EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of March 22,
2005, is entered into between WCA Management Company, L.P. (the "Company"), WCA
Waste Corporation (the "Guarantor") and Xxxxxx Xxxxxxx (the "Executive"), and is
effective as of January 1, 2005 (the "Effective Date").
RECITALS
A. The Company has previously determined that it is in the best
interest of the Company and its equity holders to retain the Executive and to
induce the continued employment of the Executive for the long term benefit of
the Company.
B. The Company desires to continue the employment of the Executive on
the terms set forth below to provide services to the Company and its affiliates,
and the Executive is willing to continue such employment and to continue to
provide such services on the terms set forth in this Agreement.
C. The Guarantor has determined that it is in the best interests of the
Guarantor to facilitate such retention and continued employment of the Executive
by the Company by guaranteeing the Company's obligations under this Agreement.
D. In consideration of the foregoing and the mutual terms, conditions,
and covenants set forth herein, and for other good and valuable consideration,
the parties hereto do hereby agree as set forth herein.
AGREEMENT
1. Term of Employment. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to remain in the employ of the
Company, for a three-year period commencing on the Effective Date of this
Agreement and continuing until the day before the third anniversary of the
Effective Date, plus any extensions made in accordance with the provisions of
this Section 1 (the "Term"). On the first day of each month occurring after the
Effective Date, the initial Term (and any extended Term) shall automatically be
extended for an additional calendar month unless prior to any such first day of
the affected calendar month, the Company or Executive shall have given notice
not to extend the Term. The Company and Executive agree that any such notice by
the Company shall constitute "Good Reason" as defined in Section 2(d) for
Executive to terminate Executive's employment. This Agreement shall terminate on
the earlier of (a) the last day of the Term or (b) such earlier date as this
Agreement is terminated pursuant to Section 2. Nothing in this Section 1 shall
limit the right of the Company or Executive to terminate Executive's employment
hereunder subject to the terms and conditions of Sections 7, 10 and 11 and other
applicable provisions of this Agreement.
2. Termination of Employment. Executive's employment with the Company
shall terminate upon the earliest of:
(a) the death of the Executive;
(b) at any time after Executive has been receiving full or partial
salary payments under the Company's disability plans for a period of 18
consecutive months by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 consecutive months, either the
Company or Executive sending the other party written notice that Executive is
"permanently disabled" as defined above in this Section 2(b); provided, however,
that during any period prior to such termination of this Agreement in which
Executive is receiving full or partial salary payments under the Company's
disability insurance policies, the obligation of the Company to pay Executive
salary pursuant to Section 4 shall cease;
(c) the Company's sending Executive written notice that Executive's
employment is terminated for "cause" which term shall mean (i) the willful
material breach by Executive of this Agreement, (other than any breach resulting
from Executive's incapacity due to physical or mental illness), which breach
continues for thirty (30) days after actual receipt of written notice from the
Company and which results in, or is reasonably likely to result in, demonstrable
material damage to the Company, (ii) Executive's conviction of or plea of guilty
to a felony or Executive's conviction of a crime involving moral turpitude,
(iii) Executive's engagement in the fraud of the Company or the misappropriation
or embezzlement of funds from the Company, (iv) or Executive's reckless
disregard or willful misconduct which misconduct, if ongoing, (as distinguished
from an isolated incident), continues for thirty (30) days after actual receipt
of written notice from the Company and which results in, or is reasonably likely
to result in, demonstrable and material damage to the Company;
(d) the Executive's sending the Company written notice that Executive's
employment is terminated for "Good Reason" which term shall mean the occurrence
(without the Executive's express written consent) of any one of the following
acts by the Company, or failures by the Company to act, unless, in the case of
any act or failure to act described below, such act or failure to act is
corrected within thirty (30) days after actual receipt of written notice from
Executive: (i) the Company's breach of a material term or condition of the
Agreement; (ii) except for any changes required by applicable law, the failure
by the Company to continue in effect any compensation plan in which the
Executive participates immediately prior to the date hereof which is material to
the Executive's total compensation, including but not limited to the Company's
annual incentive plan, long-term incentive plan, supplemental executive
retirement plan and equity incentive plan, as applicable, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to such plan; (iii) the Company's asking or requiring the
Executive to take (or not to take) any action which the Executive in good faith
reasonably believes could be materially misleading to the Company's employees,
investors, accountants or attorneys and/or any regulatory authority; or (iv)
notice by the Company to the Executive under Section 1 that the Term will not be
extended; provided, however, that the Executive's right to terminate the
Executive's employment for Good Reason shall not be affected by the Executive's
incapacity due to physical or mental illness.
2
Notwithstanding any other provision of this Section 2(d) to the contrary, within
ninety (90) days (or such other period as the parties may agree to in writing)
following any date on which an act by the Company or failure to act by the
Company gives rise to the right of Executive to terminate employment by the
Company for Good Reason, Executive shall provide the Company written notice that
Executive's employment is terminated, and any failure to comply with the
requirements of this sentence shall be conclusively deemed to be a waiver by
Executive of the right to terminate his employment hereunder for Good Reason
that is based on that act or failure to act by the Company.
3. Position and Duties.
(a) The Executive's positions shall be those of President and Chief
Operating Officer, and in such capacity Executive shall perform the customary
duties and responsibilities of the positions, and such other services and duties
as shall be assigned to him by the executive management of the Company in
accordance with Company policy. Subject to the Company's actual receipt of prior
written consent of Executive, these positions, duties, and responsibilities can
be modified as required to suit the specific requirements and needs of the
Company, provided that any such modification shall result in substantially
similar, comparable or higher positions, duties and responsibilities. Similarly,
subject to the Company's actual receipt of prior written consent of Executive,
the Company may assign Executive part time or full time to a subsidiary in which
case the subsidiary shall be jointly and severally responsible as, and shall be
treated as, the Company under this Agreement for the period of time the
Executive performs services for the subsidiary. Executive's place of employment
will be located within the greater Houston, Texas metropolitan area, but
Executive will undertake appropriate business travel as required by the Company.
(b) Executive agrees to conduct all business in accordance with the
Company's general policies/directives as they may exist at any given time.
Executive shall comply materially with all applicable laws and regulations of
the countries in which the Company and its affiliates operate.
(c) Executive agrees to devote his full time, attention, and efforts
during regular business hours, and at all such other times as may be requested
by the Company, consistent with industry practices, to the business affairs of
the Company during the Term of this Agreement and to perform his duties
faithfully and diligently to discharge the responsibilities assigned to the
Executive hereunder. The foregoing notwithstanding, the parties recognize and
agree that Executive may engage in passive personal investments and other
business, civic or charitable activities that do not conflict with the business
and affairs of the Company or interfere with Executive's performance of his
duties hereunder.
4. Salary. Except if Executive's employment is terminated pursuant to
Section 2(a), (b), (c) or (d) (in which case Section 7(a) applies) and except as
otherwise provided in Section 2(b), during the Term, the Company shall pay
Executive a base salary of $357,719 per year, payable bi-monthly ("Base
Salary"). The Base Salary will be increased each year on the anniversary
(beginning January 1, 2006) of the Employment Agreement by not less than the
increase during the immediately preceding year in the Consumer Price Index for
the Houston Standard Metropolitan Statistical Area.
3
5. Annual/Long-Term Incentives. During the Term, Executive shall
participate in the Guarantor's annual incentive plan (i.e., the Management
Incentive Plan or any successor thereto) and shall have the opportunity to earn
an annual bonus for the applicable measurement period of up to one hundred
percent (100%) of Executive's Base Salary based on performance measures and
annual incentive plan goals as shall be established by the Compensation
Committee pursuant to the terms of such plan. In addition, during the Term,
Executive shall participate, on comparable terms, in the Guarantor's long term
incentive plan (i.e., the Performance Unit Plan or any successor thereto) in
which similarly situated executives of the Company participate. Also, during the
Term, as soon as practicable following the Effective Date and the first day of
each of 2006 and 2007, Executive shall receive grants of restricted stock under
the 2004 WCA Waste Corporation Incentive Plan (or any successor thereto) in an
amount equal to the result obtained by dividing one hundred percent (100%) of
Executive's Base Salary for the relevant year by the fair market value of one
share of common stock of the Guarantor on the date of grant of the restricted
stock; provided, however, the parties expressly agree that for this purpose, the
fair market value of such share shall never be less than nine dollars and fifty
cents ($9.50) a share.
6. Benefits. Except if Executive's employment is terminated pursuant
to Section 2(a), (b), (c) or (d) (in which case Section 7(a) applies), during
the Term, Executive and, to the extent applicable, Executive's family,
dependents and beneficiaries, may participate in the benefit or similar plans,
policies or programs (including, without limitation, the Company's business and
entertainment expense reimbursement policies, car allowance policies, 401(k)
plans, disability plans, pension plans, health insurance plans and director and
officer liability insurance policies) provided to similarly-situated Executives
under the Company's standard employment practices as in effect from time to
time. Nothing herein shall be construed to require the Company to continue or
put into effect any plan, practice, policy, or program or any element thereof.
In addition, during the Term, Executive shall be entitled to three (3) weeks of
paid vacation days annually pursuant to applicable policies and procedures of
the Company as in effect from time to time.
7. Effects of Termination of Employment.
(a) Subject to the provisions of this Section 7, upon termination of
Executive's employment with the Company for any reason whatsoever, the Company
shall pay to Executive (or in case of Executive's death, to his estate), within
thirty (30) days of the effective date of such termination, all salary and
expense reimbursements due to Executive through the date of such termination,
and Executive shall be entitled to such benefits as are available pursuant to
the terms of any benefit or similar plans, policies or programs in which
Executive was participating at the time of such termination pursuant to Section
6 of this Agreement. In addition, upon termination of Executive's employment
with the Company for death or permanent disability, in lieu of any further
salary or bonus payments as severance to Executive for periods subsequent to
such termination and in lieu of any other severance otherwise payable to
Executive, the Company will pay to Executive (or to his estate, as applicable),
within thirty (30) days of such termination, a lump sum severance payment, in
cash equal to the Executive's Base Salary for the Remaining Term of the
Agreement as in effect immediately prior to such termination of Executive's
employment. Also, if the Company terminates the Executive's employment for any
reason other than those set forth in Sections 2(a), (b) or (c), or if Executive
terminates
4
Executive's Employment under Section 2(d), the Company shall continue throughout
the full Term of this Agreement to pay Executive's salary pursuant to Section 4,
to continue coverage in any annual and long-term incentive plans pursuant to
Section 5 and to provide Executive's benefits pursuant to Section 6 (and, if the
Company pays Executive's salary and provides Executive's benefits for the full
Term of this Agreement, Executive shall be subject to the covenants contained in
Section 9 through the full term of this Agreement).
(b) Notwithstanding any termination of this Agreement or Executive's
employment hereunder, this Section 7 and Sections 10 and 11 of this Agreement,
and the rights and obligations created therein, shall survive without
limitation.
(c) Notwithstanding any provision of this Agreement, it is the
intention of the parties hereto that there shall be no duplication of benefits
if the circumstances of Executive's termination of employment would otherwise
entitle Executive to payments and benefits under this Section 7 and under
Section 10. Accordingly, in the event of such a termination, if a particular
type of benefit is payable under both Section 7 and Section 10, the Company
shall in good faith compare the two benefits and Executive shall be paid the
greater of the two benefits. Such payment shall be accepted by Executive in lieu
of the lesser benefit otherwise provided under this Agreement.
8. Tax Withholding. All payments to Executive under this Agreement
shall be subject to withholding or deduction of such amounts as may be required
by law.
9. Noncompetition and Confidentiality.
(a) The parties recognize that the employment of Executive with the
Company has been and will continue to be special, unique and of an extraordinary
character, and in connection with such employment Executive has and will
continue to acquire special skill and training. The parties also recognize that
the covenants of Executive contained in this Section 9 are an essential part of
Executive's engagement by the Company and that, but for the agreement of the
Executive to comply with such covenants, the Company would not have entered into
this Agreement. Executive accordingly agrees that, during the Term, (i)
Executive shall not act or serve, directly or indirectly, as a principal, agent,
independent contractor, consultant, director, officer, executive, employee or
advisor or in any other position or capacity with or for, or acquire a direct or
indirect ownership interest in or otherwise conduct (whether as stockholder,
partner, investor, joint venturer, or as owner of any other type of interest),
any Competing Business (defined below); provided, however, that this clause
shall not prohibit the Executive from being the owner of (A) up to 5% of any
class of outstanding securities of any entity if such class of securities is
publicly traded or (B) any other securities owned by Executive on the date of
this Agreement, and (ii) Executive shall not, in connection with or for the
benefit of any person or entity engaged in the non-hazardous solid waste
business, solicit, induce, divert or take away, any officer, employee or
consultant of the Company.
(b) From the date hereof, Executive shall hold in secrecy for the
Company all trade secrets and other confidential information relating to the
business and affairs of the Company that have come or may have come to his
attention during his employment with the Company,
5
including information concerning costs, profits, markets, sales, business
development plans, lists of clients or customers, lists of acquisition targets
and other information about such acquisition targets and other information of a
similar nature (such categories of information being referred to herein as
"Confidential Information"). Executive shall not use for his own benefit or
disclose to any person any Confidential Information other than in the ordinary
course of the Company's business or in response to a court order, unless such
use or disclosure has the prior written authorization of the Company. Executive
shall deliver to the Company, upon request, all correspondence, memoranda,
notes, records, plans, customer lists, product compositions and other documents
and all copies thereof, whether in hard copy form or electronically or
magnetically stored, made, composed, or received by the Executive, solely or
jointly with others, that are in the Executive's possession, custody or control
and that are related in any manner to the past, present or anticipated business
of the Company.
(c) For the purposes of this Section 9, "Competing Business" shall mean
an individual, business, corporation, association, firm, undertaking,
partnership, joint venture, organization or other entity that operates
non-hazardous solid waste landfills, non-hazardous solid waste collection
businesses or similar facilities or businesses within a 50-mile radius of any of
the landfills or similar facilities of the Company, Guarantor or any affiliate
thereof.
(d) Should any portion of this Section 9 be deemed unenforceable
because of the scope, duration or territory encompassed by the undertakings of
the Executive hereunder, and only in such event, then the Executive and the
Company consent and agree to such limitation on scope, duration or territory as
may be finally adjudicated as enforceable by a court of competent jurisdiction
after the exhaustion of all appeals.
(e) The covenants in this Section 9 shall be construed as an agreement
ancillary to the other provisions of this Agreement, and the existence of any
claim or cause of action of the Executive against the Company, whether
predicated on this Agreement or otherwise, other than a claim or cause of action
based on the Company's failure to pay Executive amounts payable to Executive
hereunder, shall not constitute a defense to the enforcement by the Company of
this covenant.
(f) It is expressly recognized and agreed that the covenants set forth
in this Section 9 are for the purpose of restricting the activities of the
Executive only to the extent necessary for the protection of the legitimate
business interests of the Company, and the Company and the Executive agree that
said covenants are reasonable for that purpose and that such covenants do not
and will not preclude Executive from engaging in activities sufficient for the
purpose of earning a living.
10. Additional Consideration.
(a) Change in Control. In the event of the occurrence of a "Change in
Control" (defined below), and, within twenty-four (24) months following such
Change in Control, Executive's employment shall be involuntarily terminated for
any reason other than for cause or Executive shall (i) suffer a significant
reduction in reporting level (as determined by Executive in good faith), (ii)
suffer a reduction in Base Salary and annual incentive compensation at target by
ten percent (10%) or more or (iii) be required to relocate from the regular
assigned work place by
6
more than fifty (50) miles from Executive's regular assigned work place, the
Company shall pay to Executive, within thirty (30) days after the event
following such Change in Control that gives rise to the payment due hereunder, a
lump sum payment, in cash, equal to three (3) times the sum of (i) Executive's
annual Base Salary as in effect immediately prior to the Change in Control and
(ii) Executive's Average Annual Bonus (defined below). "Change in Control" shall
mean the occurrence during the Term of this Agreement, of an one of the
following events:
(i) An acquisition of any common stock ("Common Stock"), par
value $.01 per share, of the Guarantor or other securities entitled to
vote, or convertible into or exercisable for securities entitled to
vote, in the election of directors (such Common Stock and other
securities hereinafter being referred to as the "Voting Securities") of
the Guarantor by any Person (as specified in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
used in Sections 13(d) and 14(d) thereof), including for purposes of
this Section the Guarantor or its Affiliates, immediately after which
such Person has Beneficial Ownership (as defined below) of fifty
percent (50%) or more of the combined voting power of the Guarantor's
then outstanding Voting Securities; provided, however, a Change in
Control shall not be deemed to have occurred by reason of an
acquisition of fifty percent (50%) or more of the Guarantor's Voting
Securities by an employee benefit plan maintained by the Guarantor or
any of its Affiliates or by a Person in a Non-Control Transaction (as
defined below); or
(ii) The individuals who, as of the date of this Agreement are
members of the Board of Directors of the Guarantor (the "Incumbent
Board"), cease for any reason to constitute at least two/thirds (2/3)
of the members of the Board of Directors of the Guarantor; provided,
however, that an individual will be treated as a member of the
Incumbent Board if the members of the Board of Directors of the
Guarantor prior to such individual's nomination unanimously approve
such individual's nomination and election to the Board of Directors of
the Guarantor and provided further that no individual shall be
considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened proxy
contest or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of Directors
of the Guarantor (a "Proxy Contest"), including by reason of any
agreement intended to avoid or settle any Proxy Contest; or
(iii) The consummation of:
(A) A merger, consolidation or reorganization with or
into the Guarantor or in which securities of the
Guarantor are issued (a "Merger"), unless such
Merger, consolidation or reorganization occurs in
connection with a Non-Control Transaction;
(B) A complete liquidation or dissolution of the
Guarantor; or
(C) The sale or other disposition of all or
substantially all of the assets of the Guarantor to
any Person (other than a transfer to an employee
benefit plan or Affiliate of the Guarantor or under
conditions that would constitute a Non-Control
Transaction with
7
the disposition of assets being regarded as a
Merger for this purpose).
As used in the above definition of Change in Control, the following
terms have the following meanings:
(i) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
(ii) "Beneficial Ownership," "Beneficially Owned" and the like
means having, with respect to a security or group of securities, the
power to control or direct the voting or disposition of Voting
Securities, as determined by Rule 13d-3 under the Exchange Act.
(iii) "Non-Control Transaction" means a Merger whereby (A) the
individuals who were the president, chief executive officer and the
chief financial officer of the Guarantor hold such respective positions
with, and individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for the
Merger, constitute at least a majority of the members of the board of
directors of, the surviving corporation and (B) either (1) fifty
percent (50%) or more of the combined voting power of the then
outstanding voting securities of the surviving corporation is
Beneficially Owned directly by the Beneficial Owners of the Guarantor's
Voting Securities prior to the Merger or (2) the president, chief
executive officer and/or chief financial officer of the Company, as a
result of such Merger, acquire (or their Affiliates acquire) fifty
percent (50%) or more of the combined voting power of the then
outstanding voting securities of the surviving corporation.
This definition of Change in Control is intended to comply
with the definition of change in control under Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code"), as in effect
from time to time and, to the extent that the above definition does not
so comply, such definition shall be void and of no effect and, to the
extent required to ensure that this definition complies with the
requirements of Section 409A of the Code, the definition of such term
set forth in regulations or other regulatory guidance issued under
Section 409A of the Code by the appropriate governmental authority is
hereby incorporated by reference into and shall form part of this
Agreement as fully as if set forth herein verbatim and the Agreement
shall be operated in accordance with the definition prescribed in such
regulations or other regulatory guidance.
"Average Annual Bonus" shall mean the average annual bonus
earned by the Executive pursuant to any annual bonus plan maintained by
the Company in which the Executive participated in respect of any of
the three (3) consecutive calendar years ending immediately prior to
the calendar year in which occurs the last event that gives Executive
the right to payments under this Section 10(a); provided, however, that
if only one bonus is earned by the Executive in the applicable
three-year period, such bonus shall be deemed to be the Average Annual
Bonus.
(b) Gross-Up Payment. If any payment or distribution by the Company or
any of its affiliates or any acceleration of such payment or vesting of the
stock options or long-term
8
incentives, with respect to or for the benefit of Executive, whether paid or
payable or distributed or distributable under this Agreement or under any other
agreement, policy, plan, program or arrangement, or the lapse or termination of
any restriction under any agreement, policy, plan, program or arrangement (a
"Payment"), would be subject to the excise tax imposed by Section 4999 of the
Code by reason of being considered contingent on a change in ownership or
control of the Company, with the meaning of Section 280G of the Code, or to any
similar tax imposed by state or local law, or any interest or penalties with
respect to such tax (such tax or taxes, together with any interest or penalties
being hereafter collectively referred to as the "Excise Tax"), then Executive
shall be entitled to receive an additional payment or payments (collectively, a
"Gross-Up Payment"). The Gross-Up Payment will be in an amount such that, after
payment by Executive of all taxes (including any interest or penalties imposed
with respect to such taxes), including any income tax or Excise Tax imposed on
the Gross-Up Payment, Executive retains an amount equal to the Payment before
any Excise Tax is imposed. Any Gross-Up Payment shall be due and payable to the
Executive thirty (30) days prior to the due date of any Excise Tax.
(i) Scale-Back Agreement. Notwithstanding the foregoing, if no
Excise Tax would apply if the aggregate Payments were reduced by three
percent (3%), then the aggregate Payments shall be reduced by the
amount necessary to avoid application of the Excise Tax, in such manner
as the Executive shall direct, and no Gross-Up Payment will be made.
(ii) Determination of Parachute Payments or Gross-Up. Any
determination of the amount of Payments or Gross-Up required to be made
under this Agreement shall be made in writing by a certified public
accountant of the Executive's choosing, whose determination shall be
conclusive and binding upon the Executive and the Company for all
purposes. For this purpose, the accountant may make reasonable
assumptions and approximations concerning applicable taxes and may rely
on reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code. The Company and Executive shall
promptly furnish to the accountant such information and documents as
the accountant may reasonably request in order to make a determination
hereunder. The Company shall bear the fees of the accountant and all
costs the accountant may reasonably incur in connection with any
calculations contemplated hereunder. The accountant shall be required
to provide a detailed determination to the Company and the Executive
within thirty (30) days after the date of receipt of all relevant
information.
(iii) Challenge by the IRS. If federal, state and local income
or other tax returns filed by Executive are consistent with the
determination of the accountant under paragraph 4 above, and the
Internal Revenue Service or any other taxing authority asserts a claim
or notice of deficiency (referred to in this Section as a "claim")
against the Executive that, if successful, would require the payment by
the Executive of an Excise Tax, the Company shall be obligated to make
the Gross-Up Payment set forth above, provided that the Executive (i)
notifies the Company within ten (10) business days of the claim; (ii)
does not pay such claim prior to the earlier of (1) the expiration of
the thirty (30) calendar-day period following the date on which he
gives such notice to the Company and (2) the date that any payment of
amount with respect to such claim is due.
9
If the Company notifies Executive in writing prior to the expiration of
such period that it desires to contest such claim, Executive will:
(A) Provide the Company with any written records or
documents in his or her possession relating to such
claim reasonably requested by the Company;
(B) Take such action in connection with contesting such
claim as the Company shall reasonably request in
writing from time to time, including, without
limitation, accepting legal representation with
respect to such claim by an attorney competent in
respect of the subject matter and reasonably
selected by the Company;
(C) Cooperate with the Company in good faith in order
to effectively contest such claim, which may
include the payment of an amount advanced by the
Company and assertion of claim for refund; and
(D) Permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company will bear and pay directly all
costs and expenses (including interest and penalties) incurred in
connection with such contest and will indemnify and hold harmless
Executive, on an after-tax basis, for and against any Excise Tax or
income tax, including interest and penalties with respect thereto,
imposed as a result of such contest and any such payments. If the
Company directs Executive to pay the tax claimed, or otherwise fails to
contest the claim as described above, the Company will immediately pay
to Executive the amount of the deficiency payment claimed by the IRS to
be due, including, but not limited to, any interest, penalty or Excise
Tax due on such deficiency (such payments to be collectively referred
to as the "Deficiency Payment") and shall also pay to the Executive a
Gross-Up Payment in an amount necessary to pay the income tax liability
of the Executive on the Deficiency Payment and the Gross-Up Payment.
(iv) Dispute Resolution. The Company and Executive agree that
any dispute regarding the interpretation or enforcement of this
Agreement shall be decided by confidential, final and binding
arbitration rather than by litigation in court, trial by jury or other
forum. Executive and Company agree that in any dispute resolution
proceedings arising out of this Agreement, the Company shall be
responsible for all reasonable attorney's fees and costs incurred by
Executive, not to exceed $50,000 in connection with the resolution of
the dispute in addition to any other relief granted.
11. No Mitigation; Limited Offset. The Company agrees that, if
Executive's employment with the Company terminates during the Term, Executive is
not required to seek other employment or to attempt in any way to reduce any
amounts payable to Executive by the Company pursuant to this Agreement. Further,
the amount of any payment or benefit provided for in this Agreement shall not be
reduced by any compensation earned by the Executive as the result of employment
by another employer, by retirement benefits, by offset against any amount
10
claimed to be owed by the Executive to the Company (unless such amount is
evidenced by a promissory note signed by the Executive), or otherwise.
12. Remedies. With respect to each and every breach or violation or
threatened breach or violation by Employee of Section 9, the Company, in
addition to all other remedies available at law or in equity, including specific
performance of the provisions thereof, shall be entitled to enjoin the
commencement or continuance thereof and may, with notice to Employee, but
without the necessity of posting a bond or otherwise, apply to any court of
competent jurisdiction for entry of an immediate restraining order or
injunction. The Company may pursue any of the remedies described in this Section
12 concurrently or consecutively in any order as to any such breach or
violation, and the pursuit of one of such remedies at any time will not be
deemed an election of remedies or waiver of the right to pursue any of the other
of such remedies.
13. Severability. The provisions of this Agreement are severable, and
any judicial determination that one or more of such provisions, or any portion
thereof, is invalid or unenforceable shall not affect the validity or
enforceability of any other provisions, or portion thereof, but rather shall
cause this Agreement to first be construed in all respects as if such invalid or
unenforceable provisions, or portions thereof, were modified to terms which are
valid and enforceable; provided, however, that if necessary to render this
Agreement enforceable, it shall be construed as if such invalid or unenforceable
provisions, or portions thereof, were omitted.
14. Successors. This Agreement is personal to the Executive and shall
not be assignable by the Executive without the prior written consent of the
Company. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
15. Governing Law. The validity, interpretation and performance of this
Agreement and all rights and obligations of the parties hereunder shall be
governed by and construed under the laws of the State of Texas.
16. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed, if to
Executive, to the address inserted below the Executive's signature on the final
page hereof and, if to the Company, to the address set forth below, or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon actual receipt:
To the Company:
WCA Management Company, L.P.
Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxx Xxxxx, Xx.
11
17. Amendment. This Agreement may not be amended or modified other than
by a written agreement executed by the parties hereto or their respective
successors, assigns or legal representatives.
18. Miscellaneous. No waiver by either party hereto at any time of any
breach by the other party hereto of, or of any lack of compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. This Agreement supersedes any other
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof which have been made by either party,
including, without limitation, any employment memorandum, memorandum of
understanding, or severance arrangements. Captions and Section headings in this
Agreement are provided merely for convenience and shall not affect the
interpretation of any of the provisions herein.
19. Guarantee By WCA Waste Corporation. The Guarantor hereby guarantees
all of the obligations of the Company under this Agreement.
The parties have executed this Employment Agreement as of the date
first set forth above.
WCA MANAGEMENT COMPANY, L.P.
BY: WCA MANAGEMENT GENERAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxxxx
-------------------------
Title: SVP & CFO
--------------------------------
Its: General Partner
WCA WASTE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Title: SVP & CFO
------------------------------------
12
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: President
------------------------------------
Home Address:
-----------------------------
-----------------------------
-----------------------------
13
