EXHIBIT 10.64
FIRST AMENDMENT TO THE
EMPLOYMENT AGREEMENT, DATED AS OF MARCH 25, 1996
BY AND BETWEEN HI-RISE RECYCLING SYSTEMS, INC.
AND XXXXXX XXXXX
THIS FIRST AMENDMENT, made this 3rd day of August, 2000, by and between
HI-RISE RECYCLING SYSTEMS, INC., a Florida corporation (the "Employer"), and
XXXXXX XXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Employer and Executive entered into that Employment
Agreement, dated as of March 25, 1996 (the "Agreement"), and
WHEREAS, both the Employer and Executive wish to amend such Agreement;
NOW, THEREFORE, effective as of August 3, 2000, the Agreement shall be
amended as follows:
1. Section 1.1 is hereby amended to read as follows:
1.1 Employment and Term. The Company shall continue to employ
the Executive and the Executive shall continue to serve the Company, on
the terms and conditions set forth herein, for the period commencing on
the date hereof and expiring August 3, 2003 (the "Initial Term") unless
sooner terminated as hereinafter set forth. The Initial Term of this
Agreement, and the employment of the Executive hereunder, will
automatically be extended for successive one year terms unless either
party gives notice at least six months prior to the Expiration Date
(three months, in the case of any extension period after the Initial
Term) of its intention not to extend the term hereof. (The Initial Term
and any extensions shall be hereinafter referred to as the "Employment
Period").
Notwithstanding the foregoing, in the event of a "Change of
Control" (as defined below), the Initial Term of this Agreement, and
the employment of the Executive hereunder, will automatically be
extended for an additional five (5) year term. For purposes of this
Agreement, a "Change of Control" shall mean (i) the approval by the
shareholders of the Company of (A) a reorganization, merger or
consolidation with respect to which persons who were the shareholders
of the Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than 50% of the
combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or
consolidated company's then outstanding voting securities or (B) the
sale of all or substantially all of the assets of the Company, unless
the approved reorganization, merger, consolidation, liquidation,
dissolution or sale is subsequently abandoned or (ii) if any
individuals who, as of the date hereof, constitute the Board (as of the
date hereof the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided that any person becoming a
director subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent
Board shall be, for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board."
2. Section 3 is hereby amended to read as follows:
3. Termination Provisions.
3.1 Termination for Cause. Notwithstanding anything contained
herein to the contrary, this Agreement may be terminated by the Company
for "Cause." As used in this Agreement, "Cause" shall only mean (i)
subject to the following sentences, any action or omission of the
Executive which constitutes a willful and material breach of this
Agreement which is not cured or as to which diligent attempts to cure
have not commenced within thirty (30) business days after receipt by
the Executive of notice of same, (ii) fraud, embezzlement or
misappropriation as against the Company or (iii) the conviction of
Executive for any criminal act which is a felony. Upon any
determination by the Board that Cause exists under clause (i) of the
preceding sentence, the Company shall cause a special meeting of the
Board to be called and held at a time mutually convenient to the Board
and Executive, but in no event later than ten (10) business days after
Executive's receipt of the notice contemplated by clause (i) Executive
shall have the right to appear before such special meeting of the Board
with legal counsel of his choosing to refute any determination of Cause
specified in such notice, and any termination of Executive's employment
by reason of such Cause determination shall not be effective until
Executive is afforded such opportunity to appear. Any termination for
Cause pursuant to clause (ii) or (iii) of the first sentence of this
Section 3.1 shall be made in writing to Executive, which notice shall
set forth in detail all acts or omissions upon which the Company is
relying for such termination. Upon any termination pursuant to this
Section 3.1, the Executive shall, subject to the other provisions of
this Agreement, only be entitled to receive the compensation specified
in Section 4.1 hereof.
3.2 Termination Without Cause. Either party to this Agreement
shall have the right to terminate this Agreement upon thirty (30) days
prior written notice to the other party. Upon the termination by the
Company of the Executive's employment pursuant to this Section 3.2, the
Executive shall, subject to the other provisions of this Agreement,
only be entitled to receive the compensation specified in Sections 4.2,
4.6 and 4.8 hereof. Upon the termination by the Executive of the
Executive's employment pursuant to this Section 3.2, the
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Executive shall, subject to the other provisions of this Agreement,
only be entitled to receive the compensation specified in Section 4.1
hereof.
3.3 Disability. The Company shall at all times have the right,
upon written notice to the Executive, to terminate the Executive's
employment hereunder, if the Executive shall, as the result of mental
or physical incapacity, illness or disability, become unable to perform
the essential functions of his position, with or without reasonable
accommodation, for a period of 90 consecutive days or a period of 120
days during any 12 month period. Upon termination of the Executive's
employment with the Company pursuant to this Section 3.3, the Executive
shall, subject to the other provisions of this Agreement, only be
entitled to the compensation specified in Sections 4.3, 4.6 and 4.8
hereof.
3.4 Death. The Executive's employment with the Company shall
terminate automatically upon the death of the Executive, without any
requirement of notice by the Company to the personal representative or
executor of the Executive's estate. Upon termination of the Executive's
employment with the Company pursuant to this Section 3.4, the Executive
shall, subject to the other provisions of this Agreement, only be
entitled to the compensation specified in Sections 4.4, 4.6 and 4.8
hereof.
3.5 Non-Renewal. In the event that this Agreement is not
renewed beyond the Initial Term as provided in Section 1.1 hereof, the
last day of the Initial Term shall automatically be the termination
date for a termination pursuant to this Section 3.5. Upon any
termination of the Executive's employment with the Company pursuant to
this Section 3.5, the Executive shall, subject to the other provisions
of this Agreement, only be entitled to the compensation specified in
Sections 4.5, 4.7 and 4.8 hereof."
3. Section 4 is hereby amended to read as follows:
4. Compensation and Benefits Upon Termination or Change of
Control.
4.1 Termination For Cause. Upon the termination of the
Executive's employment with the Company pursuant to Section 3.1 above,
or upon termination by the Executive of the Executive's employment
pursuant to Section 3.2 above, the Company shall pay the Executive any
unpaid Base Salary (as defined in the Addendum) accrued through the
effective date of termination specified in the notice of termination as
provided above in Section 3.1 or Section 3.2. Except as provided in the
preceding sentence and other than for reimbursement for reasonable
business expenses incurred prior to the date of termination, the
Company shall have no further liability hereunder.
4.2 Termination Other Than For Cause or Non-Renewal. Upon the
termination by the Company of the Executive's employment pursuant to
Section 3.2 above, then (i) the Company shall pay the Executive any
unpaid amounts of
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his Base Salary and accrued bonus, if any, through the date of
termination; and (ii) in lieu of any further salary payments to the
Executive for periods subsequent to the date of termination and in
consideration of, among other things, the continuing obligations of the
Executive and rights of the Company under Section 7 hereof during the
remainder of the Employment Period, the Company shall pay, in a lump
sum, as severance to the Executive, (a) the amount of Base Salary and
Other Benefits that would have been paid to the Executive through the
remainder of the Employment Period and (b) an amount equal to the
Executive's than annual Base Salary and Other Benefits (as defined in
the Addendum). Any life insurance policy currently maintained by the
Company for the benefit of the Executive shall remain in full force and
effect through the remainder of the Employment Period and shall not be
amended or modified except to allow for any increase in benefits
payable pursuant thereto.
4.3 Disability. Upon the termination of the Executive's
employment with the Company pursuant to Section 3.3 above, the Company
shall pay to the Executive (i) in a single lump sum, any unpaid amounts
of his Base Salary and accrued bonus, if any, through the date of
termination and (ii) in a single lump sum, the remainder of (a) the
amount of Base Salary and Other Benefits that would have been paid to
the Executive from the date of termination through the remainder of the
Employment Period minus (b) the amount of any payments that the
Executive would be entitled to receive under any disability policy then
maintained by the Company.
4.4 Death. Upon the Executive's death, the Company shall pay
to the person designated by the Executive in a notice filed with the
Company or, if no person is designated, to the personal representative
or executor of his estate (i) in a single lump sum, any unpaid amounts
of his Base Salary and accrued bonus, if any, through the date of
death; (ii) in a single lump sum, the amount of Base Salary and Other
Benefits that would have been paid to the Executive from the date of
death through the remainder of the Employment Period and (iii) when, as
and if received by the Company, any payments to Executive's spouse,
beneficiaries or estate may be entitled to receive pursuant to any
pension or employee benefit plan or life insurance policy or other plan
or policy then maintained by the Company.
4.5 Non-Renewal. If this Agreement terminates pursuant to
Section 3.5 hereof, then the Company shall pay the Executive (i) any
unpaid amounts of his Base Salary through the termination date
specified in Section 3.5 and (ii) in a lump sum, an amount equal to the
Executive's then annual Base Salary and Other Benefits, as severance to
the Executive.
4.6 Health and Medical Plans Upon Termination Other Than for
Non-Renewal. Upon termination of the Executive's employment pursuant to
Sections 3.2 and 3.3, the Executive shall be entitled to all
continuation of health, medical, hospitalization and other programs as
provided by any applicable law and such additional benefits as may be
provided under plans maintained by the Company
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from time to time to its executives or employees upon termination of
employment with the Company.
4.7 Health, Disability and Medical Plans Upon Non-Renewal.
Upon termination of this Agreement pursuant to Section 3.5, during the
one (1) year period following such termination the Executive shall be
entitled to the continuation of all health, disability, medical,
hospitalization and other programs as previously provided to Executive
by the Company.
4.8 Bonus. If the Executive's employment is terminated with
the Company for any reason other than "Cause" pursuant to Section 3.1
hereof, the Executive shall be paid, solely in consideration for
services rendered by the Executive prior to such termination, an amount
equal to any bonus that would have been payable to Executive for the
fiscal year if the Executive's employment had not been terminated.
4.9 Acceleration of Vesting of Options Upon a Change of
Control. Notwithstanding the terms of any stock option plan adopted by
the Company or the terms of any options (the "Options") to purchase
shares of the common stock, par value $.01 per share (the "Common
Stock"), of the Company previously granted to the Executive pursuant to
such plan or plans, all Options issued to the Executive which have not
vested immediately prior to a Change of Control, shall vest and become
immediately exercisable by the Executive upon a Change of Control."
4. In all other respects, the Agreement shall remain unchanged by this
Amendment.
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IN WITNESS WHEREOF, the parties have caused this instrument to be
executed the day and year first above written.
HI-RISE RECYCLING SYSTEMS, INC.
By: /s/ J. Xxxx XxXxxxx
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J. XXXX XxXXXXX
President and Chief Operating Officer
/s/ Xxxxxx Xxxxx
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XXXXXX XXXXX
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