EXHIBIT 4.9
EMPLOYMENT AGREEMENT
CAPITAL ENVIRONMENTAL RESOURCE INC. (the "Company") and XXXXX XXXXXXXXXX-XXXXX
(the "Executive") hereby enter into this EMPLOYMENT AGREEMENT (the "Agreement")
dated as of September 7, 2001 (the "Effective Date") as follows:
WHEREAS, the Company has entered into that certain Subscription Agreement, dated
as of July 27, 2001 with the investors named therein (the "Subscription
Agreement"), pursuant to which the Company is issuing and selling to such
investors an aggregate of 16,500,000 shares of its Common Stock for a purchase
price of US $2.00 per share;
WHEREAS, the execution and delivery of this Agreement is a condition to the
closing of the Subscription Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth
herein, the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. EMPLOYMENT.
The Company shall employ Executive, and Executive shall be employed by the
Company, upon the terms and subject to the conditions set forth in this
Agreement.
2. TERM OF EMPLOYMENT.
2.1 TERM. Subject to Section 2.2 and the termination provisions hereinafter
provided, the term of Executive's employment under this Agreement shall
begin on the Effective Date and end on the third anniversary of the
Effective Date (as extended pursuant to Section 2.2, the "Employment
Term").
2.2 TERM EXTENSIONS. Commencing on the day after the Effective Date, the
Employment Term will be automatically extended each day by one day, until
the date which is three years following the first date, if any, on which
the Company delivers to Executive or Executive delivers to the Company,
as the case may be, a written notice that the Employment Term will not be
extended, it being understood that, until such notice is given, the
Employment Term shall be a continuously renewing three-year period.
3. DUTIES AND RESPONSIBILITIES.
Executive shall serve as Chairman of the Board and Chief Executive Officer of
the Company. Executive's duties shall include the responsibilities, duties and
authorities provided for under the Company's Bylaws, as amended from time to
time.
4. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Employment Term, the Company shall pay Executive
a base salary at the annual rate of three hundred thousand Canadian
dollars ($300,000 CDN), or such higher rate as may be determined from
time to time by the Board of Directors (or a duly authorized committee
thereof) (such amount, as increased from time to time, the "Base
Salary"). Such Base Salary shall be paid on the Company's regular pay
days in accordance with the Company's standard payroll practice for
executive officers.
(b) OTHER COMPENSATION AND BENEFITS.
(i) In addition to the Base Salary, Executive shall be entitled to an
annual cash bonus of up to 100% of the Base Salary, subject to
satisfaction of annual performance objectives mutually agreed upon
by the Board of Directors (or a duly authorized committee thereof)
and Executive at the beginning of each year.
(ii) Executive shall be eligible to participate in any supplemental or
incentive compensation, stock option or other fringe benefit plans
generally made available to executive officers of the Company and
to receive additional compensation from the Company in such form
and to such extent, if any, as the Board of Directors (or a duly
authorized committee thereof) may from time to time specify and
determine with respect to the Company's executive officers.
(iii) In addition to normal statutory holidays recognized by the
Company, Executive shall be entitled to the greater of (a) four
weeks of paid vacation annually and (b) such other amount of paid
vacation as may be afforded executive officers under the Company's
policies in effect from time to time.
(c) EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Executive for
travel and other out-of-pocket expenses incident to his position in
accordance with the Company's customary practices applicable to full time
executive officers.
(d) BENEFIT PLANS. Executive shall be eligible to participate in or receive
benefits under any retirement plans, pension plans, profit-sharing plan,
medical or dental benefit plans, life insurance plans, short-term or
long-term disability plans or other fringe benefit plans as are generally
made available to full time executive officers of the Company.
(e) EMPLOYEE'S EXPENSES. All costs and expenses (including reasonable legal,
accounting and other advisory fees) incurred by Executive to (i)
determine in any tax year of Executive, the tax consequences to Executive
of any amount payable (or reimbursable) under Section 7(b) or 7(c)
hereof, or (ii) prepare responses to an Internal Revenue Service or
Canada Customs and Revenue Agency audit of, and to otherwise defend, his
personal income tax return for any year which is the subject of any such
audit, or an adverse determination, administrative proceeding or civil
litigation arising therefrom that is
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occasioned by or related to any audit by the Internal Revenue Service or
the Canada Customs and Revenue Agency of the Company's income tax
returns, shall, upon written demand by Executive, be promptly advanced or
reimbursed to Executive, or paid directly, on a current basis, by the
Company or its successors; provided, however, in no event shall the
Company be required to advance or reimburse to Executive or pay directly
more than seventy-five thousand Canadian dollars ($75,000 CDN) in any
given fiscal year pursuant to this Section 4(e).
5. TERMINATION OF EMPLOYMENT.
Subject to the payment to Executive of all amounts required by Sections 6 and 7
below, Executive's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. Executive's employment hereunder shall terminate upon Executive's
death.
(b) TOTAL DISABILITY. The Company shall terminate Executive's employment
hereunder upon Executive becoming "Totally Disabled." For purposes of
this Agreement, Executive shall be "Totally Disabled" if, in the good
faith determination of the Board of Directors, based on sound medical
advice, Executive has become physically or mentally incapable of
performing Executive's usual and customary duties under this Agreement
for a continuous period of one hundred eighty (180) days, in which event
Executive will be deemed Totally Disabled upon the expiration of such one
hundred eighty (180) day period. Executive's receipt of disability
benefits under the Company's long-term disability plan shall be deemed
conclusive evidence of Total Disability for purposes of this Agreement;
provided, however, that a determination of Total Disability also may be
made by the Board of Directors as provided above in the absence of
Executive's receipt of such long-term disability benefits.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
Executive's employment hereunder for "Cause" at any time after providing
written notice to Executive. 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 an indictable
offense or, in the good faith judgment of the Company's Board of
Directors, moral turpitude; (B) deliberate and continual refusal to
perform Executive's usual and customary duties under this Agreement
(other than as a result of vacation, sickness, illness or injury) after
thirty (30) days' written notice by registered mail to Executive of such
failure to perform, specifying that the failure constitutes cause; (C)
fraud or embezzlement; (D) gross misconduct or gross negligence in
connection with performance of Executive's duties under this Agreement;
or (E) breach of any of the covenants set forth in Section 8 hereof.
(d) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate his
employment hereunder (i) at any time during the Employment Term after
providing thirty (30) days' written notice to the Company, or (ii) at any
time within six (6) months after a
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Change of Control (as defined in Section 7(a) hereof), without prior
notice, as provided in Section 7 of this Agreement.
(e) TERMINATION BY COMPANY WITHOUT CAUSE. At any time during the Employment
Term, the Company may terminate Executive's employment hereunder without
Cause effective immediately upon written notice to Executive.
6. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
In the event that Executive's employment hereunder is terminated, Executive
shall be entitled to the following compensation and benefits upon such
termination:
(a) TERMINATION BY REASON OF DEATH OR TOTAL DISABILITY. In the event that
Executive's employment is terminated by reason of Executive's death or
Total Disability:
(i) Executive or his beneficiaries or estate shall be entitled to
receive, within fourteen (14) days after the effective date of
termination, any accrued but unpaid Base Salary for services
rendered by Executive to the Company prior to the date of
termination, any accrued but unpaid expenses required to be
reimbursed under this Agreement, and cash compensation (at a rate
per day equal to the Base Salary divided by the number of business
days in the relevant year) for any accrued vacation that remained
unused by the Executive at the time of termination.
(ii) Any earned benefits to which Executive (or his beneficiaries or
estate) may be entitled pursuant to the plans, policies and
arrangements referred to in Section 4(d) hereof shall be
determined and paid in accordance with the terms of such plans,
policies and arrangements.
(iii) Executive (or his beneficiaries or estate) shall be entitled to be
paid his Base Salary on the Company's regular pay days for a
period of three (3) years from the effective date of termination
plus a lump sum payment on the effective date of termination equal
to three (3) times the average of the cash bonuses paid to
Executive in each of the two (2) most recently completed fiscal
years; provided, however, that if at the time of termination
Executive has not been employed by the Company for two fiscal
years, such lump sum payment shall equal three (3) times
Executive's Base Salary.
(iv) Executive or his beneficiaries or estate shall be entitled to
continue to receive life insurance, medical, dental and short-term
and long-term disability benefits of the type and amount made
available to Executive immediately prior to termination pursuant
to the plans, policies and arrangements referred to in Section
4(d) hereof for a period of three (3) years from the effective
date of termination; provided, however, if such plans, policies
and arrangements do not continue to be maintained by the Company
or are otherwise not available to Executive, the
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Company shall provide for and make available to Executive
substantially similar economic benefits as were provided to
Executive pursuant to such plans, policies and arrangements as of
the effective date of termination.
(v) Any stock options granted Executive prior to the effective date of
termination will continue to vest (to the extent such options were
unvested at the time of termination) and Executive or his
beneficiaries or estate shall be permitted to exercise such
options at the same time and in the amounts as would have been the
case had Executive remained employed by the Company.
(b) TERMINATION FOR CAUSE. In the event that Executive's employment is
terminated by the Company for Cause pursuant to Section 5(c):
(i) Executive shall be entitled to receive, within fourteen (14) days
after the effective date of termination, any accrued but unpaid
Base Salary for services rendered by Executive to the Company
prior to the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, and cash
compensation (at a rate per day equal to the Base Salary divided
by the number of business days in the relevant year) for any
accrued vacation that remained unused by the Executive at the time
of termination.
(ii) Any earned benefits to which Executive may be entitled pursuant to
the plans, policies and arrangements referred to in Section 4(d)
hereof shall be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(c) VOLUNTARY TERMINATION BY EXECUTIVE. In the event that Executive
terminates his employment pursuant to Section 5(d)(i) hereof:
(i) Executive shall be entitled to receive, within fourteen (14) days
after the effective date of termination, any accrued but unpaid
Base Salary for services rendered by Executive to the Company
prior to the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, and cash
compensation (at a rate per day equal to the Base Salary divided
by the number of business days in the relevant year) for any
accrued vacation that remained unused by the Executive at the time
of termination.
(ii) Any earned benefits to which Executive may be entitled pursuant to
the plans, policies and arrangements referred to in Section 4(d)
hereof shall be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(d) TERMINATION BY COMPANY WITHOUT CAUSE. In the event that Executive's
employment is terminated by the Company without Cause pursuant to Section
5(e) hereof:
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(i) Executive shall be entitled to continue to receive his Base Salary
on the Company's regular pay days until the later of (A) September
7, 2004 and (B) the first anniversary of the effective date of
termination.
(ii) Executive shall be entitled to continue to receive life insurance,
medical, dental and short-term and long-term disability benefits
of the type and amount made available to Executive immediately
prior to termination pursuant to the plans, policies and
arrangements referred to in Section 4(d) hereof until the later of
(A) September 7, 2004 and (B) the first anniversary of the
effective date of termination; provided, however, that if such
plans, policies and arrangements do not continue to be maintained
by the Company or are otherwise not available to Executive, the
Company shall provide for or make available to Executive
substantially similar economic benefits as were provided to
Executive pursuant to such plans, policies and arrangements as of
the effective date of termination.
(iii) Any stock options granted to Executive prior to the effective date
of termination will continue to vest (to the extent such options
were unvested at the time of termination) and Executive shall be
permitted to exercise such options at the same time and in the
amounts as would have been the case had Executive remained
employed by the Company;
provided, however, that if the Company terminates Executive's employment
without Cause within six (6) months after a Change of Control, Executive
shall be paid the amounts set forth in Sections 7(b) and 7(c) hereof
rather than the amounts set forth in this Section 6(d).
(e) NO OTHER BENEFITS OR COMPENSATION. Except as may be provided under this
Agreement or under the terms of any incentive compensation, employee
benefit or fringe benefit plan applicable to Executive at the time of
Executive's termination of 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
termination or resignation.
(f) SUSPENSION OR TERMINATION OF BENEFITS AND COMPENSATION. Notwithstanding
anything herein to the contrary, in the event that the Board of Directors
determines in its good faith judgment that Executive has violated
Sections 8(a) or 8(b) hereof, the Company shall have the right to suspend
or terminate any or all remaining payments or benefits payable pursuant
to Section 6 of this Agreement. Such suspension or termination of
benefits shall be in addition to and shall not limit any and all other
rights and remedies that the Company may have against Executive.
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7. CHANGE OF CONTROL.
(a) RESIGNATION FOLLOWING CHANGE OF CONTROL. In the event that Executive
terminates his employment with the Company within six (6) months after a
"Change of Control" pursuant to Section 5(d)(ii) hereof, Executive shall
be entitled to the compensation described in this Section 7 upon such
termination. For purposes of this Agreement, a "Change of Control" means
(A) the sale or lease of all or substantially all of the assets of the
Company to any person or entity that, prior to such sale, was not
controlled by the Company, (B) a merger, amalgamation, consolidation or
other reorganization in which the Company is not the surviving entity or
becomes owned entirely by another entity, unless at least 50% of the
outstanding voting securities of the surviving or parent corporation, as
the case may be, immediately following such transaction are beneficially
held by such persons and entities in the same proportion as such persons
and entities beneficially held the outstanding voting securities of the
Company immediately prior to such transaction, (C) the acquisition in a
single transaction or series of related transactions, other than pursuant
to the Subscription Agreement or pursuant to any other acquisition by the
Investors, as such term is defined in the Subscription Agreement (such
other acquisition by the Investors being referred to as an "Investor
Acquisition"), of more than 50% of the voting securities of the Company
by a single person or "group" within the meaning of Section 13(d)(3) of
the United States Securities Exchange Act of 1934, as amended, whether
through the acquisition of previously issued and outstanding voting
securities or of voting securities that have not been previously issued,
or any combination thereof; provided, however, that any Investor
Acquisition shall constitute a Change of Control if the Investor
Acquisition is accompanied by a change in the board of directors of the
Company such that the directors of the Company prior to such acquisition
no longer constitute a majority of the board of directors of the Company
after such acquisition and (D) the voluntary or involuntary dissolution,
liquidation or winding up of the Company, or the adoption of any
resolution with respect thereto.
(b) COMPENSATION PAYABLE. In the event that Executive terminates his
employment pursuant to Section 5(d)(ii) hereof:
(i) Executive shall be entitled to receive, within fourteen (14) days
after the effective date of termination, any accrued but unpaid
Base Salary for services rendered by Executive to the Company
prior to the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, and cash
compensation (at a rate per day equal to the Base Salary divided
by the number of business days in the relevant year) for any
accrued vacation that remained unused by Executive at the time of
termination.
(ii) Executive shall be entitled to continue to receive his Base Salary
on the Company's regular pay days for a period of three (3) years
from the effective date of termination plus a lump sum payment on
the effective date of termination equal
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to three (3) times the average of the cash bonuses paid to
Executive in each of the two (2) most recently completed fiscal
years; provided, however, that if at the time of termination
Executive has not been employed by the Company for two fiscal
years, such lump sum payment shall equal three times Executive's
Base Salary.
(iii) Executive shall be entitled to continue to receive benefits
pursuant to the plans, policies and arrangements referred to in
Section 4(d) hereof for a period of three (3) years from the
effective date of termination; provided, however, if such plans,
policies and arrangements do not continue to be maintained by the
Company or are otherwise not available to Executive, the Company
shall provide for and make available to Executive substantially
similar economic benefits as were provided to Executive pursuant
to such plans, policies and arrangements as of the effective date
of termination.
(iv) Any stock options granted Executive prior to the effective date of
termination will continue to vest (to the extent such options were
unvested at the time of termination) and Executive shall be
permitted to exercise such options at the same time and in the
amounts as would have been the case had Executive remained
employed by the Company.
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 termination, 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 termination.
(c) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. In the event that any portion
of the compensation or 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 Executive (collectively, "Total
Payments") constitute an "excess parachute payment" within the meaning of
Section 280G of the Internal Revenue Code (the "Code") (if applicable),
then the Company shall pay Executive as promptly as practicable following
such determination an additional amount (the "Gross-up Payment")
calculated as described below to reimburse 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 (including the Gross-up Payment)
actually received by 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
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 Executive's tax rate will be the maximum federal
rate to be computed with regard to Section 1(g) of the Code.
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In the event that 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 the Change of Control) by the
Company regarding federal income tax matters and such law firm or
accounting firm shall determine the amount of the Gross-up Payment and
such determination shall be final and binding upon Executive and the
Company.
8. RESTRICTIVE COVENANTS
(a) COMPETITIVE ACTIVITY. Executive covenants and agrees that at all times
during Executive's employment with the Company, and during the
Non-Compete Period (as defined below), Executive will not, without the
prior written consent of the Company, 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 holdings 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 engaged in the business of
collecting, storing, transferring, recovering, recycling, marketing or
disposing of rubbish, garbage, paper, textile wastes, or liquid or other
wastes within 75 miles of any operating location of the Company or any of
its subsidiaries.
(b) NON-SOLICITATION. Executive covenants and agrees that at all times during
Executive's employment with the Company, and during the Non-Compete
Period, Executive will not, without the prior written consent of the
Company, directly or indirectly (i) induce any customer of the Company or
any of its subsidiaries to patronize any similar business which competes
with any material business of the Company or any of its subsidiaries;
(ii) canvass, solicit or accept any similar business from any customer of
the Company or any of its subsidiaries; (iii) request or advise any
customer of the Company or any of its subsidiaries to withdraw, curtail
or cancel such customer's business with the Company or any of its
subsidiaries; (iv) disclose to any other person, firm or corporation the
names or addresses of any customer of the Company or any of its
subsidiaries other than as required in connection with the performance of
Executive's duties under this Agreement; or (v) cause, solicit, entice or
induce any present or future employee of the Company or any of its
subsidiaries to leave the employ of the Company or any of its
subsidiaries, or to accept employment with, or compensation from,
Executive.
(c) NON-DISPARAGEMENT. Executive covenants and agrees that Executive 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 or its management.
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(d) PROTECTED INFORMATION. Executive recognizes and acknowledges that
Executive has had and will continue to have access to various
confidential and proprietary information concerning the Company of a
special and unique value which may include, without limitation, (i) books
and records relating to the operation, finance, accounting, sales,
personnel and management, (ii) policies and matters relating particularly
to the Company's 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 customer lists,
route sheets, business opportunities, marketing or business
diversification plans, business development and bidding techniques,
methods and processes, financial data and the like (collectively, the
"Protected Information"). Executive therefore covenants and agrees that
Executive 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
or as required in connection with the performance of Executive's duties
under this Agreement) any of the Protected Information.
(e) NON-COMPETE PERIOD. For purposes of this Agreement, the term "Non-Compete
Period" shall have the following meanings: (i) in the event of a
termination of Executive without Cause pursuant to Section 5(e) hereof,
the Non-Compete Period shall mean the period during which payments are
being made to Executive pursuant to Section 6(d) hereof, (ii) in the
event Executive terminates his employment within six (6) months after a
Change of Control pursuant to Section 5(d)(ii) hereof, in the case of a
Change of Control that Executive supported by voting in favor of the
transaction as a director, the Non-Compete Period shall mean the period
beginning on the effective date of termination and ending on the third
anniversary of the effective date of termination and, in the case of any
other Change of Control, the Non-Compete Period shall mean the period
beginning on the effective date of termination and ending on the second
anniversary of the effective date of termination.
9. ENFORCEMENT OF COVENANTS.
(a) TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. Executive
agrees that any breach by Executive of any of the covenants set forth in
Section 8 hereof during Executive's employment by the Company, shall be
grounds for immediate dismissal of Executive and forfeiture of any
accrued and unpaid Base Salary, bonus, commissions or other compensation
of such Executive 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 Executive.
(b) RIGHT TO INJUNCTION. Executive acknowledges that a breach of the
covenants set forth in Section 8 hereof will cause irreparable damage to
the Company with respect to which the Company's remedy at law for damages
will be inadequate. Therefore, in the event of a breach of the covenants
set forth in Section 8 by Executive, Executive and the
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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 restraining such breach or anticipatory breach and Executive
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 8 hereof
constitute a series of separate covenants, one for each applicable State
in the United States and the District of Columbia, and one for each
Province and Territory in Canada. If in any judicial proceeding, a court
shall hold that any of the covenants set forth in Section 8 exceed the
time, geographic, or occupational limitations permitted by applicable
laws, Executive 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. Executive and the Company further agree that
the covenants in Section 8 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 Executive 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 8.
10. DISPUTES AND PAYMENT OF ATTORNEY'S FFES.
If at any time during the term of this Agreement or afterwards there should
arise any dispute as to the validity, interpretation or application of any term
or condition of this Agreement, the Company agrees, upon written demand by
Executive (and Executive shall be entitled upon application to any court of
competent jurisdiction, to the entry of a mandatory injunction, without the
necessity of posting any bond with respect thereto, compelling the Company) to
promptly provide sums sufficient to pay on a current basis (either directly or
by reimbursing Executive) Executive's costs and reasonable attorney's fees
(including without limitation expenses of investigation and disbursements for
the fees and expenses of experts) incurred by Executive in connection with any
such dispute or any litigation, (a) provided that Executive shall repay any such
amounts paid or advanced if Executive is not the prevailing party with respect
to any dispute or litigation arising under Sections 5(c) or 8 of this Agreement,
or (b) regardless of whether Executive is the prevailing party in a dispute or
in litigation involving any other provision of this Agreement, provided that the
court in which such litigation is first initiated determines with respect to
this obligation, upon application of either party hereto, that Executive did not
initiate frivolously such litigation. Under no circumstances shall Executive be
obligated to pay or reimburse the Company for any attorneys' fees, costs or
expenses incurred by the
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Company. The provisions of this Section shall survive the expiration or
termination of this Agreement and Executive's employment hereunder.
11. WITHHOLDING OF TAXES.
The Company may withhold all applicable taxes from any compensation and benefits
payable under this Agreement.
12. NON-DISCLOSURE OF AGREEMENT TERMS.
If Executive's employment with the Company is terminated for any reason, the
Company agrees that, except to the extent required by law, it will not make or
publish, without the express written consent of Executive, any written or oral
statement concerning Executive or the terms of Executive's employment with the
Company, including, without limitation, his work-related performance or the
reasons or basis for the termination of Executive's employment with 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 Executive, and shall be assignable by the Company only to any
financially solvent corporation or other entity resulting from the
reorganization, merger, consolidation or amalgamation of the Company with any
other corporation or entity or any corporation or entity to or with which the
Company's business or substantially all of its business or assets may be sold,
exchanged or transferred, and it must be so assigned by the Company to, and
accepted as binding upon it by, such other corporation or entity in connection
with any such amalgamation, reorganization, merger, consolidation, sale,
exchange or transfer (the provisions of this sentence also being applicable to
any successive such transaction).
14. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Executive and the Company relating to the
terms of Executive'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
internal substantive laws of the Province of Ontario, without giving effect to
the conflict of law principles thereof.
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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 if delivered personally, mailed by registered or certified mail (return
receipt requested), or by confirmed facsimile to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To the Company: Capital Environmental Resource Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx X0X 0X0
Attention: Secretary
To Executive: At the address for Executive set forth below.
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 9 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.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
CAPITAL ENVIRONMENTAL RESOURCE, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Title: Secretary
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Date: September 7, 2001
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EXECUTIVE
By: /s/ Xxxxx Xxxxxxxxxx-Xxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxx-Xxxxx
Date: September 7, 2001
--------------------------------------------
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