EXHIBIT 10.85
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This Amended and Restated Employment Agreement ("Agreement") is executed
and delivered as of June 1, 1998, by and between Eastern Environmental Services,
Inc., a Delaware corporation ("Company"), and Xxxxxxx Xxxxxxx, an individual
("Employee").
RECITALS
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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
and the Company entered into an employment contract on July 24, 1996. The
Company and the Employee desire to amend and restate in their entirety the terms
of Employee's employment with Company.
The position of the Employee with the Company has given and 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 has and 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
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termination of this Agreement or Employee's employment, Employee should violate
the provisions of paragraph 4 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 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 a Vice President. Employee has
also been appointed to serve as a Director of the Company. Additional or
different duties, titles or positions may be assigned to Employee or may be
taken from Employee from time to time by the President of the Company.
Employee's place of employment may not be relocated without his consent.
(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 Officers of 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
prevents the Employee from fulfilling his duties and responsibilities under this
Agreement. Employee may make personal investments and conduct his personal
business affairs, including, without limitation, participating in the management
of businesses which the Employee owns directly or through affiliated entities,
as long as such investments do not violate the terms of Paragraph 4.
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2. Compensation.
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(a) For all services to be rendered by Employee to Company, Company shall
pay Employee a salary computed at the rate of Ninety Thousand Dollars ($90,000)
per year, payable in accordance with Company's normal payroll procedures. The
Company, at its discretion, may from time to time grant bonuses and raises to
the Employee.
(b) 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 the Company's
executives and for which Employee qualifies; (ii) participation in all, if any,
pension, retirement, profit sharing or stock purchase plans for which Employee
qualifies; and (iii) participation in any other employee benefits which Company
accords to its employees.
(c) During the term of Employee's employment with Company, Employee shall
be entitled to reimbursement for reasonable business expenses incurred on behalf
of Company. Employee shall be paid an automobile allowance of Five Hundred
Dollars ($500.00) a month.
(d) If a Change of Control occurs, as hereinafter defined, Employee shall
be entitled to a bonus in the amount of $200,000. Such bonus shall be payable
in cash or common stock of the Company (which stock shall be registered under
the Securities Act of 1933 or shall be registered by the Company within 120 days
after the date it is issued to Employee), at the Company's option. For purposes
of this Agreement, a "Change of Control" shall mean the occurrence of any of the
events set forth in items (i) or (ii) below:
(i) The Company's merger, consolidation, or other business
combination with
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another entity where the Company is not the surviving entity or the Company's
sale of substantially all of its assets; or
(ii) Xxxxx X. Xxxxxxx, Xx., no longer serving as President and Chief
Executive Officer of the Company, or Chairman of the Board of directors.
3. Term. The term of this Agreement shall begin on the date of this
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Agreement and continue until July 24, 2001. Employee's employment under this
Agreement may be terminated during the term hereof only as set forth in
Paragraph 7 of this Agreement.
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 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 item (i) through (iv) below.
(i) call upon any person who is, at the time of the contact, an employee
of Company or its affiliates, if the employee serves the Company in a managerial
capacity and if the purpose and intent of the contact is to entice such employee
away from or out of the employ of Company or its affiliates;
(ii) call upon any person or entity, which is, at the time of the contact,
a customer of the Company or its affiliates, for the purpose of soliciting or
selling any of the services which are the services offered by the Company within
the Territory;
(iii) disclose the identity of the customers of Company or its affiliates,
whether in existence
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or proposed, to any person, firm, partnership, corporation or other entity
whatsoever, for any reason or purpose whatsoever, except if approved by the
Board or if compelled to do so by a governmental agency, Court Order or
subpoena; or
(iv) 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 ten 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 Company, and (B) each other entity under the direct or indirect control of
the Company.
(c) The Company will sustain significant losses and damages, if Employee
breaches 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
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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
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
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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 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, and shall be binding upon
Employee's heirs, assigns, executors, administrators and other legal
representatives.
7. Termination; Rights of Termination.
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(a) Employee's employment under this Agreement may be terminated during the
term hereof upon the occurrence of any of the items set forth below. If
Employee's employment under this Agreement is terminated for any of the reasons
set forth below, Employee shall be entitled to receive, and shall immediately be
paid in full, one months annual salary that would have been paid under Paragraph
2(a) above, if this Agreement had not been terminated. If any one or more of
the following items occur this Agreement shall be terminated as follows:
(i) Automatically upon the death of Employee.
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(ii) Automatically upon the resignation of the Employee.
(iii) By Company upon written notice to Employee in the event of:
(A) Employee's breach of this Agreement;
(B) 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; or
(C) Employee's theft or fraud with respect to the business or
affairs of Company or if Employee is convicted of a crime involving
fraud or theft.
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.
(b) If Employee's employment under this Agreement is terminated under
Paragraph 7(a)(ii) above subsequent to any Change of Control, Employee shall be
entitled to receive, and shall immediately be paid in full, one years annual
salary that would have been paid under Paragraph 2(a) above, if this Agreement
had not been terminated, and Company shall continue Employee's medical insurance
benefits for two years following such termination.
(b) 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 to pay the amounts to
be paid under Paragraph 7(a) or 7(b), as applicable, and the Company's
obligations under Paragraph 10 shall survive such termination. After such
termination Employee shall have no right to receive any compensation hereunder,
except as set forth in Paragraph 7(a) or 7(b).
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8. Authority. Employee shall be authorized to obligate the Company in
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accordance with the Company's policies and procedures from time to time in
effect.
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, 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, 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 be 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
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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: Xxxxxxx Xxxxxxx
___________________
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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
accordance with this paragraph 13.
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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.
Xxxxx X. Xxxxxxx, Xx., President
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
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