EXHIBIT 10.42
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of this 14th day of March,
1996 by and between Clean Harbors, Inc., a Massachusetts corporation having its
principal place of business at 000 Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
(the "Company") and Xxxxx X. Xxxxxx of Xxxxxxx, Massachusetts (the "Executive").
RECITALS
The Executive possesses useful knowledge and skills and has extensive
management experience.
The Company desires to engage the Executive and to assure itself of the
Executive's continued employment with the Company, and the Executive desires to
commit himself to serve the Company on the terms and conditions herein provided.
AGREEMENT
Now, therefore, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties agree as follows:
1. Employment. The Company shall employ the Executive and the Executive
will serve the Company as Executive Vice President of the Company and as Chief
Operating Officer of Clean Harbors Environmental Services, Inc. upon the terms
and conditions provided herein. In the discharge of his duties hereunder, the
Executive shall report to the Chief Executive Officer of the Company.
During the period of his employment hereunder, the Executive shall perform
all duties and services hereunder faithfully and to the best of his abilities on
a full-time basis and shall perform such additional duties as may from time to
time be assigned to him by the Chief Executive Officer or the Board of Directors
of the Company which are not (except with the Executive's consent) inconsistent
with the Executive's role in a senior management position with the Company.
During the term of this Agreement, the Executive shall not be engaged in
any other activities which materially interfere with the Executive's full-time
obligations and duties to the Company, except for those other activities that
shall be approved by the Board of Directors of the Company. The Executive shall
be entitled to manage his own personal investments provided such investments are
not inconsistent with the terms of this Agreement.
The Board of Directors of the Company has voted to increase the number of
its members and to appoint the Executive to the Board of Directors of the
Company. While the Executive continues to be employed hereunder, upon
expiration of his term as a director, the Company shall
propose to the shareholders of the Company, at the appropriate annual meeting,
the election or re-election of the Executive as a member of the Board; provided,
however, if the Executive's employment hereunder shall terminate for any reason,
he shall forthwith submit his resignation as a director of the Company, and it
shall be a condition of the payment of any Severance which may be due the
Executive hereunder that the Executive shall have resigned from his position as
a director.
2. Term. The term of the Executive's employment hereunder ("Term") shall
commence on March 18, 1996 and shall continue for a term of three (3) years
unless earlier terminated as provided herein.
3. Base Salary. The Company agrees to pay and the Executive agrees to
accept, in accordance with the provisions contained herein, a Base Salary at the
annual rate of not less than Two Hundred Fifty Thousand Dollars ($250,000) per
year, payable in equal installments, in accordance with the Company's normal
executive pay policies but not less frequently than monthly, less usual payroll
deductions. Base Salary may be increased at the sole discretion of, and in an
amount determined by the Compensation Committee of the Board of Directors of the
Company.
4. Bonus. The Executive will participate in the Company's management
bonus plan and shall be entitled to a bonus, if any, in accordance therewith;
provided, however, that during the period from the date of this Agreement
through the end of 1996, the Executive's Bonus shall be based upon the Company's
achieving certain EBITDA targets between $22 million and $35 million: No Bonus
at $22 million or less EBITDA, a Bonus of 50 percent of Base Salary if the
Company achieves EBITDA of $28.5 million; and a Bonus of 100 percent of Base
Salary will be paid if the Company achieves EBITDA of $35 million or more, with
a proportional Bonus to be paid based upon achievement of EBITDA between those
target points, interpolated on a straight line basis. For example, if the
Company achieves EBITDA of $30 million, the Executive will receive a Bonus of
$153,846 (35m - 22m = 13m; 30m - 22m = 8m; (8/13) x (250,000) = $153,846).
5. Stock Options. The Executive will receive ten (10) year options under
the Company's 1992 Equity Incentive Plan for 250,000 shares of the Company's
common stock, in accordance with the form of option agreement attached hereto as
Exhibit "A."
6. Benefits. The Executive will be entitled to such annual vacation as
shall be agreed upon between the Executive and the Chief Executive Officer of
the Company as well as any fringe benefits and perquisites that may from time to
time be afforded generally to senior executive officers of the Company. Without
limiting the generality of the foregoing, the Executive shall be entitled to
participate in or receive benefits under any 401(k), pension or a retirement
plan, life insurance, health and accident plan or other arrangement made
available by the Company now or in the future, generally to the senior executive
officers of the Company,
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subject to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements and of the terms of this
Agreement.
7. Expenses. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him (in accordance with
the policies and procedures established from time to time by the Board of
Directors of the Company or any committee thereof) in the performance of his
duties hereunder, provided such expenses are properly accounted for in
accordance with the Company's policies.
8. Automobile. During his employment with the Company, the Executive
shall be provided with an automobile allowance of $350/month plus $.09 per mile
for business use.
9. Termination.
(a) Death. The Executive's employment hereunder shall terminate upon his
death.
(b) Cause. The Company may terminate the Executive's employment hereunder
for Cause. For the purposes of this Agreement, "Cause" shall mean: (i) a
criminal conviction; or (ii) the engaging by the Executive in willful misconduct
materially injurious to the Company or any of its subsidiary or affiliated
corporations.
(c) Disability. The Company may terminate the Executive's employment
hereunder if, as a result of the Executive's incapacity due to physical or
mental illness, the Executive shall have been absent from his duties hereunder
on a full time basis for ninety (90) consecutive days, or for ninety (90) days
cumulatively within any twelve (12) month period, or if in the opinion of a duly
licensed physician the same is likely to occur. In connection with this Section
9(c), the Executive agrees to submit to an examination and testing by a
physician chosen by the Company.
(d) No-Cause. The Company may terminate this Agreement at any time
without cause provided the Company shall pay the Employee severance as provided
in Section 10 below.
(e) Notice of Termination. Any termination by the Company other than
pursuant to subsection (a) hereof shall be communicated by written Notice of
Termination to the Executive. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific reason for
termination.
10. Compensation Upon Termination.
(a) If the Executive's employment hereunder shall be terminated for any
reason, the Company will pay the Executive his full compensation and other
benefits through the date of termination at the rate then in effect.
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(b) If the Company shall terminate this Agreement pursuant to subsections
(c) or (d) of Section 9, the Company shall pay the Executive severance pay
("Severance") equal to Base Salary in effect at the time of termination for the
twelve (12) months following the date of termination (offset by any disability
insurance which may be paid to the Executive in the event of termination under
subsection (c)); provided, however, Severance shall cease in any event as of any
earlier date upon which the Executive shall obtain new employment.
(c) If (i) this Agreement shall not be renewed or extended by the Company
prior to the end of the Term, and (ii) the Company shall have failed to notify
the Executive of its intention not to renew or extend this Agreement at least
six (6) months prior to the expiration of the Term, then upon the expiration of
this Agreement, the Company shall pay the Executive Severance until the first to
occur of (x) one (1) year after termination of this Agreement or (y) the earlier
date upon which the Executive shall obtain new employment. If the Company shall
notify the Executive of its intent not to renew or extend this Agreement at
least six (6) months prior to the expiration of the Term, then the Company shall
pay the Executive Severance for a period after expiration of the Term until the
first to occur of (x) one (1) year less the period of notice prior to the
expiration of the Term (during which time the Executive will be receiving full
compensation hereunder), and (y) such earlier date upon which the Executive
shall obtain new employment. Notwithstanding any other provision of this
Agreement to the contrary, the Executive shall be free after the receipt of
notice from the Company of its intention not to renew or extend the Term to
spend reasonable time to seek other employment.
(d) Severance shall be paid in the same manner as Base Salary is paid
under Section 3 above.
11. Non-Competition; Solicitation.
(a) The Executive agrees that so long as he is employed hereunder and for
a period of two (2) years thereafter, he shall not serve, directly or
indirectly, as an operator, owner, partner, consultant, officer, director, or
employee of any firm or corporation which, as of the date of termination of
employment, is or has plans to be substantially and directly in competition
within the United States of America with the Company. It is agreed that the
remedy at law for any breach of the foregoing shall be inadequate and that the
Company shall be entitled to injunctive relief in the enforcement thereof in
addition to any other remedy permitted by law. In the event that this section
shall be determined by any court of competent jurisdiction to be unenforceable
by reason of its extending for too great a period of time or over too large a
geographic area or over too great a range of activities, it shall be interpreted
to extend over the maximum period of time, geographic area or range of
activities as to which it may be enforceable. Nothing herein contained shall
prevent the Executive from holding or investing in securities listed on a
national securities exchange or sold in the over-the-counter market, provided
such investments do not exceed in the aggregate one (1%) percent of the issued
and outstanding capital stock of a corporation which is a competitor within the
meaning of this section.
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(b) The Executive further agrees that during the term of this Agreement
and for a period of two (2) years thereafter, he shall not, directly or
indirectly, either solicit or induce any customers of the Company or its
affiliates to patronize any business which competes with that of the Company, or
solicit or induce any employees of the Company to leave employment with the
Company.
(c) If it should be established by any court of competent jurisdiction
that the Executive has breached the provisions of this Section 11, the Executive
shall reimburse to the Company any Severance which he has received from the
Company in addition to any other damages which may be awarded to the Company for
any breach of this Section 11 or any other section of this Agreement.
(d) The provisions of subsection (a) above shall no longer apply if the
Company shall be in default of this Agreement after having received written
notice of such default and having failed to cure such default within thirty (30)
days.
12. Successors: Binding Agreement.
(a) As used in this Agreement, the "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which expressly or otherwise becomes bound by all the terms and
provisions of this Agreement and any affiliate or subsidiary of the Company.
(b) This Agreement and all rights and obligations of the Executive
hereunder shall inure to the benefit of and be enforceable by and against the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
13. Notice. All communications provided for herein shall be in writing,
and if addressed to the Executive shall only be hand delivered or sent by
certified mail, return receipt requested, postage prepared or by a national,
overnight courier delivery service addressed to:
Xxxxx X. Xxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
With a copy to:
Xxxxxxxxxxx X. Xxxxx, Esq.
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
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or if addressed to the Company shall only be similarly sent or delivered,
addressed to:
Clean Harbors, Inc.
000 Xxxx Xxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. XxXxx,
Chairman and Chief Executive Officer
with a copy to:
C. Xxxxxxx Xxxx, Esq.
Xxxxx, Xxxx & X'Xxxxxxxx, P.C.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
or to such other address as the party or person to receive such notice shall
hereafter advise the other party hereto in accordance with this provision, and
shall be deemed given on the date of the first attempted delivery thereof by
hand or by the national overnight courier delivery service as shown in the
latter case on the records of such delivery service.
14. Waiver. Any failure by either party to enforce at any time any of the
terms and conditions of this Agreement shall not be considered a waiver of that
party's right thereafter to enforce such terms and conditions. No provision of
this Agreement shall be deemed waived unless such waiver is in writing signed by
the party making such waiver.
15. Governing Law; Severability. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts and
cannot be changed or terminated orally, but only by a writing signed by both
parties hereto, which such writing specifically references this Agreement. The
invalidity or unenforceability of any provision of provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
16. Sealed Instrument. This Agreement is intended to take effect as a
sealed instrument.
17. Entire Agreement. This Agreement constitutes the sole and exclusive
agreement between the parties hereto concerning the subject matter hereof, and
supersedes and replaces any prior agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
CLEAN HARBORS, INC.
/s/ XXXXX X. XXXXXX /s/ XXXX X. XXXXX
_______________________________ By:_____________________________
Xxxxx X. Xxxxxx Chairman and Chief
Executive Officer
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EXHIBIT "A" TO EMPLOYMENT AGREEMENT
STOCK OPTION AGREEMENT
This Agreement is made as of the - day of March, 1996 by and between Clean
Harbors, Inc., a Massachusetts corporation (the "Company"), and Xxxxx X. Xxxxxx
("Optionee").
Whereas, Optionee is a valuable and trusted employee of the Company (which
for the purposes of this Agreement shall include its subsidiaries), and the
Company considers it desirable and in its best interests that Optionee be given
an inducement to acquire a future proprietary interest in the Company and an
added incentive to advance the interests of the Company by possessing an option
to purchase common stock of the Company having a $.Ol par value ("Stock"), in
accordance with the Clean Harbors, Inc. Equity Incentive Plan adopted by the
Board of Directors of the Company on March 16, 1992 and approved by stockholders
of the Company on May 28, 1992 (the "Plan"). The provisions of the Plan are
hereby incorporated in and made part of this document by reference.
Now, therefore, in consideration of the foregoing premises, it is agreed by
and between the Company and Optionee as follows:
1. Grant of Option. Subject to and upon the terms and conditions of this
Agreement, the Company hereby grants to Optionee the right, privilege and option
to purchase 250,000 shares ("Option Shares") of Stock at the purchase price of
$3.00 per share.
2. Time of Exercise of Option/Vesting. This option may be exercised
(shall vest) as to twenty (20%) percent of the total number of Option Shares
upon the first anniversary of the date of this grant and as to an additional
twenty (20%) percent on each anniversary date thereafter so that this option may
be exercised as to one hundred (100%) percent of the total number of Option
Shares on and after the fifth anniversary of the date hereof, provided that,
during the year before exercise, the Optionee has performed a year of service to
the Company (a "year of service" being defined as any consecutive 12 month
period during which the employee has completed 1,500 hours of service, and an
"hour of service" being defined as each hour for which an employee is paid or
entitled to payment for the performance of duties for the employer during the
applicable computation period), and ending on the date of the termination of
this option as provided in Section 4 below. Notwithstanding the foregoing, in
the event that the Optionee's employment is terminated by the Company "without
cause" pursuant to Section 9(d) of his Employment Agreement with the Company of
even date herewith (the "Employment Agreement"), then any Option Shares which
are scheduled to vest during the one year period following the date of the
Company's Notice of Termination, defined in Section 9(e) of the Employment
Agreement, shall immediately vest upon the date of such Notice of Termination.
3. Method of Exercise. This option may be exercised by written notice
directed to the Stock Option Committee of the Board of Directors (the
"Committee") or to its designated
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representative at the Company's principal place of business, specifying the
number of Option Shares to be purchased and accompanied by a check in payment of
the option price for the number of such Shares specified. The Company shall
make immediate delivery of such Shares; provided, however, that if any law or
regulation requires the Company to take any action with respect to the Shares
specified in such notice as a condition to or in connection with the sale or
purchase of stock under the Plan before the issuance thereof, then the date of
delivery of such Shares shall be extended for the period necessary to take such
action. In no event shall this option be exercised unless there is in effect
with respect to the Shares being purchased a registration statement under the
Securities Act of 1933, as amended (the "Act"), or unless the Company shall have
received a written opinion of counsel for or approved by the Company that the
issuance of such Shares is exempt under the Act and any applicable state
securities laws. If the Company shall then have in effect arrangements with a
brokerage firm for optionees to exercise options without payment, or so called
"cash-less" option exercises, and the Optionee shall elect such method of
exercise, the Optionee shall comply with the Company's requirements and
procedures for such exercise.
4. Termination of Option. Except as herein otherwise stated this option,
to the extent not previously exercised, shall terminate upon the first to occur
of the following dates:
(a) except as provided in subparagraphs (b), (c) and (d) below, the
expiration of three (3) months after the date on which Optionee's employment
with the Company is terminated;
(b) the expiration of twelve (12) months after the date on which
Optionee's employment with the Company is terminated if such termination is by
reason of permanent and total disability. Permanent and total disability is
defined as the inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months as determined by the Committee or
by a duly licensed physician designated by the Company;
(c) the expiration of twelve (12) months after the date of death of
Optionee; provided, however, that the person or persons to whom this option is
transferred by will or by the laws of descent and distribution may, at any time
within such one year period but not later than the date of expiration of this
option, exercise the option to the extent Optionee was entitled to do so on the
date of termination of employment (whether by death or otherwise). This option
or any portion owned by Optionee upon the date of optionee's death not so
exercised shall terminate;
(d) the termination of Optionee's employment with the Company, if such
termination is for "Cause" as defined in the Employee's Employment Agreement of
even date herewith; and
(e) the expiration of ten (10) years from the grant of this option.
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5. Reclassification, Consolidation or Merger. If and to the extent that
the number of issued shares of Stock of the Company shall be increased or
reduced by change in par value, split up, reclassification, distribution of a
dividend payable in stock, or the like, the number of Option Shares subject to
this option and the option price per share shall be proportionately adjusted.
If the Company is reorganized or consolidated or merged with another
corporation, Optionee shall be entitled to receive options covering shares of
such reorganized, consolidated, or merged company in the same portion, at an
equivalent price, and subject to the same conditions. For purposes of the
preceding sentence, the excess of the aggregate fair market value of the shares
of stock subject to this option immediately after the reorganization,
consolidation, or merger over the aggregate option price of such shares shall be
equal to the excess of the aggregate fair market value of all Option Shares
subject to this option immediately before such reorganization, consolidation, or
merger over the aggregate option price of such Option Shares, and the new option
or assumption of the old option shall not give Optionee additional benefits
which Optionee did not have under the old option, or deprive Optionee of
benefits which Optionee had under the old option.
6. Change of Control. Notwithstanding the provisions of Section 2 above,
to the extent not previously exercised or terminated under the provision of
Section 4 above, this option may be exercised with respect to one hundred (100%)
percent of the total number of Option Shares remaining hereunder in the event of
the occurrence of a Change of Control of the Company. A Change of Control of
the Company shall be deemed to have occurred if the Company is a party to any
merger, consolidation or sale of assets, or there is a tender offer for the
Company's common stock, or a contested election of the Company's directors, and
as a result of any such event, either (i) the directors of the Company in office
immediately before such event cease to constitute a majority of the Board of
Directors of the Company, or of the company succeeding to the Company's
business, or (ii) any company, person or entity (including one or more persons
and/or entities acting in concert as a group) other than an affiliate of the
Company gains "control" (ownership of more than fifty (50%) percent of the
outstanding voting stock of the Company) over the Company. The concept of
"control" shall be deemed to mean the direct or indirect ownership, beneficially
or of record, of voting stock of the Company. An "affiliate" shall be defined
as any person or entity which controls more than fifty (50%) percent of the
Company or is more than fifty (50%) percent controlled by the Company or by any
other person or entity which controls more than fifty (50%) percent of the
Company. Upon the exercise of this option prior to its termination and
subsequent to a Change of Control, the Optionee shall be entitled to receive the
cash, securities or other consideration he would have been entitled to receive
had he been entitled to exercise, and had he exercised, this option immediately
prior to such Change of Control.
7. Rights Prior to Exercise of Option. This option is nontransferable by
Optionee, except in the event of death as provided in subparagraph 4(c) above,
and during lifetime is exercisable only by Optionee. Optionee shall have no
rights as a stockholder with respect to the Option Shares until payment of the
option price and delivery to Optionee of such Shares as herein provided.
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8. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and upon their respective heirs, executors,
administrators, successors, and assigns.
9. Governing Law. This Agreement shall be construed and governed in
accordance with the laws of the Commonwealth of Massachusetts.
In witness whereof, the parties hereto have caused this Agreement to be
executed effective as of the day and year first above written.
Clean Harbors, Inc.
/s/ XXXXX X. XXXXXX /s/ XXXX X. XXXXX
__________________________ By:_______________________
Xxxxx X. Xxxxxx Its duly authorized
Chief Executive Officer
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Modification Agreement
AGREEMENT made as of the 4th day of March, 1998 by and between Xxxxx X.
Xxxxxx of 00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Xxxxxx") and CLEAN
HARBORS, INC., a Massachusetts corporation with a usual place of business
situated at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000 (the
"Company").
W I T N E S S E T H:
WHEREAS, Xxxxxx was employed by the Company from March 18, 1996 through
January 24, 1998 under an Employment Agreement ("Employment Agreement") dated
March 14, 1996, which was terminated on January 24, 1998;
WHEREAS, Xxxxxx and the Company are desirous of executing and delivering a
mutually satisfactory agreement with respect to modifications of the severance
benefits of Xxxxxx to be provided under his Employment Agreement and the terms
and conditions to be satisfied by Xxxxxx in connection therewith;
NOW, THEREFORE, in consideration of the above premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxxx and the Company hereby mutually agree as follows:
1. Xxxxxx hereby acknowledges his resignation from employment with the
Company and each of its subsidiaries with which he held a position effective
January 24, 1998 (the "Termination Date"). Xxxxxx also acknowledges his
resignation as an officer and director of the Company and each of its
subsidiaries for which he served as an officer or director effective as of the
Termination Date.
2. Subject to the conditions of this Agreement, the Company shall pay
Xxxxxx the following:
(a) The sum of $121,353.76 Dollars (the "Initial Severance Sum")
will be paid to Xxxxxx seven (7) days from the date upon which he executes this
Agreement. This amount represents $225,000.00 (75% of the amount of severance
due Xxxxxx under Section 10(b) of his Employment Agreement), less (i) $25,000.00
severance paid to Xxxxxx on February 13 and February 27, 1998, less (ii) the
following employee charges and taxes:
- Social Security Tax $ 3,465.80
- Medicare Tax $ 2,900.00
- Federal Income Tax $ 60,374.19
- Massachusetts Tax $ 11,906.25
---------------
$ 78,646.24
(b) Subject to Xxxxxx'x compliance with the terms hereof and provided
that Xxxxxx has not obtained new employment, the Company will pay Xxxxxx a
total of seventy-five thousand ($75,000.00) dollars severance ("Severance
Balance") for the period commencing October 25, 1998 through January 24, 1999,
payable at the rate of twenty-five thousand ($25,000.00) dollars per month in
accordance with the Company's normal pay policies, less normal payroll
deductions, for so long, during such period, as Xxxxxx shall remain unemployed.
Any payments of Severance Balance made under this subsection (b) shall be only
until Xxxxxx shall obtain new employment (if he has not previously done so) or
shall breach any of the terms and conditions of this Agreement.
(c) The Company will pay the firm of Drake, Beam, Morin, Inc. an
amount not to exceed twenty-three thousand ($23,000.00) dollars for out
placement services.
3. The Non-Competition and Non-Solicitation provisions (Section 11) of
the Employment Agreement, which are incorporated herein by reference, shall
remain in effect through January 24, 2000.
4. Xxxx XxXxx shall provide Xxxxxx, upon Xxxxxx'x request, with a
positive personal reference. Xxxxxx and the Company shall not disparage one
another. Xxxxxx and the Company shall keep the terms and conditions of this
Agreement strictly confidential and shall not reveal the same, other than on an
as-needed basis to their attorneys, accountants, tax advisers, or as required by
government regulation or court order. To the extent that the Company or Xxxxxx
intends to disclose the terms of this Agreement, other than to government
agencies, the Company or Xxxxxx shall inform the recipients of the information
of the need for strict confidentiality and shall obtain appropriate written
assurances from them to maintain confidentially of such information.
5. Xxxxxx represents and warrants that he has returned to the Company
all property and materials of the Company, including but not limited to, all
telephones, computers, confidential or proprietary information, and that he no
longer has possession, custody or control of any such property or materials.
Xxxxxx acknowledges that during the term of his employment he learned
information of a secret or confidential nature which is proprietary to the
Company. Xxxxxx represents and warrants that he has never breached or
interfered with the intellectual property rights of the Company. Confidential
information may include, but is not limited to, trade secrets; secret and
confidential information of the Company and of third parties; personal,
financial and account information regarding the Company's customers or
employees; business, pricing, and marketing plans; leasing information and
terms; development and growth plans; contract terms; employee, customer, vendor,
supplier, and prospect lists; and all information specifically designated as
"Proprietary," or "Confidential." Xxxxxx shall not disclose, use, copy or retain
any confidential business information, employee records or trade secrets
belonging to the Company, the Company's customers or the Company's suppliers and
has returned all copies of any such information to the Company prior to the
execution of this Agreement.
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6. With the sole exception of his right to enforce the terms of this
Agreement, and his option agreements dated March 18, 1996, as amended, and June
25, 1997, which remain in full force and effect through April 24, 1998, Xxxxxx
hereby fully, forever, irrevocably and unconditionally releases, remises and
discharges the Company, its subsidiaries, affiliates, current and former
officers, directors, stockholders, agents and employees, from any and all
claims, charges, complaints, demands, actions, causes of action, suits, rights,
debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities and expenses (including attorneys' fees and costs), of every kind
and nature, which Xxxxxx ever had or now has against the Company, its
predecessors, subsidiaries, affiliates, current and former officers, directors,
stockholders, agents and employees, including, but not limited to, all claims
arising out of his employment. This general release of claims includes, but is
not limited to, any and all claims for wrongful discharge, wrongful termination
or wrongful dismissal; any and all claims for breach of an express or implied
contract, covenant or agreement; any and all claims for unlawful discrimination
(including, but not limited to, claims allegedly based on race, sex, sexual
preference, religion, creed, age, handicap, national origin, ethnic history,
ancestry, veteran status, retaliation, any and all claims arising under Title
VII of the Civil Rights Act, 42 U.S.C. Section 2000 et seq., M.G.L. c. 151B,
Section 1 et seq., or any other protected classification); any and all claims
under the Age Discrimination in Employment Act, as amended; and all claims for
damages arising out of any such claim. Xxxxxx further acknowledges and affirms
that he does not intend to assert causes of action or claims against any other
individuals not specifically named herein now or formerly affiliated with the
Company.
7. The Company hereby fully, forever, irrevocably and unconditionally
releases and discharges Xxxxxx from any and all claims or damages it may have
against Xxxxxx through the date hereof, including but not limited to any claims
arising out of his employment
8. Xxxxxx represents and warrants that he has not filed any complaints,
charges, or claims for relief against the Company, its officers, directors,
stockholders, agents, employees or former employees with any local, state or
federal court or administrative agency which currently are outstanding, and that
he has no knowledge of, and has not encouraged, such filings by others.
9. Xxxxxx represents and warrants that he has not heretofore assigned or
transferred, or purported to assign or transfer, to any person or entity, any
claim against the Company or portion thereof or interest therein.
10. In consideration of the promises by the Company contained in this
Agreement, Xxxxxx hereby knowingly and voluntarily waives all rights and claims
he may have under the Age Discrimination in Employment Act, as amended, against
the Company, its predecessors, subsidiaries, affiliates, current and former
officers, directors, stockholders, agents and employees. In doing so, Xxxxxx
acknowledges that:
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a. This waiver does not apply to any rights he may have that arise
after the date of his signature below.
b. This Agreement provides him with certain benefits of value to him
that are in addition to benefits to which he would have been
entitled in the absence of this Agreement.
x. Xxxxxx has been advised by the Company to consult with an
attorney regarding this Agreement prior to his signing the
Agreement and has had the opportunity to do so.
x. Xxxxxx has been given the opportunity, if he so desires, to
consider this Agreement for twenty-one (21) days before executing
it. If Xxxxxx executes this Agreement within less than 21 days
of the date of its delivery to him, Xxxxxx acknowledges that such
decision was entirely voluntary and that he had the opportunity
to consider this Agreement for the entire 21 days.
e. In signing on the date indicated below, Xxxxxx understands that
he has a period of seven (7) days from that date in which he may
revoke this Agreement, and that this Agreement will not become
effective unless and until the revocation period has expired
without his having exercised his right to revoke the Agreement
and this waiver.
11. Xxxxxx and the Company shall be responsible for their own attorneys'
fees in connection with this Agreement.
12. This Agreement shall be binding upon the parties and may not be
abandoned, supplemented, changed or modified in any manner, orally or otherwise,
except by an instrument in writing of concurrent or subsequent date signed by a
duly authorized representative of the parties hereto.
13. Should any provision of this Agreement be declared or be determined by
any court of competent jurisdiction to be illegal or invalid, the validity of
the remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term or provision shall be deemed not to be a part of
this Agreement.
14. This Agreement contains and constitutes the entire understanding and
agreement between the parties hereto with respect to the settlement of this
matter and cancels all previous oral and written negotiations, agreements,
commitments, understandings and writings in connection herewith.
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15. The parties affirm that no other promises or agreements of any kind
have been made to or with them by any person or entity whatsoever to cause them
to sign this Agreement, and that they fully understand the meaning and intent of
this Agreement. The parties state and represent that they have had an
opportunity to fully discuss and review the terms of this Agreement with their
respective attorneys. They further state and represent that they have carefully
read this Agreement, understand the contents hereof, freely and voluntarily
assent to all of the terms and conditions hereof, and sign the Agreement as a
free act.
16. This Agreement has been entered into in the Commonwealth of
Massachusetts, shall be interpreted in accordance with the law of the
Commonwealth of Massachusetts and shall take effect as a sealed instrument.
/s/ XXXXX X. XXXXXX
______________________________ ______________________________
Witness Xxxxx X. Xxxxxx
CLEAN HARBORS, INC.
/s/ XXXX X. XXXXX
___________________________ By ___________________________
Witness Xxxx X. XxXxx, President
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