EMPLOYMENT AGREEMENT
THIS AGREEMENT by and between Safety-Kleen Corp., a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxxxxx (the "Executive"), is dated
as of the 17th day of July, 2000.
W I T N E S S E T H
WHEREAS, the Company wishes to provide for the employment by the
Company of the Executive, and the Executive wishes to serve the Company, in the
capacities and on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, it is hereby agreed as follows:
1. TERM. The term of this Agreement (the "Term") shall commence as of
July 17, 2000 (the "Commencement Date") and shall end upon the second
anniversary of the Commencement Date.
2. POSITION AND DUTIES. (a) During the Term, the Executive shall serve
as the Senior Vice President and Chief Financial Officer of the Company with
such duties and responsibilities as are customarily assigned to such position,
and such other duties and responsibilities not inconsistent therewith as may
from time to time be assigned to him by the Chief Executive Officer (the "CEO")
or the Board.
(1) During the Term, and excluding any periods of vacation and sick
leave to which the Executive is entitled, and as reasonably necessary to allow
for transition from existing engagements, and except as may be otherwise
authorized by the Board, the Executive shall devote substantially all of his
attention and time during business hours to the business and affairs of the
Company and shall carry out such responsibilities faithfully and efficiently.
The Executive may serve on corporate, industry, civic or charitable boards and
committees, so long as the Executive secures the prior written consent of the
Board to engage in such activities, which consent will not be unreasonably
withheld, and EXHIBIT A attached hereto contains a list of such current
activities which are all hereby approved.
(2) Other than for periods spent traveling in connection with the
performance of the Executive's duties hereunder, the Executive shall be based in
Columbia, South Carolina. During the Term, the Company shall provide the
Executive with an apartment in the Columbia area and shall pay the reasonable
out of pocket transportation costs associated with the Executive's stay in the
Columbia area, including Executive's reasonable commuting expenses to and from
Orlando, Florida. The aggregate cost to the Company shall not exceed $3,500 per
month for living expenses plus $25,000 per year for taxation on transportation.
In addition, the Company shall reimburse the Executive for his reasonable
relocation expenses incurred in moving to Columbia, South Carolina, not to
exceed $100,000. The Executive shall provide the Company with acceptable
documentation substantiating such living expenses, tax costs and relocation
expenses.
3. COMPENSATION. (a) BASE SALARY. During the Term, the Executive shall
receive an annual base salary ("Annual Base Salary") of $600,000. The Annual
Base Salary shall be payable in accordance with the Company's regular payroll
practice for its senior executives, as in effect from time to time.
(1) PLAN OF REORGANIZATION/SALE BONUS. If the Executive is employed by
the Company on the date a plan of reorganization for the Company is consummated
in connection with any Chapter 11 bankruptcy or similar proceeding or on the
date of the sale of substantially all of the assets of the Company (the "Sale")
then, within fifteen (15) days of such consummation or sale, the Company shall
pay to the Executive a bonus of $500,000 (the "Plan of Reorganization/Sale
Bonus"), in recognition of the Executive's efforts in facilitating such
reorganization or sale.
(2) DISCRETIONARY BONUS. The Executive shall be eligible to receive
such bonuses as may be determined from time to time by the Board in its sole
discretion payable from any bonus pool established under Company's employee
retention program as approved by the Bankruptcy Court.
(3) OTHER BENEFITS. During the Term: (1) the Executive shall be
entitled to participate in all applicable fringe benefit and perquisite programs
and savings and retirement plans (other than any non-qualified supplemental
retirement or "top-hat" plans), practices, policies and programs of the Company
to the same extent that such benefits were provided to the Chief Financial
Officer of the Company prior to March 6, 2000 or are otherwise generally
provided to other senior executives of the Company and (2) the Executive and/or
the Executive's eligible dependents, as the case may be, shall be eligible for
participation in, and shall receive all benefits under,
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all applicable welfare benefit plans, practices, policies and programs provided
by the Company to the same extent, and subject to the same terms, conditions, as
other senior executives of the Company.
(4) INDEMNIFICATION. The Company agrees to indemnify and hold the
Executive harmless, to the fullest extent permitted under applicable law, for,
from and against any and all losses, claims, damages, liabilities or actions
(including security holder actions, in respect thereof) related to or arising
out of the Executive's employment with or service to the Company or any of its
affiliates, except for actions finally determined by a court of competent
jurisdiction to have been taken in bad faith or to have constituted gross
negligence or willful misconduct. At all times during the Term, the Company will
maintain director and officer liability insurance coverage and policies covering
the Executive which are no less favorable than those currently maintained by the
Company and applicable to the Executive. Following any termination of the
Executive's employment or service with the Company, the Company shall cause any
director and officer liability insurance policies applicable to the Executive
prior to such termination to remain in effect on a claims-made basis for a
period of three years following such termination or, if longer, any applicable
statute of limitations. Nothing in this Agreement is intended to infringe such
rights the Executive may have under the Company's bylaws, articles of
incorporation or otherwise.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The Executive's
employment shall terminate automatically upon the Executive's death during the
Term. The Company shall be entitled to terminate the Executive's employment
because of the Executive's Disability during the Employment Period. "Disability"
means that (i) the Executive has been unable, for six (6) consecutive months, to
perform the Executive's duties under this Agreement, as a result of physical or
mental illness or injury, and (ii) a physician selected by the Company or its
insurer has determined that the Executive is so disabled. A termination of the
Executive's employment by the Company for Disability shall be communicated to
the Executive by written notice, and shall be effective on the 30th day after
receipt of such notice by the Executive (the "Disability Confirmation Date"),
unless the Executive returns to full-time performance of the Executive's duties
before the Disability Confirmation Date.
(1) TERMINATION BY THE COMPANY. The Company may, by delivering a
written termination notice to the Executive, terminate the Executive's
employment at any time during the Term for Cause or without Cause. "Cause" means
(i) the willful and continued failure by the Executive substantially to perform
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his duties with the Company (other than any such failure resulting from the
Executive's death or his incapacity due to physical or mental illness or injury)
after a written demand for substantial performance is delivered to the Executive
by the CEO, which demand specifically identifies the manner in which the CEO
believes that the Executive has not substantially performed his duties and the
Executive has failed to correct such failure to substantially perform such
duties within thirty (30) days after such written demand is delivered; or (ii)
the willful engaging by the Executive in conduct that is demonstrably and
materially injurious to the Company, monetarily or otherwise, and no act or
failure to act on the Executive's part shall be deemed "willful" unless done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that such action or omission was in the best interests of the Company.
(2) TERMINATION BY EXECUTIVE. The Executive may, by delivering a
written termination notice to the Company, terminate his employment at any time
during the Term with Good Reason or without Good Reason. "Good Reason" means the
Company has failed to cure any material breach or default by it under this
Agreement within thirty (30) days after receiving written notice thereof from
the Executive.
(3) TERMINATION FOLLOWING PAYMENT OF THE PLAN OF REORGANIZATION BONUS.
The Company may, by delivering a written termination notice to the Executive,
terminate the Executive's employment during the sixty (60) day period following
the payment of the Plan of Reorganization/Sale Bonus. For purposes of this
Agreement, if the Sale is not pursuant to the Plan of Reorganization, the
Executive shall be deemed to have been terminated within the sixty (60) day
period following such Sale and shall have no entitlement to severance benefits
or compensation under this Agreement. Any such termination shall be treated as
though it were with Cause.
(4) DATE OF TERMINATION; RESIGNATION. The "Date of Termination" means
the date of the Executive's death, the Disability Confirmation Date, the date on
which the termination of the Executive's employment by the Company for Cause or
without Cause or following the payment of the Plan of Reorganization/Sale Bonus
or by the Executive with Good Reason or without Good Reason is effective, as the
case may be. Effective as of the Date of Termination, the Executive shall resign
from all offices and positions with the Company and its affiliates.
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5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) OTHER THAN FOR
CAUSE, DEATH OR DISABILITY. If, during the Term, the Company terminates the
Executive's employment for any reason other than (i) Cause, (ii) death or (iii)
Disability, or if the Executive terminates his employment for Good Reason, or if
the Executive's employment is not renewed upon expiration of the Term, then,
except as set forth in Section 5(d) below, the Company shall pay to the
Executive, not later than thirty (30) days following the Date of Termination,
$500,000.
(1) DEATH AND DISABILITY. If the Executive's employment is terminated
by reason of the Executive's death or Disability during the Term, the Company
shall pay to the Executive or, in the case of the Executive's death, to the
Executive's designated beneficiaries (or, if there is no such beneficiary, to
the Executive's estate or legal representative), in a lump sum in cash within
thirty (30) days after the Date of Termination, any portion of the Executive's
Annual Base Salary earned through the Date of Termination that has not yet been
paid.
(2) BY THE COMPANY FOR CAUSE; BY THE EXECUTIVE WITHOUT GOOD REASON. If
the Executive's employment is terminated by the Company for Cause, or if the
Executive's employment is terminated by the Executive without Good Reason during
the Term, the Company shall pay to the Executive in a lump sum in cash
immediately prior to the Date of Termination any earned portion of the
Executive's Annual Base Salary that has not been paid, and the Executive shall
lose any and all rights to the Plan of Reorganization/Sale Bonus.
(3) FOLLOWING PAYMENT OF PLAN OF REORGANIZATION/SALE BONUS. If the
Executive's employment is terminated pursuant to section 4(d) hereof, the
Company shall pay to the Executive in a lump sum in cash immediately prior to
the Date of Termination, any earned portion of the Executive's Annual Base
Salary that has not been paid.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its subsidiaries
or affiliated companies for which the Executive may be selected by the Board to
participate in, nor shall anything in this Agreement limit or otherwise affect
such rights as the Executive may enter into under any contract or agreement with
the Company or any of its subsidiaries or affiliated companies (which contracts,
if any, shall be subject to Board approval). Vested benefits and other amounts
that the Executive is otherwise entitled to receive under any such other plan,
policy, practice
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or program of, or any contract of agreement with, the Company or any of its
subsidiaries or affiliated companies on or after the Date of Termination shall
be payable in accordance with the terms of each such plan, policy, practice,
program, contract or agreement, as the case may be, except as explicitly
modified by this Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in, and otherwise to perform its obligations under, this Agreement
shall not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action that the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement as such amounts shall
not be reduced, regardless of whether the Executive obtains other employment.
8. CONFIDENTIAL INFORMATION. The Executive shall keep confidential all
trade secret or confidential information, knowledge or data relating to the
Company or any of its subsidiaries or affiliated companies and their respective
businesses that the Executive obtains during the Executive's employment by the
Company or any of its subsidiaries or affiliated companies and that is not
public knowledge (other than as a result of the Executive's violation of this
Section 8) ("Confidential Information"). The Executive shall not communicate,
divulge or disseminate Confidential Information at any time during or after the
Executive's employment with the Company, except with the prior written consent
of the Company or as otherwise required by law or legal process.
9. DISPUTE RESOLUTION; ATTORNEYS' FEES. All disputes arising under or
related to the employment of the Executive or the provisions of this agreement
shall be settled by arbitration under the rules of the American Arbitration
Association then in effect, such arbitration to be held in Columbia, South
Carolina, as the sole and exclusive remedy of either party and judgement on any
arbitration award may be entered in any court of competent jurisdiction. The
Company agrees to reimburse legal fees incurred by the Executive in any such
dispute to the extent the Executive prevails in the dispute.
10. SUCCESSORS. (a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
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(1) This Agreement shall inure to the benefit of and be binding upon
the Company.
11. MISCELLANEOUS. (a) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of South Carolina, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified except by a written agreement executed
by the parties hereto or their respective successors and legal representatives.
(1) All notices and other communications under this Agreement shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
Xxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
With a copy to:
Xxxxx X. Xxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
If to the Company:
Safety-Kleen Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
With a copy to:
Xxxxx X. Xxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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or to such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of Section 11. Notices and communications
shall be effective when actually received by the addressee.
(2) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(3) Notwithstanding any other provision of this Agreement, the Company
may withhold from amounts payable under this Agreement all federal, state, local
and foreign taxes that are required to be withheld by applicable laws or
regulations.
(4) The Executive's or the Company's failure to insist upon strict
compliance with any provisions of, or to assert, any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement.
(5) The rights and benefits of the Executive under this Agreement may
not be anticipated, assigned, alienated or subject to attachment, garnishment,
levy, execution or other legal or equitable process except as required by law.
Any attempt by the Executive to anticipate, alienate, assign, sell, transfer,
pledge, encumber or charge the same shall be void. Payments hereunder shall not
be considered assets of the Executive in the event of insolvency or bankruptcy.
(6) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization of its Board, the Company has caused
this Agreement to be executed in its name on its behalf, all as of the day and
year first above written.
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Xxxxx X. Xxxxxxxxx
SAFETY-KLEEN CORP.
By:
------------------------------------
Xxxxx X. Xxxxxx, Xx.
Chairman and Chief Executive Officer
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EXHIBIT A
Investment Committee Member to Revitalizacni Agentura, a.s., Prague, Czech
Republic.
This agency, a subsidiary of the Czech Republic's national bank, was formed to
assist the government in restructuring numerous industrial companies in
anticipation of entering the European Union.
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