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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
CANADIAN WASTE SERVICES, INC., for and on behalf of its affiliated corporations
(collectively referred to as the "Company"), and XXXX X. XXXXXX (the "Employee")
agree to enter into this EMPLOYMENT AGREEMENT (the "Agreement") dated as of
November 3, 1999 as follows:
1. EMPLOYMENT.
The Company shall employ Employee, and Employee shall be employed by the Company
upon the terms and subject to the conditions set forth in this Agreement.
2. TERM OF EMPLOYMENT.
The period of Employee's employment under this Agreement shall begin as of
November 3, 1999, and shall continue for a period of two (2) years thereafter
(the "Initial Term") and shall be automatically renewed for successive one (1)
year periods thereafter, unless Employee's employment is terminated in
accordance with Section 6 below.
3. DUTIES AND RESPONSIBILITIES.
(a) Employee shall serve as President, Canadian Waste Services, Inc. In
such capacity, Employee shall perform such duties as may be assigned to
Employee from time to time by the Company.
(b) Employee shall faithfully serve the Company, devote Employee's full
working time, attention and energies to the business of the Company and
perform the duties under this Agreement to the best of Employee's
abilities.
(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's rules, procedures, policies, requirements, and directions;
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 AND BENEFITS.
(a) BASE SALARY. During the Employment Term, the Company shall pay Employee
a base salary at the annual rate of Three Hundred Thousand (US$300,000)
United States Dollars per year, or such higher rate as may be
determined from time to time by the Company ("Base Salary"). Such Base
Salary shall be paid in accordance with the Company's standard payroll
practice for employees.
(b) TAX EQUALIZATION. Your annual income tax will be equalized as per the
Waste Management Equalization Policy. According to this policy, Waste
Management will take the benefit of the foreign earned income
exclusion, but equalize you for income other than your base
compensation, bonus, foreign service premium, stock options exercise
and any personal income you have. In accordance with the expatriate tax
equalization policy, the Company will provide you with assistance in
the preparation of U.S. and foreign tax returns.
(c) EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Employee
for the ordinary and necessary business expenses incurred by Employee
in the performance of Employee's duties hereunder in accordance with
the Company's customary practices applicable to employees, provided
that such expenses are incurred and accounted for in accordance with
the Company's policy.
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(d) BENEFIT PLANS. Employee shall be eligible to participate in or receive
benefits under any pension plan, profit sharing plan, medical and
dental benefits plan, life insurance plan, short-term and long-term
disability plans, supplemental and/or incentive compensation plans,
practices or arrangements, or any other benefit plan or arrangement,
generally made available by the Company to employees of similar status
and responsibilities.
(e) VACATION. Employee shall receive four (4) weeks vacation annually.
(F) STOCK OPTIONS. Employee shall be awarded Fifty-five Thousand (55,000)
Waste Management stock options, subject to the approval of the
Compensation Committee of the Board of Directors. The award, vesting
and exercising of all options shall be subject to the provisions of the
Waste Management, Inc. Stock Incentive Plan.
(G) AUTOMOBILE. Company shall provide a vehicle (make and model to be
determined by Company for the term of the contract) or a monthly auto
allowance. Company's obligation to provide a vehicle or allowance will
cease upon commencement of severance or termination of this Agreement.
(H) OTHER. Company will provide an apartment in Toronto and pay for
reasonable living expenses including utilities, telephone (except for
personal calls) and parking. Company will pay reasonable travel
expenses to and from Detroit, one round trip per week, coach fare.
5. TERMINATION OF EMPLOYMENT.
Employee's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. Employee's employment hereunder shall terminate upon Employee's
death.
(b) TOTAL DISABILITY. The Company may terminate Employee's employment
hereunder upon Employee's becoming "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 the usual and customary duties under this Agreement.
Employee's receipt of disability benefits under the Company's long-term
disability plan or receipt of Social Security disability benefits shall
be deemed conclusive evidence of Total Disability for purpose of this
Agreement; provided, however, that in the absence of Employee's receipt
of such long-term disability benefits or Social Security 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. The Company may terminate
Employee's employment hereunder for "Cause" at any time after providing
written notice to Employee.
(i) For purposes of this Agreement, the term "Cause" shall mean
any of the following: (a) conviction of a crime (including
conviction on a nolo contendere plea) involving a felony or,
in the good faith judgment of the Company, fraud, dishonesty,
or moral turpitude; (b) deliberate and continual refusal to
perform employment duties reasonably requested by the Company
or an affiliate after thirty (30) days' written notice by
certified mail of such failure to perform, specifying that the
failure constitutes cause (other than as a result of vacation,
sickness, illness or injury); (c) fraud or embezzlement
determined in accordance with the Company's normal, internal
investigative procedures consistently applied in comparable
circumstances; (d) gross misconduct or gross negligence in
connection with the business of the Company or an affiliate
which has substantial effect on the Company or the affiliate;
or (e) breach of any of the covenants set forth in Section 7
hereof.
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(ii) An individual will be considered to have been terminated for
Cause if the Company determines that the individual engaged in
an act constituting Cause at any time prior to a payment date
for an award, regardless of whether the individual terminates
employment voluntarily or is terminated involuntarily, and
regardless of whether the individual's termination initially
was considered to have been for Cause.
(iii) Any determination of Cause under this Agreement shall be made
by the Company after giving Employee a reasonable opportunity
to be heard.
(d) VOLUNTARY TERMINATION BY EMPLOYEE. Employee may terminate employment
hereunder at any time after providing ninety (90) days' written notice
to the Company.
(e) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
Employee's employment hereunder without Cause at any time after
providing written notice to Employee.
6. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
In the event that Employee's employment hereunder is terminated, Employee shall
be entitled to the following compensation and benefits upon such termination:
(a) TERMINATION BY REASON OF DEATH. In the event that Employee's employment
is terminated by reason of Employee's death, the Company shall pay the
following amounts to Employee's beneficiary or estate:
(i) Any accrued but unpaid Base Salary for services rendered to
the date of death, any accrued but unpaid expenses required to
be reimbursed under this Agreement, and any vacation accrued
to the date of death.
(ii) Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof as determined and paid in accordance with the terms of
such plans, policies and arrangements.
(iii) An amount equal to the Base Salary (at the rate in effect as
of the date of Employee's death) which would have been payable
to Employee if Employee had continued in employment until the
end of the 30 day term beginning on the date of Employee's
death. Such amount shall be paid in a single lump sum cash
payment within thirty (30) days after Employee's death.
(b) TERMINATION BY REASON OF TOTAL DISABILITY. In the event that Employee's
employment is terminated by reason of Employee's Total Disability as
determined in accordance with Section 5(b), the Company shall pay the
following amounts to Employee:
(i) Any accrued but unpaid Base Salary for services rendered to
the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, any vacation
accrued to the date of termination.
(ii) Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof shall be determined and paid in accordance with the
terms of such plans, policies and arrangements.
(iii) An amount equal to
(a) the Base Salary (at the rate in effect as of the date
of Employee's Total Disability) which would have been
payable to Employee if Employee had continued in
active employment
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until the end of the 6-month period beginning on the
date of Employee's termination; reduced by
(b) the maximum annual amount of the long term disability
benefits payable to Employee under the Company's
long-term disability plan as determined prior to the
reduction of such benefits under the terms of the
plan for other disability income.
Payment shall be made at the same time and in the same manner
as such compensation would have been paid if Employee had
remained in active employment until the end of such period.
(c) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION BY EMPLOYEE. In the
event that Employee's employment is terminated by the Company for Cause
pursuant to Section 5(c), or Employee terminates employment pursuant to
Section 5(d), the Company shall pay the following amounts to Employee:
(i) Any accrued but unpaid Base Salary for services rendered to
the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, any vacation
accrued to the date of termination.
(ii) Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof shall be determined and paid in accordance with the
terms of such plans, policies and arrangements.
(d) TERMINATION BY THE COMPANY WITHOUT CAUSE. In the event that Employee's
employment is terminated by the Company pursuant to Section 5(e) for
reasons other than death, Total Disability or Cause, the Company shall
pay the following amounts to Employee:
(i) Any accrued but unpaid Base Salary for services rendered to
the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, any vacation
accrued to the date of termination.
(ii) Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof shall be determined and paid in accordance with the
terms of such plans, policies and arrangements.
(iii) The Base Salary (at the rate in effect as of the date of
Employee's termination) which would have been payable to
Employee if Employee had continued in active employment until
the later of: (a) the period ending on the last day of the
current term; or (b) the end of the twelve (12) month period
beginning on the date of Employee's termination. Payment shall
be made at the same time and in the same manner as such
compensation would have been paid if Employee had remained in
active employment until the end of such period. The Employee
shall also be eligible for a bonus or incentive compensation
payment to the extent bonuses are paid to similarly situated
employees, pro-rated for the year in which the Employee is
terminated, and paid when similarly situated employees are
paid.
(iv) The Company completely at its expense will continue for
Employee and Employee's spouse and dependents, group health
plans, programs or arrangements, in which Employee was
entitled to participate at any time during the twelve-month
period prior to the date of termination, until the earlier of:
(a) last day of period during which Employee receives payment
in accordance with clause (iii) above; (b) Employee's death
(provided that benefits payable to Employee's beneficiaries
shall not terminate upon Employee's death); or (c) with
respect to any particular plan, program or arrangement, the
date Employee becomes covered by a comparable benefit provided
by a subsequent employer.
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(e) NO OTHER BENEFITS OR COMPENSATION. Except as may be provided under this
Agreement, under the terms of any incentive compensation, employee
benefit, or fringe benefit plan applicable to Employee at the time of
Employee's termination or resignation of employment, Employee shall
have no right to receive any other compensation, or to participate in
any other plan, arrangement or benefit, with respect to future periods
after such termination or resignation.
(F) SUSPENSION OR TERMINATION OF BENEFITS AND COMPENSATION. In the event
that the Company, in its sole discretion determines that, without the
Company's express written consent, Employee has
(i) directly or indirectly engaged in, assisted or have any active
interest or involvement whether as an employee, agent,
consultant, creditor, advisor, officer, director, stockholder
(excluding holding of less than 1% of the stock of a public
company), partner, proprietor, or any type of principal
whatsoever, in any person, firm, or business entity which is
directly or indirectly competitive with the Company or any of
its affiliates, or
(ii) directly or indirectly, for or on behalf of any person, firm,
or business entity which is directly or indirectly competitive
with the Company or any of its affiliates (a) solicited or
accepted from any person or entity who is or was a client of
the Company during the term of Employee's employment hereunder
or during any of the twelve calendar months preceding or
following the termination of Employee's employment any
business for services similar to those rendered by the
Company, (b) requested or advised any present or future
customer of the Company to withdraw, curtail or cancel its
business dealings with the Company, or (c) requested or
advised any employee of the Company to terminate his or her
employment with the Company;
the Company shall have the right to suspend or terminate any or all
remaining 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.
7. RESIGNATION BY EXECUTIVE FOR GOOD REASON AND COMPENSATION PAYABLE FOLLOWING
CHANGE IN CONTROL.
(a) RESIGNATION FOR GOOD REASON FOLLOWING CHANGE IN CONTROL. In the event a
"Change in Control" occurs, Executive will be paid the compensation
described in this Section 7 if Executive resigns or is terminated (both
a "resignation" and "termination" being referred to as "termination"
for the purposes of this Section 7) from employment with the Company at
any time prior to the six (6) month anniversary of the date of the
Change in Control following the occurrence of any of the following
events:
(i) the removal of Executive as President of Canadian Waste
Services, Inc., except in connection with the termination of
Executive's employment as a result of death, or by the Company
for Disability or Cause, or by Executive other than for the
reasons described in this Section 7(a);
(ii) a reduction by the Company in Executive's Base Salary as in
effect immediately before a Change in Control plus all
increases therein subsequent thereto;
(iii) the failure of the Company substantially to maintain and to
continue Executive's participation in the Company's benefit
plans as in effect immediately before a Change in Control and
with all improvements therein subsequent thereto (other than
those plans or improvements that have expired thereafter in
accordance with their original terms), or the taking of any
action which would materially reduce Executive's benefits
under any of such plans or deprive Executive of any material
fringe benefit enjoyed by Executive immediately before a
Change in Control, unless such reduction or termination is
required by law;
(iv) the failure of the Company to provide Executive with an
appropriate adjustment to compensation
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such as a lump sum relocation bonus, salary adjustment and/or
housing allowance so that Executive can purchase comparable
primary housing if required to relocate (it being the
intention of this Section 7[a][iv] to keep the Executive
"whole" if required to relocate). In this regard, comparable
housing shall be determined by comparing factors such as
location (taking into account, by way of example, items such
as the value of the surrounding neighborhood, reputation of
the public school district, if applicable, security and
proximity to Executive's place of work), quality of
construction, design, age, size of the housing and the ratio
of the monthly payments including principle, interest, taxes
and insurance to the Executive's take home pay, to housing
most recently owned by Executive prior to, or as of the
effective date of the change of control;
(v) the failure by the Company to pay Executive any portion of
Executive's current compensation, or any portion of
Executive's compensation deferred under any plan, agreement or
arrangement of or with the Company, within seven (7) days of
the date such compensation is due; or
(vi) the failure by the Company to obtain an assumption of, and
agreement to perform the obligations of the Company under this
Agreement by any successor to the Company.
(b) COMPENSATION PAYABLE. In the event that Executive terminates employment
pursuant to Section 7(a), the Company shall pay the following amounts
to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to
the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, any vacation
accrued to the date of termination.
(ii) Any benefits to which Executive may be entitled pursuant to
the plans, policies and arrangements referred to in Section 4c
hereof, shall be determined and paid in accordance with the
terms of such plans, policies and arrangements.
(iii) The payments and benefits provided for in Section 6(d) except
that the period with respect to which severance is calculated
pursuant to Section 6 (d) (iii) will be three years and the
benefit continuation period in Section (d) (iv) will be three
years.
(iv) Executive will be 100% vested in all benefits, awards, and
grants (including stock options) accrued but unpaid as of the
date of termination under any non-qualified pension plan,
supplemental and/or incentive compensation or bonus plans, in
which Executive was a participant as of the date of
termination. Executive shall also be eligible for a bonus or
incentive compensation payment (the "bonus payment"), payable
at 100% of the maximum bonus available to Executive. The bonus
payment shall be payable within five (5) days after the
effective date of Employee's termination. Employee shall have
until the expiration date shown on the stock option award in
which to exercise the options which have vested pursuant to
this section.
Except as may be provided under this Section 7 or under the terms of
any incentive compensation, employee benefit, or fringe benefit plan
applicable to Executive at the time of Executive's resignation from
employment, Executive shall have no right to receive any other
compensation, or to participate in any other plan, arrangement or
benefit, with respect to future periods after such resignation or
termination.
(c) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. In the event that any
portion of the benefits payable under this Agreement, and any other
payments and benefits under any other agreement with, or plan of the
Company to or for the benefit of the Executive (in aggregate, "Total
Payments") constitute an "excess parachute payment" within the meaning
of Section 280G of the Internal Revenue Code (the "Code"), then the
Company shall pay the Executive as promptly as practicable following
such determination an additional amount (the "Gross-up Payment")
calculated as described below to reimburse the Executive on an
after-tax basis for any excise tax imposed on such payments under
Section 4999 of the Code. The Gross-up Payment shall equal the amount,
if any, needed to ensure that the net parachute payments
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(including the Gross-up Payment) actually received by the Executive
after the imposition of federal and state income, employment and excise
taxes (including any interest or penalties imposed by the Internal
Revenue Service), are equal to the amount that the Executive would have
netted after the imposition of federal and state income and employment
taxes, had the Total Payments not been subject to the taxes imposed by
Section 4999. For purposes of this calculation, it shall be assumed
that the Executive's tax rate will be the maximum federal rate to be
computed with regard to Section 1(g) of the Code.
In the event that the Executive and the Company are unable to agree as
to the amount of the Gross-up Payment, if any, the Company shall select
a law firm or accounting firm from among those regularly consulted
(during the twelve-month period immediately prior to a
Change-in-Control) by the Company regarding federal income tax matters
and such law firm or accounting firm shall determine the amount of
Gross-up Payment and such determination shall be final and binding upon
the Executive and the Company.
(d) CHANGE IN CONTROL. For purposes of this Agreement, "Change in Control"
means the occurrence of any of the following events:
(i) Any transfer to, assignment to, or any acquisition by any
person, corporation or other entity, or group thereof, of the
beneficial ownership, within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, of any securities of the
Company, which transfer, assignment or acquisition results in
such person, corporation, entity, or group thereof, becoming
the beneficial owner, directly or indirectly, of securities of
the Company representing 25 percent (25%) or more of the
combined voting power of the Company's then outstanding
securities; or
(ii) As a result of a tender offer, merger, consolidation, sale of
assets, or contested election, or any combination of such
transactions, the persons who were directors immediately
before the transaction shall cease to constitute a majority of
the Board of Directors of the Company or any successor to the
Company.
8. RESTRICTIVE COVENANTS
(a) COMPETITIVE ACTIVITY. Employee covenants and agrees that at all times
during Employee's period of employment with the Company, and while
Employee is receiving payments pursuant to Section 6 of this Agreement,
Employee will not, directly or indirectly, engage in, assist, or have
any active interest or involvement, whether as an employee, agent,
consultant, creditor, advisor, officer, director, stockholder
(excluding holding of less than 1% of the stock of a public company),
partner, proprietor or any type of principal whatsoever in any person,
firm, or business entity which, directly or indirectly, is engaged in
the same business as that conducted and carried on by the Company,
without the Company's specific written consent to do so. Furthermore,
in consideration of the specialized training and access to confidential
information, for a period of one (1) year after the date of termination
of Employee's employment, or one (1) year following the cessation of
payments made pursuant to Section 6 of this Agreement, whether such
termination is voluntary or involuntary, by wrongful discharge, or
otherwise, whichever date is later, Employee will not directly or
indirectly, engage in a competitive activity in any of the geographic
markets in which the Employee has worked for the twelve (12) months
preceding his termination, or within 75 miles of the principal place of
business of the Company, the principal place of business of any
corporation or other entity owned, controlled by (or otherwise
affiliated with) the Company by which Employee may also be employed or
served by Employee, or any other geographic location in which Employee
has specifically represented the interests of the Company or such other
affiliated entity, during the twelve (12) months prior to the
termination of Employee's employment, engage in, assist, or have any
active interest or involvement, whether as an employee, agent,
consultant, creditor, advisor, officer, director, stockholder
(excluding holding of less than 1% of the stock of a public company),
partner, proprietor or any type of principal whatsoever in any person,
firm, or business entity
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which, directly or indirectly, is engaged in the same business as that
conducted and carried on by the Company, without the Company's specific
written consent to do so.
(b) NON-SOLICITATION. Employee covenants and agrees that at all times
during Employee's period of employment with the Company, and for a
period of one (1) year after the date of termination of Employee's
employment, or the date of the cessation of payments made to the
Employee pursuant to Section 6 of this Agreement, whichever is later,
whether such termination is voluntary or involuntary by wrongful
discharge, or otherwise, Employee will not directly or indirectly (i)
induce any customers of the Company or corporations affiliated with the
Company to patronize any similar business which competes with any
material business of the Company; (ii) canvass, solicit or accept any
similar business from any customer of the Company or corporations
affiliated with the Company; (iii) directly or indirectly request or
advise any customers of the Company or corporations affiliated with the
Company to withdraw, curtail or cancel such customer's business with
the Company; (iv) directly or indirectly disclose to any other person,
firm or corporation the names or addresses of any of the customers of
the Company or corporations affiliated with the Company; or (v)
individually of through any person, firm, association or corporation
with which Employee is now or may hereafter become associated, cause,
solicit, entice, or induce any present or future employee of the
Company, or any corporation affiliated with the Company to leave the
employ of the Company, or such other corporation to accept employment
with, or compensation from, the Employee or any such person, firm,
association or corporation without the prior written consent of the
Company.
(c) NON-DISPARAGEMENT. 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 good will of
the Company, its management, or of management of corporations
affiliated with the Company.
(d) PROTECTED INFORMATION. Employee recognizes and acknowledges that
Employee has had and will continue to have access to various
confidential or proprietary information concerning the Company and
corporations affiliated with the Company of a special and unique value
which may include, without limitation, (i) books and records relating
to operation, finance, accounting, sales, personnel and management,
(ii) policies and matters relating particularly to operations such as
customer service requirements, costs of providing service and
equipment, operating costs and pricing matters, and (iii) various trade
or business secrets, including business opportunities, marketing or
business diversification plans, business development and bidding
techniques, methods and processes, financial data and the like
(collectively, the "Protected Information"). Employee therefore
covenants and agrees that Employee will not at any time, either while
employed by the Company or afterwards, knowingly make any independent
use of, or knowingly disclose to any other person or organization
(except as authorized by the Company) any of the Protected Information.
9. ENFORCEMENT OF COVENANTS.
(a) TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. Employee
agrees that any breach by Employee of any of the covenants set forth in
Section 7 hereof during Employee's employment by the Company, shall be
grounds for immediate dismissal of Employee and forfeiture of any
accrued and unpaid salary, bonus, commissions or other compensation of
such Employee as liquidated damages, which shall be in addition to and
not exclusive of any and all other rights and remedies 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 breach of
anticipatory breach of the covenants set
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forth in this section by Employee, 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
equity; (i) injunctions, both preliminary and permanent, enjoining or
retraining such breach or anticipatory breach and 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 this section.
(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 applicable foreign country. 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.
10. WITHHOLDING OF TAXES.
The Company may withhold from any compensation and benefits payable under this
Agreement all applicable federal, state, local, or other taxes.
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11. NON-DISCLOSURE OF AGREEMENT TERMS.
Employee agrees that Employee will not disclose the terms of this Agreement to
any third party other than Employee's immediate family, attorney, accountants,
or other consultants or advisors or except as may be required by any
governmental authority.
12. SOURCE OF PAYMENTS.
All payments provided under this Agreement, other than payments made pursuant to
a plan which provides otherwise, shall be paid from the general funds of the
Company, and no special or separate fund shall be established, and no other
segregation of assets made, to assure payment. Employee shall have no right,
title or interest whatever in or to any investments which the Company may make
to aid the Company in meeting its obligations hereunder. To the extent that any
person acquires a right to receive payments from the Company hereunder, such
right shall be no greater than the right of an unsecured creditor of the
Company.
13. ASSIGNMENT.
Except as otherwise provided in this Agreement, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns. This Agreement shall not be
assignable by Employee.
14. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Employee and the Company or any of its
subsidiaries or affiliated entities relating to the terms of Employee's
employment by the Company. It may not be amended except by a written agreement
signed by both parties.
15. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Texas, applicable to agreements made and to be performed in that
State, without regard to its conflict of laws provisions.
16. 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 when delivered or mailed by registered or certified mail, return receipt
requested, or by facsimile or by hand delivery, 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: Waste Management, Inc.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Corporate Secretary
To Employee: At the address for Employee set forth below.
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17. 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.
(b) SEPARABILITY. Subject to Section 8 hereof, if any term or provision of
this Agreement is declared 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.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
CANADIAN WASTE SERVICES, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Senior Vice President of Employee Relations
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Date: 1/25/00
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EMPLOYEE
Xxxx X. Xxxxxx
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Date: 1/20/00
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Address:
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