Exhibit 10.68
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") is executed
and delivered as of February 9, 1998, by and between Eastern Environmental
Services, Inc., a Delaware corporation ("Company"), and Xxxx X. Xxxxxxxx, an
individual ("Employee").
RECITALS
The Company conducts a diversified waste management business, including,
without limitation, waste hauling operations, landfills and other waste
management, recycling and waste testing operations ("Business"). The Employee
is an executive with extensive experience in the waste industry. The Company and
Employee are parties to an Employment Agreement dated October 14, 1996
("Original Employment Agreement"). The parties, wishing to amend and restate in
its entirety the Original Employment Agreement, have entered into this
Agreement. The Company desires to hire Employee as Vice President of Operations
and the Employee desires to accept the position offered.
The position of the Employee with the Company will give the Employee access
to and familiarity with confidential information and business methods used in
the operation of the Business. During the course of Employee's employment,
Employee will become familiar with and aware of information as to the specific
manner of doing business and the customers of the Company and the Company's
future plans. Employee has and will have knowledge of trade secrets of the
Company which are valuable assets of the Company.
Employee recognizes that the business of the Company is dependent upon a
number of trade secrets and confidential business information, including
customer lists, customer data and operational information. The protection of
these trade secrets is of critical importance to the Company. The Company will
sustain great loss and damage if, for whatever reason, during the term of this
Agreement or Employee's employment with Company and for a period following the
termination of this Agreement or Employee's employment, Employee should violate
the provisions of paragraph 3 of this Agreement. Further, Employee acknowledges
that any such violation would cause irreparable harm to Company and that Company
would be entitled, without limitation, to injunctive relief to remedy such
violation.
NOW, THEREFORE, in consideration of Ten Dollars ($10), and the mutual
promises, terms
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and conditions set forth herein and the performance of each, the parties hereby
agree as follows:
1. Services.
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(a) Company hereby employs Employee as Vice President of Operations.
Additional or different duties, titles or positions may be assigned to Employee
or may be taken from Employee from time to time by the Chief Executive Officer
or Chief Operating Officer of the Company.
(b) Employee hereby accepts employment upon the terms and conditions
contained in this Agreement. Employee shall faithfully adhere to, execute and
fulfill all directions and policies established by the Company, to the extent
such instructions do not violate applicable laws.
(c) Employee shall not, during the term of his employment hereunder,
without the prior written consent of Company, be engaged in any other business
activity pursued for gain, profit or other pecuniary advantage, if such activity
interferes with Employee's duties and responsibilities under this Agreement.
Employee's employment is for a full-time position.
2. Compensation.
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(a) For all services to be rendered by Employee to Company, Company shall
pay Employee a salary at the rate of Two Hundred Thousand Dollars ($200,000) per
year, payable in accordance with Company's normal payroll procedures.
(b) Under the terms of the Original Employment Agreement, Employee was
granted non-qualified stock options on October 14, 1996, exercisable for Fifty
Thousand (50,000) shares of the Company's common stock at an exercise price of
$6.88 per share, vesting over the four-year term of the Original Employment
("October 1996 Options") Agreement. Additionally, on December 17, 1997, Employee
as a bonus for his job performance was granted stock options exercisable for
Sixty Thousand (60,000) shares of the Company's common stock at a exercise price
of $18.875 which was the closing price of the Company's Common Stock on the
Nasdaq Stock Market on the date of the option granting, which options vest over
three years ("December 1997 Options"). The Agreement does not change the October
1996 Options or the December 1997 Options.
(c) To the extent that Company, from time to time in its sole discretion,
offers or provides any of the following to its employees, then Employee, on an
equal basis with such other employees, shall be entitled to: (i) participation
in all, if any, life, health, medical, hospital, accident and disability
insurance programs of Company in existence for the benefit of its employees and
for which Employee qualifies; (ii) participation in all, if any, pension,
retirement, profit-sharing or stock
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purchase plans for which Employee qualifies; (iii) participation in any other
incentive compensation plans which Company accords to its employees of a similar
position to Employee, as determined by the Board of Directors; and (iv) a bonus
after the completion of each year of this Agreement, in the amount determined by
the Company's Chief Executive Officer.
(d) During the term of Employee's employment with Company, Employee shall
be entitled to reimbursement for properly documented, reasonable business
expenses, including lodging and meals, incurred on behalf of Company, to the
extent that Company provides such reimbursement to its employees who are
employed in the same capacity as Employee. Company shall reimburse the Employee
for the monthly lease cost for leasing an automobile for the use of Employee at
a rate of $750 per month. Employee shall be responsible for paying his own
insurance and operating costs, unless reimbursable as a business travel expense
under the previous sentence.
(e) Employee is currently a resident of Texas who commutes to the
Company's office in Mt. Laurel, New Jersey. Employee agrees that he shall
relocate his residence to New Jersey. To aid Employee in relocating his
residence, Company agrees to purchase Employee's residence in Texas for Four
Hundred Thousand ($400,000) Dollars, and pay all closing costs of the
Transaction ("Purchase Price"). Employee shall use his best efforts to purchase
a residence in New Jersey and relocate his family to it as soon as possible. The
Company shall purchase Employee's residence in Texas for the Purchase Price
within two business days of the date that Employee executes an agreement to
purchase a residence in New Jersey. The Company shall also pay up to Five
Thousand ($5,000) Dollars of the closing costs incurred by Employee in
purchasing a residence in New Jersey and the reasonable costs of moving
Employee's furnishings and clothing from Texas to the New Jersey residence. If
Employee does not purchase a New Jersey residence and relocate his family to New
Jersey within ninety (90) days from the date the Company purchases Employee's
Texas residence, Employee at the Company's request shall repurchase the
Employee's Texas residence from the Company for the amount paid by the Company
including the closing costs.
(f) Employee shall be entitled to three weeks of paid vacation during each
year of this Agreement. Employee shall also be reimbursed for the reasonable
airfare costs incurred in flying himself and his immediate family to visit other
relatives in Texas or Louisiana up to three times in each year of this
Agreement.
3. Term. The term of this Agreement shall begin on the date of this
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Agreement and
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continue for a term of three (3) years.
4. Noncompetition Covenants.
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(a) Employee agrees that the noncompetition covenants contained in this
Paragraph 4 are a material and substantial part of this Agreement.
(b) Employee covenants that during Employee's employment with Company and
for one year following the termination of Employee's employment (regardless of
the reason for the termination) the Employee shall not, directly or indirectly,
without the prior express written consent of Company, do any of the things set
forth in item (i) below. Employee covenants that during Employee's employment
with Company and for two years following the termination of Employee's
employment (regardless of the reason for the termination) the Employee shall
not, directly or indirectly, without the prior express written consent of
Company, do any of the things set forth in items (ii) through (vi) below.
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, agent, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales
representative, in the waste disposal industry, including, without
limitation, waste hauling, waste disposal, land filling, handling
demolition waste, handling special waste, collecting or disposing of
municipal special waste, and recycling waste, in each case within seventy-
five (75) miles of any Company business operation (the "Territory");
(ii) call upon any person who is, at that time, within the
Territory, an employee of Company or its affiliates in a managerial
capacity, for the purpose or with the intent of enticing such employee away
from or out of the employ of Company or its affiliates;
(iii) call upon any person or entity, which is, at that time, or
which has been, within one year prior to that time, a customer of the
Company or its affiliates within the Territory, for the purpose of
soliciting or selling any of the services which are the services offered by
the Company within the Territory;
(iv) call upon any prospective acquisition candidate located within
the Territory, on his own behalf or on behalf of any competitor of Company
or its affiliates, which candidate was known to Employee as an acquisition
candidate of the Company or Company's affiliates;
(v) disclose the identity of the customers of Company or its
affiliates, whether in
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existence or proposed, to any person, firm, partnership, corporation or
other entity whatsoever, for any reason or purpose whatsoever, except if
compelled to do so by a governmental agency, Court Order or subpoena; or
(vi) promote, or assist, financially or otherwise, any person, firm,
partnership, corporation or other entity whatsoever to do any of the above.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Employee from acquiring as an investment not more than two percent of
the capital stock of a competing business, the stock of which is traded on a
national securities exchange or over-the-counter.
For the purposes of this Agreement, the term "affiliates" shall mean one or
more of: (a) each subsidiary of the Company, and (b) each other entity under
the direct or indirect control of the Company.
(c) The Company will sustain significant losses and damages as a result of
the breach by Employee of the covenants in this Paragraph 4. There is no
adequate monetary remedy for the immediate and irreparable damage that would be
caused to Company by Employee's breach of its non-competition covenants.
Employee agrees that, in the event of a breach by him of the foregoing
covenants, such covenants may be enforced by Company by, without limitation,
injunctions and restraining orders.
(d) It is agreed by the parties that the covenants in this Paragraph 4
impose a reasonable restraint on Employee in light of the activities and
business of Company on the date of the execution of this Agreement and the
future plans of Company.
(e) The covenants in this Paragraph 4 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any
other covenant. If any court of competent jurisdiction shall determine that the
scope, time or territorial restrictions set forth are unreasonable, then it is
the intention of the parties that such restrictions be enforced to the fullest
extent which the court deems reasonable, and the Agreement shall thereby be
reformed.
(f) The covenants in this Paragraph 4 shall be construed as independent of
any other provision of this Agreement and the existence of any claim or cause of
action of Employee against Company whether predicated on this Agreement, or
otherwise, shall not constitute a defense to the enforcement by Company of such
covenants. It is specifically agreed that the duration of the noncompetition
covenants stated above shall be computed by excluding from such computation all
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time during which Employee is in violation of any provision of this Paragraph 4
and all time during which there is pending in any court of competent
jurisdiction any action (including any appeal from any judgment) brought by any
person, whether or not a party to this Agreement, in which action Company seeks
to enforce the agreements and covenants of Employee or in which any person
contests the validity of such agreements and covenants or their enforceability
or seeks to avoid their performance or enforcement. Provided that, no such
exclusion shall include the period of time within which Employee has ceased
violating this paragraph, whether or not as a result of being in compliance with
Court injunction or doing so voluntarily, and whether or not any action is
pending against Employee.
5. Return of Company Property. All correspondence, reports, charts,
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products, records, designs, patents, plans, manuals, "field guides," memoranda,
advertising materials, lists and other data or property collected by or
delivered to Employee by or on behalf of the Company or its representatives,
customers and government entities (including, without limitation, customers
obtained for Company by Employee), and all other materials compiled by Employee
which pertain to the business of Company shall be and shall remain the property
of Company, shall be subject at all times to the Company's discretion and
control and shall be delivered promptly to Company upon request at any time and
without request upon completion or other termination of Employee's employment
hereunder.
6. Inventions. Employee shall disclose promptly to Company any and all
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conceptions and ideas for inventions, improvements, and valuable discoveries,
whether patentable or not, which are conceived or made by Employee solely or
jointly with another during the period of employment or within one year
thereafter and which are related to the business or activities of the Company.
Employee hereby assigns and agrees to assign all his interests therein to
Company or its nominee. Whenever requested to do so by Company, Employee shall
execute any and all applications, assignments or other instruments that Company
shall deem necessary to apply for and obtain Letters Patent of the United States
or any foreign country or to otherwise protect Company's interest therein. These
obligations shall continue beyond the termination of employment with respect to
inventions, improvements and valuable discoveries, whether patentable or not,
conceived, made or acquired by Employee during the period of employment or
within one year thereafter, and shall be binding upon Employee's heirs, assigns,
executors, administrators and other legal representatives.
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7. Termination; Rights of Termination. Employee's employment under
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this Agreement may be terminated during the term hereof in any one or more of
the following ways:
(a) Automatically upon the death or resignation of Employee.
(b) By Company upon written notice to Employee in the event of:
(i) Employee's breach of this Agreement;
(ii) Employee's unsatisfactory performance of his duties or other
obligations hereunder, as determined in good faith by the Company;
(iii) The Company's merger, consolidation, or other business
combination with another entity where the Company is not the surviving
entity or the Company's sale of substantially all its assets;
(iv) Employee's inability to perform his duties under this
Agreement because of illness or physical or mental disability or other
incapacity which continues for a period of 90 days;
(v) any type of harassment, violence or threat thereof, or other
behavior toward other employees of the Company or toward third parties of a
kind that may tend to result in liability being incurred by the Company
toward such employee or third party;
(vi) Employee's fraud with respect to the business or affairs of
Company or if Employee is convicted of a crime.
If the Agreement is terminated by the Company, the Employee shall be provided
with a written notice of termination which shall state the reason for Employee's
termination.
(c) Upon termination of Employee's employment under Paragraph 7(b)(ii),
Employee shall be entitled to receive, and shall immediately be paid in full,
one month's salary that would have been paid under Paragraph 2(a) above, if the
Agreement had not been terminated. Upon termination of Employee's employment
under Paragraph 7(b)(iii), Employee shall be entitled to receive, and shall
immediately be paid in full, an amount equal to Three Hundred Thousand Dollars
($300,000), plus Company shall continue all of Employee's medical insurance
benefits for two years after the date of termination. If the Company sells
substantially all of its assets or if the Company merges, consolidates or
consummates any other business combination in which the Company is not the
surviving entity, and Employee is thereafter either asked to relocate or
Employee's job position or title is changed from the Vice President of
Operations reporting directly to the Chief Operations
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Officer, with actual authority commensurate with being the operations executive
immediately junior to the Chief Operations Officer, this Agreement shall be
deemed to have been terminated by the Company pursuant to Paragraph 7(b)(iii)
and Employee shall be entitled to the $300,000 payment as set forth in the
previous sentence.
(d) In the event of termination of Employee's employment under this
Agreement for any reason provided in paragraph 7(a) or 7(b), all rights and
obligations of Company and Employee under this Agreement shall cease
immediately, except that Employee's obligations under this subparagraph and
paragraphs 4, 5, 6, and 9 herein and Company's obligations under paragraph 7(c)
shall survive such termination. After such termination Employee shall have no
right to receive any compensation hereunder, except as set forth in paragraph
7(c).
8. Authority. Employee has the power and authority to contract for, bind
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or commit Company consistent with the instructions given the Employee by the
Company's Chief Operating Officer. Without limiting the generality of the
foregoing statement, but as illustrative of its intent, Employee shall not have
or exercise or purport to have any powers or rights to make, explain, amplify or
modify any warranties as may be contained in any standard Company form of
agreement.
9. Representations of Employee. Employee represents and warrants to
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Company that he is not subject to any restriction or noncompetition covenant in
favor of a former employer or any other person or entity, and that the execution
of this Agreement by Employee and his provision of services to Company and the
performance of his obligations hereunder will not violate or be a breach of any
agreement with a former employer or any other person or entity. Further,
Employee agrees to indemnify Company for any claim, including, but not limited
to, attorneys' fees and expenses of investigation, by any such third party that
such third party may now have or may hereafter come to have against Company
based upon or arising out of any noncompetition agreement or invention and
secrecy agreement between Employee and such third party.
10. Complete Agreement. This Agreement is the final, complete and
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exclusive statement and expression of the agreement between Company and
employee, it being understood that there are no oral representations,
understandings or agreements covering the same subject matter as this Agreement.
This Agreement supersedes the Original Employment Agreement and cannot be
varied, contradicted or supplemented by evidence of any prior or contemporaneous
discussions, correspondence, or oral or written agreements of any kind. This
Agreement may be modified,
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altered or otherwise amended only by a written instrument executed by both
Company and Employee.
11. No Waiver; Remedies Cumulative. No waiver by the parties hereto of
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any default or breach of any term, condition or covenant of this Agreement shall
be deemed to e a waiver of any subsequent default or breach of the same or any
other term, condition or covenant contained herein. No right, remedy or election
given by any term of this Agreement shall be deemed exclusive but each shall be
cumulative with all other rights, remedies and elections available at law or in
equity.
12. Assignment; Binding Effect. Employee understands that he has been
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selected by Company on the basis of his personal qualifications, experience and
skills. This Agreement is not assignable. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and Company's successors.
13. Notice. All notices or other communications required or permitted
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hereunder shall be in writing and may be given by depositing the same in the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified
with return receipt requested, by overnight courier or by delivering the same in
person to such party.
To Company: President
0000 Xxxxxxxx Xxxxx
Xx. Xxxxxx, X.X. 00000
with a copy to:
Xxxxxx X. Xxxxxx & Assoc., P.C.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
To Employee: Xxxx X. Xxxxxxxx
0000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxx, Xxxxx 00000
Notice shall be deemed given and effective the day personally delivered, the day
after being sent by overnight courier and three days after the deposit in the U.
S. mail of a writing addressed as above and sent first class mail, certified,
return receipt requested, or when actually received, if earlier. Either party
may change the address for notice by notifying the other party of such change in
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accordance with this paragraph 13.
14. Severability; Headings. If any portion of this Agreement is held
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invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in nay way to describe, interpret, define or limit the extent or intent of this
Agreement or of any part hereof.
15. Governing Law. This Agreement shall in all respects be construed in
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accordance with the laws of the State of New Jersey.
EASTERN ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
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Xxxxx X. Xxxxxxx, Xx., President
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
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