Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
(FIELD VERSION)
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of this 14th day of May, 2001, by and between REPUBLIC SERVICES, INC., a
Delaware corporation (the "Company"), and MICHAEL CORDESMAN, a Texas resident
(the "Employee").
Employee is currently an employee of the Company and is considered a
valued employee that Company desires to retain by reconfirming the Company's
commitment to Employee pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the Company and the Employee agree as follows:
1. TERMINATION BY COMPANY WITHOUT CAUSE.
a. TERMINATION RIGHTS. If at any time the Employee's employment
with the Company is terminated without Cause (as defined
below), then:
(1) the Company shall pay to the Employee all of the
Employee's accrued but unpaid salary through the date
of termination, and continue to pay to or provide the
following items to the Employee (the consideration
provided for below in this clause (1) is collectively
referred to herein as the "Severance Payment"):
(a) his current monthly salary at the rate in
effect at the time of termination ("Salary")
for a period of time equal to two months for
each complete year that the Employee has
been employed by the Company at the time of
such termination, but in no event to exceed
a maximum of twelve months, when and as the
same would have been due and payable but for
such termination (the "Salary Continuation
Payment"),
(b) all health benefits in which Employee was
entitled to participate at any time during
the 12-month period prior to the date of
termination, for a period of time equal to
the lesser of (i) two months for each
complete year that the Employee has been
employed by the Company at the time of such
termination or (ii) twelve months, but in no
event beyond the date on which the Employee
becomes covered by a comparable health
benefit plan by a subsequent employer;
provided, however, that in the event that
Employee's continued participation in any
health benefit plan of the Company is
prohibited, the Company will arrange to
provide
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Employee with benefits substantially similar
to those which Employee would have been
entitled to receive under such plan for such
period on a basis which provides Employee
with no additional after tax cost,
(c) a pro-rated Annual Performance Bonus
relating to the year in which such
termination occurs based on the Annual
Performance Bonus actual performance
results, such bonus being paid at such time
and only to the extent that such bonuses are
paid to other similarly situated employees
of the Company and the amount so paid shall
be equal to the amount that would have been
payable to the Employee in the absence of
such termination multiplied by a fraction
equal to the number of days during the year
elapsed through the date of termination
divided by the total number of days in such
year, and
(d) a payment of all amounts credited to
Employee's deferred compensation account
through the date of termination, in full
satisfaction and payment of said deferred
compensation account, and
(2) all stock option grants will continue to vest and
remain exercisable as if the Employee was still
employed during the period of time he is receiving
the Salary Continuation Payment.
Other than the Severance Payment, the Company shall have no
further obligation to the Employee except for the obligations
set forth in this Section of this Agreement after the date of
such termination; PROVIDED, HOWEVER, that the Employee shall
only be entitled to continuation of the Severance Payments as
long as he is in compliance with the provisions of Sections 5
and 6 of this Agreement.
b. CAUSE DEFINED. For purposes of this Agreement, the term
"Cause" shall mean during the term of this Agreement (i)
Employee's willful and continued failure to substantially
perform his duties after he has received written notice from
the Company identifying the actions or omissions constituting
willful and continued failure to perform, (ii) Employee's
conduct that would constitute a crime under federal or state
law, (iii) Employee's actions or omissions that constitute
fraud, dishonesty or gross misconduct, (iv) Employee's breach
of any fiduciary duty that causes material injury to the
Company, (v) Employee's breach of any duty causing material
injury to the Company, (vi) Employee's inability to perform
his material duties to the reasonable satisfaction of the
Company due to alcohol or other substance abuse, or (vii) any
violation of the Company's policies or procedures involving
discrimination, harassment, substance abuse or work place
violence.
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Any termination for Cause pursuant to this Section shall be
given to the Employee in writing and shall set forth in detail
all acts or omissions upon which the Company is relying to
terminate the Employee for Cause. Upon any determination by
the Company that Cause exists to terminate the Employee, the
Company shall cause a special meeting of the Board of
Directors to be called and held at a time mutually convenient
to the Board of Directors and Employee, but in no event later
than ten (10) business days after Employee's receipt of the
notice that the Company intends to terminate the Employee for
Cause. Employee shall have the right to appear before such
special meeting of the Board of Directors with legal counsel
of his choosing to refute such allegations and shall have a
reasonable period of time to cure any actions or omissions
which provide the Company with a basis to terminate the
Employee for Cause (provided that such cure period shall not
exceed 30 days). A majority of the members of the Board of
Directors must affirm that Cause exists to terminate the
Employee. No finding by the Board of Directors will prevent
the Employee from contesting such determination through
appropriate legal proceedings provided that the Employee's
sole remedy shall be to sue for damages, not reinstatement,
and damages shall be limited to those that would be paid to
the Employee if he had been terminated without Cause. In the
event the Company terminates the Employee for Cause, the
Company shall only be obligated to continue to pay in the
ordinary and normal course of its business to the Employee his
Salary plus accrued but unused vacation time through the
termination date and the Company shall have no further
obligations to Employee from and after the date of
termination.
2. TERMINATION OF EMPLOYMENT BY EMPLOYEE FOR CHANGE OF CONTROL.
a. TERMINATION RIGHTS. Notwithstanding the provisions of Section
1 of this Agreement, in the event that there shall occur a
Change of Control (as defined below) of the Company and within
two years after such Change of Control the Executive's
employment hereunder is terminated by the Company without
Cause, then:
(1) the Company shall pay to the Employee or provide him
with the Severance Payment provided for in clause (1)
of Section 1.a of this Agreement, except that (i) the
Salary Continuation Payment shall equal twelve
months, and (ii) the amount of the Annual Performance
Bonus referred to in subclause (c) thereof shall be
paid to the Employee in full, as if Employee remained
employed for the entire year and all performance
targets were met,
(2) all stock options pursuant to grants previously made
to the Employee which had not previously lapsed or
been forfeited or terminated will immediately vest
and remain exercisable for a period of one year
following such termination of employment, and
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(3) all long term incentive cash grants provided to the
Employee shall immediately vest as if all targets and
conditions had been met and shall be paid by the
Company to the Employee at such times as the Company
would have been required to make such payments if
such termination of employment had not occurred,
provided, however, that in the case of incentives
partially or completely contingent on the providing
of service for a specific period of time, the total
amount to be paid by the Company shall be equal to
the maximum amount payable if all conditions were
met, multiplied by a fraction, the numerator of which
is the period of service that would have been served
if the Employee's employment had terminated as of the
last day of the fiscal year in which his employment
was terminated, and the denominator of which is the
total period of time specified as a condition to the
incentive.
The consideration payable to the Employee pursuant to this
Section 2.a is collectively referred to herein as the "Change
in Control Severance Payment". Other than the Change in
Control Severance Payment, the Company shall have no further
obligation to the Employee except for the obligations set
forth in this Section of this Agreement after the date of such
termination; PROVIDED, HOWEVER, that the Employee shall only
be entitled to continuation of the Change in Control Severance
Payments as long as he is in compliance with the provisions of
Sections 5 and 6 of this Agreement. To the extent that
payments are owed by the Company to the Employee pursuant to
this Section 2, they shall be made in lieu of payments
pursuant to Section 1, and in no event shall the Company be
required to make payments or provide benefits to the Employee
under both Section 1 and Section 2.
b. CHANGE OF CONTROL OF THE COMPANY DEFINED. For purposes of this
Section 2, the term "Change of Control of the Company" shall
mean any change in control of the Company of a nature which
would be required to be reported (i) in response to Item 6(e)
of Schedule 14A of Regulation 14A, as in effect on the date of
this Agreement, promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), (ii) in response to
Item 1 of the Current Report on Form 8-K, as in effect on the
date of this Agreement, promulgated under the Exchange Act, or
(iii) in any filing by the Company with the Securities and
Exchange Commission; provided, however, that without
limitation, a Change of Control of the Company shall be deemed
to have occurred if:
(1) Any "person" (as such term is defined in Sections
13(d)(3) and Section 14(d)(3) of the Exchange Act),
other than the Company, any majority-owned subsidiary
of the Company, or any compensation plan of the
Company or any majority-owned subsidiary of the
Company, becomes the "beneficial owner" (as such term
is defined in Rule 13d-3 of the Exchange
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Act), directly or indirectly, of securities of the
Company representing thirty percent (30%) or more of
the combined voting power of the Company;
(2) During any period of three consecutive years during
the term of this Agreement, the individuals who at
the beginning of such period constitute the Board of
Directors of the Company cease for any reason to
constitute at least a majority of such Board of
Directors, unless the election of each director who
was not a director at the beginning of such period
has been approved in advance by directors
representing at least two-thirds of the directors
then in office who were directors at the beginning of
such period; or
(3) The shareholders of the Company approve (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
the directors of the reorganized, merged or
consolidated entity; (b) a liquidation or dissolution
of the Company; or (c) the sale of all or
substantially all of the assets of the Company or of
a subsidiary of the Company that accounts for 30% of
the consolidated revenues of the Company, but not
including a reorganization, merger or consolidation
of the Company.
3. TERMINATION FOR CAUSE OR RESIGNATION BY EMPLOYEE. In the event the
Company terminates the Employee for Cause or the Employee resigns or
otherwise terminates his employment with the Company, the Company shall
only be obligated to continue to pay in the ordinary and normal course
of its business to the Employee his Salary plus accrued but unused
vacation time through the termination date and the Company shall have
no further obligations pursuant to any provisions of this Agreement.
4. SUCCESSOR TO COMPANY. The Company shall require any successor, whether
direct or indirect, to all or substantially all of the business,
properties and assets of the Company whether by purchase, merger,
consolidation or otherwise, prior to or simultaneously with such
purchase, merger, consolidation or other acquisition to execute and to
deliver to the Employee a written instrument in form and in substance
reasonably satisfactory to the Employee pursuant to which any such
successor shall agree to assume and to timely perform or to cause to be
timely performed all of the Company's covenants, agreements and
obligations set forth in this Agreement (a "Successor Agreement"). The
failure of the Company to cause any such successor to execute and
deliver a Successor Agreement to the Employee shall constitute a
material breach of the provisions of this Agreement by the Company.
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5. RESTRICTIVE COVENANTS. In consideration of his employment and the other
benefits arising under this Agreement, the Employee agrees that during
the term of this Agreement, and for a period of two years following the
termination of this Agreement, 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 Company or any of its subsidiaries or affiliates
does business, but only with respect to markets where the
Employee's duties within the twelve month period ending on the
date of Employee's termination included direct or indirect
responsibility relating to such market, or (ii) compete with
the Company or any of its subsidiaries or affiliates 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 Company or any
of its subsidiaries or affiliates to patronize any business
directly or indirectly in competition with the Solid Waste
Services Business conducted by the Company or any of its
subsidiaries or affiliates in any market in which the Company
or any of its subsidiaries or affiliates does business; (ii)
canvass, solicit or accept from any customer of the Company or
any of its subsidiaries or affiliates any such competitive
business; or (iii) request or advise any customer or vendor of
the Company or any of its subsidiaries or affiliates to
withdraw, curtail or cancel any such customer's or vendor's
business with the Company or any of its subsidiaries or
affiliates; 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 Company or any of its
subsidiaries or affiliates 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.
6. CONFIDENTIALITY. The Employee agrees that at all times during the term
of this Agreement and after the termination of employment for as long
as such information remains non-public information, 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 Company or any of its subsidiaries or affiliates and their business
and operations, and all files, letters, memoranda, reports, records,
computer disks or other computer storage
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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 Company or any of its
subsidiaries or affiliates 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 Company or any of its
subsidiaries or affiliates, and (iv) observe all security policies
implemented by the Company or any of its subsidiaries or affiliates
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 Company or any of its subsidiaries or
affiliates with prompt notice of such request or order so that the
Company or any of its subsidiaries or affiliates may seek to prevent
disclosure. In addition to the foregoing the Employee shall not at any
time libel, defame, ridicule or otherwise disparage the Company.
7. SPECIFIC PERFORMANCE; INJUNCTION. The parties agree and acknowledge
that the restrictions contained in Sections 5 and 6 are reasonable in
scope and duration and are necessary to protect the Company or any of
its subsidiaries or affiliates. If any provision of Section 5 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 5 or 6 will cause irreparable injury to the Company or any of
its subsidiaries or affiliates and upon breach of any provision of such
Sections, the Company or any of its subsidiaries or affiliates 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 Company or any
of its subsidiaries or affiliates may have (including, without
limitation, the right to seek monetary damages).
8. COBRA. Notwithstanding the Employee's entitlement to the continuation
of health care benefits upon his termination of service pursuant to the
provisions of this Agreement, Employee shall remain eligible for all
health care benefits pursuant to the Consolidated Omnibus
Reconciliation Act of 1985, as amended ("COBRA").
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9. NO GUARANTEE OF EMPLOYMENT. Nothing in this Agreement should be
construed as to guarantee the Employee's employment with the Company or
to limit the Company's ability to terminate the Employee's employment.
10. NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be deemed given
if delivered by hand delivery, 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 General Counsel; and (b) if to the Employee,
at the address listed on the signature page hereto.
11. AMENDMENT; WAIVER. This Agreement may not be modified, amended, or
supplemented, 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.
12. 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 5 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.
13. 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 here from) to the extent necessary to permit the
remaining provisions to be enforced in accordance with the parties
intention. The provisions of Sections 5 and 6 will survive the
termination for any reason of the Employee's relationship with the
Company.
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14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. WITHHOLDING. All payments made to the Employee shall be made net of any
applicable withholding for income taxes, Excise Tax and the Employee's
share of FICA, FUTA or other taxes. The Company shall withhold such
amounts from such payments to the extent required by applicable law and
remit such amounts to the applicable governmental authorities in
accordance with applicable law.
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/ David Barclay
-------------------------------------
Name: David Barclay
-----------------------------------
Title: SR. VP, General Counsel
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EMPLOYEE:
/s/ Michael Cordesman
-----------------------------------------
MICHAEL CORDESMAN
Address for Notices:
6901 Shalimar Court
Colleyville, Texas 76034
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