exv10w4






Exhibit
10.4


NON-SOLICITATION, CONFIDENTIALITY

AND ARBITRATION AGREEMENT




     Republic Services, Inc. (the “Company”) and Michael Rissman (“Executive”) enter into this
Non-Solicitation, Confidentiality and Arbitration Agreement (“Agreement”), effective February 9,
2010 (the “Effective Date”). The Company and Executive will be referred to as the “Parties” in
this Agreement. The Parties agree as follows:



     1. Certain Definitions and Understandings. The Parties expect that some or all of the
obligations the Company will assume to Executive under this Agreement will be fulfilled through its
subsidiary, related, or successor companies (“Affiliates”). Accordingly, Executive acknowledges
that the discharge of any obligation of the Company under this Agreement by one or more of its
Affiliates discharges the Company’s obligation in that regard. Moreover, the obligations Executive
will assume under this Agreement will be owed to the Company and its Affiliates (collectively
referred to as the “Company” for the remainder of this Agreement).



     2. General Duties. Executive acknowledges that he will be entrusted with significant
responsibility for managing aspects of the Company’s business. Executive also acknowledges that,
due to the confidential nature of his job responsibilities, he will be entrusted with significant
responsibility for managing, using and otherwise handling Confidential Information (as defined
below) belonging to the Company. Accordingly, Executive acknowledges that he owes a fiduciary duty
of loyalty, fidelity and allegiance to act at all times in the best interests of the Company and to
refrain from doing or saying anything to a third party or subordinate that injures the Company.



     3. Consideration Executive Will Receive Under This Agreement. The Parties recognize that in
order for Executive to perform his duties, Executive needs to manage, use or otherwise handle
Confidential Information (as defined below) belonging to the Company. Thus, the Company agrees to
provide Executive with, and access to, Confidential Information necessary to perform his duties.
Executive agrees that, in exchange for the Company providing him with Confidential Information, his
eligibility to participate in the Company’s Executive Separation Policy or any successor or similar
policy maintained by the Company for the benefit of similarly situated employees, and the Company’s
agreement to employ Executive on an at-will basis, Executive will make the promises set forth in
the following sections of this Agreement.



     4. Executive’s Confidentiality Obligations.



          4.1 For purposes of this Agreement, “Confidential Information” is not limited to information
that would qualify as a Trade Secret and includes, but is not limited to: customer lists and
agreements; customer service information; names of customer contacts and the identities of their
decision-makers; routes and/or territories; information provided to the Company by any actual or
potential customer, government agency or other third party; the Company’s internal personnel and
financial information; information about vendors that is not generally known to the public;
purchasing and internal cost information; information about the profitability of particular
operations; internal service and operational manuals and procedures; the manner and methods of
conducting the Company’s business; marketing plans, development plans, price data, cost data, price
and fee amounts, pricing and billing policies, quoting procedures, marketing techniques, forecasts
and forecast assumptions and volumes; future plans and potential acquisition, divestiture and other
development strategies; non-public information about the Company’s landfill development plans,















 







landfill capacity, special projects, and the status of any permitting process; the status of any
governmental investigation, charge, or lawsuit and the position of the Company regarding the value
of such matter; non-public information regarding the Company’s compliance with federal, state or
local laws; information that gives the Company some competitive business advantage, or the
opportunity of obtaining such an advantage, or the disclosure of which could be detrimental to the
interests of the Company; and/or information that is not generally known outside the Company.




          4.2 As a consequence of Executive’s acquisition of Confidential Information, Executive makes
the following covenants and agrees that it is reasonable and necessary to do so:




               (a) At no time while Executive is employed or at any time after his employment ends will
Executive disclose Confidential Information to any person or entity either inside or outside of the
Company other than as necessary in carrying out his duties and responsibilities, nor will Executive
use, copy, or transfer Confidential Information other than as necessary in carrying out his duties
and responsibilities, without first obtaining the Company’s prior written consent.



               (b) During his employment, Executive agrees to promptly disclose to the Company all
information, ideas, concepts, improvements, discoveries and inventions (“Inventions”), which he
conceives, develops, creates, or acquires, either individually or jointly with others, and which
relate to the business, products, or services of the Company, irrespective of whether such
Inventions were conceived, developed, discovered, or acquired by Executive on the job, at home, or
elsewhere. Executive further agrees that all right, title and interest (including copyrights) in
and to any Inventions shall be the property of the Company.



               (c) When Executive’s employment with the Company ends, Executive will immediately deliver to
the Company (or its designee) anything containing Confidential Information including, but not
limited to, reports, studies, materials, records, documents, books, files, videotapes, tape
recordings, computers, computer disks, flash/thumb drives, CDs, DVDs, PDAs, Blackberry devices,
mobile telephones, and/or other devices used to store electronic data, including any copies
thereof, whether made by Executive or which came into his possession prior to or during his
employment concerning the business or affairs of the Company.



     5. Executive’s Non-Solicitation Obligations.



          5.1 Definitions:




               (a) “Principal Competitor” means: (i) Waste Management, Inc., Waste Connections, Inc., or
Veolia Environmental Services North America Corp. (including their predecessors, successors,
parents, subsidiaries, or affiliate operations); or (ii) any public or private business (including
their predecessors, successors, parents, subsidiaries, or affiliate operations) conducting
Non-hazardous Solid Waste Management services in three (3) or more states in which the Company
conducts business.



               (b) “Competitor” means any public or private business that provides Non-hazardous Solid Waste
Management services in any state in which the Company conducts business.



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               (c) “Contact” means any direct or indirect interaction between Executive and any customer,
potential customer, or acquisition prospect, which takes place in an effort to further a business
relationship, whether done directly or through others, whether in person or through telephonic,
electronic, or some other means of communication, and whether done as a principal, director,
officer, agent, employee, contractor, or consultant.



               (d) “Non-hazardous Solid Waste Management” means the collection, hauling, disposal, or
recycling, of non-hazardous refuse or other services provided by the Company.



               (e) “Facility” means the physical location at which the Company owns, leases, or operates: (i)
an office; (ii) a collection operation; or (iii) a post-collection operation (including, but not
limited to, landfills, transfer stations, material recovery facilities, recycling facilities and
compost facilities).



               (f) “Solicit” means soliciting directly or through others, whether done in person or through
telephonic, electronic, or some other means of communication, and whether done as a principal,
director, officer, agent, employee, contractor, or consultant.



          5.2 Prohibition Against Solicitation.




               (a) During his employment, and for a period of twenty-four (24) months after his employment
ends, Executive will limit his activities relating to customers, potential customers, acquisition
prospects, employees, consultants and independent contractors of the Company to the extent, and
subject to the express limitations, provided in this Section 5.2. In the event a court concludes
that twenty-four (24) months is an unreasonable period of time, Executive’s obligations under this
Section 5.2 will end eighteen (18) months after his employment ends.



               (b) Executive will not Contact any customers, potential customers, or acquisition prospects of
the Company that Executive generated, serviced, managed, contacted, or maintained at any time
during the last twenty-four (24) months of his employment on behalf of any Principal Competitor, or
any Competitor, that provides Non-hazardous Solid Waste Management services within forty (40) miles
of any Facility.



               (c) Executive will not, either directly or indirectly, raid, Solicit, attempt to Solicit, or
induce, any employee of, consultant to, or independent contractor of, the Company to terminate his
or her relationship with the Company in order to become an employee of, consultant to, independent
contractor of, or act in any other way on behalf of, any other person or entity.



          5.3 Judicial Modification. If the applicable temporal or geographic limitations agreed to by
the Parties in this Section 5 are found by a court to be overbroad, the Parties expressly authorize
the judge before whom any dispute is brought to impose the broadest temporal and geographic
limitations permissible under the law.




     6. Executive’s Obligation to Avoid Conflicts of Interest. Executive agrees to abide by the
Company’s Conflicts of Interests policy, which includes not becoming involved, directly or
indirectly, in a situation that a reasonable person would recognize to be an actual conflict of
interest
with the Company. If Executive discovers, or is informed by the Company that he has become
involved in a situation that is an actual or likely conflict of interest with the Company,
Executive



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will take immediate actions to eliminate the conflict. The Company’s determination as to
whether or not a conflict of interest exists will be conclusive.




     7. Miscellaneous.



          7.1 Waiver of Breach. The waiver by any Party of a breach of any provision of this Agreement
will neither operate nor be construed as a waiver of any subsequent breach.




          7.2 Assignment. The Company may assign this Agreement upon written notice to Executive.
However, Executive agrees that his rights and obligations under this Agreement are personal to him
and may not be assigned without the express written consent of the Company.




          7.3 Entire Agreement, No Oral Amendments. This Agreement replaces and merges all previous
agreements and discussions relating to any rights and obligations between Executive and the Company
with respect to the subjects addressed in this Agreement. This Agreement may not be modified
except by a written agreement signed by a representative of the Company who is expressly authorized
by the Company’s Board of Directors to execute such a modification or agreement.




          7.4 Enforceability. If a court or arbitrator authorized by this Agreement to resolve disputes
between the Parties determines that any provision of this Agreement is invalid or unenforceable,
the invalid or unenforceable provision will be struck from the Agreement without affecting any
other provision of this Agreement. All remaining provisions of this Agreement that were not struck
will be enforced according to their terms.




          7.5 Governing Law, Jurisdiction, and Venue. This Agreement and the rights and obligations of
the Parties hereunder shall be governed and interpreted in accordance with the laws of the State of
Arizona. Additionally, the Parties agree that the courts situated in Maricopa County, Arizona will
have personal jurisdiction over them to hear all disputes arising under, or related to, this
Agreement and that venue will be proper only in Maricopa County, Arizona.




          7.6 Injunctive Relief. The Company and Executive agree that a breach of any term of this
Agreement by Executive would cause irreparable harm to the Company and that, in the event of such
breach, the Company will have, in addition to any and all remedies of law, the right to an
injunction, specific performance and other equitable relief to prevent or redress the violation of
Executive’s obligations under this Agreement. Additionally, to provide the Company with the
protections it has bargained for in this Agreement, any period of time in which Executive has been
in breach will extend, by that amount of time, the time for which Executive should be precluded
from further breaching the promises made in the Agreement.




          7.7 Attorneys’ Fees. The Company and Executive agree that, if Executive is found to have
breached any term under Sections 2, 4, 5, or 6 of this Agreement, the Company will be entitled to
recover the attorneys’ fees and costs it incurred in enforcing this Agreement.




          7.8 Arbitration. With the sole exception of any breach by Executive of the obligations he
assumed under Sections 2, 4, 5, and 6 of this Agreement (the breach of which permits the Company to
obtain judicial relief due to the exigent circumstances presented by such a breach),




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all other
alleged breaches of this Agreement, or any other dispute between the Parties arising out of or in
connection with Executive’s employment with the Company will be settled by binding arbitration to
the fullest extent permitted by law. This Agreement to arbitrate applies to any claim for relief
of any nature, including but not limited to claims of wrongful discharge under statutory law and
common law; employment discrimination based on federal, state or local statute, ordinance, or
governmental regulations, including discrimination prohibited by: (i) Title VII of the Civil Rights
Act; (ii) the Age Discrimination in Employment Act; (iii) the Americans with Disabilities Act, as
amended; (iv) the Fair Labor Standards Act; claims of retaliatory discharge or other acts of
retaliation; compensation disputes; tortious conduct; allegedly contractual violations; ERISA
violations; and other statutory and common law claims and disputes, regardless of whether the
statute was enacted or whether the common law doctrine was recognized at the time this Agreement
was signed.




          The Parties understand that they are agreeing to substitute one legitimate dispute resolution
forum (arbitration) for another (litigation) because of the mutual advantages this forum offers,
and are waiving their right to have their disputes (except as to breaches of Sections 2, 4, 5, or 6
of this Agreement) resolved in court. This substitution involves no surrender, by either party, of
any substantive statutory or common law benefit, protection, or defense.




          The arbitration proceeding will be conducted in Maricopa County, Arizona in accordance with
the National Rules for the Resolution of Employment Disputes (National Rules) of the American
Arbitration Association (AAA) in effect at the time a demand for arbitration is made. One
arbitrator shall be used and he or she shall be chosen by mutual agreement of the Parties. If the
Parties cannot agree on the selection of an arbitrator after thirty (30) days, an arbitrator shall
be chosen by the AAA pursuant to its National Rules. The arbitrator shall coordinate and, as
appropriate, limit all pre-arbitration discovery. However, the Parties shall have the right to
obtain discovery through appropriate document requests, information requests, and depositions. The
arbitrator shall issue a written decision and award, stating the reasons for the award. The
decision and award shall be exclusive, final, and binding on the Parties, their heirs, executors,
administrators, successors, and assigns.




          The Company will pay all costs and expenses of the arbitration, except for the filing fees and
costs that would have been required had the proceeding been initiated and maintained in the
Maricopa County Superior Court, which fees and costs Executive will pay. Each Party will pay their
own attorneys’ fees and expenses throughout the arbitration proceeding. However, the arbitrator
may award the successful Party its attorneys’ fees and expenses at the conclusion of the
arbitration and any other relief provided by law.




[SIGNATURE PAGE FOLLOWS]






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     The Parties, intending to be bound, execute this Agreement as of the Effective Date.



	 	 	 	 	 
	EMPLOYEE 	COMPANY

 	 
	 
Michael Rissman 	By  	
 	 
	 
	 	 	Its  	 	 
	 	 	 	 
	 




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