EXHIBIT 10.2
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EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT is made and entered into as of April 11, 2003, by and
between Worthing Xxxxxxx (the "Employee") and Waste Connections, Inc., a
Delaware corporation (the "Company").
The Company desires to engage the services and employment of the Employee
for the period provided in this Agreement, and the Employee is willing to accept
employment by the Company for such period, on the terms and conditions set forth
below.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein, the Company and the Employee agree as follows:
1. Employment. The Company agrees to employ the Employee, and the Employee
agrees to accept employment with the Company, for the Term stated in Section 3
hereof and on the other terms and conditions herein.
2. Position and Responsibilities. During the Term, the Employee shall serve
as Vice President - Finance and Investor Relations of the Company, reporting
directly to the Company's Executive Vice President and Chief Financial Officer,
and shall perform such other duties and responsibilities as the Chief Executive
Officer or the Board of Directors (the "Board") of the Company may reasonably
assign to the Employee from time to time. The Employee shall be based at the
Company's corporate headquarters in Folsom, California. The Employee shall
devote such time and attention to his duties as are necessary to the proper
discharge of his responsibilities hereunder. The Employee agrees to perform all
duties consistent with (a) policies established from time to time by the Company
and (b) all applicable legal requirements.
3. Term. The period of the Employee's employment under this Agreement (the
"Term") shall commence on a date mutually agreeable to the Company and Employee
(the "Start Date"), and shall continue through the third anniversary of the
Start Date, unless terminated earlier as provided herein or extended by the
Board. On each anniversary of the Start Date commencing in 2004, this Agreement
shall be extended automatically for an additional year, thus extending the Term
to three years from such date, unless either party shall have given the other
notice of termination hereof as provided herein.
4. Compensation, Benefits and Reimbursement of Expenses.
(a) Compensation. The Company shall compensate the Employee during the
Term of this Agreement as follows:
(1) Base Salary. The Employee shall be paid a base salary ("Base
Salary") of not less than One Hundred Sixty Five Thousand Dollars ($165,000) per
year in installments consistent with the Company's usual practices. The Board
shall review the Employee's Base Salary on the anniversary date of this
agreement each year or more frequently, at the times prescribed in salary
administration practices applied generally to management employees of the
Company.
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(2) Performance Bonus. The Employee shall be entitled to an annual
cash bonus (the "Bonus") based on the Company's attainment of reasonable
financial objectives to be determined annually by the Board. The maximum annual
Bonus will equal fifty percent (50%) of the applicable year's ending Base Salary
and will be payable if the Board determines, in its sole and exclusive
discretion, that that year's financial objectives have been fully met. The Bonus
shall be paid in accordance with the Company's bonus plan, as approved by the
Board; provided that in no case shall any portion of the Bonus with respect to
any such fiscal year be paid more than seventy-five (75) days after the end of
such fiscal year. For fiscal year 2003, the annual bonus will be prorated (based
on the number of days employed versus the number of days in the year) and will
be guaranteed.
(3) Contract Signing Bonus. As an additional inducement for the
Employee to enter into this Agreement, the Company shall pay the Employee an
initial cash bonus of One Hundred Thousand Dollars ($100,000), which amount
shall be paid in one or more installments of at least Twenty Five Thousand
Dollars ($25,000) at any time prior to June 30, 2004, within fifteen days after
request by the Employee.
(4) Initial Option Grant. In connection with Employee entering into
this Agreement, the Company shall grant Employee Options to purchase Seventy
Five Thousand (75,000) shares of the Company's common stock at an exercise price
equal to the fair market value on the date of grant. Such options shall vest one
third each on the first, second and third anniversaries of the date of the
grant. Such Options shall be nonqualified Stock Options issued pursuant to the
Company's 2002 Senior Management Equity Incentive Plan. The terms of the Options
shall be described in more detail in a Stock Option Agreement to be entered into
between Employee and the Company.
(5) Future Grants of Options. The Employee shall be eligible for
annual grants of management stock options ("Options") commensurate with his
position and with option grants to other management employees of the Company,
based on the recommendation of the Company's Chief Executive Officer and as
approved by the Board. The terms of the Options shall be described in more
detail in Stock Option Agreements to be entered into between the Employee and
the Company.
(b) Other Benefits. The Company will provide Employee relocation
benefits in accordance with a separate relocation agreement. During the Term,
the Company shall provide the Employee with a cellular telephone and will pay or
reimburse the Employee's monthly service fee and costs of calls attributable to
Company business. During the Term, the Employee shall be entitled to receive all
other benefits of employment generally available to other management employees
of the Company and those benefits for which management employees are or shall
become eligible, including, without limitation and to the extent made available
by the Company, medical, dental, disability and prescription coverage, life
insurance and tax-qualified retirement benefits. The Employee shall be entitled
to three (3) weeks of paid vacation each year of his employment until the third
anniversary of the Start Date, and four (4) weeks of paid vacation each year
thereafter.
(c) Reimbursement of Other Expenses. The Company agrees to pay or
reimburse the Employee for all reasonable travel and other expenses (including
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mileage for business use of employee's personal automobile at the maximum rate
permitted under Internal Revenue Service regulations) incurred by the Employee
in connection with the performance of his duties under this Agreement on
presentation of proper expense statements or vouchers. All such supporting
information shall comply with all applicable Company policies relating to
reimbursement for travel and other expenses.
(d) Withholding. All compensation payable to the Employee hereunder is
subject to all withholding requirements under applicable law.
5. Confidentiality. During the Term of his employment, and at all times
thereafter, the Employee shall not, without the prior written consent of the
Company, divulge to any third party or use for his own benefit or the benefit of
any third party or for any purpose other than the exclusive benefit of the
Company, any confidential or proprietary business or technical information
revealed, obtained or developed in the course of his employment with the Company
and which is otherwise the property of the Company or any of its affiliated
corporations, including, but not limited to, trade secrets, customer lists,
formulae and processes of manufacture; provided, however, that nothing herein
contained shall restrict the Employee's ability to make such disclosures during
the course of his employment as may be necessary or appropriate to the effective
and efficient discharge of his duties to the Company.
6. Property. Both during the Term of his employment and thereafter, the
Employee shall not remove from the Company's offices or premises any Company
documents, records, notebooks, files, correspondence, reports, memoranda and
similar materials or property of any kind unless necessary in accordance with
the duties and responsibilities of his employment. In the event that any such
material or property is removed, it shall be returned to its proper file or
place of safekeeping as promptly as possible. The Employee shall not make,
retain, remove or distribute any copies, or divulge to any third person the
nature or contents of any of the foregoing or of any other oral or written
information to which he may have access, except as disclosure shall be necessary
in the performance of his assigned duties. On the termination of his employment
with the Company, the Employee shall leave with or return to the Company all
originals and copies of the foregoing then in his possession or subject to his
control, whether prepared by the Employee or by others.
7. Termination By Company.
(a) Termination for Cause. The employment of the Employee may be
terminated for Cause at any time by the Board; provided, however, that before
the Company may terminate the Employee's employment for Cause for any reason
that is susceptible to cure, the Company shall first send the Employee written
notice of its intention to terminate this Agreement for Cause, specifying in
such notice the reasons for such Cause and those conditions that, if satisfied
by the Employee, would cure the reasons for such Cause, and the Employee shall
have 60 days from receipt of such written notice to satisfy such conditions. If
such conditions are satisfied within such 60-day period, the Company shall so
advise the Employee in writing. If such conditions are not satisfied within such
60-day period, the Company may thereafter terminate this Agreement for Cause on
written Notice of Termination (as defined in Section 9(a)) delivered to the
Employee describing with specificity the grounds for termination. Immediately on
termination pursuant to this Section 7(a), the Company shall pay to the Employee
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in a lump sum his then current Base Salary under Section 4(a)(1) on a prorated
basis to the Date of Termination (as defined in Section 9(b)). On termination
pursuant to this Section 7(a), the Employee shall forfeit (i) his Bonus under
Section 4(a)(2) for the year in which such termination occurs, (ii) all
outstanding but unvested Options and other options and rights relating to
capital stock of the Company and (iii) the Employee may exercise all vested
Options within five business days after the date of termination (as defined in
Section 9(b)). For purposes of this Agreement, Cause shall mean:
(1) a material breach of any of the terms of this Agreement that is
not immediately corrected following written notice of default specifying such
breach;
(2) a breach of any of the provisions of Section 12;
(3) repeated intoxication with alcohol or drugs while on Company
premises during its regular business hours to such a degree that, in the
reasonable judgment of the other managers of the Company, the Employee is
abusive or incapable of performing his duties and responsibilities under this
Agreement;
(4) conviction of a felony; or
(5) misappropriation of property belonging to the Company and/or
any of its affiliates.
(b) Termination Without Cause. The employment of the Employee may be
terminated without Cause at any time by the Board on delivery to the Employee of
a written Notice of Termination (as defined in Section 9(a)). On the Date of
Termination (as defined in Section 9(b)) pursuant to this Section 7(b), the
Company shall, in lieu of any payments under Section 4(a)(1) and 4(a)(2) for the
remainder of the Term, pay to the Employee an amount equal to the sum of (i) all
Base Salary payable under Section 4(a)(1) through the termination date, (ii) the
full (not pro-rated) maximum Bonus available to the Employee under Section
4(a)(2) for the year in which the termination occurs, and (iii) an amount equal
to three times the Employee's current annual Base Salary under Section 4(a)(1)
plus three times his maximum bonus under Section 4(a)(2) (whether or not the
entire amount was actually earned or paid) for the year in which the termination
occurs. Such amount shall be paid as follows: one third on the Date of
Termination and, provided that Employee has complied with the provisions of
Section 12 hereof, one third on each of the first and second anniversaries of
the Date of Termination of the Employee's employment. In addition, on
termination of the Employee under this Section 7(b), if not previously paid, the
contract signing bonus payable pursuant to Section 4(a) (3) shall become
immediately due and payable, and all of the Employee's outstanding but unvested
Options and other options and rights relating to capital stock of the Company
shall immediately vest and become exercisable. The term of any such Options and
other options and rights shall be extended to the third anniversary of the
Employee's termination. The Employee acknowledges that extending the term of any
incentive stock options pursuant to this Section 7(b), or Section 7(c), 7(d) or
8(a), could cause such option to lose its tax-qualified status if it is an
incentive stock option under the Code and agrees that the Company shall have no
obligation to compensate the Employee for any additional taxes he incurs as a
result.
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(c) Termination on Disability. If during the Term the Employee should
fail to perform his duties hereunder on account of physical or mental illness or
other incapacity which the Board shall in good faith determine renders the
Employee incapable of performing his duties hereunder, and such illness or other
incapacity shall continue for a period of more than six (6) consecutive months
("Disability"), the Company shall have the right, on written Notice of
Termination (as defined in Section 9(a)) delivered to the Employee to terminate
the Employee's employment under this Agreement. During the period that the
Employee shall have been incapacitated due to physical or mental illness, the
Employee shall continue to receive the full Base Salary provided for in Section
4(a)(1) hereof at the rate then in effect until the Date of Termination (as
defined in Section 9(b)) pursuant to this Section 7(c). On the Date of
Termination pursuant to this Section 7(c), the Company shall pay to the Employee
in a lump sum an amount equal to (i) the Base Salary remaining payable to the
Employee under Section 4(a)(1) for the full remaining Term, plus (ii) a
pro-rated portion of the maximum Bonus available to the Employee under Section
4(a)(2) for the year in which the termination occurs. In addition, on such
termination, if not previously paid, the contract signing bonus payable pursuant
to Section 4(a) (3) shall become immediately due and payable and all of the
Employee's outstanding but unvested Options and other options and rights
relating to capital stock of the Company shall immediately vest and become
exercisable. The term of any such Options and other options and rights shall be
extended to the third anniversary of the Employee's termination.
(d) Termination on Death. If the Employee shall die during the Term,
the employment of the Employee shall thereupon terminate. On the Date of
Termination (as defined in Section 9(b)) pursuant to this Section 7(d), the
Company shall pay to the Employee's estate the payments and other benefits
applicable to termination without Cause set forth in Section 7(b) hereof. In
addition, if not previously paid, the contract signing bonus payable pursuant to
Section 4(a) (3) shall become immediately due and payable on termination of the
Employee under this Section 7(d), all of the Employee's outstanding but unvested
Options and other options and rights relating to capital stock of the Company
shall immediately vest and become exercisable. The term of any such Options and
other options and rights shall be extended to the third anniversary of the
Employee's termination. The provisions of this Section 7(d) shall not affect the
entitlements of the Employee's heirs, executors, administrators, legatees,
beneficiaries or assigns under any employee benefit plan, fund or program of the
Company.
8. Termination By Employee.
(a) Termination for Good Reason. The Employee may terminate his
employment hereunder for Good Reason (as defined below). On the Date of
Termination pursuant to this Section 8(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 7(b)
hereof at the times and subject to the conditions set forth therein. In
addition, on termination of the Employee under this Section 8(a), all of the
Employee's outstanding but unvested Options and other options and rights
relating to capital stock of the Company shall immediately vest and become
exercisable. The term of any such options and rights shall be extended to the
third anniversary of the Employee's termination.
For purposes of this Agreement, "Good Reason" shall mean:
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(1) assignment to the Employee of duties inconsistent with his
responsibilities as they existed on the date of this Agreement; a substantial
alteration in the title(s) of the Employee (so long as the existing corporate
structure of the Company is maintained); or a substantial alteration in the
status of the Employee in the Company organization as it existed on the date of
this Agreement;
(2) the relocation of the Company's principal executive office to a
location more than fifty (50) miles from its present location;
(3) a reduction by the Company in the Employee's Base Salary
without the Employee's prior approval;
(4) a failure by the Company to continue in effect, without
substantial change, any benefit plan or arrangement in which the Employee was
participating or the taking of any action by the Company which would adversely
affect the Employee's participation in or materially reduce his benefits under
any benefit plan (unless such changes apply equally to all other management
employees of Company);
(5) any material breach by the Company of any provision of this
Agreement without the Employee having committed any material breach of his
obligations hereunder, which breach is not cured within twenty (20) days
following written notice thereof to the Company of such breach; or
(6) the failure of the Company to obtain the assumption of this
Agreement by any successor entity.
(b) Termination Without Good Reason. The Employee may terminate his
employment hereunder without Good Reason on written Notice of Termination
delivered to the Company setting forth the effective date of termination. If the
Employee terminates his employment hereunder without Good Reason, he shall be
entitled to receive, and the Company agrees to pay on the effective date of
termination specified in the Notice of Termination, his current Base Salary
under Section 4(a)(1) hereof on a prorated basis to such date of termination. On
termination pursuant to this Section 8(b), the Employee shall forfeit (i) his
Bonus under Section 4(a)(2) for the year in which such termination occurs, (ii)
all outstanding but unvested Options and other options and rights relating to
capital stock of the Company and (iii) the Employee may exercise all vested
Options within five business days after the date of termination.
9. Provisions Applicable to Termination of Employment.
(a) Notice of Termination. Any purported termination of Employee's
employment by the Company pursuant to Section 7 shall be communicated by Notice
of Termination to the Employee as provided herein, and shall state the specific
termination provisions in this Agreement relied on and set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment ("Notice of Termination"). If the Employee terminates
under Section 8, he shall give the Company a Notice of Termination.
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(b) Date of Termination. For all purposes, "Date of Termination" shall
mean, for Disability, thirty (30) days after Notice of Termination is given to
the Employee (provided the Employee has not returned to duty on a full-time
basis during such 30-day period), or, if the Employee's employment is terminated
by the Company for any other reason or by the Employee, the date on which a
Notice of Termination is given.
(c) Benefits on Termination. On termination of this Agreement by the
Company pursuant to Section 7 or by the Employee pursuant to Section 8, all
profit-sharing, deferred compensation and other retirement benefits payable to
the Employee under benefit plans in which the Employee then participated shall
be paid to the Employee in accordance with the provisions of the respective
plans.
10. Change In Control.
(a) Payments on Change in Control. Notwithstanding any provision in
this Agreement to the contrary, unless the Employee elects in writing to waive
this provision, a Change in Control (as defined below) of the Company shall be
deemed a termination of the Employee without Cause, and the Employee shall be
entitled to receive and the Company agrees to pay to the Employee the same
amount determined under Section 7(b) that is payable to the Employee on
termination without Cause provided, however, that such amount shall be payable
in a lump sum on the Date of Termination and not in installments as provided in
Section 7(b). In addition, on a Change of Control, all of the Employee's
outstanding but unvested Options and other options and rights relating to
capital stock of the Company shall immediately vest and become exercisable, and
the term of any such options and rights shall be extended to the third
anniversary of the Employee's termination.
After a Change in Control, if any previously outstanding Option or
other option or right (the "Terminated Option") relating to the Company's
capital stock does not remain outstanding, the successor to the Company or its
then Parent (as defined below) shall either:
(1) Issue an option, warrant or right, as appropriate (the
"Successor Option"), to purchase common stock of such successor or Parent in an
amount such that on exercise of the Successor Option the Employee would receive
the same number of shares of the successor's/Parent's common stock as the
Employee would have received had the Employee exercised the Terminated Option
immediately prior to the transaction resulting in the Change in Control and
received shares of such successor/Parent in such transaction. The aggregate
exercise price for all of the shares covered by such Successor Option shall
equal the aggregate exercise price of the Terminated Option; or
(2) Pay the Employee a bonus within ten (10) days after the
consummation of the Change in Control in an amount agreed to by the Employee and
the Company. Such amount shall be at least equivalent on an after-tax basis to
the net after-tax gain that the Employee would have realized if he had been
issued a Successor Option under clause (i) above and had immediately exercised
such Successor Option and sold the underlying stock, taking into account the
different tax rates that apply to such bonus and to such gain, and such amount
shall also reflect other differences to the Employee between receiving a bonus
under this clause (ii) and receiving a Successor Option under clause (i) above.
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(b) Definitions. For the purposes of this Agreement, a Change in
Control shall be deemed to have occurred if (i) there shall be consummated (aa)
any reorganization, liquidation or consolidation of the Company, or any merger
or other business combination of the Company with any other corporation, other
than any such merger or other combination that would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty percent (50%) of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such transaction, (bb) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company, or if
(ii) any "person" (as defined in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), shall become the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of fifty percent (50%) or more of the Company's outstanding
voting securities (except that for purposes of this Section 10(b), "person"
shall not include any person (or any person that controls, is controlled by or
is under common control with such person) who as of the date of this Agreement
owns ten percent (10%) or more of the total voting power represented by the
outstanding voting securities of the Company, or a trustee or other fiduciary
holding securities under any employee benefit plan of the Company, or a
corporation that is owned directly or indirectly by the stockholders of the
Company in substantially the same percentage as their ownership of the Company)
or if (iii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the entire Board shall cease for any reason
to constitute at least one-half of the membership thereof unless the election,
or the nomination for election by the Company's shareholders, of each new
director was approved by a vote of at least one-half of the directors then still
in office who were directors at the beginning of the period.
The term "Parent" means a corporation, partnership, trust, limited
liability company or other entity that is the ultimate "beneficial owner" (as
defined above) of fifty percent (50%) or more of the Company's outstanding
voting securities.
11. Gross Up Payments. If all or any portion of any payment or benefit that
the Employee is entitled to receive from the Company pursuant to this Agreement
(a "Payment") constitutes an "excess parachute payment" within the meaning of
Section 280G of the Code, and as such is subject to the excise tax imposed by
Section 4999 of the Code or to any similar Federal, state or local tax or
assessment (the "Excise Tax"), the Company or its successors or assigns shall
pay to the Employee an additional amount (the "Gross-Up Payment") with respect
to such Payment. The amount of the Gross-Up Payment shall be sufficient that,
after paying (a) any Excise Tax on the Payment, (b) any Federal, state or local
income or employment taxes and Excise Tax on the Gross-Up Payment, and (c) any
interest and penalties imposed in respect of the Excise Tax, the Employee shall
retain an amount equal to the full amount of the Payment. For the purpose of
determining the amount of any Gross-Up Payment, the Employee shall be deemed to
pay Federal income taxes at the highest marginal rate applicable in the calendar
year in which the Gross-Up Payment is made, and state and local income taxes at
the highest marginal rate applicable in the state and locality where the
Employee resides on the date the Gross-Up Payment is made, net of the maximum
reduction in Federal income taxes that could be obtained from deducting such
state and local taxes.
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The Gross-Up Payment with respect to any Payment shall be paid to the
Employee within ten (10) days after the Internal Revenue Service or any other
taxing authority issues a notice stating that an Excise Tax is due with respect
to the Payment, unless the Company undertakes to challenge the taxing authority
on the applicability of such Excise Tax and indemnifies the Employee for (a) any
amounts ultimately determined to be payable, including the Excise Tax and any
related interest and penalties, (b) all expenses (including attorneys' and
experts' fees) reasonably incurred by the Employee in connection with such
challenge, as such expenses are incurred, and (c) all amounts that the Employee
is required to pay to the taxing authorities during the pendency of such
challenge (such amounts to be repaid by the Employee to the Company if they are
ultimately refunded to the Employee by the taxing authority).
12. Non-Competition and Non-Solicitation.
(a) In consideration of the provisions hereof, for the Restricted
Period (as defined below), the Employee will not, except as specifically
provided below, anywhere in any county in the State of California or anywhere in
any other state in which the Company is engaged in business as of such
termination date (the "Restricted Territory"), directly or indirectly, acting
individually or as the owner, shareholder, partner or management employee of any
entity, (i) engage in the operation of a solid waste collection, transporting or
disposal business, transfer facility, recycling facility, materials recovery
facility or solid waste landfill; (ii) enter the employ as a manager of, or
render any personal services to or for the benefit of, or assist in or
facilitate the solicitation of customers for, or receive remuneration in the
form of management salary, commissions or otherwise from, any business engaged
in such activities in such counties; or (iii) receive or purchase a financial
interest in, make a loan to, or make a gift in support of, any such business in
any capacity, including without limitation, as a sole proprietor, partner,
shareholder, officer, director, principal agent or trustee; provided, however,
that the Employee may own, directly or indirectly, solely as an investment,
securities of any business traded on any national securities exchange or quoted
on any NASDAQ market, provided the Employee is not a controlling person of, or a
member of a group which controls, such business and further provided that the
Employee does not, in the aggregate, directly or indirectly, own two percent
(2%) or more of any class of securities of such business. The term "Restricted
Period" shall mean the earlier of (i) the maximum period allowed under
applicable law and (ii)(x) in the case of a Change of Control, until the third
anniversary of the effective date of the Change of Control, (y) in the case of a
termination by the Company without Cause pursuant to Section 7(b) or by the
Employee for Good Reason pursuant to Section 8(a) and provided the Company has
made the payments required under Section 7(b) or 8(a), as the case may be, until
the third anniversary of the Date of Termination, or (z) in the case of
Termination for Cause by the Company pursuant to Section 7(a) or by the Employee
without Good Reason pursuant to Section 8(b), until the first anniversary of the
Date of Termination.
(b) After termination of this Agreement by the Company or the Employee
pursuant to Section 7 or 8 or termination of this Agreement upon a Change in
Control pursuant to Section 10, the Employee shall not (i) solicit any
residential or commercial customer of the Company to whom the Company provides
service pursuant to a franchise agreement with a public entity in the Restricted
Territory (ii) solicit any residential or commercial customer of the Company to
enter into a solid waste collection account relationship with a competitor of
the Company in the Restricted Territory, (iii) solicit any such public entity to
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enter into a franchise agreement with any such competitor, (iv) solicit any
officer, employee or contractor of the Company to enter into an employment or
contractor agreement with a competitor of the Company or otherwise interfere in
any such relationship, or (v) solicit on behalf of a competitor of the Company
any prospective customer of the Company in the Restricted Territory that the
Employee called on or was involved in soliciting on behalf of the Company during
the Term, in each case until the third anniversary of the date of such
termination or the effective date of such change of control (whichever is
later), unless otherwise permitted to do so by Section 12(a).
(c) If the final judgment of a court of competent jurisdiction declares
that any term or provision of this Section 12 is invalid or unenforceable, the
parties agree that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration or area of
the term or provision, to delete specified words or phrases or to replace any
invalid or unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified after the expiration of the time within which the
judgment may be appealed.
13. Indemnification. As an employee and agent of the Company, the Employee
shall be fully indemnified by the Company to the fullest extent permitted by
applicable law in connection with his employment hereunder.
14. Survival of Provisions. The obligations of the Company under Section 13
of this Agreement, and of the Employee under Section 12 of this Agreement, shall
survive both the termination of the Employee's employment and this Agreement.
15. No Duty to Mitigate; No Offset. The Employee shall not be required to
mitigate damages or the amount of any payment contemplated by this Agreement,
nor shall any such payment be reduced by any earnings that the Employee may
receive from any other sources or offset against any other payments made to him
or required to be made to him pursuant to this Agreement.
16. 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.
17. Notice. Any written notice under this Agreement shall be personally
delivered to the other party or sent by certified or registered mail, return
receipt requested and postage prepaid, to such party at the address set forth in
the records of the Company or to such other address as either party may from
time to time specify by written notice.
18. Entire Agreement; Amendments. This Agreement and the related Relocation
Agreement contain the entire agreement of the parties relating to the Employee's
employment and supersedes all oral or written prior discussions, agreements and
understandings of every nature between them. This Agreement may not be changed
except by an agreement in writing signed by the Company and the Employee.
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19. Waiver. The waiver of a breach of any provision of this Agreement shall
not operate or as be construed to be a waiver of any other provision or
subsequent breach of this Agreement.
20. Governing Law and Jurisdictional Agreement. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of California. The parties irrevocably and unconditionally submit to the
jurisdiction and venue of any court, federal or state, situated within
Sacramento County, California, for the purpose of any suit, action or other
proceeding arising out of, or relating to or in connection with, this Agreement.
21. Severability. In case any one or more of the provisions contained in
this Agreement is, for any reason, held invalid in any respect, such invalidity
shall not affect the validity of any other provision of this Agreement, and such
provision shall be deemed modified to the extent necessary to make it
enforceable.
22. Enforcement. It is agreed that it is impossible to measure fully, in
money, the damage which will accrue to the Company in the event of a breach or
threatened breach of Sections 5, 6, or 12 of this Agreement, and, in any action
or proceeding to enforce the provisions of Sections 5, 6 or 12 hereof, the
Employee waives the claim or defense that the Company has an adequate remedy at
law and will not assert the claim or defense that such a remedy at law exists.
The Company is entitled to injunctive relief to enforce the provisions of such
sections as well as any and all other remedies available to it at law or in
equity without the posting of any bond. The Employee agrees that if the Employee
breaches any provision of Section 12, the Company may recover as partial damages
all profits realized by the Employee at any time prior to such recovery on the
exercise of any warrant, option or right to purchase the Company's Common Stock
and the subsequent sale of such stock, and may also cancel all outstanding such
warrants, options and rights.
23. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and both of which together shall constitute
one and the same instrument.
24. Due Authorization. The execution of this Agreement has been duly
authorized by the Company by all necessary corporate action.
IN WITNESS WHEREOF, the parties have executed and delivered this
Employment Agreement as of the day and year set forth above.
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WASTE CONNECTIONS, INC., a Delaware corporation
By:
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Xxxxxx X. Xxxxxxxxxxxx
President and Chief Executive Officer
EMPLOYEE:
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Worthing Xxxxxxx
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