any provision of
this Agreement shall not be deemed a waiver of such provisions or any
other provision of this Agreement.
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6. ENTIRE AGREEMENT
The Employee acknowledges receipt of a copy of this Agreement (together
with any attachments hereto), which has been executed in triplicate and
agrees that it is the entire Agreement with Capital and supersedes any and
all previous oral or written agreements or representations respecting or
relating in any way to the Employee's employment including but not limited
to its terms and conditions. It is further agreed that this Agreement can
only be amended by an agreement in writing signed by both the Employee and
an officer of Capital provided that this shall not preclude Capital or
Affiliated Corporations from granting an increase in salary or an
enhancement of benefits. For greater certainty, any oral or written
representations, understanding or agreements with Capital or Affiliated
Corporations, any of their officers or representatives in any way relating
to the Employee's employment including but not limited to its terms and
conditions are hereby declared to be void, of no effect and are superseded
by the provisions of this Agreement. The Employee further acknowledges and
agrees that neither Capital nor Affiliated Corporations is in any way
responsible or liable for any such oral or written representations,
understandings or agreements.
7. GOVERNING LAW
This Agreement shall be construed in accordance with and governed for all
purposes by the laws of the Province of Ontario subject to the mandatory
application of the statutes of any province other than Ontario where the
Employee is employed in such other province and the laws of Canada
applicable therein.
8. ASSIGNMENT
The Employee acknowledges that Capital or any of its Affiliated
Corporations may assign this Agreement amongst themselves, to any
corporation with which they are merged or amalgamated, or to any third
party acquiring all or part of any of the businesses of Capital or any of
its Affiliated Corporations.
9. OPPORTUNITY TO SEEK INDEPENDENT ADVICE
The Employee recognizes that this Agreement is an important document that
affects his legal rights. For this reason, Employee may wish to seek
independent legal advice before accepting the terms stated herein. The
Employee acknowledges that he has had an opportunity to seek such
independent legal advice. The Employee acknowledges that he has read and
understands the provisions contained herein and acknowledges receipt of a
copy of this Agreement.
SIGNATORY PAGE FOLLOWS
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date set
forth above.
CAPITAL ENVIRONMENTAL RESOURCE INC.
By: /s/ Xxxxx Xxxxxxxxxx-Xxxxx
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Xxxxx Xxxxxxxxxx-Xxxxx
Chairman of the Board and C.E.O.
/s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX
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WITNESS
