Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is effective as of January 31,
2003 (the "Effective Date"), by and between REPUBLIC SERVICES, INC., a Delaware
corporation (the "Company"), and XXXXXXX XXXXXXXXX, a Florida resident (the
"Employee").
Employee and the Company are parties to that Executive Employment
Agreement dated as of May 14, 2001 (the "Existing Employment Agreement").
Employee is currently an employee of the Company and is considered a
valued employee that Company desires to retain by reconfirming the employment
relationship pursuant to the terms of this Agreement.
In consideration of the mutual representations, warranties, covenants
and agreements contained in this Agreement and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. EMPLOYMENT.
(a) RETENTION. The Company agrees to employ and/or
continue the employment of the Employee as its President and Chief Operating
Officer, and the Employee agrees to accept such employment, subject to the
terms and conditions of this Agreement.
(b) EMPLOYMENT PERIOD. This Agreement shall commence on
the Effective Date and, unless terminated in accordance with the terms of this
Agreement shall continue in effect on a rolling two- year basis, such that at
any time during the term of this Agreement there will be two years remaining
(the "Employment Period"). Notwithstanding the evergreen nature of the
Employment Period, the Company may terminate Employee at any time in accordance
with the provisions of Section 3 of this Agreement.
(c) DUTIES AND RESPONSIBILITIES. During the Employment
Period, the Employee shall serve as President and Chief Operating Officer and
shall have such authority and responsibility and perform such duties as may be
assigned to him from time to time by the Chief Executive Officer of the
Company, and in the absence of such assignment, such duties as are customary to
Employee's office and as are necessary or appropriate to the business and
operations of the Company. During the Employment Period, the Employee's
employment shall be full time and the Employee shall perform his duties
honestly, diligently, in good faith and in the best interests of the Company
and shall use his best efforts to promote the interests of the Company.
(d) OTHER ACTIVITIES. Except upon the prior written
consent of the Company, the Employee, during the Employment Period, will not
accept any other employment. The Employee shall be permitted to engage in any
non-competitive businesses, not-for-profit organizations and other ventures,
such
as passive real estate investments, serving on charitable and civic boards and
organizations, and similar activities, so long as such activities do not
materially interfere with or detract from the performance of Employee's duties
or constitute a breach of any of the provisions contained in Section 6 of this
Agreement.
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 $425,000 commencing on February 28, 2003
and continuing until February 29, 2004 (the "Base Salary"). Notwithstanding the
foregoing, Employee's Base Salary may be increased at anytime and from time to
time to levels greater than the level set forth in the preceding sentence at
the discretion of the Board of Directors of the Company to reflect merit or
other increases. The Employee's Base Salary for any period following February
29, 2004 shall remain at the level specified herein 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 up to 50% of the
Employee's Base Salary during the 2003 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 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
2003 Fiscal Year may represent shall remain as set for the 2003 Fiscal Year
unless the Board of Directors expressly provides otherwise.
(c) MERIT AND OTHER BONUSES. Employee shall be entitled
to such other bonuses as may be determined by the Board of Directors of the
Company or by a committee of the Board of Directors as determined by the Board
of Directors, in its sole discretion.
(d) EXISTING STOCK OPTIONS. The Company has issued to
the Employee options to purchase shares of the Company's Common Stock pursuant
to the terms of various Option Agreements and the terms of the Company's 1998
Stock Incentive Plan, as amended and restated (the "Outstanding Option
Grants"). The options issued or to be issued under the Outstanding Option
Grants shall continue to be subject to the terms of the Option Agreements,
except to the extent otherwise provided for in this Agreement.
(e) OTHER STOCK OPTIONS. The Employee shall be entitled
to participate and receive option grants under the 1998 Stock Incentive Plan,
as amended and restated, and such other incentive or
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stock option plans as may be in effect from time-to-time, as determined by the
Board of Directors of the Company.
(f) OTHER COMPENSATION PROGRAMS. The Employee shall be
entitled to participate in the Company's incentive and deferred compensation
programs and such other programs as are established and maintained for the
benefit of the Company's employees or executive officers, subject to the
provisions of such plans or programs.
(g) HEALTH INSURANCE. The Company shall pay for
Employee's and his family's health insurance including without limitation
comprehensive major medical and hospitalization coverage including dental and
optical coverage under all group medical plans from time to time in effect for
the benefit of the Company's employees or executive officers.
(h) LIFE INSURANCE. The Company shall purchase and
maintain in effect one or more term insurance policies on the life of the
Employee in an aggregate amount not less than two times his Base Salary in
effect from time to time during the term of employment. The beneficiary of such
policy shall be the person or persons who the Employee designates in writing to
the Company.
(i) DISABILITY INSURANCE. The Company shall pay for the
Employee to participate in the Company's disability insurance in effect from
time to time. The Company shall pay for the maximum coverage commercially
available. To the extent the Company does not have a disability insurance plan
or other retirement plan, then the Company shall arrange, at its expense, for
the Employee to participate in such plan.
(j) OTHER BENEFITS. During the term of this Agreement,
the Employee shall also be entitled to participate in any other health
insurance programs, life insurance programs, disability programs, stock option
plans, bonus plans, pension plans and other fringe benefit plans and programs
as are from time to time established and maintained for the benefit of the
Company's employees or executive officers, subject to the provisions of such
plans and programs.
(k) EXPENSES. The Employee shall be reimbursed for all
out-of-pocket expenses reasonably incurred by him on behalf of or in connection
with the business of the Company, pursuant to the normal standards and
guidelines followed from time to time by the Company.
(l) TAX AND ESTATE PLANNING. During the term of this
Agreement, the Employee shall be reimbursed, on an annual basis, for all
out-of-pocket expenses reasonably incurred by him for financial, tax and estate
planning, provided that the total amount of such reimbursement for any year
shall not exceed two percent (2%) of his Base Salary in such year. The Employee
shall retain the right to determine the provider for any such services.
3. TERMINATION.
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(a) FOR CAUSE. The Company shall have the right to
terminate this Agreement and to discharge the Employee for Cause (as defined
below), at any time during the term of this Agreement. Termination for Cause
shall mean, during the term of this Agreement, (i) Employee's willful and
continued failure to substantially perform his duties after he has received
written notice from the Company identifying the actions or omissions
constituting willful and continued failure to perform, (ii) Employee's conduct
that would constitute a crime under federal or state law, (iii) Employee's
actions or omissions that constitute fraud, dishonesty or gross misconduct,
(iv) Employee's breach of any fiduciary duty that causes material injury to the
Company, (v) Employee's breach of any duty causing material injury to the
Company, (vi) Employee's inability to perform his material duties to the
reasonable satisfaction of the Company due to alcohol or other substance abuse,
or (vii) any violation of the Company's policies or procedures involving
discrimination, harassment, substance abuse or work place violence. Any
termination for Cause pursuant to this Section shall be given to the Employee
in writing and shall set forth in detail all acts or omissions upon which the
Company is relying to terminate the Employee for Cause.
Upon any determination by the Company that Cause exists to terminate
the Employee, the Company shall cause a special meeting of the Board of
Directors to be called and held at a time mutually convenient to the Board of
Directors and Employee, but in no event later than ten (10) business days after
Employee's receipt of the notice that the Company intends to terminate the
Employee for Cause. Employee shall have the right to appear before such special
meeting of the Board of Directors with legal counsel of his choosing to refute
such allegations and shall have a reasonable period of time to cure any actions
or omissions which provide the Company with a basis to terminate the Employee
for Cause (provided that such cure period shall not exceed 30 days). A majority
of the members of the Board of Directors must affirm that Cause exists to
terminate the Employee. No finding by the Board of Directors will prevent the
Employee from contesting such determination through appropriate legal
proceedings provided that the Employee's sole remedy shall be to xxx for
damages, not reinstatement, and damages shall be limited to those that would be
paid to the Employee if he had been terminated without Cause. In the event the
Company terminates the Employee for Cause, the Company shall only be obligated
to continue to pay in the ordinary and normal course of its business to the
Employee his Salary plus accrued but unused vacation time through the
termination date and the Company shall have no further obligations to Employee
from and after the date of termination.
(b) RESIGNATION BY EMPLOYEE WITHOUT GOOD REASON. If the
Employee shall resign or otherwise terminate his employment with the Company at
anytime during the term of this Agreement, other than for Good Reason (as
defined below), the Employee shall only be entitled to receive his accrued and
unpaid Salary through the termination date, and the Company shall have no
further obligations under this Agreement from and after the date of
resignation.
(c) TERMINATION BY COMPANY WITHOUT CAUSE AND BY EMPLOYEE
FOR GOOD REASON. At any time during the term of this Agreement, (i) the Company
shall have the right to terminate this Agreement and to discharge the Employee
without Cause effective upon delivery of written notice to
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the Employee, and (ii) the Employee shall have the right to terminate this
Agreement for Good Reason effective upon delivery of written notice to the
Company. For purposes of this Agreement, "Good Reason" shall mean: (i) the
Company has materially reduced the duties and responsibilities of the Employee
to a level not appropriate for an officer of a publicly-traded company holding
the position provided for in Section 1(a), (ii) the Company has breached any
material provision of this Agreement and has not cured such breach within 30
days of receipt of written notice of such breach from the Employee, (iii)
Company has reduced the Employee's annual Salary by more than 10% from the
prior Fiscal Year (nothing in this clause implies that the Company may reduce
the Employee's Salary below the levels provided for in Section 2(a)), (iv) the
Company has terminated the Employee's participation in one or more of the
Company's sponsored benefit or incentive plans and no other executive officer
has had his participation terminated, (v) a failure by the Company (1) to
continue any bonus plan, program or arrangement in which Employee in which
Employee is entitled to participate ("Bonus Plans"), provided that any such
Bonus Plans may be modified at the Company's discretion from time to time but
shall be deemed terminated if (x) any such plan does not remain substantially
in the form in effect prior to such modification and (y) if plans providing
Employee with substantially similar benefits are not substituted therefor
("Substitute Plans"), or (2) to continue Employee as a participant in the Bonus
Plans and Substitute Plans on at least a basis which is substantially the same
as to potential amount of the bonus the Employee participated in prior to any
change in such plans or awards, in accordance with the Bonus Plans and the
Substitute Plans (a plan shall be considered to be on a basis substantially the
same as another if the potential amount payable thereunder is at least 90% of
the potential amount payable under the other plan), (vi) the Employee's office
is relocated by the Company to a location which is not located within the
Florida counties of Miami-Dade, Broward or Palm Beach, or (vii) the Company's
termination without Cause of the continuation of the Employment Period provided
in this Agreement. Upon any such termination by the Company without Cause, or
by the Employee for Good Reason, the Company shall pay to the Employee all of
the Employee's accrued but unpaid Salary through the date of termination, and
continue to pay to or provide for the Employee (a) his Salary payable in
accordance with Section 2(a) for two (2) years from the date of termination,
when and as the same would have been due and payable hereunder but for such
termination, (b) all health benefits in which Employee was entitled to
participate at any time during the 12-month period prior to the date of
termination, until the earliest to occur of the second anniversary of the date
of termination, the Employee's death, or the date on which the Employee becomes
covered by a comparable health benefit plan by a subsequent employer; provided,
however, that in the event that Employee's continued participation in any
health benefit plan of the Company is prohibited, the Company will arrange to
provide Employee with benefits substantially similar to those which Employee
would have been entitled to receive under such plan for such period on a basis
which provides Employee with no additional after tax cost, (c) all stock option
grants, or other stock grants whether part of the Outstanding Option Grant or
any options issued during the term of this Agreement, will immediately vest and
such options will remain exercisable for the lesser of the unexpired term of
the option without regard to the termination of Employee's employment or two
(2) years from the date of termination of employment, (d) all long term
incentive cash grants provided to the Employee shall immediately vest as if all
targets and conditions had been met and shall be paid by the Company to the
Employee at such times as the Company would have been required to make such
payments if this Agreement had remained in effect, provided, however, that in
the case of incentives
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partially or completely contingent on the providing of service for a specific
period of time, the total amount to be paid by the Company shall be equal to
the maximum amount payable if all conditions were met, multiplied by a
fraction, the numerator of which is the period of service that would have been
served if the Employee's employment had terminated as of the last day of the
fiscal year in which his employment was terminated, and the denominator of
which is the total period of time specified as a condition to the incentive,
and (e) as of the termination date the Employee shall be paid the balance of
all amounts credited to Employee's deferred compensation account plus a
gross-up payment to reimburse the Employee for all income and other taxes
imposed with respect to the payment of said balance and all income and other
taxes arising as a result of said gross-up payment such that the payment of the
deferred compensation balance of the Employee is made to the Employee free of
all taxes thereon whatsoever (collectively, the foregoing consideration payable
to the Employee shall be referred to herein as the "Severance Payment"). Other
than the Severance Payment, the Company shall have no further obligation to the
Employee except for the obligations set forth in Section 13 of this Agreement
after the date of such termination; provided, however, that the Employee shall
only be entitled to continuation of the Severance Payments as long as he is in
compliance with the provisions of Sections 6 and 7 of this Agreement.
(d) DISABILITY OF THE EMPLOYEE. This Agreement may be
terminated by the Company upon the Disability of the Employee. "Disability"
shall mean any mental or physical illness, condition, disability or incapacity
which prevents the Employee from reasonably discharging his duties and
responsibilities under this Agreement for a period of 180 consecutive days. In
the event that any disagreement or dispute shall arise between the Company and
the Employee as to whether the Employee suffers from any Disability, then, in
such event, the Employee shall submit to the physical or mental examination of
a physician licensed under the laws of the State of Florida, who is mutually
agreeable to the Company and the Employee, and such physician shall determine
whether the Employee suffers from any Disability. In the absence of fraud or
bad faith, the determination of such physician shall be final and binding upon
the Company and the Employee. The entire cost of such examination shall be paid
for solely by the Company. In the event the Company has purchased Disability
insurance for Employee, the Employee shall be deemed disabled if he is
completely (fully) disabled as defined by the terms of the Disability policy.
In the event that at any time during the term of this Agreement the Employee
shall suffer a Disability and the Company terminates the Employee's employment
for such Disability, such Disability shall be considered to be a termination by
the Company without Cause or a termination by the Employee for Good Reason and
the Severance Payments shall be paid to the Employee to the same extent and in
the same manner as provided for in paragraph (c) above, except that payment of
the Salary in accordance with said paragraph shall be mitigated to the extent
payments are made to the Employee pursuant to disability insurance programs
maintained by the Company.
(e) DEATH OF THE EMPLOYEE. If during the term of this
Agreement the Employee shall die, then the employment of the Employee by the
Company shall automatically terminate on the date of the Employee's death. In
such event, the Employee's death shall be considered to be a termination by the
Company without Cause or a termination by the Employee for Good Reason and the
Severance Payments shall be paid to the Employee's personal representative or
estate to the same extent and in the same manner
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as provided for in paragraph (c) above, without mitigation for any insurance
policies or other benefits held by the Employee. Once such payments have been
made to the Employee's personal representative or estate as the case may be,
the Company shall have no further obligations under this Agreement or otherwise
to said personal representative or estate, or to any heirs of the Employee.
4. TERMINATION OF EMPLOYMENT BY EMPLOYEE FOR CHANGE OF CONTROL.
(a) TERMINATION RIGHTS. Notwithstanding the provisions
of Section 2 and Section 3 of this Agreement, in the event that there shall
occur a Change of Control (as defined below) of the Company and within two
years after such change of Control the Employee's employment hereunder is
terminated by the Company without Cause or by the Employee for Good Reason,
then the Company shall be required to pay to the Employee (i) the Severance
Payment provided in Section 3(c) shall be for three (3) years from the date of
termination and that the Severance Payment shall be paid in a single lump sum
in full, (ii) the product of three multiplied by the maximum Bonus that
Employee would have been eligible for with respect to the Fiscal Year in which
such termination occurs, assuming that all performance objectives are met, in a
single lump sum. The foregoing payments shall be made no later than 10 days
after the Employee's termination pursuant to this Section 4. To the extent that
payments are owed b the Company to the Employee pursuant to this Section 4,
they shall be made in lieu of payments pursuant to Section 3, and in no event
shall the Company be required to make payments or provide benefits to the
Employee under both Section 3 and Section 4.
(b) CHANGE OF CONTROL OF THE COMPANY DEFINED. For
purposes of this Section 4, the term "Change of Control of the Company" shall
mean any change in control of the Company of a nature which would be required
to be reported (i) in response to Item 6(e) of Schedule 14A of Regulation 14A,
as in effect on the date of this Agreement, promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (ii) in response to Item
1 of the Current Report on Form 8-K, as in effect on the date of this
Agreement, promulgated under the Exchange Act, or (iii) in any filing by the
Company with the Securities and Exchange Commission; provided, however, that
without limitation, a Change of Control of the Company shall be deemed to have
occurred if:
(i) Any "person" (as such term is defined in
Sections 13(d)(3) and Section 14(d)(3) of the Exchange Act), other than the
Company, any majority-owned subsidiary of the Company, or any compensation plan
of the Company or any majority-owned subsidiary of the Company, becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 of the Exchange Act),
directly or indirectly, of securities of the Company representing thirty
percent (30%) or more of the combined voting power of the Company;
(ii) During any period of three consecutive
years during the term of this Agreement, the individuals who at the beginning
of such period constitute the Board of Directors of the Company cease for any
reason to constitute at least a majority of such Board of Directors, unless the
election of each director who was not a director at the beginning of such
period has been approved in
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advance by directors representing at least two-thirds of the directors then in
office who were directors at the beginning of such period; or
(iii) The shareholders of the Company approve (1)
a reorganization, merger, or consolidation with respect to which persons who
were the shareholders of the Company immediately prior to such reorganization,
merger, or consolidation do not immediately thereafter own more than 50% of the
combined voting power entitled to vote generally in the election of the
directors of the reorganized, merged or consolidated entity; (2) a liquidation
or dissolution of the Company; or (3) the sale of all or substantially all of
the assets of the Company or of a subsidiary of the Company that accounts for
30% of the consolidated revenues of the Company, but not including a
reorganization, merger or consolidation of the Company.
5. GROSS-UP PAYMENT.
(a) Amount. If any payment or benefit provided to the
Employee by the Company (a "Base Payment") is subject to the tax (the "Excise
Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code") (or any other similar tax that may hereafter be imposed), the
Company shall pay to the Employee the "Gross-Up Payment" determined as follows.
The "Gross-Up Payment" shall be equal to the sum of (i) the Excise Tax imposed
with respect to the Base Payment, plus (ii) the Excise Tax imposed with respect
to the Gross-Up Payment, plus (iii) all other taxes imposed on the Employee
with respect to the Gross-Up Payment, including income taxes and the Employee's
share of FICA, FUTA and other payroll taxes. The Gross-Up Payment shall not
include the payment of any tax on the Base Payment other than the Excise Tax.
The Gross-Up Payment is intended to place the Employee in the same economic
position the Employee would have been in if the Excise Tax did not apply, and
shall be calculated in accordance with such intent.
(b) Tax Rates and Assumptions. For purposes of
determining the amount of the Gross-Up Payment, the Employee shall be deemed to
pay Federal income taxes at the highest marginal rate of Federal income
taxation in the calendar year in which the Gross-Up Payment is to be made, and
state and local income taxes at the highest marginal rate of taxation in the
state and locality of the Employee's residence on the date of termination, net
of the maximum reduction in Federal income taxes which could be obtained from
deduction of such state and local taxes.
(c) Payment and Calculation Procedures. The Gross-Up
Payment attributable to a Base Payment shall be paid to the Employee in cash
and at such times as such Base Payment is paid or provided pursuant to this
Agreement. Simultaneously with or prior to the Company's payment of a Base
Payment, the Company shall deliver to the Employee a written statement
specifying the total amount of the Base Payment and the Excise Tax and Gross-Up
Payment relating to the Base Payment, if any, together with all supporting
calculations and conclusions. If the Employee disagrees with the Company's
determination of the Excise Tax or Gross-Up Payment, the Employee shall submit
to the Company, no later than 30 days after receipt of the Company's written
statement, a written notice advising the Company of
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the disagreement and setting forth the Employee's calculation of said amounts.
The Employee's failure to submit such notice within such period shall be
conclusively deemed to be an agreement by the Employee as to the amount of the
Excise Tax and Gross-Up Payment, if any. If the Company agrees with the
Employee's calculations, it shall pay any shortfall in the Gross-Up Payment to
the Employee within 20 days after receipt of such a notice from the Employee.
If the Company does not agree with the Employee's calculations, it shall
provide the Employee with a written notice within 20 days after the receipt of
the Employee's calculations advising the Employee that the disagreement is to
be referred to an independent accounting firm for resolution. Such disagreement
shall be referred to an independent "Big 4" accounting firm which is not the
regular accounting firm of the Company and which is designated by the Company.
The Company shall be required to designate such accounting firm within 10 days
after issuance of the Company's notice of disagreement. The accounting firm
shall review all information provided to it by the parties and submit a written
report to the parties setting forth its calculation of the Excise Tax and the
Gross-Up Payment within 15 days after submission of the matter to it, and such
decision shall be final and binding on all of the parties. The fees and
expenses charged by said accounting firm shall be paid by the Company. If the
amount of the Gross-Up Payment actually paid by the Company was less than the
amount calculated by the accounting firm, the Company shall pay the shortfall
to the Employee within 5 days after the accounting firm submits its written
report. If the amount of the Gross-Up Payment actually paid by the Company was
greater than the amount calculated by the accounting firm, the Employee shall
pay the excess to the Company within 5 days after the accounting firm submits
its written report.
(d) Subsequent Recalculation. In the event the Internal
Revenue Service or other applicable governmental authority imposes an Excise
Tax with respect to a Base Payment that is greater than the amount of the
Excise Tax determined pursuant to the immediately preceding paragraph, the
Company shall reimburse the Employee for the full amount of such additional
Excise Tax plus any interest and penalties which may be imposed in connection
therewith, and pay to the Employee a Gross-up Payment sufficient to make the
Employee whole and reimburse the Employee for any Excise Tax, income tax and
other taxes imposed on the reimbursement of such additional Excise Tax and
interest and penalties, in accordance with the principles set forth above.
(e) Example. The calculation of the Gross-Up Payment is
illustrated by the example set forth in Schedule 5(e), attached to this
Agreement and hereby incorporated by reference. The amounts set forth in such
example are for illustration purposes only and no implication shall be drawn
from such example as to the amounts otherwise payable to the Employee by the
Company.
6. SUCCESSOR TO COMPANY. The Company shall require any
successor, whether direct or indirect, to all or substantially all of the
business, properties and assets of the Company whether by purchase, merger,
consolidation or otherwise, prior to or simultaneously with such purchase,
merger, consolidation or other acquisition to execute and to deliver to the
Employee a written instrument in form and in substance reasonably satisfactory
to the Employee pursuant to which any such successor shall agree to assume and
to timely perform or to cause to be timely performed all of the Company's
covenants, agreements and obligations set forth in this Agreement (a "Successor
Agreement"). The failure of the
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Company to cause any such successor to execute and deliver a Successor
Agreement to the Employee shall constitute a material breach of the provisions
of this Agreement by the Company.
7. RESTRICTIVE COVENANTS. In consideration of his employment and
the other benefits arising under this Agreement, the Employee agrees that
during the term of this Agreement, and for a period of three (3) years
following the termination of this Agreement, the Employee shall not directly or
indirectly:
(a) alone or as a partner, joint venturer, officer,
director, member, employee, consultant, agent, independent contractor or
stockholder of, or lender to, any company or business, (i) engage in the
business of solid waste collection, disposal or recycling (the "Solid Waste
Services Business") in any market in which the Company or any of its
subsidiaries or affiliates does business, or any other line of business which
is entered into by the Company or any of its subsidiaries or affiliates during
the term of this Agreement, or (ii) compete with the Company or any of its
subsidiaries or affiliates in acquiring or merging with any other business or
acquiring the assets of such other business; or
(b) for any reason, (i) induce any customer of the
Company or any of its subsidiaries or affiliates to patronize any business
directly or indirectly in competition with the Solid Waste Services Business
conducted by the Company or any of its subsidiaries or affiliates in any market
in which the Company or any of its subsidiaries or affiliates does business;
(ii) canvass, solicit or accept from any customer of the Company or any of its
subsidiaries or affiliates any such competitive business; or (iii) request or
advise any customer or vendor of the Company or any of its subsidiaries or
affiliates to withdraw, curtail or cancel any such customer's or vendor's
business with the Company or any of its subsidiaries or affiliates; or
(c) for any reason, employ, or knowingly permit any
company or business directly or indirectly controlled by him, to employ, any
person who was employed by the Company or any of its subsidiaries or affiliates
at or within the prior six months, or in any manner seek to induce any such
person to leave his or her employment.
Notwithstanding the foregoing, the beneficial ownership of
less than five percent (5%) of the shares of stock of any corporation having a
class of equity securities actively traded on a national securities exchange or
over-the-counter market shall not be deemed, in and of itself, to violate the
prohibitions of this Section.
8. CONFIDENTIALITY. The Employee agrees that at all times during
the term of this Agreement and after the termination of employment for as long
as such information remains non-public information, the Employee shall (i) hold
in confidence and refrain from disclosing to any other party all information,
whether written or oral, tangible or intangible, of a private, secret,
proprietary or confidential nature, of or concerning the Company or any of its
subsidiaries or affiliates and their business and operations, and all files,
letters, memoranda, reports, records, computer disks or other computer storage
medium, data, models or any photographic or other tangible materials containing
such information ("Confidential
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Information"), including without limitation, any sales, promotional or
marketing plans, programs, techniques, practices or strategies, any expansion
plans (including existing and entry into new geographic and/or product
markets), and any customer lists, (ii) use the Confidential Information solely
in connection with his employment with the Company or any of its subsidiaries
or affiliates and for no other purpose, (iii) take all precautions necessary to
ensure that the Confidential Information shall not be, or be permitted to be,
shown, copied or disclosed to third parties, without the prior written consent
of the Company or any of its subsidiaries or affiliates, and (iv) observe all
security policies implemented by the Company or any of its subsidiaries or
affiliates from time to time with respect to the Confidential Information. In
the event that the Employee is ordered to disclose any Confidential
Information, whether in a legal or regulatory proceeding or otherwise, the
Employee shall provide the Company or any of its subsidiaries or affiliates
with prompt notice of such request or order so that the Company or any of its
subsidiaries or affiliates may seek to prevent disclosure. In addition to the
foregoing the Employee shall not at any time libel, defame, ridicule or
otherwise disparage the Company.
9. SPECIFIC PERFORMANCE; INJUNCTION. The parties agree and
acknowledge that the restrictions contained in Sections 7 and 8 are reasonable
in scope and duration and are necessary to protect the Company or any of its
subsidiaries or affiliates. If any provision of Section 7 or 8 as applied to
any party or to any circumstance is adjudged by a court to be invalid or
unenforceable, the same shall in no way affect any other circumstance or the
validity or enforceability of any other provision of this Agreement. If any
such provision, or any part thereof, is held to be unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the duration
and/or area of such provision, and/or to delete specific words or phrases, and
in its reduced form, such provision shall then be enforceable and shall be
enforced. The Employee agrees and acknowledges that the breach of Section 7 or
8 will cause irreparable injury to the Company or any of its subsidiaries or
affiliates and upon breach of any provision of such Sections, the Company or
any of its subsidiaries or affiliates shall be entitled to injunctive relief,
specific performance or other equitable relief, without being required to post
a bond; provided, however, that, this shall in no way limit any other remedies
which the Company or any of its subsidiaries or affiliates may have (including,
without limitation, the right to seek monetary damages).
10. NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be deemed given if
delivered by hand delivery, by certified or registered mail (first class
postage pre-paid), guaranteed overnight delivery or facsimile transmission if
such transmission is confirmed by delivery by certified or registered mail
(first class postage pre-paid) or guaranteed overnight delivery to, the
following addresses and telecopy numbers (or to such other addresses or
telecopy numbers which such party shall designate in writing to the other
parties): (a) if to the Company, at its principal executive offices, addressed
to the President, with a copy to the General Counsel; and (b) if to the
Employee, at the address listed on the signature page hereto.
11. AMENDMENT; WAIVER. This Agreement may not be modified,
amended, or supplemented, except by written instrument executed by all parties.
No failure to exercise, and no delay in exercising, any
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right, power or privilege under this Agreement shall operate as a waiver, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude the exercise of any other right, power or privilege. No waiver of any
breach of any provision shall be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision, nor shall any waiver be
implied from any course of dealing between the parties. No extension of time
for performance of any obligations or other acts hereunder or under any other
agreement shall be deemed to be an extension of the time for performance of any
other obligations or any other acts. The rights and remedies of the parties
under this Agreement are in addition to all other rights and remedies, at law
or equity, that they may have against each other.
12. ASSIGNMENT; THIRD PARTY BENEFICIARY. This Agreement, and the
Employee's rights and obligations hereunder, may not be assigned or delegated
by him. The Company may assign its rights, and delegate its obligations,
hereunder to any affiliate of the Company, or any successor to the Company or
its Solid Waste Services Business, specifically including the restrictive
covenants set forth in Section 7 hereof. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and be binding upon
its respective successors and assigns.
13. SEVERABILITY; SURVIVAL. In the event that any provision of
this Agreement is found to be void and unenforceable by a court of competent
jurisdiction, then such unenforceable provision shall be deemed modified so as
to be enforceable (or if not subject to modification then eliminated herefrom)
to the extent necessary to permit the remaining provisions to be enforced in
accordance with the parties intention. The provisions of Sections 7 and 8 will
survive the termination for any reason of the Employee's relationship with the
Company.
14. INDEMNIFICATION. The Company agrees to indemnify the Employee
during the term and after termination of this Agreement in accordance with the
provisions of the Company's certificate of incorporation and bylaws and the
Delaware General Corporation Law.
15. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
16. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the State of
Florida applicable to contracts executed and to be wholly performed within such
State.
17. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties in respect of its subject matter and supersedes
all prior agreements and understandings (oral or written) between or among the
parties with respect to such subject matter. Upon the execution of this
Agreement the provisions of the Existing Employment Agreement shall be
superseded and shall be of no further force and effect except as specifically
preserved by the terms of this Agreement.
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18. HEADINGS. The headings of Paragraphs and Sections are for
convenience of reference and are not part of this Agreement and shall not
affect the interpretation of any of its terms.
19. CONSTRUCTION. This Agreement shall be construed as a whole
according to its fair meaning and not strictly for or against any party. The
parties acknowledge that each of them has reviewed this Agreement and has had
the opportunity to have it reviewed by their respective attorneys and that any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not apply in the interpretation of this Agreement.
20. ATTORNEY'S FEES. If at any time following a Change of Control
of the Company, there should arise any dispute as to the validity,
interpretation or application of any term or condition of this Agreement, the
Company agrees, upon written demand by the Employee (and Employee shall be
entitled upon application to any court of competent jurisdiction, to the entry
of a mandatory injunction, without the necessity of posting any bond with
respect thereto, compelling the Company) to promptly provide sums sufficient to
pay on a current basis (either directly or by reimbursing Employee) Employee's
costs and reasonable attorneys' fees (including expenses of investigation and
disbursements for the fees and expenses of experts, etc.) incurred by the
Employee in connection with any such dispute or any litigation, provided that
Employee shall repay any such amounts paid or advanced if Employee is not the
prevailing party with respect to at least one material claim or issue in such
dispute or litigation. If at any time when there has not previously been a
Change of Control of the Company, there should arise any dispute or litigation
as to the validity, interpretation or application of any term or condition of
the Agreement, the prevailing party in such dispute or litigation shall be
entitled to recover from the non-prevailing party its costs and reasonable
attorneys' fees (including expenses of investigation and disbursements for the
fees and expenses of experts, etc.) incurred in such dispute or litigation. The
provisions of this Section 20, without implication as to any other section
hereof, shall survive the expiration or termination of this Agreement and
Employee's employment hereunder.
21. WITHHOLDING. All payments made to the Employee shall be made
net of any applicable withholding for income taxes, Excise Tax and the
Employee's share of FICA, FUTA or other taxes. The Company shall withhold such
amounts from such payments to the extent required by applicable law and remit
such amounts to the applicable governmental authorities in accordance with
applicable law.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
REPUBLIC SERVICES, INC., a Delaware
corporation
By: /s/ Xxxxx X. X'Xxxxxx
----------------------------------------
Xxxxx X. X'Xxxxxx, Chairman and
Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------
XXXXXXX XXXXXXXXX
Address for Notices:
0000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
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SCHEDULE 5(E)
GROSS-UP PAYMENT EXAMPLE
Assume that the Company makes a Base Payment to the Employee of
$900,000, and that $600,000 is subject to an Excise Tax of 20%. Also assume
that the maximum combined effective federal, state and local tax rate,
including the Employee's share of payroll taxes but not including the Excise
Tax rate, is 45%. Under these circumstances, the Gross-Up Payment would be
$342,857.14.
The Gross-Up Payment in this example is equal to the amount of the
Base Payment subject to the Excise Tax ($600,000), multiplied by the Excise Tax
rate, expressed as a decimal (.20), and divided by the remainder of 1 minus the
Excise Tax rate, expressed as a decimal, and minus the effective rate of tax of
the Employee exclusive of the Excise Tax, expressed as a decimal (1-.20-.45).
Hence, the Gross- Up Payment is $600,000 x .20 / (1-.20-.45) = $342,857.14.
The Gross-Up Payment of $342,857.14 represents the sum of the amounts
referred to in clauses (i), (ii) and (iii) of Section 5(a) of this Agreement,
as set forth below.
clause (i):
Excise Tax on Base Payment 120,000.00
(600,000 x .20)
clause (ii):
Excise Tax on Gross-Up Payment
(342,857.14 x .20) 68,571.43
clause (iii):
Other taxes on Gross-Up Payment
(342,857.14 x .45) 154,285.71
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TOTAL TAXES SUBJECT TO GROSS-UP 342,857.14
==========
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