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EXHIBIT 10.16
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of February ___, 1998, by and
between Waste Connections, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxxxxxxx (the "Employee"), with reference to the following facts:
The Company desires to employ the Employee and the Employee desires
to be employed by the Company as one of the Vice Presidents of the Company's
Madera, California division.
In consideration of the foregoing recitals and the mutual covenants
herein, the parties agree as follows:
1. Employment; Acceptance. The Company hereby employs the Employee and
the Employee hereby accepts employment by the Company on the terms and
conditions hereinafter set forth.
2. Duties and Powers. The Employee is hereby employed as a Vice
President of the Company's Madera, California division and shall devote his full
attention, energies and abilities in that capacity to the proper oversight and
operation of the Company's business, to the exclusion of any other occupation.
The Employee shall also serve as an adviser to Madera Disposal
Systems, Inc. Board of Directors (an "Advisory Director"). As an Advisory
Director, the Employee shall be able to attend the Board's meetings, but shall
have no other rights, preferences or powers of a Board member. The Employee's
position as an Advisory Director shall be renewed at the sole discretion of the
Board on a yearly basis, and such position can last for up to the term of this
Employment Agreement.
3. Term. The employment of the Employee by the Company pursuant to this
Agreement shall commence on the date hereof and shall continue until the third
anniversary hereof or until terminated prior to such anniversary when and as
provided in Section 5. This Agreement shall be renewable for successive one-year
terms at the sole discretion of the Company.
4. Compensation.
4.1 Base Salary. The Company hereby agrees to pay to the Employee
an annual base salary of $45,000 ("Base Salary"). Such Base Salary shall be
payable in accordance with the Company's normal payroll practices, and such Base
Salary is subject to withholding and social security, unemployment and other
taxes. Increases in Base Salary shall be considered by the Compensation
Committee of the Company's Board of Directors on an annual basis.
4.2 Bonus Compensation. Employee shall be eligible for an annual
bonus
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("Bonus Compensation") of up to thirty-five percent (35%) of Employee's Base
Salary payable pursuant to Section 4.1. The actual amount of any such bonus will
be determined by the board in its sole and absolute discretion, and shall be
paid at such time or times as shall be determined by the Board. Bonus
Compensation shall generally be paid on or before March 1, of the fiscal year
following the fiscal year in which such Bonus Compensation was earned.
4.3 Other Benefits. During the term of this Agreement, the
Employee shall be entitled to receive all other benefits of employment generally
available to other management employees of Madera Disposal Systems, Inc., and
those benefits for which management employees are or shall become eligible,
including, without limitation and to the extent made available by Madera
Disposal Systems, Inc., medical, dental, disability and prescription coverage,
life insurance and tax-qualified retirement benefits. Neither the Company nor
Madera Disposal Systems, Inc. shall be obligated to provide or continue any such
benefit. The Employee shall be entitled to four (4) weeks of paid vacation each
year of his employment.
4.4 Reimbursement of Other Expenses. The Company agrees to pay or
reimburse the Employee for all reasonable travel and other expenses incurred by
the Employee in connection with the performance of his duties under this
Agreement on presentation of proper expense statements and receipts. All such
supporting information shall comply with all applicable Company policies
relating to reimbursement for travel and other expenses. It is understood that
the Employee will continue to serve on the Board of Directors of the California
Refuse Removal Council, Northern District, and the State Executive Board as
Treasurer, at his own expense.
5. Termination.
5.1 For Cause. The Company may terminate this Agreement and the
Employee's employment for cause, effective immediately on the day it sends
notice of such termination to the Employee. "Cause" for this purpose shall be
defined as insobriety; conviction of a misdemeanor involving moral turpitude or
a felony; illegal business practices in connection with the Company's business;
misappropriation of the Company's assets; excessive absence of the Employee from
his employment during usual working hours for reasons other than vacation,
disability or sickness; or any material breach by the Employee of any term or
provision of this Agreement. On such termination for cause, the Employee shall
be entitled only to his Base Salary hereunder to the date of such termination,
and shall not be entitled to any other compensation, including, without
limitation, any severance compensation or Bonus Compensation. Any stock options
granted to the Employee by the Company that have not vested shall terminate on
the day that the Company sends the notice of termination of employment to the
Employee.
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5.2 Without Cause. The Company may terminate this Agreement and
the Employee's employment without cause, for any reason or no reason at all,
effective immediately on the day it sends notice of such termination to the
Employee. On such termination, Employee shall be entitled only to the greater of
his compensation hereunder for the remainder of the term of this Agreement or
one year's Base Salary. Any stock options granted to the Employee by the Company
shall vest on the day that the Company sends the notice of termination of
employment to the Employee. The Employee shall not be entitled to any other
compensation, including, without limitation, any severance compensation or Bonus
Compensation.
5.3 By the Employee. The Employee may terminate this Agreement and
his employment, effective not earlier than the fifteenth day after the Company
receives his notice of such termination.
(a) Termination for Good Reason. The Employee may terminate
his employment hereunder for Good Reason (as defined below). On the date that
the Company receives the Employee's notice of termination pursuant to this
Section 5.3(a), the Employee shall be entitled to receive, and the Company
agrees to pay and deliver, the payments and other benefits applicable to
termination Without Cause set forth in Section 5.2 hereof. In addition, on
termination of the Employee under this Section 5.3(a), all of the Employee's
unvested incentive stock options, other stock options, warrants and rights
relating to capital stock of the Company shall immediately vest and become
exercisable. For the purposes of this Section 5.3(a), "Good Reason" shall mean:
(i) relocation of Madera Disposal Systems, Inc.'s, principal executive office to
a location more than fifty miles from its present location; or (ii) the failure
of the Company to obtain the assumption of this Agreement by any successor
entity to which it is assigned.
(b) Termination Without Good Reason. If the Employee
terminates his employment hereunder without Good Reason, the Employee shall be
entitled only to his Base Salary hereunder to the date of such termination, and
shall not be entitled to any other compensation, including, without limitation,
any severance compensation or Bonus Compensation. Any stock options granted to
the Employee by the Company shall terminate upon the Company's receipt of notice
of the Employee's intent to terminate this Agreement.
5.4 Disability. If, in the reasonable judgment of the Company, the
Employee becomes unable to perform competently and efficiently his duties
hereunder because of any physical, mental or legal disability (including
sickness or an injunction or similar order or decree of a court of competent
jurisdiction preventing or severely impairing the performance of his duties
hereunder) that lasts for six (6) consecutive months (the "Disability Period"),
he shall be entitled to the greater of his compensation hereunder for the
remainder of the term of this Agreement or one year's Base Salary. Any stock
options granted to the Employee by the Company shall vest on the last day of the
Disability Period. The Employee shall not be entitled
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to any other compensation, including, without limitation, any severance
compensation or Bonus Compensation.
5.5 Death. In the event of the death of the Employee, the
Employee's heirs, legatees, devisees, executors or legal representatives shall
be entitled to the greater of the Employee's compensation hereunder for the
remainder of the term of this Agreement or one year's Base Salary. Any stock
options granted to the Employee by the Company shall vest on the day of the
Employee's death. The Employee's heirs, legatees, devisees, executors,
administrators and legal representatives shall not be entitled to any other
compensation, including, without limitation, any severance compensation or Bonus
Compensation.
5.6 Merger; Sale of Assets. This Agreement shall not be terminated
by any voluntary or involuntary dissolution, reorganization, merger,
consolidation or transfer of assets of the Company, or by any other act or event
of or suffered by the Company, if a surviving or resulting corporation or other
entity or person continues (or resumes after a period of not more than sixty
days) the business of the Company. In any such event, if the business of the
Company is so continued or so resumed, this Agreement shall be binding on and
shall inure to the benefit of the corporation or other entity or person
surviving or resulting or to which such assets shall have been transferred and
the Employee shall be an employee of that part or division of such corporation
or other entity or person that shall have been the Company immediately prior to
such transaction. If, in any such event, the business of the Company is not so
continued or so resumed, such event shall be deemed to constitute termination
without cause by the Company as provided in Section 5.2.
6. Trade Secrets, Patents, Competition, Etc.
6.1 Trade Secrets. The Employee acknowledges that as an employee
of the Company he has had and will have access to and has and will become
acquainted with various trade secrets and other proprietary and confidential
information of the Company (the "Trade Secrets"), which may consist of, among
other things, designs, equipment, devices, patterns, electronically recordable
data or concepts, computer programs and software, software enhancements,
modifications and improvements, secret inventions, processes, compilations of
information, books, papers, records and specifications, names, buying habits and
practices of customers or potential customers of the Company, marketing methods,
operating practices and related data, names of vendors and suppliers names,
names of acquisition targets, costs of materials, prices the Company obtains or
has obtained or at which it sells or has sold its services, sales costs, lists
or other written records used in the Company's business, compensation paid to
Company employees and consultants and other terms of employment, all of which
are owned by the Company and are regularly used or contemplated to be used in
the business of the Company.
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The Employee represents, warrants and agrees that he will not
at any time, whether during or subsequent to the term of his employment by the
Company, without the specific written consent of the Company in the particular
case, directly or indirectly use, disclose or communicate to any person or
entity any Trade Secrets, for any purpose, except such as have been publicly
disclosed through no act or omission of the Employee. The Employee further
acknowledges and agrees that this Section 6 prohibits and precludes any use of
Trade Secrets by him or by any person obtaining any Trade Secrets directly or
indirectly from him in competition with the Company.
The Employee further agrees that all written materials,
including without limitation files, records, documents, drawings and
specifications, and all equipment and devices and all other items relating to
the business of the Company, whether prepared by or with the assistance of the
Employee or otherwise coming into his possession, control or knowledge, are and
shall remain the exclusive property of the Company and shall not be removed from
the premises of the Company under any circumstances. On termination of his
employment with the Company for any reason, the Employee agrees to deliver
promptly to the Company all of the foregoing which are or have been in his
possession or under his control.
6.2 Inventions, Designs and Patents. The Employee further
represents, warrants and agrees that he will fully inform and disclose to the
Company all inventions, designs, improvements and discoveries ("Inventions") of
which he obtains knowledge or information during his employment by the Company
and which relate to the existing or contemplated business of the Company or to
any experimental or developmental work carried on or contemplated by the
Company, whether or not conceived by the Employee alone or with others and
whether or not conceived during regular working hours. All Inventions are and
shall remain the exclusive property of the Company. The Employee agrees to
assist the Company to obtain any and all patents, trademarks, service marks and
copyrights relating to Inventions and to execute all documents and do all things
necessary to obtain letters patent and trademark, service xxxx and copyright
registrations, to vest the Company with full and exclusive title to each
Invention, and to protect the Inventions against infringement by others, all as
and to the extent the Company may request.
Notwithstanding the foregoing provisions of this Section 6.2,
this Section 6.2 shall not apply to an Invention developed entirely on the
Employee's own time without using the Company's equipment, supplies, facilities,
or trade secret information except for those Inventions that either (a) relate
at the time of conception or reduction to practice of the Invention to the
Company's business or demonstrably anticipated research or development of the
Company, or (b) result from any work performed by the Employee for the Company.
The Employee acknowledges that this paragraph constitutes the notification
contemplated by California Labor Code section 2872.
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6.3 Competition and Solicitation. The Employee acknowledges and
agrees that he will not at any time during his employment by the Company
directly or indirectly own an interest in, join, operate, control or participate
in, or be connected as an officer, employee, agent, independent contractor,
consultant, partner, shareholder or principal with, any corporation,
partnership, proprietorship, association, or other entity or person engaged in
developing, producing, designing, providing, soliciting orders for, selling,
distributing or marketing products or services that directly or indirectly
compete with the Company's products, services or business.
The Employee further agrees that he will not at any time
during his employment by the Company and for a period of five years following
termination (voluntary or involuntary, whether or not for cause, or otherwise)
of this Agreement or his employment with the Company, directly or indirectly,
and whether or not for compensation, interfere with the business of the Company
in any manner, including, without limitation, (a) by diverting or attempting to
divert from the Company any business in which the Company is engaged or
contemplates engaging, (b) assisting in bidding or negotiating any franchise or
agreement with governmental entities to provide solid waste, collection,
landfill or recycling services in California, or (c) by inducing any employee of
the Company to leave the Company's employ or any consultant or other independent
contractor for the Company to change or terminate any relationship between that
person and the Company. Despite the provisions of this Section 6.3, the Company
agrees that the Employee may continue to operate Xxxxxxxxxx Enterprises as it is
operated on the date hereof, but the Employee cannot expand the operation of
Xxxxxxxxxx Enterprises.
6.4 No Derogation. The Employee will not in any way or to any
person or entity or governmental or regulatory body or agency, denigrate or
derogate the Company or any of its affiliates or any of its subsidiaries, or any
officer, director or employee, or any product or service or procedure of any
such company whether or not such denigrating or derogatory statements shall be
true and are based on acts or omissions which are learned by the Employee from
and after the date hereof or on acts or omissions which occur from and after the
date hereof, or otherwise. A statement shall be deemed denigrating or derogatory
to any person or entity if it may reasonably adversely affect the regard or
esteem in which such person or entity is held by investors, lenders, or
licensing, rating, or regulatory entities. Without limiting the generality of
the foregoing, the Employee will not directly or indirectly in any way in
respect of any such company or any such directors or officers, communicate with,
or take any action which is adverse to the position of any such company with any
person, entity or governmental or regulatory body or agency who or which has
dealings or prospective dealings with any such company or jurisdiction or
prospective jurisdiction over any such company. This section does not apply to
the extent that testimony is required by legal process, provided that the
Company has received not less than five days' prior written notice of such
proposed testimony.
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6.5 Injunctive Relief. The Employee acknowledges and agrees that
his failure to perform any of his covenants in this Section 6 would cause
irreparable injury to the Company and cause damages to the Company which would
be difficult or impossible to ascertain or quantify. Accordingly, without
limiting any remedies that may be available with respect to any breach of this
Agreement, the Employee consents to the entry of an injunction to restrain any
breach of this Section 6.
6.6 Infringement. The Employee represents and warrants that he
does not possess and will not use, in connection with his employment by the
Company, any trade secrets or other confidential or proprietary information or
intellectual property in which any other person has any right, title or interest
and that his employment by the Company as contemplated hereby will not infringe
or violate the rights of any other corporation, partnership, firm,
proprietorship, association or other person.
6.7 Survival. The representations, warranties and agreements in
this Section 6 shall survive any cancellation, termination, rescission or
expiration of this Agreement and any termination of the Employee's employment
with the Company.
7. Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision hereof. The Employee agrees that the provisions of this Agreement are
reasonable and valid in geographic and temporal scope and in all other respects.
If any court determines that any provision of this Agreement, or any part
thereof, is invalid or unenforceable, the remainder of this Agreement shall not
thereby be affected and shall be given full effect, without regard to the
invalid portions. If any court determines that any provision of this Agreement,
or any part thereof, is unenforceable because of duration or geographic scope,
such court shall reduce the duration or scope of such provision to the extent
necessary to render it enforceable and, in its reduced form, such provision
shall then be enforced.
8. Notices. Except as otherwise specifically provided herein, any
notice, consent, demand or other communication to be given under or in
connection with this Agreement shall be in writing and shall be deemed duly
given when delivered personally, when transmitted by facsimile transmission, one
day after being deposited with Federal Express or other nationally recognized
overnight delivery service or three days after being mailed by first class mail,
charges or postage prepaid, properly addressed, if to the Company, at its
principal office, and, if to the Employee, at his address set forth following
his signature below. Either party may change such address from time to time by
notice to the other.
9. Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of California.
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10. Assignment; Binding Agreement. The Company may assign this Agreement
to any parent, subsidiary, affiliate or successor of the Company. This Agreement
is not assignable by the Employee and is binding on him and his executors and
other legal representatives. This Agreement shall bind the Company and its
successors and assigns and inure to the benefit of the Employee and his heirs,
executors, administrators, personal representatives, legatees or devisees. The
Company shall assign this Agreement to any entity that acquires its assets or
business.
11. Specific Enforcement. The Employee is obligated under this Agreement
to render services of a special, unique, unusual, extraordinary and intellectual
character, thereby giving this Agreement peculiar value so that the loss thereof
cannot be reasonably or adequately compensated in damages in an action at law.
Accordingly, in addition to other remedies provided by law, the Company shall
have the right during the term of this Agreement to compel specific performance
by the Employee.
12. Entire Agreement. This Agreement contains the entire agreement of
the parties and supersedes all prior or contemporaneous negotiations,
correspondence, understandings and agreements between the parties, regarding the
subject matter of this Agreement. This Agreement may not be amended or modified
except in writing signed by both parties and supported by new consideration.
IN WITNESS WHEREOF, this Agreement has been duly executed by or on
behalf of the parties hereto as of the date first above written.
WASTE CONNECTIONS, INC.
By: _____________________________________
Xxxxxx X. Xxxxxxxxxxxx
President and Chief Executive Officer
___________________________________
Xxxxxxx X Xxxxxxxxxx
Address:
___________________________________
___________________________________
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