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Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into this 1st day
of July, 1999, by and between REPUBLIC SERVICES, INC., a Delaware corporation
(the "Company"), and XXX X. XXXXXX, a Florida resident (the "Employee").
A G R E E M E N T
In consideration of the mutual representations, warranties, covenants
and agreements contained in this Agreement, the parties hereto agree as
follows:
1. EMPLOYMENT.
(a) Retention. The Company agrees to employ the Employee as
its Senior Vice President and Chief Financial Officer, and the Employee agrees
to accept such employment, subject to the terms and conditions of this
Agreement.
(b) Employment Period. The period during which the Employee
shall serve as an employee of the Company shall commence on the date hereof
(the "Effective Date") and, unless earlier terminated pursuant to this
Agreement, shall expire on the third anniversary of the Effective Date;
provided that commencing on the third anniversary of the Effective Date and on
each anniversary date thereafter, the Employment Period shall automatically be
extended for one additional year unless at least 90 days prior to such
anniversary, the Company or the Employee shall have given written notice that
it or he, as applicable, does not wish to extend this Agreement (the
"Employment Period").
(c) Duties and Responsibilities. During the Employment
Period, the Employee shall serve as Senior Vice President and Chief Financial
Officer and shall have such authority and responsibility and perform such
duties as may be assigned to him from time to time by the Chief Executive
Officer of the Company, and in the absence of such assignment, such duties
customary to Employee's office as are necessary to the business and operations
of the Company. During the Employment Period, the Employee's employment shall
be full time and the Employee shall perform his duties honestly, diligently, in
good faith and in the best interests of the Company and shall use his best
efforts to promote the interests of the Company.
(d) Other Activities. Except upon the prior written consent
of the Company, the Employee, during the Employment Period, will not accept any
other employment. The Employee shall be permitted to engage in any
non-competitive businesses, not-for-profit organizations and other ventures,
such as passive real estate investments, serving on charitable and civic boards
and organizations, and similar activities, so long as such activities do not
materially interfere with or detract from the performance of his duties or
constitute a breach of any of the provisions contained in Section 4 hereof.
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2. COMPENSATION.
(a) Base Salary. In consideration for the Employee's services
hereunder and the restrictive covenants contained herein, during the Employment
Period, the Employee shall be paid an annual base salary of $250,000.00 (the
"Salary"), payable in accordance with the Company's customary payroll
practices, which Salary shall be reviewed annually by the Board of Directors of
the Company.
(b) Bonus. In addition to the Salary, the Employee shall be
eligible for an annual bonus ("Bonus") in an amount of up to 30% of the
Employee's Base Salary during the Employment Period. The Bonus shall be based
on the achievement of corporate goals and objectives, and both such goals and
objectives and the achievement thereof shall be determined in the sole
discretion of the Board of Directors of the Company. With respect to any Fiscal
Year during the Employment Period in which the Employee is employed by the
Company for less than the entire Fiscal Year, the Bonus shall be prorated for
the period during which the Employee was so employed. The Bonus shall be
payable within thirty (30) days after the end of the Company's Fiscal Year. The
term "Fiscal Year" as used herein shall mean each period of twelve (12)
calendar months commencing on January 1st of each calendar year during the
Employment Period and expiring on the following December 31st.
(c) Benefits. During the Employment Period, the Employee
shall be entitled to participate in any health insurance programs, life
insurance programs, disability programs, stock option plans, bonus plans,
pension plans and other fringe benefit plans and programs as are from time to
time established and maintained for the benefit of the Company's employees or
executive officers generally, subject to the provisions of such plans and
programs.
(d) Expenses. In addition to the Base Salary and benefits
described above, during the Employment Period, the Employee shall be reimbursed
for all out-of-pocket expenses reasonably incurred by him on behalf of or in
connection with the business of the Company, pursuant to the normal standards
and guidelines followed from time to time by the Company.
3. TERMINATION.
(a) For Cause. At any time during the Employment Period, the
Company shall have the right to terminate the Employment Period and to
discharge the Employee for Cause (as defined below) effective upon delivery of
written notice to the Employee. Upon any such termination by the Company for
Cause, the Employee or his legal representatives shall be entitled to that
portion of the Salary prorated through the date of termination, and the Company
shall have no further obligations hereunder from and after the date of such
termination. Termination for Cause shall mean termination because of (i) the
Employee's material breach of his covenants contained in this Agreement (other
than the covenants set forth in Sections 4 and 5 of this Agreement, the breach
of which shall not be subject to a standard of materiality), (ii) the
Employee's failure or refusal to perform the duties and responsibilities
required to be performed by the Employee under the terms of this Agreement,
(iii) the Employee's gross negligence or willful misconduct in the performance
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of his duties hereunder, (iv) the Employee's commission of an act constituting
a felony, (v) the Employee's commission of an act (other than the good faith
exercise of his business judgment in the exercise of his responsibilities)
resulting in material damages to the Company or any of its subsidiaries or
affiliates (the "Republic Group"), or (vi) the Employee's inability to perform
his duties and responsibilities as provided herein for reasons other than due
to his death, physical or mental disability or sickness extending for, or
reasonably expected to extend for, greater than sixty days ("death or
disability"). In the event of termination for Cause pursuant to clauses (i) or
(ii) above, the Company shall first advise the Employee of the nature of such
breach or the failure or refusal to perform, and shall provide the Employee
with a 30 day period to cure such breach or to perform prior to the notice of
termination for Cause becoming effective. If the Employee shall resign or
otherwise terminate his employment with the Company, other than for Good Reason
(as defined in (b) below), the Employee shall be deemed for purposes of this
Agreement to have been terminated for Cause, and the Company shall have no
further obligations hereunder from and after the date of such resignation or
other termination.
(b) Without Cause And For Good Reason. At any time during the
Employment Period, (i) the Company shall have the right to terminate the
Employment Period and to discharge the Employee without Cause effective upon
delivery of written notice to the Employee, and (ii) the Employee shall have
the right to terminate the Employment Period for Good Reason effective upon
delivery of written notice to the Company. For purposes of this Agreement,
"Good Reason" shall mean: (A) the Company's demand that the Employee relocate
his principal office to an location outside of Broward County, Florida, (B) the
Company has materially reduced the duties and responsibilities of the Employee
to a level not appropriate for a Senior Vice President and Chief Financial
Officer, (C) a majority of the directors in office as of the date hereof (to
the extent they are nominated for reelection) are not reelected to serve by
vote of the Company's stockholders, (D) the Company has materially breached any
provision of this Agreement and has not cured such breach following 30 days'
notice of such breach from the Employee. Upon any such termination by the
Company without Cause, or by the Employee for Good Reason (or due to the
Employee's death or disability), the Employee (or his estate) shall be
entitled, without any mitigation obligation, to continue to receive his Salary
(at the level in effect at the time of such termination) payable in accordance
with Section 2(a), when and as the same would have been due and payable
hereunder but for such termination, and his health insurance benefits, for a
period ending on the later of the first anniversary of the date of such
termination or the end of the current Employment Period (the "Severance
Period"), and otherwise the Company shall have no further obligations hereunder
from and after the date of such termination; provided, however, that the
Employee shall only be entitled to such Salary continuation payments as long as
he is in compliance with the provisions of Sections 4 and 5 below. In addition,
in the event of termination by the Company without Cause, or by the Employee
for Good Reason, the Employee shall be entitled to exercise any stock options
which are vested and exercisable as of the date of such termination at any time
prior to the end of the Severance Period.
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4. RESTRICTIVE COVENANTS.
In consideration of the foregoing, the Employee agrees that during the
Employment Period, and for a period of three (3) years following the
termination of the Employment Period, the Employee shall not directly or
indirectly: (a) alone or as a partner, joint venturer, officer, director,
member, employee, consultant, agent, independent contractor or stockholder of,
or lender to, any company or business, (i) engage in the business of solid
waste collection, disposal or recycling (the "Solid Waste Services Business")
in any market in which the Republic Group does business, or any other line of
business which is entered into by the Republic Group during the Employment
Period, or (ii) compete with the Republic Group in acquiring or merging with
any other business or acquiring the assets of such other business; or (b) for
any reason, (i) induce any customer of the Republic Group to patronize any
business directly or indirectly in competition with the Solid Waste Services
Business conducted by the Republic Group in any market in which the Republic
Group does business; (ii) canvass, solicit or accept from any customer of the
Republic Group any such competitive business; or (iii) requestor advise any
customer or vendor of the Republic Group to withdraw, curtail or cancel any
such customer's or vendor's business with the Republic Group; or (c) for any
reason, employ, or knowingly permit any company or business directly or
indirectly controlled by him, to employ, any person who was employed by the
Republic Group at or within the prior six months, or in any manner seek to
induce any such person to leave his or her employment. Notwithstanding the
foregoing, the beneficial ownership of less than five percent (5%) of the
shares of stock of any corporation having a class of equity securities actively
traded on a national securities exchange or over-the-counter market shall not
be deemed, in and of itself, to violate the prohibitions of this Section.
5. CONFIDENTIALITY.
The Employee agrees that at all times during and after the Employment
Period, the Employee shall (i) hold in confidence and refrain from disclosing
to any other party all information, whether written or oral, tangible or
intangible, of a private, secret, proprietary or confidential nature, of or
concerning the Republic Group and their business and operations, and all files,
letters, memoranda, reports, records, computer disks or other computer storage
medium, data, models or any photographic or other tangible materials containing
such information ("Confidential Information"), including without limitation,
any sales, promotional or marketing plans, programs, techniques, practices or
strategies, any expansion plans (including existing and entry into new
geographic and/or product markets), and any customer lists, (ii) use the
Confidential Information solely in connection with his employment with the
Republic Group and for no other purpose, (iii) take all precautions necessary
to ensure that the Confidential Information shall not be, or be permitted to
be, shown, copied or disclosed to third parties, without the prior written
consent of the Republic Group, and (iv) observe all security policies
implemented by the Republic Group from time to time with respect to the
Confidential Information. In the event that the Employee is ordered to disclose
any Confidential Information, whether in a legal or regulatory proceeding or
otherwise, the Employee shall provide the Republic Group with prompt notice of
such request or order so that the Republic Group may seek to prevent
disclosure. In the case of any disclosure, the Employee shall disclose only
that portion of the Confidential Information that he is ordered to disclose.
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6. SPECIFIC PERFORMANCE; INJUNCTION.
The parties agree and acknowledge that the restrictions contained in
Sections 4 and 5 are reasonable in scope and duration and are necessary to
protect the Republic Group. If any provision of Section 4 or 5 as applied to
any party or to any circumstance is adjudged by a court to be invalid or
unenforceable, the same shall in no way affect any other circumstance or the
validity or enforceability of any other provision of this Agreement. If any
such provision, or any part thereof, is held to be unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the duration
and/or area of such provision, and/or to delete specific words or phrases, and
in its reduced form, such provision shall then be enforceable and shall be
enforced. The Employee agrees and acknowledges that the breach of Section 4 or
5 will cause irreparable injury to the Republic Group and upon breach of any
provision of such Sections, the Republic Group shall be entitled to injunctive
relief, specific performance or other equitable relief, without being required
to post a bond; provided, however, that, this shall in no way limit any other
remedies which the Republic Group may have (including, without limitation, the
right to seek monetary damages).
7. NOTICES.
All notices, requests, demands, claims and other communications
hereunder shall be in writing and shall be deemed given if delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery or facsimile transmission if such transmission is confirmed
by delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery to, the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party shall
designate in writing to the other parties): (a) if to the Company, at its
principal executive offices, addressed to the Chairman of the Board, with a
copy to the Chief Executive Officer; and (b) if to the Employee, at the address
listed on the signature page hereto.
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8. AMENDMENT; WAIVER.
This Agreement may not be modified, amended, supplemented, canceled or
discharged, except by written instrument executed by all parties. No failure to
exercise, and no delay in exercising, any right, power or privilege under this
Agreement shall operate as a waiver, nor shall any single or partial exercise
of any right, power or privilege hereunder preclude the exercise of any other
right, power or privilege. No waiver of any breach of any provision shall be
deemed to be a waiver of any preceding or succeeding breach of the same or any
other provision, nor shall any waiver be implied from any course of dealing
between the parties. No extension of time for performance of any obligations or
other acts hereunder or under any other agreement shall be deemed to be an
extension of the time for performance of any other obligations or any other
acts. The rights and remedies of the parties under this Agreement are in
addition to all other rights and remedies, at law or equity, that they may have
against each other.
9. ASSIGNMENT; THIRD PARTY BENEFICIARY.
This Agreement, and the Employee's rights and obligations hereunder,
may not be assigned or delegated by him. The Company may assign its rights, and
delegate its obligations, hereunder to any affiliate of the Company, or any
successor to the Company or its Solid Waste Services Business, specifically
including the restrictive covenants set forth in Section 4 hereof. The rights
and obligations of the Company under this Agreement shall inure to the benefit
of and be binding upon its respective successors and assigns.
10. SEVERABILITY; SURVIVAL.
In the event that any provision of this Agreement is found to be void
and unenforceable by a court of competent jurisdiction, then such unenforceable
provision shall be deemed modified so as to be enforceable (or if not subject
to modification then eliminated herefrom) for the purpose of those procedures
to the extent necessary to permit the remaining provisions to be enforced. The
provisions of Sections 4 and 5 will survive the termination for any reason of
the Employee's relationship with the Company.
11. COUNTERPARTS.
This Agreement may be signed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one and
the same instrument.
12. GOVERNING LAW.
This Agreement shall be construed in accordance with and governed for
all purposes by the laws of the State of Florida applicable to contracts
executed and to be wholly performed within such State.
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13. ENTIRE AGREEMENT.
This Agreement contains the entire understanding of the parties in
respect of its subject matter and supersedes all prior agreements and
understandings (oral or written) between or among the parties with respect to
such subject matter.
14. HEADINGS.
The headings of Paragraphs and Sections are for convenience of
reference and are not part of this Agreement and shall not affect the
interpretation of any of its terms.
15. CONSTRUCTION.
This Agreement shall be construed as a whole according to its fair
meaning and not strictly for or against any party. The parties acknowledge that
each of them has reviewed this Agreement and has had the opportunity to have it
reviewed by their respective attorneys and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
apply in the interpretation of this Agreement.
16. ATTORNEY'S FEES.
The prevailing party in any litigation arising out of this Agreement
shall be entitled to recover its attorneys' fees and costs from the other
party.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
REPUBLIC SERVICES, INC., a Delaware
corporation
By: /s/ Xxxxx X. X'Xxxxxx
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Name: Xxxxx X. X'Xxxxxx
Title: Chief Executive Officer
EMPLOYEE:
/s/ Xxx X. Xxxxxx
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XXX X. XXXXXX
Address: 000 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
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