EXHIBIT 4.27
THIS EMPLOYMENT AGREEMENT made as of this 1st day of October, 2003.
B E T W E E N:
WASTE SERVICES, INC. ("THE COMPANY" OR "WSI"), a corporation
incorporated pursuant to the laws of the State of Delaware and
a wholly-owned subsidiary of CAPITAL ENVIRONMENTAL RESOURCE
INC. ("CAPITAL") , an Ontario corporation having its head
office at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX X0X
0X0
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XXXXX XXXXXX, an individual having an address at, 0000 XX 00xx
Xxxxxx, Xx. Xxxxxxxxxx, XX 00000 (herein either called
"XXXXXX" or the "EMPLOYEE")
WHEREAS, the Company desires to employ Xxxxxx and Xxxxxx desires to
enter into the Company's employ upon the terms and subject to the conditions set
forth in this Agreement;
AND WHEREAS, the Company and Capital carry on their business in Canada
and the United States through a variety of subsidiaries (the "Affiliated
Corporations");
AND WHEREAS, Capital intends to effect a reorganization transaction
(the "US Reorganization Transaction") pursuant to which Capital will become an
indirect subsidiary of the Company;
NOW THEREFORE IN CONSIDERATION of the Employee's employment by WSI,
the mutual provisions contained herein, the compensation to be paid to the
Employee either in the form of salary, other compensation or increases therein
and for good and valuable consideration more particularly set out herein, the
parties agree with each other as follows:
1. EMPLOYMENT
WSI hereby employs the Employee and the Employee hereby accepts
employment upon the terms and conditions of this Agreement effective
October 1, 2003; PROVIDED HOWEVER that as a condition to effectiveness
of this Agreement, the Company and Employee shall have entered into an
Indemnification Agreement substantially in the form of Exhibit A
attached hereto.
2. TERM OF EMPLOYMENT
Unless sooner terminated pursuant to Section 5 of this Agreement, the
period of Employee's employment under this Agreement (the "Term") shall
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be a period of two (2) years beginning on the date hereof; provided
that, beginning on the first anniversary hereof, the Term shall be for
a continuous period of one (1) year, such that on any given date
thereafter, the Term shall always be one (1) year from the date in
question.
3. DUTIES AND RESPONSIBILITIES
(a) The Employee shall have the title of Vice President, Chief
Accounting Officer and Corporate Controller and shall report
to the Executive Vice President, Chief Financial Officer of
Capital and WSI, or his designee, and shall perform such
duties, assume such responsibilities and devote such time,
attention and energy to the business of Capital, WSI and the
Affiliated Corporations as the Company shall reasonably
require; PROVIDED HOWEVER that the Employee shall have such
responsibility and authority as is normally conferred upon
such officer.
(b) The Employee shall not, during the Term, be engaged in any
other activities if such activities interfere materially with
the Employee's duties and responsibilities for WSI, Capital
and the Affiliated Corporations. Employee agrees to act at all
times in the best interests of the Company and Capital and to
take no action or make any statement, oral or written, which
could reasonably be expected by Employee to injure the Company
or Capital's business, financial condition, results of
operations, prospects, interests or reputation.
(c) Employee shall (i) comply with all applicable laws, rules and
regulations, and all requirements of all applicable
regulatory, self-regulatory, and administrative bodies; (ii)
comply with the Company and/or Capital's rules, procedures,
policies, requirements, and directions, including without
limitation all applicable codes of corporate conduct or ethics
and all policies regarding trading in the Company or Capital's
common stock (provided that in the event of any conflict
between the policies, etc. of the Company and Capital, the
policies, etc. of Capital shall govern until the US
Reorganization Transaction and thereafter the policies of the
Company shall govern); and (iii) not engage in any other
business or employment without the written consent of the
Company except as otherwise specifically provided herein.
4. COMPENSATION
For all services rendered by the Employee under this Agreement, WSI
agrees to compensate the Employee during his employment, as follows:
(a) BASE SALARY. Employee's base salary shall be US $195,000.00
per annum or such higher rate as may be determined from time
to time by the Executive Vice-President, Chief Financial
Officer, payable on a periodic basis consistent with WSI's
payroll procedures (such amount, as increased from time to
time hereunder, the "Base Salary"). Such Base Salary shall be
paid on the Company's regular pay days in accordance with the
Company's standard payroll practice, subject only to such
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payroll and withholding deductions as may be required by law
and other deductions applied generally to employees of the
Company for insurance and other employee benefit plans. For
all purposes under this Agreement, Employee's Base Salary
shall include any amount which is deferred under any
nonqualified plan or arrangement of the Company.
(b) OTHER COMPENSATION. The Employee shall be entitled and/or
eligible to receive the following additional compensation:
(i) ONE-TIME PAYMENT. The Company shall pay the Employee
a one-time signing bonus of US$30,000.00, less all
applicable withholding taxes, within 30 days of
October 1, 2003.
(ii) ANNUAL CASH PERFORMANCE BONUS. In addition to Base
Salary, Employee shall be eligible for an annual cash
bonus for each fiscal year of the Company during the
Term. Employee's target annual cash bonus will be
equal to 60% of his Base Salary in effect at the
beginning of the relevant fiscal year (the "Annual
Bonus"). The amount of the Annual Bonus shall be
determined by the Executive Vice-President, Chief
Financial Officer, based upon satisfaction of annual
performance objectives as fixed from time to time by
the Executive Vice-President, Chief Financial
Employee's Annual Bonus shall include any amount
which is deferred under any nonqualified plan or
arrangement of the Company.
(iii) BENEFIT PLANS. Employee and his dependants shall be
eligible to participate in and receive benefits under
standard group insurance benefits made available to
other similarly situated employees of the Company,
and such other benefits as may become available from
time to time. Such benefits will include dental,
medical and vision benefit plans and may include,
without limitation, life insurance plans, short-term
and long-term disability plans, accidental death
insurance plans, travel accident insurance plans,
savings and retirement plans and pension plans (all
such benefits, the "Benefit Plans"). Employee agrees
to submit to a physical examination from time to time
as requested by the Company to facilitate Employee's
participation in one or more Benefit Plans. The
Company may terminate or reduce benefits under any
Benefit Plans to the extent such reductions apply
uniformly to all full-time, similarly situated
employees, and Employee's benefits shall be reduced
or terminated accordingly. The Company's obligations
under this section 3 (b) (iii) are expressly
conditioned on Employee and his family dependents
taking all reasonable actions (including but not
limited to enrolling in all health and welfare
benefit programs, plans and arrangements which are
from time to time available to similarly situated
Officer. For all purposes under this Agreement,
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employees of the Company as and when Employee and his
family dependents become eligible to participate in
such programs, plans and arrangements) and providing
all information as the Company may reasonably request
and is necessary for the Company to fulfill such
obligations.
(iv) CAR. WSI shall provide the Employee with a leased
vehicle (or equivalent car allowance) commensurate
with his position.
(v) VACATION. In addition to usual statutory holidays
recognized by the Company, Employee shall be entitled
to four (4) weeks of paid vacation in each fiscal
year, to be taken at such times as mutually agreed
between the Employee and the person to whom Employee
reports. Vacation may only be taken within the year
of entitlement and may not be accumulated from year
to year unless otherwise mutually agreed.
(c) EXPENSES. Employee shall be reimbursed for all expenses
reasonably and actually incurred in the performance of his
duties, subject to submission of appropriate documentation in
accordance with the Company's expense reimbursement policy in
effect from time to time.
(d) MOVING COSTS. The Company shall reimburse Employee for actual
and reasonable out-of-pocket costs incurred in Employee's move
of his household goods from his current residence to the
Scottsdale, Arizona area. The Company shall also pay Employee
an additional payment (the "Gross-Up Payment") in an amount
which, when combined with the reimbursement payments retained
by Employee after giving effect to the application of federal
and state income taxes on the reimbursement amount, will
result in receipt by Employee of a Gross-Up Payment equal to
the amount of federal and state income taxes imposed on the
reimbursements. If within one (1) year after the date hereof
Employee's employment is terminated by the Company without
cause, the Company shall also reimburse Employee for actual
and reasonable out-of-pocket costs incurred in Employee's move
of his household goods from the Scottsdale, Arizona area back
to the area of his current residence, and shall also make a
Gross-Up Payment with respect to any such reimbursement.
5. TERMINATION OF EMPLOYMENT
Employee's employment under this Agreement may be terminated under any
of the circumstances set forth in this Section 5. Upon termination,
Employee (or his beneficiaries or estate, as the case may be) shall be
entitled to receive the compensation and benefits described under
Section 6 below.
(a) DEATH. Employee's employment hereunder shall terminate
automatically upon Employee's death.
(b) TOTAL DISABILITY. The Company may terminate Employee's
employment hereunder, by written notice to Employee delivered
in accordance with Section 15 hereof, upon a determination
pursuant to this section 5 (b) that the Employee is "Totally
Disabled". For purposes of this Agreement, Employee shall be
"Totally Disabled" if Employee is physically or mentally
incapacitated so as to render Employee incapable of performing
his usual and customary duties under this Agreement for a
continuous period of one hundred and eighty (180) days or an
aggregate total of one hundred and eighty days (180) days in
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any calendar year. Employee's receipt of disability benefits
under the Company's long-term disability plan or receipt of
other disability benefits shall be deemed conclusive evidence
of Totally Disabled for the purposes of this Agreement;
PROVIDED HOWEVER, in the absence of Employee's receipt of such
long-term disability benefits or other disability benefits,
the Company may, in its reasonable discretion (but based upon
appropriate medical evidence) determine that Employee is
Totally Disabled.
(c) TERMINATION BY THE COMPANY FOR CAUSE. Employee's employment
hereunder may be terminated by the Company for "Cause". For
purposes of this Agreement, the term "Cause" shall mean any of
the following: (A) conviction of a crime (including conviction
on a nolo contendre plea) involving the commission by Employee
of a felony or of a misdemeanor involving, in the good faith
judgment of the Board of Directors, fraud, dishonesty or moral
turpitude; (B) Employee's deliberate and continual refusal to
perform the duties and responsibilities assigned to Employee
under this Agreement (other than as a result of vacation
permitted under this Agreement, sickness, illness or injury);
(C) fraud or embezzlement by Employee, determined in
accordance with the Company's normal, internal investigative
procedures consistently applied; (D) gross misconduct or gross
negligence by Employee in connection with the business of the
Company or an Affiliated Corporation (as defined herein)
unless Employee reasonably believed, in good faith, that his
acts or omissions were in or not opposed to the best interests
of the Company (without intent of Employee to gain therefrom,
directly or indirectly, a profit to which he was not legally
entitled); or (E) any material breach by Employee of any of
the provisions of Section 8 of this Agreement or of any
provisions of the Confidentiality and Proprietary Information
Agreement (as defined herein). The Company shall provide the
Employee with written notice setting forth in reasonable
detail the facts and circumstances deemed to provide the basis
for termination of the Employee's employment for Cause at the
time of such termination.
(d) TERMINATION BY THE COMPANY WITHOUT CAUSE. At any time during
the Term, the Company may terminate Employee's employment
hereunder without Cause by written notice to Employee
delivered in accordance with Section 15 hereof. For purposes
of this Agreement, Employee's employment shall be deemed to
have been terminated "Without Cause" if Employee is terminated
by the Company for any reason other than Death pursuant to
Section 5 (a), Total Disability pursuant to Section 5 (b) or
Cause pursuant to Section 5 (c).
(e) VOLUNTARY TERMINATION BY EMPLOYEE. Employee may terminate his
employment hereunder at any time during the Term after
providing not less than thirty (30) days' written notice to
the Company delivered in accordance with Section 15 hereof.
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(f) TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee may
terminate his employment hereunder for Good Reason after
delivery by Employee of written notice to the Company in
accordance with Section 15 hereof within sixty (60) days after
the occurrence of a Good Reason Event (as hereinafter
defined). For purposes of this Agreement, "Good Reason" means
the occurrence of any of the following events (each a "Good
Reason Event") without written consent during the Term:
(i) A change in Employee's responsibilities or titles or
any other action by the Company which represents a
material diminution of Employee's position, status or
authority, except in connection with or as a result
of the termination of Employee's employment pursuant
to any provision of this Section 5 (a "Dimunition");
PROVIDED, HOWEVER that such Dimunition shall not
constitute "Good Reason" or a "Good Reason Event" if
the Company remedies such Dimunition within ten (10)
business days after delivery by Employee of written
notice to the Company in accordance with Section 15
hereof specifying in reasonable detail the facts and
circumstances believed by Employee to constitute such
Dimunition.
(ii) A reduction by the Company in Employee's Base Salary.
(iii) A material breach by the Company of Section 4(b)(ii)
or (iii) hereof; PROVIDED, however that such a breach
shall not constitute "Good Reason" or a "Good Reason
Event" if the Company remedies such breach within ten
(10) business days after delivery by Employee of
written notice to the Company in accordance with
Section 15 hereof specifying in reasonable detail the
facts and circumstances believed by Employee to
constitute a material breach of Section 4(b)(ii) or
(iii).
(iv) A change of Employee's principal place of employment
to a location outside the Phoenix/Scottsdale
metropolitan area.
(v) The failure by the Company to pay Employee any
material amount of his Base Salary, or any material
amount of other compensation, that is due and payable
under this Agreement within ten (10) business days
after Employee makes written demand for such amount.
(vi) The failure by the Company to enter into a written
agreement with any entity that purchases all or
substantially all of the assets of the Company or any
entity into which the Company is merged (each a
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"Successor") pursuant to which such Successor agrees
to assume all of the obligations of the Company under
this Agreement at and effective as of the closing of
such sale of assets or merger.
6. COMPENSATION AND BENEFITS FOLLOWING TERMINATION OF EMPLOYMENT.
If Employee's employment is terminated, Employee shall be entitled to
the following compensation and benefits:
(a) COMPENSATION AND BENEFITS PAYABLE FOLLOWING TERMINATION FOR
ANY REASON. The following compensation shall be payable upon
termination of Employee's employment under this Agreement for
any reason:
(i) Employee or his beneficiaries or estate shall be
entitled to receive, within fourteen (14) days after
the effective date of termination, any accrued but
unpaid Base Salary for services rendered by Employee
to the Company prior to the date of termination, any
accrued but unpaid expenses required to be reimbursed
under this Agreement, and cash compensation (at a
rate per day equal to Base Salary divided by the
number of business days in the relevant year) for any
accrued Vacation Time that remained unused by the
Employee at the time of termination; and
(ii) Any earned benefits to which Employee (or his
beneficiaries or estate) may be entitled pursuant to
the Benefit Plans shall be determined and paid in
accordance with the terms of such plans, policies and
arrangements. In the case of compensation previously
deferred by Employee, all amounts previously deferred
and not yet paid by the Company shall be paid to
Employee within fourteen (14) days after the
effective date of termination unless such payment is
inconsistent with the terms of any payment election
made by Employee with respect to such deferred
compensation.
(b) TERMINATION ON DEATH. If Employee's employment is terminated
by reason of Employee's death, pursuant to Section 5(a)
hereof, the Company shall pay the Employee's estate or
beneficiaries the following compensation and benefits in
addition to the compensation and benefits provided pursuant to
Section 6(a) above.
(i) Employee shall be entitled to be paid his Base Salary
at the rate in effect immediately prior to the
effective date of termination on the Company's
regular pay days for a period equal to the remainder
of the Term from the effective date of termination as
if employment had continued until the end of such
period; and
(ii) Employee's dependents shall be entitled to continue
to receive medical, dental and vision insurance
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coverage at least equal in type and amount to that
made available to similarly situated employees of the
Company immediately prior to the effective date of
termination for a period equal to the remainder of
the Term from the effective date of termination, or
until Employee's dependents become eligible for
employer-provided health insurance benefits from any
other person or business entity (whether or not those
health insurance benefits are comparable to the
health insurance benefits provided by the Company)
whichever occurs first. If participation in any such
plan, program or arrangement of the Company is
prohibited, the Company will arrange to provide
benefits substantially similar to those benefits
which Employee would have been entitled to receive
under such plan, program or arrangement for such
period.
(iii) All of the Employees then outstanding options to
purchase common shares of Capital or the Company, as
the case may be, shall be vested and exercisable in
accordance with the terms of the Company or Capital's
Employee Stock Option Plan pursuant to which such
options were granted.
(c) TERMINATION ON TOTAL DISABILITY. If Employee's employment is
terminated by reason of Employee's Total Disability, pursuant
to Section 5(b) hereof, the Company shall pay the Employee the
following compensation and benefits in addition to the
compensation and benefits provided pursuant to Section 6(a)
above.
(i) Subject to Section 6(c)(ii) below, Employee shall be
entitled to be paid his Base Salary at the rate in
effect immediately prior to the effective date of
termination on the Company's regular pay days for a
period equal to the remainder of the Term from the
effective date of termination as if employment had
continued until the end of such period; and
(ii) Whenever compensation is payable to Employee under
Section 6(c)(i) during a period in which he is
partially or totally disabled, and such disability
would (except for the provisions hereof) entitle
Employee to disability income or salary continuation
payments from the Company according to the terms of
any plan or program presently maintained or hereafter
established by the Company, the disability income or
salary continuation paid to Employee pursuant to any
such plan or program shall be considered a portion of
the payments required to be made to Employee pursuant
to this Section 6(c) and shall not be in addition
thereto. If disability income is payable directly to
Employee by an insurance company under the terms of
an insurance policy paid for by the Company, the
amounts paid to Employee by such insurance company
shall be considered a portion of the payment to be
made to Employee pursuant to this Section 6(c) and
shall not be in addition thereto.
(iii) Employee and his dependents shall be entitled to
continue to receive medical, dental and vision
insurance coverage at least equal in type and amount
to that made available to similarly situated
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employees of the Company immediately prior to the
effective date of termination for a period equal to
the remainder of the Term from the effective date of
termination, or until Employee becomes eligible for
employer-provided health insurance benefits from any
other person or business entity (whether or not those
health insurance benefits are comparable to the
health insurance benefits provided by the Company)
whichever occurs first. If participation in any such
plan, program or arrangement of the Company is
prohibited, the Company will arrange to provide
benefits substantially similar to those benefits
which Employee would have been entitled to receive
under such plan, program or arrangement for such
period.
(iv) All of the Employees then outstanding options to
purchase common shares of Capital or the Company, as
the case may be, shall be vested and exercisable in
accordance with the terms of the Company or Capital's
Employee Stock Option Plan pursuant to which such
options were granted.
(d) TERMINATION FOR CAUSE. If Employee's employment is terminated
by the Company for Cause pursuant to Section 5(c) hereof, the
Company shall not be obligated to make any payments to
Employee under this Agreement following the date of
termination, other than the compensation and benefits
described in Section 6(a) above.
(e) VOLUNTARY TERMINATION BY EMPLOYEE. If Employee terminates his
employment pursuant to Section 5(e) hereof, the Company shall
not be obligated to make any payments to Employee under this
Agreement following the date of termination, other than the
compensation and benefits described in Section 6(a) above.
(f) TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE EMPLOYEE
FOR GOOD REASON. If Employee's employment is terminated by the
Company without Cause pursuant to Section 5(c) hereof or by
Employee for Good Reason pursuant to Section 5(f) hereof, the
Company shall pay Employee the following compensation and
benefits in addition to the compensation and benefits provided
pursuant to Section 6(a) above:
(i) Employee shall be entitled to be paid his Base Salary
at the rate in effect immediately prior to the
effective date of termination on the Company's
regular pay days for a period equal to twelve (12)
months. Such payments shall be made from the
effective date of termination as if employment had
continued until the end of such period; and
(ii) Employee and his dependents shall be entitled to
continue to receive medical, dental and vision
insurance coverage at least equal in type and amount
to that made available to similarly situated
employees of the Company immediately prior to the
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effective date of termination for a period equal to
the remainder of the Term from the effective date of
termination, or until Employee becomes eligible for
employer-provided health insurance benefits from any
other person or business entity (whether or not those
health insurance benefits are comparable to the
health insurance benefits provided by the Company)
whichever occurs first. If participation in any such
plan, program or arrangement of the Company is
prohibited, the Company will arrange to provide
benefits substantially similar to those benefits
which Employee would have been entitled to receive
under such plan, program or arrangement for such
period.
(iii) All of the Employees then outstanding options to
purchase common shares of Capital or the Company, as
the case may be, shall be vested and exercisable in
accordance with the terms of the Company or Capital's
Employee Stock Option Plan pursuant to which such
options were granted.
(g) NO OTHER BENEFITS OR COMPENSATION. Except as may be
provided under this Agreement or under the terms of any
Benefit Plans then in effect and applicable to the Employee on
the effective date of termination, Employee shall have no
right to receive any other compensation, or to participate in
any other plan, arrangement or benefit after such termination
and all other obligations of the Company and rights of
Employee under this Agreement shall terminate effective as of
the effective date of termination.
7. RESTRICTED COVENANTS
(a) COMPETITIVE ACTIVITY. Employee covenants and agrees that at
all times during Employee's employment with the Company, and
during the Non-Compete Period (as defined below), Employee
will not, acting alone or in conjunction with others, without
the prior written consent of the Company, directly or
indirectly, engage or participate in, assist, render services
to or for, or have any active interest or involvement in,
whether as an employee, principal, agent, consultant,
creditor, lender, advisor, employer, officer, director,
stockholder (excluding holdings by Employee of up to 3% of the
voting stock of any corporation subject to the periodic
reporting requirements of the Exchange Act), partner,
proprietor or in any other individual or representative
capacity in or with, any person, entity or business which
competes, directly or indirectly, with the Company, Capital or
any Affiliated Corporation in any of the business areas or
territories in which the Company, Capital or any Affiliate
conducts business during the Term or the Non-Compete Period,
as the case may be.
(b) NON-SOLICITATION. Employee covenants and agrees that at all
times during Employee's employment with the Company, and
during the Non-Compete Period, Employee will not, without the
prior written consent of the Company, directly or indirectly
(i) induce, solicit or entice any customer of the Company, any
customer of Capitals or any customer of any Affiliated
Corporation to patronize any person, business or entity which
competes, directly or indirectly, with the Company, Capital or
such Affiliated Corporation in any of the business areas or
territories in which the Company, Capital or such Affiliated
Corporation conducts business during the Term or the
Non-Compete Period, as the case may be; (ii) canvass, solicit
or accept any business from any customer of the Company, any
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customer of Capital or any customer of any Affiliated
Corporation (other than in connection with the performance by
Employee of his duties and responsibilities for the Company in
accordance with this Agreement); (iii) request or advise any
customer of the Company, or any customer of Capital or any
customer of any Affiliated Corporation to withdraw, curtail or
cancel such customer's business with the Company, Capital or
such Affiliated Corporation; (iv) contact, communicate with or
solicit any acquisition prospect of the Company, or any
acquisition prospect of Capital or any acquisition prospect of
any Affiliated Corporation (other than in connection with the
performance by Employee of his duties for the Company in
accordance with this Agreement); (v) disclose to any other
person, entity or business the names or addresses of any
customer or acquisition prospect of the Company, or any
customer or acquisition prospect of Capital, or any customer
or acquisition prospect of any Affiliated Corporation (other
than as required in connection with the performance by
Employee of his duties for the Company in accordance with this
Agreement); (vi) cause, solicit, entice or induce any present
or future employee of the Company, or any present or future
employee of Capital, or any present or future employee of any
Affiliated Corporation to leave the employ of the Company,
Capital or such Affiliated Corporation, or to accept
employment with, or compensation from Employee or any person,
entity or business (other than the Company, Capital or any
Affiliated Corporation) with which Employee is affiliated or
by whom Employee is employed; or (vii) use any customer lists
or customer leads, mail, telephone numbers, printed material
or other information obtained from the Company, Capital or any
Affiliated Corporation or any employee of any of the foregoing
(other than in connection with the performance by Employee of
his duties for the Company in accordance with this Agreement).
(c) NON-DISPARGEMENT.
(i) Employee covenants and agrees that Employee shall not
engage in any pattern of conduct that involves the
making or publishing of written or oral statements or
remarks (including, without limitation, the repetition
or distribution of derogatory rumors, allegations,
negative reports or comments) which are disparaging,
deleterious or damaging to the integrity, reputation or
goodwill of the Company, or Capital or any Affiliated
Corporation or any member of management of the Company,
Capital or any Affiliated Corporation.
(ii) The Company, Capital and the Affiliated Corporations
covenant and agree that they shall not engage in any
pattern of conduct that involves the making or
publishing of written or oral statements or remarks
(including, without limitation, the repetition or
distribution of derogatory rumors, allegations,
negative reports or comments) which are disparaging,
deleterious or damaging to the integrity or reputation
of Employee.
(d) PROTECTED INFORMATION. Employee recognizes and acknowledges
that Employee has had and will continue to have access to
various confidential and proprietary information concerning
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the Company, Capital and the Affiliated Corporations which is
of a special and unique value. As a condition to commencement
of Employee's employment hereunder, Employee shall execute a
Confidentiality and Proprietary Rights Agreement in
substantially the form of Exhibit B attached hereto (the
"Confidentiality and Proprietary Rights Agreement"). Any
breach by Employee of the Confidentiality and Proprietary
Rights Agreement shall be considered a breach of this
Agreement.
(e) NON-COMPETE PERIOD. For purposes of this Agreement, the term
"Non-Compete Period" shall have the following meanings:
(i) In the event (A) Employee's employment hereunder is
terminated by the Company without Cause pursuant to
Section 5(d), the Non-Compete Period shall mean the
period beginning on the effective date of termination
and ending on the last date on which Employee
receives cash compensation pursuant to Section 6(f)
above.
(ii) In the event Employee's employment hereunder is
terminated by the Company with Cause pursuant to
Section 5(c), or by Employee voluntarily pursuant to
Section 5(e), the Non-Compete Period shall mean the
period beginning on the effective date of termination
and ending on the first anniversary of the effective
date of termination.
(iii) In the event Employee's employment hereunder is
terminated by the Company upon Death of Employee
pursuant to Section 5(a) or Total Disability of
Employee pursuant to Section 5(b), there shall be no
Non-Compete Period.
8. ENFORCEMENT OF COVENANTS.
(a) TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION.
Notwithstanding anything in this Agreement to the contrary, in
the event that the Company determines in its good faith
judgment that Employee has violated Sections 7(a) or 7(b)
hereof, the Company shall have the right to suspend or
terminate any or all remaining payments or benefits payable
pursuant to Section 6 of this Agreement. Such suspension or
termination of benefits shall be in addition to and shall not
limit any and all other rights and remedies that the Company
may have against Employee.
(b) RIGHT TO INJUNCTION. Employee acknowledges that a breach of
the covenants set forth in Section 7 hereof will cause
irreparable damage to the Company with respect to which the
Company's remedy at law for damages will be inadequate.
Therefore, in the event of a breach of the covenants set forth
in Section 7 by Employee or if the Company has reasonable
grounds to believe that a breach by Employee of the covenants
set forth in Section 7 is imminent, Employee and the Company
agree that the Company shall be entitled to the following
particular forms of relief, in addition to remedies otherwise
available to it at law or in equity; (i) injunctions, both
preliminary and permanent, enjoining or restraining such
breach or anticipatory breach and
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Employee hereby consents to the issuance thereof forthwith and
without bond by any court of competent jurisdiction; and (ii)
recovery of all reasonable sums expended and costs, including
reasonable attorney's fees, incurred by the Company to enforce
the covenants set forth in Section 7. If participation in any
such plan, program or arrangement of the Company is
prohibited, the Company will arrange to provide benefits
substantially similar to those benefits which Employee would
have been entitled to receive under such plan, program or
arrangement for such period.
(c) SEPARABILITY OF COVENANTS. The covenants contained in Section
7 hereof constitute a series of separate covenants, one for
each applicable State in the United States and the District of
Columbia, and one for each province and Territory in Canada.
If in any judicial proceeding, a court shall hold that any of
the covenants set forth in Section 7 exceed the time,
geographic, or occupational limitations permitted by
applicable laws, Employee and the Company agree that such
provisions shall and are hereby reformed to the maximum time,
geographic, or occupational limitations permitted by such
laws. Further, in the event a court shall hold unenforceable
any of the separate covenants deemed included herein, then
such unenforceable covenant or covenants shall be deemed
eliminated from the provisions of this Agreement for the
purpose of such proceeding to the extent necessary to permit
the remaining separate covenants to be enforced in such
proceeding. Employee and the Company further agree that the
covenants in Section 7 shall each be construed as a separate
agreement independent of any other provisions of this
Agreement, and the existence of any claim or cause of action
by Employee against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of any of the covenants of Section
7. If participation in any such plan, program or arrangement
of the Company is prohibited, the Company will arrange to
provide benefits substantially similar to those benefits which
Employee would have been entitled to receive under such plan,
program or arrangement for such period.
9. ATTORNEY'S FEES.
If any legal action is filed by either party to enforce or interpret
any of the provisions of this Agreement, the losing party shall pay to
the prevailing party, in addition to any other amounts awarded in the
action, all reasonable attorney's fees and other fees and costs
incurred by the prevailing party in connection with such legal action,
the amount of which shall be fixed by the court hearing such action and
made a part of any judgment rendered.
10. WITHHOLDING OF TAXES.
The Company may withhold all applicable taxes from any compensation and
benefits payable under this Agreement.
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11. ENTIRE AGREEMENT
The Employee acknowledges receipt of a copy of this Agreement (together
with any attachments hereto), which has been executed in duplicate and
agrees that it is the entire Agreement with WSI and supersedes any and
all previous oral or written agreements or representations respecting
or relating in any way to the Employee's employment including but not
limited to its terms and conditions. It is further agreed that this
Agreement can only be amended by an agreement in writing signed by both
the Employee and an officer of WSI.
12. GOVERNING LAW: JURISDICTION
This Agreement shall be governed by and construed in accordance with
the internal substantive laws of the State of Delaware, without giving
effect to the conflict of law principles thereof. The parties agree
that all disputes, legal actions, suits and proceedings arising out of
or relating to this Agreement or Employee's employment with the Company
must be brought exclusively in a federal district court or state court
located in Maricopa County, Arizona. Each party hereby irrevocably
consents and submits to the exclusive jurisdiction of such courts. No.
legal action, suit or proceeding with respect to this Agreement or
Employee's employment with the Company may be brought in any other
forum. Each party hereby irrevocably waives all claims of immunity from
jurisdiction and any right to object on the basis that any dispute,
action, suite or proceeding brought in any such court has been brought
in an improper or inconvenient forum or venue.
13. ASSIGNMENT
The Employee acknowledges that WSI may assign this Agreement to Capital
or any of the Affiliated Corporations, to any corporation with which
they are merged or amalgamated, or to any third party acquiring all or
part of any of the businesses of WSI or Capital provided that the
Company shall require any Successor (whether by purchase of all or
substantially all of the assets of the Company or by merger of the
Company into another entity) to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company
would have been required to perform if no such succession had taken
place. Upon any such assignment, all references herein to the Company
shall be deemed to refer to such assignee.
14. OPPORTUNITY TO SEEK INDEPENDENT ADVICE
The Employee recognizes that this Agreement is an important document
that affects his legal rights. For this reason, Employee may wish to
seek independent legal advice before accepting the terms stated herein.
The Employee acknowledges that he has had an opportunity to seek such
independent legal advice. The Employee acknowledges that he has read
and understands the provisions contained herein and acknowledges
receipt of a copy of this Agreement.
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15. NOTICES.
Any notice, consent, request or other communication made or given in
connection with this Agreement shall be in writing and shall be deemed
to have been duly given if delivered personally, mailed by registered
or certified mail (return receipt requested), or by confirmed facsimile
to those listed below at their following respective addresses or at
such other address as each may specify by notice to the others:
To the Company or Capital:
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: General Counsel
with a copy to:
To Employee: At the address for Employee set forth on
page 1 above.
16. MISCELLANEOUS.
(a) WAIVER. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be
considered a waiver thereof or deprive that party of the right
thereafter to insist upon strict adherence to that term or any
other term of this Agreement. The waiver by any party hereto
of a breach of any provision of this Agreement shall neither
operate nor be construed as a general waiver or as a specific
waiver of any subsequent breach by any party, unless otherwise
expressly provided in such waiver.
(b) SEPARABILITY. Subject to Section 8 hereof, if any term or
provision of this Agreement or application thereof to anyone
or under any circumstances shall be determined to be invalid,
illegal or unenforceable by any court of competent
jurisdiction and cannot be modified to be enforceable, such
term or provision shall immediately become null and void,
leaving the remainder of this Agreement in full force and
effect.
(c) HEADINGS. Section headings are used herein for convenience of
reference only and shall not affect the meaning of any
provision of this Agreement.
(d) RULES OF CONSTRUCTION. Whenever the context so requires, the
use of the singular shall be deemed to include the plural and
vice versa.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be
an original, and such counterparts will together constitute
but one Agreement.
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(f) COOPERATION. Following termination of employment for any
reason, Employee agrees that he will cooperate fully with the
Company and its counsel with respect to any matter (including,
without limitation, litigation or governmental proceedings)
with which Employee was involved during his Term of employment
with the Company. Employee will be available to perform such
services on a reasonable basis to the extent requested by the
Company. The Company agrees to cooperate with Employee in
scheduling such services to minimize disruption of any new
employment relationship which Employee may have commenced.
Subject to the foregoing sentence, Employee shall render such
cooperation in a timely manner or reasonable notice from the
Company, and agrees to travel as reasonably requested by the
Company in connection with performing such services. The
Company will reimburse Employee reasonable out-of-pocket
expenses incurred in connection with providing such services
in accordance with the Company's policies as in effect from
time to time.
(g) RELEASE. Notwithstanding anything herein to the contrary, the
Company shall not be required to make any of the payments, or
provide any of the benefits, to the Employee pursuant to
Section 6 hereof unless and until Employee executes and
delivers a release of all claims arising out of Employee's
employment or termination through the date of the release, but
excluding claims for indemnification from the Company under
the Indemnification Agreement attached hereto as Exhibit A,
which release shall be in a form satisfactory to the Company
in its sole discretion.
(h) SURVIVAL. Notwithstanding anything in this Agreement to the
contrary, the provisions of Sections 7, 8, 9, 10, 12, 15 and
16 shall survive any termination of Employee's employment in
accordance with their respective terms.
17. GUARANTEE.
Capital hereby guarantees the performance by the Company of the
Company's obligations under this Agreement; PROVIDED, HOWEVER, that
this guarantee shall terminate and be of no further force or effect
upon consummation of the U.S. Reorganization Transaction.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date set
forth above.
WASTE SERVICES, INC.
/s/ Xxxxxx X. Xxxxx
-------------------------------------------------
XXXXXX X. XXXXX
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER
CAPITAL ENVIRONMENTAL RESOURCE INC.
/s/ Xxxxxx X. Xxxxx
-------------------------------------------------
XXXXXX X. XXXXX
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER
/s/ Xxxxx Xxxxxx
-------------------------------------------------
XXXXX XXXXXX
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