EXHIBIT 10.40
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of July 20, 2001 (the "Agreement"),
is made by and between Xxxxxxx Waste Systems, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx Xxxxxx, a resident of Rutland, Vermont (the "Employee").
WHEREAS, the Company is in the business of solid waste services and
related businesses; and
WHEREAS, the Company and the Employee are mutually desirous that the
Company employ the Employee, and the Employee accept employment, upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the Company and the
Employee hereby agree as follows:
1. DUTIES.
1.1 During the Agreement Term (as defined below), the Employee shall be the
Senior Vice President, Chief Financial Officer (or such other and comparable
titles and positions as shall be given the Employee by the Company) and shall
faithfully perform for the Company the duties of said office. The Employee shall
have such corporate power and authority as are necessary to perform the duties
of such office and any other office(s) that are so assigned to him. The Employee
shall report directly to the Chief Executive Officer of the Company. The
Employee shall devote substantially all of his business time and effort to the
performance of his duties hereunder, shall use his best efforts to advance the
best interests of the Company and shall not engage in outside business
activities which materially interfere with the performance of his duties
hereunder; PROVIDED, HOWEVER, that, subject to Section 6 below, nothing in this
Agreement shall preclude the Employee from devoting reasonable periods required
for participating in his family business ventures or in other professional,
educational, philanthropic, public interest, charitable, social or community
activities.
1.2 The duties to be performed by the Employee hereunder shall be performed
primarily in Rutland, Vermont subject to reasonable travel requirements on
behalf of the Company.
2. TERM. The Company hereby employs the Employee, and the Employee hereby
accepts such employment, for an initial term commencing as of the date hereof
and ending on the third anniversary of such date, unless sooner terminated in
accordance with the provisions of Section 4 (said initial three year term,
unless sooner terminated in accordance with the provisions of Section 4, being
hereinafter referred to as the "Initial Term"). The term of this Agreement shall
be automatically extended for an additional year at the expiration of the
Initial Term or any succeeding term, unless terminated pursuant to the terms of
Section 4 of this Agreement (said Initial Term and any succeeding terms, being
hereinafter referred to as the "Agreement Term").
3. COMPENSATION.
3.1 BASE SALARY. During the Agreement Term and subject to the next sentence
of this Section 3.1, the Employee shall be compensated at the annual rate of
$230,000 ("Base Salary"), payable on a bi-weekly basis in accordance with the
Company's standard payroll procedures. The Base Salary will be subject to annual
reviews
in accordance with Company policy. Such reviews shall form the basis for any
increase in Base Salary. During the Initial Term hereof, in no event shall the
Base Salary be less than $230,000.
3.2 INCENTIVE COMPENSATION. In addition to the Base Salary, on an annual
basis, subject to annual reviews in accordance with Company policy, the Employee
shall be eligible to receive a bonus ("Bonus") consisting of (i) a cash bonus of
up to 50% of Employee's Base Salary, (ii) stock options of the Company or (iii)
a combination of both cash and stock options in an amount to be determined prior
to the conclusion of each fiscal year of the Company during the Agreement Term
in the sole discretion of the Compensation Committee of the Board (the
"Compensation Committee").
3.3 EXPENSES. Upon submission of appropriate invoices or vouchers, the
Company shall pay or reimburse the Employee for all reasonable expenses actually
incurred or paid by him during the Agreement Term in the performance of his
duties hereunder.
3.4 PARTICIPATION IN BENEFIT PLANS. The Employee shall be entitled to
immediately participate in any health benefit or other employee benefit plans
available to the Company's senior executives as in effect from time to time,
including, without limitation, any qualified or non-qualified pension, profit
sharing and savings plans, any death and disability benefit plans, any medical,
dental, health and welfare plans and any stock purchase programs, on terms and
conditions at least as favorable as provided to other senior executives, to the
extent that he may be eligible to do so under the applicable provisions of any
such plan. Following the termination of the Employee hereunder or the expiration
of any Severance Benefits (as defined in I Section 4.4.1), the Employee and his
eligible dependents, for a period not to exceed one year if Employee is entitled
to one times Base Salary under Section 4.4.1(e) herein, or two years if entitled
to two times base Salary thereafter, shall be entitled (at the Employee's sole
expense) to continue participating in the Company's group medical, dental,
disability and life insurance coverages (to the extent the Company's plans
entitle the Employee and his dependents to be so covered), with the Employee's
cost to be determined on a basis consistent with the method of determining
employee payments under the health care continuation requirements of the
Consolidated Omnibus Reconciliation Act of 1985 ("COBRA"). After such period, to
the extent authorized by law, Employee shall be entitled to COBRA benefits at
his own costs.
3.5 VACATION. The Employee shall be entitled to four weeks of annual
vacation and shall be subject to the Company's standard vacation policy
applicable to someone of his position and seniority. Unused vacation shall not
be carried over into any subsequent year during the Agreement Term. The Company
shall have no obligation to pay the Employee for any unused vacation.
3.6 FRINGE BENEFITS AND PERQUISITES. The Employee shall be entitled to a
monthly auto allowance of up to $650.00 per month; a gas card related to the use
of said automobile; reimbursement for insurance, licensing and repair costs
related to said automobile; as well as any fringe benefits and perquisites that
are generally made available to senior executives of the Company from time to
time and that are approved by the Compensation Committee.
4. TERMINATION. The Employee's employment hereunder may be terminated only
under the following circumstances:
4.1 DEATH. The Employee's employment hereunder shall terminate automatically
upon his death, in which event the Company shall pay to the Employee's written
designee or, if he has no written designee, to his spouse
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or, if he leaves no spouse and has no written designee, to his estate, (i)
Severance and Acceleration Payment (as such terms are defined in Section 4.4.1
below) immediately upon death, and (ii) all reasonable expenses actually
incurred or paid by the Employee in the performance of his duties hereunder
prior to the date of death.
4.2 DISABILITY. The Company may terminate the Employee's employment
hereunder if (i) as a result of the Employee's incapacity due to physical or
mental illness, the Employee shall have been absent from his duties hereunder on
a full-time basis for an aggregate of 180 consecutive or non-consecutive
business days in any 12 consecutive-month period and (ii) within 10 days after
written notice of termination hereunder is given by the Company, the Employee
shall not have returned to the performance of his duties hereunder on a
full-time basis. The determination of incapacity or disability under the
preceding sentence shall be made in good faith by the Company based upon
information supplied by a physician selected by the Company or its insurers and
reasonably acceptable to the Employee or his legal representative. During any
period that the Employee fails to perform his duties hereunder as a result of
incapacity due to physical or mental illness (the "Disability Period"), the
Employee shall continue to receive his full Base Salary hereunder until his
employment is terminated pursuant to this Section 4.2, provided that amounts
payable to the Employee shall be reduced by the sum of the amounts, if any, paid
to the Employee during the Disability Period under any disability benefit plans
of the Company. If the Employee is terminated pursuant to this Section 4.2 the
Company shall pay to the Employee (or his legal representative) (i) Severance
and Acceleration Payment (as such terms are defined in Section 4.4.1 below), and
(ii) all reasonable expenses actually incurred or " paid by the Employee in the
performance of his duties hereunder prior to the date of termination due to
disability.
4.3 TERMINATION BY THE COMPANY.
4.3.1 The Company (i) shall have "cause" to terminate the Employee's
employment hereunder upon the Employee (A) being convicted of a crime involving
the Company (other than pursuant to actions taken at the direction or with the
approval of the Board), (B) found by reasonable determination of the Company,
made in good faith, to have engaged in (1) willful misconduct which has a
material adverse effect on the Company, (2) willful or gross neglect which has a
material adverse effect on the Company, (3) fraud, (4) misappropriation or (5)
embezzlement in the performance of his duties hereunder or (C) having breached
in any material respect the material terms and provisions of this Agreement and
failed to cure such breach within 15 days following written notice from the
Company specifying such breach and (ii) may terminate the Employee's employment
on written notice given to the Employee at any time following the occurrence of
any of the events described in clauses (i)(A) and (i)(B) above and on written
notice given to the Employee at any time not less than 60 days following the
occurrence of any of the events described in clause (i)(C) above. In the event
the Employee's employment is terminated by the Company for "cause", the Employee
shall be entitled to continue to receive Base Salary accrued but unpaid and
expenses incurred but not repaid to the Employee, in each case only until the
effective date of such termination.
4.3.2 In the event the Employee's employment is terminated by the Company
other than for "cause", the Employee shall be entitled to (i) Severance and
Acceleration Payment immediately upon termination, (ii) Severance Benefits (as
such capitalized terms are defined in Section 4.4 below), and (iii) the
accelerated vesting at the time of termination of any stock options issued by
the Company to the Employee.
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4.4 TERMINATION BY EMPLOYEE.
4.4.1 DEFINITIONS. For purposes of this Section 4.4, the following terms shall
have the respective meanings set forth below:
(a) "AFFILIATE" means, with respect to the Company, any entity directly
or indirectly controlled, controlling or under common control with the Company.
(b) "ACCELERATION PAYMENT" means an amount in cash equal to the value
of (i) any Base Salary accrued but unpaid prior to the date of termination, (ii)
Bonus accrued but unpaid prior to the date of termination and (iii) any vacation
accrued but unused prior to the date of termination.
(c) "CHANGE OF CONTROL" means: (i) a person, corporation, entity or
group acquires, directly or indirectly, the beneficial ownership of 40% or more
of the issued and outstanding stock of the Company in a single transaction or
series of transactions, (ii) the Company is a party to a merger, consolidation
or similar transaction and following such transaction 40% or more of the issued
and outstanding securities of said party is beneficially owned by a person,
corporation, entity or group other than the Company or an Affiliate of the
Company, (iii) the Company sells or transfers all or substantially all of its
assets to any other persons or persons other than an Affiliate of the Company,
(iv) the shareholders of the Company approve a plan or proposal for the
liquidation or dissolution of the Company or (v) during any two-year period,
individuals who comprise a majority of the Board at the beginning of such
two-year period do not comprise a majority of the Board at the end of such
two-year period (such Board composition being referred to as a "Continuing
Majority").
(d) "GOOD REASON" means: the occurrence of a Change of Control,
accompanied by, or followed within the twelve-month period after a Change in
Control by: the assignment to the Employee of any duties inconsistent with his
status as Senior Vice President, Chief Financial Officer or which require travel
significantly more time-consuming than that required at commencement of this
Agreement or, a material adverse alteration in the nature or status of his
responsibilities from those provided herein or the transfer of a significant
portion of such responsibilities to one or more other persons, or a material
diminution in the Employee's compensation.
(e) "SEVERANCE" means (i) during the first two years of the Initial
term, two times the sum of the highest Base Salary that was paid to the Employee
at any time prior to termination by the Employee for Good Reason or prior to
when the Employee's employment is terminated by the Company other than for
"cause", or (ii) during the last year of the Initial term and any successive
terms thereafter, one times the highest Base Salary that was paid to the
Employee at any time prior to termination by the Employee for Good Reason or
prior to when the Employee's employment is terminated by the Company other than
for "cause"; and the higher of (A) the most recent Bonus paid to the Employee
prior to termination by the Employee for Good Reason or prior to when the
Employee's employment is terminated by the Company other than for "cause" or (B)
50% of the Employee's Base Salary immediately prior to such termination.
(f) "SEVERANCE BENEFITS" means the benefits contemplated by Section 3.4
of this Agreement.
4.4.2 At the election of the Employee for Good Reason, the Employee may
terminate his employment immediately upon written notice to the Company;
PROVIDED, HOWEVER, that Employee must make such election to terminate his
employment for Good Reason within 90 days of the occurrence of such event that
qualifies as
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Good Reason under Section 4.4.1(d) of this Agreement. If during the Agreement
Term the Employee's employment is terminated by the Employee for Good Reason,
the Employee shall be entitled to receive from the Company (i) Severance and the
Acceleration Payment immediately upon termination, (ii) Severance Benefits and
(iii) a cash payment in an amount equal to the amount of any excise tax imposed
on Employee under Section 4999 of the Internal Revenue Code of 1986, as amended
("SECTION 4999"), increased by the additional federal and state income taxes on
such amount, such that, after payment of this additional cash payment, the
Employee's Severance, Acceleration Payment and Severance Benefits after federal
and state income taxes are equal to the amount that the Employee would have
received but for the imposition of the excise tax under Section 4999.
4.4.3 Upon 90 days' prior written notice, the Employee may terminate his
employment with the Company other than for Good Reason. If the Employee
voluntarily terminates his employment with the Company other than for Good
Reason, no further payment shall be due the Employee pursuant to Section 3 above
(other than payments for accrued and unpaid Base Salary and expenses incurred
but not repaid to the Employee, in each case prior to such termination).
4.5 Effect of Termination on Certain Obligations. No termination of the
employment of the Employee, whether voluntary or involuntary, shall terminate,
affect or impair any of the obligations or rights of the parties set forth in
Sections 4, 5, 6, 7 and 8 of this Agreement, all of which obligations and rights
shall survive any termination of employment of the Employee hereunder.
5. COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. The Employee
acknowledges that during the course of his affiliation with the Company he has
or will have access to and knowledge of certain information and data which the
Company considers confidential and the release of such information or data to
unauthorized persons would be extremely detrimental to the Company. As a
consequence, the Employee hereby agrees and acknowledges that he owes a duty to
the Company not to disclose, and agrees that without the prior written consent
of the Company, at any time, either during or after his employment with the
Company, he will not communicate, publish or disclose, to any person anywhere,
or use, any Confidential Information (as hereinafter defined), except as may be
necessary or appropriate to conduct his duties hereunder, provided the Employee
is acting in good faith and in the best interest of the Company. The Employee
will use his best efforts at all times to hold in confidence and to safeguard
any Confidential Information from falling into the hands of any unauthorized
person and, in particular, will not permit any Confidential Information to be
read, duplicated or copied. The Employee will return to the Company all
Confidential Information in the Employee's possession or under the Employee's
control when the duties of the Employee no longer require the Employee's
possession thereof, or whenever the Company shall so request, and in any event
will promptly return all such Confidential Information if the Employee's
relationship with the Company is terminated for any or no reason and will not
retain any copies thereof. For purposes hereof, the term "Confidential
Information" shall mean any information or data used by or belonging or relating
to the Company that is not known generally to the industry in which the Company
is or may be engaged, including without limitation, any and all trade secrets,
proprietary data and information relating to the Company's business and
products, price list, customer lists, processes, procedures or standards,
know-how, manuals, business strategies, records, drawings, specifications,
designs, financial information, whether or not reduced to writing, or
information or data which the Company advises the Employee should be treated as
confidential information.
6. COVENANT NOT TO COMPETE. The Employee acknowledges that he, at the
expense of the Company, has been and will be specially trained in the business
of the Company, has established and will continue to establish
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favorable relations with the customers, clients and accounts of the Company and
will have access to trade secrets of the Company. Therefore, in consideration of
such training and relations and to further protect trade secrets, directly or
indirectly, of the Company, the Employee agrees that during the term of his
employment by the Company and for a period of two (2) years from and after the
voluntary or involuntary termination of such employment for any or no reason, he
will not, directly or indirectly, without the express written consent of the
Company:
(a) own or have any interest in or act as an officer, director,
partner, principal, employee, agent, representative, consultant or
independent contractor of, or in any way assist in, any business located
in or doing business in the United States of America or Canada in any
area within 300 miles of any solid waste facility of the Company during
the term of the Employee's employment by the Company which is engaged,
directly or indirectly, in (i) the solid waste processing business, (ii)
the utilization of recyclable materials business or (iii) any other
business the Company is engaged in or proposes to engage in on the date
this Agreement is terminated (the businesses described in clauses
(a)(i), (ii) and (iii) are collectively referred to as the "COMPETITIVE
BUSINESSES"); PROVIDED, HOWEVER, that notwithstanding the above, the
Employee may own, directly or indirectly, solely as an investment,
securities of any such person which are traded on any national
securities exchange or NASDAQ if the Employee (A) is not a controlling
person of, or a member of a group which controls, such person and (B)
does not, directly or indirectly, own 5% or more of any class of
securities of such person;
(b) solicit clients, customers (who are or were customers of the
Company within the twelve (12) months prior to termination) or accounts
of the Company for, on behalf of or otherwise related to any such
Competitive Businesses or any products related thereto; or
(c) solicit, employ or in any manner influence or encourage any person
who is or shall be in the employ or service of the Company to leave such
employ or service.
Notwithstanding the foregoing, the terms of this covenant not to compete shall
be enforceable against employee only to the extent that during Employee's
employment the Company continues to pay Employee compensation equal to the
salary level set forth in Section 3.1 of this Agreement and after termination of
Employee's employment the Company continues to pay Employee any and all
termination payments and benefits as required under Section 4 of this Agreement.
Furthermore, if any court determines that the covenant not to compete, or any
part thereof, is unenforceable because of the duration of such provision or the
geographic area or scope covered thereby, such court shall have the power to
reduce the duration, area or scope of such provisions and, in its reduced form,
such provision shall then be enforceable and shall be enforced.
7. SPECIFIC PERFORMANCE. Recognizing that irreparable damage will result to
the Company in the event of the breach or threatened breach of any of the
foregoing covenants and assurance by the Employee contained in Sections 5 or 6
hereof, and that the Company's remedies at law for any such breach or threatened
breach will be inadequate, the Company and its successors and assigns, in
addition to such other remedies which may be available to them, shall be
entitled to an injunction, including a mandatory injunction, to be issued by any
court of competent jurisdiction ordering compliance with this Agreement or
enjoining and restraining the Employee, and each and every person, firm or
company acting in concert or participation with him, from the continuation of
such breach.
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8. POTENTIAL UNENFORCEABILITY OF ANY PROVISION. The Employee acknowledges
and agrees that he has had an opportunity to seek advice of counsel in
connection with this Agreement. If a final judicial determination is made that
any provision of this Agreement is an unenforceable restriction against the
Employee, the provisions hereof shall be rendered void only to the extent that
such judicial determination finds such provisions unenforceable, and such
unenforceable provisions shall automatically be reconstituted and became a part
of this Agreement, effective as of the date first written above, to the maximum
extent in favor of the Company that is lawfully enforceable. A judicial
determination that any provision of this Agreement is unenforceable shall in no
instance render the entire Agreement unenforceable, but rather the Agreement
will continue in full force and effect absent any unenforceable provision to the
maximum extent permitted by law.
9. NOTICE. Any notice or other communication hereunder shall be in writing
and shall be mailed or delivered to the respective parties hereto as follows:
(a) If to the Company:
Xxxxxxx Waste Systems, Inc.
00 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Chairman and Chief Executive Officer
(b) If to the Employee:
Xxxxxxx Xxxxxx
Senior V.P., Chief Financial Officer
00 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
The addresses of either party hereto above may be changed by written notice to
the other party.
10. AMENDMENT; WAIVER. This Agreement may be amended, modified, superseded,
cancelled, renewed or extended and the terms of covenants hereof may be waived,
only by written instrument executed by the party against whom such modification
or waiver is sought to be enforced. The failure of either party at any time or
times to require performance of any provision hereof shall in no manner affect
the right at a later time to enforce the same. No waiver by either party of the
breach of any term or covenant contained in this Agreement, whether by conduct
or otherwise, in anyone or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a waiver of the breach
of any other term or covenant in this Agreement.
11. BENEFIT AND BINDING EFFECT. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the Company, but shall be
personal to and not assignable by the Employee. The obligations of the Company
hereunder are personal to the Employee or where applicable to his spouse or
estate, and shall be continued only so long as the Employee shall be personally
discharging his duties hereunder. The Company may assign its rights, together
with its obligations, to any corporation which is a direct or indirect
wholly-owned subsidiary of the Company; PROVIDED, HOWEVER, that the Company
shall not be released from it's obligations hereunder without the prior written
consent of the Employee, which consent shall not be unreasonably withheld.
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12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF VERMONT REGARDLESS OF THE LAWS THAT MIGHT BE APPLICABLE UNDER PRINCIPLES OF
CONFLICTS OF LAW.
13. COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original but all such counterparts together shall constitute one and the same
instrument. Each counterpart may consist of two copies hereof each signed by one
of the parties hereto.
14. HEADINGS. The headings in this Agreement are for reference only and
shall not affect the interpretation of this Agreement.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof, superseding all
negotiations, prior discussions and preliminary agreements. No subsequent
modifications may be made to this Agreement except by signed writing of the
parties.
16. AGREEMENT TO ARBITRATE
The undersigned parties agree that any disputes that may arise between them
(including but not limited to any controversies or claims arising out of or
relating to this Agreement or any alleged breach thereof, and any dispute over
the interpretation or scope of this arbitration clause) shall be settled by
arbitration administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. No party
shall be entitled to punitive or treble damages.
ACKNOWLEDGMENT OF ARBITRATION PURSUANT TO 12 V.S.A. Section 5651 et seq. THE
PARTIES HERETO ACKNOWLEDGE THAT THIS DOCUMENT CONTAINS AN AGREEMENT TO
ARBITRATE. AFTER SIGNING THIS DOCUMENT EACH PARTY UNDERSTANDS THAT HE/SHE/IT
WILL NOT BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE WHICH
IS COVERED BY THIS ARBITRATION AGREEMENT EXCEPT AS PROVIDED IN THIS PARAGRAPH OR
UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL LAW OR CIVIL RIGHTS. INSTEAD
EACH PARTY HAS AGREED TO SUBMIT ANY SUCH DISPUTE TO AN IMPARTIAL ARBITRATOR.
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IN WITNESS WHEREOF, all parties have set their hand and seal to this Agreement
and Acknowledgement of Arbitration pursuant to 12 V.S.A. Section 5651 et seq. as
of the dates written below:
XXXXXXX XXXXXX
Witness: /s/ Xxxxxxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------
Date: 8/21/01 Date: 8/21/01
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XXXXXXX WASTE SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
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Date: 8/21/01
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