EMPLOYMENT AGREEMENT
Exhibit 10.2
This
EMPLOYMENT AGREEMENT
(this “Agreement”), is made
and entered into effective as of February 9, 2009 (the “Effective Date”), by
and between Waste Connections, Inc., a Delaware corporation (the “Company”), and Xxxxx
Xxxxxxxxx (the “Employee”).
The
Company desires to engage the services and employment of the Employee for the
period provided in this Agreement, and the Employee is willing to accept
employment by the Company for such period, on the terms and conditions set forth
below.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and conditions herein,
the Company and the Employee agree as follows:
1.
Employment;
Acceptance. The Company hereby employs the Employee and the
Employee hereby accepts employment by the Company on the terms and conditions
hereinafter set forth.
2.
Duties and
Powers. The Employee is hereby employed as Vice President –
Disposal Operations, and, during the Term, the Employee shall devote Employee’s
attention, energies and abilities in that capacity to the proper oversight and
operation of the Company’s business, to the exclusion of any other
occupation. As Vice President – Disposal Operations, the Employee shall
report to the Senior Vice President – Engineering and Disposal of the Company,
shall be based at the Company’s corporate headquarters in California, and shall
be responsible for oversight of the Company’s landfill and transfer station
assets. The Employee shall perform such other duties as the Senior Vice
President – Engineering and Disposal, the Chief Executive Officer of the Company
or the Board of Directors (the “Board”) of the
Company may reasonably assign to the Employee from time to time. The
Employee shall devote such time and attention to Employee’s duties as are
reasonably necessary to the proper discharge of Employee’s responsibilities
hereunder. The Employee agrees to perform all duties consistent
with: (a) policies established from time to time by the Company; and
(b) all applicable legal requirements.
3.
Term. The
employment of the Employee by the Company pursuant to this Agreement shall
commence on the Effective Date and continue until the third anniversary thereof
(the “Term”) or
until terminated prior to such date when and as provided in Sections 7 and
8. On each anniversary of the Effective Date, this Agreement shall be
extended automatically for an additional year, thus extending the Term to three
(3) years from each such date, unless either party shall have given the other
notice of termination hereof as provided herein.
4.
Compensation.
4.1 Base
Salary. Commencing on the Effective Date, the Company hereby
agrees to pay to the Employee an annual base salary of One Hundred Sixty
Thousand Dollars ($160,000). When used herein, “Base Salary” shall
refer to the base salary described in the preceding sentence that is in effect
at that time, and as may be increased from time to time. Such Base
Salary shall be payable in accordance with the Company’s normal payroll
practices, and such Base Salary is subject to withholding and social security,
unemployment and other taxes. Increases in Base Salary shall be
considered by the Board and/or the Chief Executive Officer.
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4.2 Performance
Bonus. For the calendar year commencing January 1, 2009, and
for each calendar year thereafter, the Employee shall be
eligible to receive an annual cash bonus (the “Bonus”) based on the
Company’s attainment of reasonable financial objectives to be determined
annually by the Board, as well as Employee’s achievement of agreed upon goals
annually. The annual Bonus target will equal forty percent (40%) of
the applicable year’s beginning Base Salary and will be payable if the Board
determines, in its sole and exclusive discretion, that that year’s financial
objectives have been fully met. The Bonus shall be paid in accordance
with the Company’s bonus plan, as approved by the Board, and, in any event,
within two and a half (2 1/2) months after the end of the fiscal year to which
the bonus relates.
4.3 Equity
Grants. Employee shall be entitled to participate in Stock
Option, Restricted Stock, RSU and other equity incentive programs presently in
effect or in effect from time to time in the future on such terms and to such
level of participation as the Board or the Compensation Committee of the Board
shall determine to be appropriate, bearing in mind the Employee’s position and
responsibilities.
Except as
otherwise provided herein, the terms of any Options, Restricted Stock, RSUs and
other equity incentives shall be governed by the relevant plans under which they
are granted and described in detail in applicable agreements between the Company
and the Employee.
4.4 Other Benefits. The
Company shall provide the Employee with a cellular telephone and will pay or
reimburse the Employee’s monthly service fee and costs of calls attributable to
Company business. The Employee shall be entitled to paid annual
vacation, which shall accrue on the same basis as for other employees of the
Company of similar rank, but which shall in no event be less than four (4) weeks
for any twelve (12) month period. The Employee also shall be entitled
to participate, on the same terms as other employees of the Company participate,
in any medical, dental or other health plan, pension plan, profit-sharing plan
and life insurance plan that the Company may adopt or maintain, any of which may
be changed, terminated or eliminated by the Company at any time in its exclusive
discretion.
5.
Confidentiality. During
the Term of Employee’s employment, and at all times thereafter, the Employee
shall not, without the prior written consent of the Company, divulge to any
third party or use for Employee’s own benefit or the benefit of any third party
or for any purpose other than the exclusive benefit of the Company, any
confidential or proprietary business or technical information revealed, obtained
or developed in the course of Employee’s employment with the Company and which
is otherwise the property of the Company or any of its affiliated corporations,
including, but not limited to, trade secrets, customer lists, formulae and
processes of manufacture; provided, however, that nothing herein contained shall
restrict the Employee’s ability to make such disclosures during the course of
Employee’s employment as may be necessary or appropriate to the effective and
efficient discharge of Employee’s duties to the Company.
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6.
Property. Both
during the Term of Employee’s employment and thereafter, the Employee shall not
remove from the Company’s offices or premises any Company documents, records,
notebooks, files, correspondence, reports, memoranda and similar materials or
property of any kind unless necessary in accordance with the duties and
responsibilities of Employee’s employment. In the event that any such
material or property is removed, it shall be returned to its proper file or
place of safekeeping as promptly as possible. The Employee shall not
make, retain, remove or distribute any copies, or divulge to any third person
the nature or contents of any of the foregoing or of any other oral or written
information to which Employee may have access, except as disclosure shall be
necessary in the performance of Employee’s assigned duties. On the
termination of Employee’s employment with the Company, the Employee shall leave
with or return to the Company all originals and copies of the foregoing then in
Employee’s possession or subject to Employee’s control, whether prepared by the
Employee or by others.
7.
Termination.
7.1 For Cause. The
Company, by action of the Board, may terminate this Agreement and the Employee’s
employment for Cause (as defined below) on delivery to the Employee of a Notice
of Termination (as defined in Section 9.1 below). On such termination
for Cause, the Employee shall be entitled only to the Employee’s Base Salary
through the date of such termination, and shall not be entitled to any other
compensation, including, without limitation, any severance
compensation. Without limitation of the foregoing, on termination
pursuant to this Section 7.1, the Employee shall forfeit: (i) Employee’s Bonus
under Section 4.2 for the year in which such termination occurs; and (ii)
all outstanding but unvested options and rights relating to capital stock of the
Company and all RSUs and shares of the Company’s restricted stock issued to the
Employee that as of the termination date are still unvested and subject to
restrictions on transfer.
7.2 Without Cause. The
employment of the Employee may be terminated without Cause at any time by the
Company on delivery to the Employee of a written Notice of Termination (as
defined in Section 9.1). In the event of such a termination without
Cause pursuant to this Section 7.2 that constitutes Employee’s Separation From
Service (as defined in Section 9.3), then on the Date of Termination (as defined
in Section 9.2) pursuant to this Section 7.2, the Company shall, in lieu of
any payments under Section 4.1 and 4.2 for the remainder of the Term, pay to the
Employee an amount equal to the lesser of: (a) the Employee’s Base Salary for a
period of one (1) year from the date of termination, and (b) the Employee’s Base
Salary for the remainder of the Term. In addition, the Employee shall
be entitled to the pro-rated target Bonus available to the Employee under
Section 4.2 for the year in which the termination occurs, taking into account
the bonus categories and weighting under the Company’s bonus plan and the
Company’s and Employee’s achievement thereunder as of the Date of
Termination. Such payment by the Company shall be paid in accordance
with the Company’s normal payroll practices and not as a lump sum
payment. In addition, the Company will pay as incurred the Employee’s
expenses, up to Fifteen Thousand Dollars ($15,000), associated with career
counseling and resume development. The Company shall also pay to the
Employee an amount equal to the Company’s portion (but not the Employee’s
portion) of the cost of medical, dental and other health plan insurance for
Employee, Employee’s spouse and Employee’s children at the rate in effect on the
Date of Termination for a period of one (1) year from the Date of
Termination. In addition, on termination of the Employee under this
Section 7.2, all of the Employee’s outstanding but unvested options and rights
relating to capital stock of the Company shall immediately vest and become
exercisable, and all RSUs and shares of the Company’s restricted stock issued to
the Employee shall immediately vest and become unrestricted and freely
transferable. The exercisability of any such options and rights shall
be extended to the earlier of (A) the expiration of the term of such options and
rights or (B) the first (1st)
anniversary of the Date of Termination. The Employee acknowledges
that extending the exercisability of any incentive stock options pursuant to
this Section 7.2 or Sections 7.3 or 7.4 below, could cause such option to lose
its tax-qualified status if it is an incentive stock option under the Internal
Revenue Code of 1986, as amended (the “Code”) and agrees
that the Company shall have no obligation to compensate the Employee for any
additional taxes he incurs as a result.
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7.3 Termination on
Disability. If during the Term the Employee should fail to
perform Employee’s duties hereunder on account of Disability, the Company shall
have the right, on written Notice of Termination delivered to the Employee, to
terminate the Employee’s employment under this Agreement. During the
period that the Employee shall have been incapacitated due to physical or mental
illness, the Employee shall continue to receive the full Base Salary provided
for in Section 4.1 hereof at the rate then in effect until the Date of
Termination pursuant to this Section 7.3. In the event of Employee’s
termination for Disability pursuant to this Section 7.3 that constitutes
Employee’s Separation from Service, then on the Date of Termination, the Company
shall pay to the Employee the payments and other benefits applicable to
termination without Cause set forth in Section 7.2 hereof, other than those
related to career counseling and resume development. The Company
shall also pay, on behalf of the Employee, an amount equal to the Company’s
portion (not the Employee’s portion) of the cost of medical, dental and other
health plan insurance for Employee, Employee’s spouse and Employee’s children at
the rate in effect on the Date of Termination for a period of one (1) year from
the Date of Termination. In addition, on such termination, all of the
Employee’s outstanding but unvested options and rights relating to capital stock
of the Company shall immediately vest and become exercisable, and all RSUs and
shares of the Company’s restricted stock issued to the Employee shall
immediately vest and become unrestricted and freely transferable. The
exercisability of any such options and rights shall be extended to the earlier
of (A) the expiration of the term of such options or rights or (B) the first
(1st)
anniversary of the Employee’s termination.
7.4 Termination on
Death. If the Employee shall die during the Term, the
employment of the Employee shall thereupon terminate. On the Date of
Termination pursuant to this Section 7.4, the Company shall pay to the
Employee’s estate the payments and other benefits applicable to termination
without Cause set forth in Section 7.2 hereof, other than those related to
career counseling and resume development. In addition, on termination
of the Employee under this Section 7.4, all of the Employee’s outstanding but
unvested options and rights relating to capital stock of the Company shall
immediately vest and become exercisable, and all RSUs and shares of the
Company’s restricted stock issued to the Employee shall immediately vest and
become unrestricted and freely transferable. The exercisability of
any such options and rights shall be extended to the earlier of (A) the
expiration of the term of such options or rights or (B) the first (1st)
anniversary of the Employee’s termination. The provisions of this
Section 7.4 shall not affect the entitlements of the Employee’s heirs,
executors, administrators, legatees, beneficiaries or assigns under any employee
benefit plan, fund or program of the Company.
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7.5 No Limitation on Company’s Right to
Terminate. Any other provision in this Agreement to the
contrary notwithstanding, the Company shall have the right, in its absolute
discretion, to terminate this Agreement and the Employee’s employment hereunder
at any time in accordance with the foregoing provisions of this Section 7, it
being the intent and purpose of the foregoing provisions of this Section 7 only
to set forth the consequences of termination with respect to severance or other
compensation payable to the Employee on termination in the circumstances
indicated.
8.
Termination by
Employee. The Employee may terminate his employment hereunder
on written Notice of Termination delivered to the Company setting forth the
effective Date of Termination. If the Employee terminates his
employment hereunder, he shall be entitled to receive, and the Company agrees to
pay on the effective Date of Termination specified in the Notice of Termination,
his current Base Salary under Section 4.1 hereof on a prorated basis to such
Date of Termination. On termination pursuant to this Section 8, the
Employee shall forfeit: (i) his Bonus under Section 4.2 for the year in which
such termination occurs; and (ii) all outstanding but unvested options and
rights relating to capital stock of the Company, and all RSUs and shares of the
Company’s restricted stock issued to the Employee that as of the termination
date are still unvested and subject to restrictions on transfer.
9.
Provisions Applicable to
Termination of Employment.
9.1 Notice of
Termination. Any purported termination of Employee’s
employment by the Company pursuant to Section 7 shall be communicated by Notice
of Termination to the Employee as provided herein, and shall state the specific
termination provisions in this Agreement relied on and set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee’s employment (“Notice of
Termination”). If the Employee terminates under Section 8, he
shall give the Company a Notice of Termination.
9.2 Date of
Termination. For all purposes, “Date of Termination”
shall mean, for Disability, thirty (30) days after Notice of Termination is
given to the Employee (provided the Employee has not returned to duty on a
full-time basis during such 30-day period), or, if the Employee’s employment is
terminated by the Company for any other reason or by the Employee, the date
specified in the Notice of Termination, which shall in no event be more than
thirty (30) days after the Notice of Termination is given.
9.3 Separation from
Service. For all purposes, “Separation from
Service” shall mean Employee’s “separation from service” with the Company
within the meaning of Section 409A of the Code and the regulations and other
guidance promulgated thereunder.
9.4 Cause. For purposes
of this Agreement, the term “Cause” shall
mean:
(a) a
material breach by the Employee of any of the terms of this Agreement that is
not immediately corrected following written notice of default specifying such
breach;
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(b) conviction
of a felony;
(c) a
breach of any of the provisions of Xxxxxxx 00
xxxxx;
(x) repeated
intoxification with alcohol or drugs while on Company premises during its
regular business hours to such a degree that, in the reasonable judgment of the
Chief Executive Officer or General Counsel of the Company, the Employee is
abusive or incapable of performing his duties and responsibilities under this
Agreement; and
(e) misappropriation
of property belonging to the Company and/or any of its affiliates.
9.5 Disability. For the
purposes of this Agreement, “Disability” shall
mean the Employee’s failure to perform his duties hereunder on account of
physical or mental illness or other incapacity which the Board shall in good
faith determine renders the Employee incapable of performing his duties
hereunder, and such illness or other incapacity shall continue for a period of
more than six (6) consecutive months.
9.6 Benefits on
Termination. On termination of this Agreement by the Company
pursuant to Section 7 or the Employee pursuant to Section 8, all profit-sharing,
deferred compensation and other retirement benefits payable to the Employee
under benefit plans in which the Employee then participated shall be paid to the
Employee in accordance with the provisions of the respective plans.
9.7 Section 409A.
(a) Notwithstanding
any provision to the contrary in the Agreement, if the Employee is deemed by the
Company at the time of the Employee’s Separation from Service to be a “specified
employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent
delayed commencement of any portion of the benefits to which the Employee is
entitled under this Agreement is required in order to avoid a prohibited
distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of the
Employee’s benefits shall not be provided to the Employee prior to the earlier
of (A) the expiration of the six (6)-month period measured from the date of
Employee’s “separation from service” with the Company (as such term is defined
in the Treasury Regulations issued under Section 409A of the Code) or (B) the
date of the Employee’s death. Upon the expiration of the applicable
Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this
Section 9.7
shall be paid in a lump sum to the Employee, and any remaining payments due
under this Agreement shall be paid as otherwise provided herein.
(b) To
the extent that any reimbursements payable pursuant to this Agreement are
subject to the provisions of Section 409A of the Code, any such reimbursements
payable to Employee pursuant to this Agreement shall be paid to Employee no
later than December 31 of the year following the year in which the expense was
incurred, the amount of expenses reimbursed in one year shall not affect the
amount eligible for reimbursement in any subsequent year, and Employee’s right
to reimbursement under this Agreement will not be subject to liquidation or
exchange for another benefit.
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(c) For
purposes of Section 409A of the Code (including, without limitation, for
purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Employee’s right
to receive the installment payments under this Agreement shall be treated as a
right to receive a series of separate payments and, accordingly, each such
installment payment shall at all times be considered a separate and distinct
payment.
10. Change In
Control.
10.1 Payments on Change in
Control. Notwithstanding any provision in this Agreement to
the contrary, a Change in Control (as defined below) that constitutes a “change
in control” of the Company (within the meaning of Section 409A of the Code and
the Department of Treasury regulations and other guidance promulgated
thereunder) shall be deemed a termination of the Employee without Cause, and, in
lieu of any benefits payable to the Employee under Section 7.2, 7.3 or 7.4, the
Employee shall be entitled to receive and the Company agrees to pay to the
Employee the same amount determined under Section 7.2 that is payable to
the Employee on a termination without Cause that constitutes a Separation from
Service provided, however, that such amount shall be payable in a lump sum on
the date of such Change in Control (which shall be deemed the Employee’s Date of
Termination) and not in installments as provided in
Section 7.2. In addition, on a Change in Control, all of the
Employee’s outstanding but unvested options and rights relating to capital stock
of the Company shall immediately vest and become exercisable, the exercisability
of any such options and rights shall be extended to the earlier of (A) the
expiration of the term of such options or rights or (B) the first anniversary of
the date of such Change in Control, and all RSUs and shares of the Company’s
restricted stock issued to the Employee shall immediately vest and become
unrestricted and freely transferable. For the avoidance of doubt,
upon payment to the Employee of the benefits provided by this paragraph of this
Section 10.1, the Employee shall no longer be entitled to any benefits otherwise
payable to the Employee under Section 7.2, 7.3 or 7.4 of this Agreement
regardless of the Employee’s termination of employment with the
Company.
After a Change in Control, if any
previously outstanding option or right (the “Terminated Option”)
relating to the Company’s capital stock does not remain outstanding, the
successor to the Company or its then Parent (as defined below) shall
either:
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(a)
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Issue
an option, warrant or right, as appropriate (the “Successor
Option”), to purchase common stock of such successor or Parent in
an amount such that on exercise of the Successor Option the Employee would
receive the same number of shares of the successor’s/Parent’s common stock
as the Employee would have received had the number of shares of Company
common stock subject to the Terminated Option been realized by the
Employee immediately prior to the transaction resulting in the Change in
Control and the Employee received shares of such successor/Parent in such
transaction. The aggregate exercise price for all of the shares
covered by such Successor Option shall equal the aggregate exercise price
of the Terminated Option; or
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(b)
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Pay
the Employee a bonus within ten (10) days after the consummation of the
Change in Control in an amount agreed to by the Employee and the
Company. Such amount shall be at least equivalent on an
after-tax basis to the net after-tax gain that the Employee would have
realized if the Employee had been issued a Successor Option under clause
10.1(a) above and had immediately exercised, or otherwise received the
stock subject to, such Successor Option and sold the underlying stock,
taking into account the different tax rates that apply to such bonus and
to such gain, and such amount shall also reflect other differences to the
Employee between receiving a bonus under this clause 10.1(b) and receiving
a Successor Option under clause 10.1(a)
above.
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10.2 Definitions. For
the purposes of this Agreement, a Change in Control shall be deemed to have
occurred if: (i) there shall be consummated (aa) any reorganization, liquidation
or consolidation of the Company, or any merger or other business combination of
the Company with any other corporation, other than any such merger or other
combination that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such transaction, and (bb) any sale, lease,
exchange or other transfer (in one (1) transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company; or
(ii) if any “person” (as defined in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)),
shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of fifty percent (50%) or more of the Company’s
outstanding voting securities (except that for purposes of this Section 10.2,
“person” shall not include any person (or any person that controls, is
controlled by or is under common control with such person) who as of the date of
this Agreement owns ten percent (10%) or more of the total voting power
represented by the outstanding voting securities of the Company, or a trustee or
other fiduciary holding securities under any employee benefit plan of the
Company, or a corporation that is owned directly or indirectly by the
stockholders of the Company in substantially the same percentage as their
ownership of the Company); or (iii) during any twelve (12) month period,
individuals who, at the beginning of such period, constituted the entire Board,
together with any new director(s) whose election by the Board or nomination for
election by the Company’s shareholders was approved by a vote of a least
one-half (1/2) of the directors then still in office who either were directors
at the beginning of the twelve (12) month period or whose election or nomination
for election was previously so approved, shall cease for any reason to
constitute at least one-half (1/2) of the membership of the Board.
The term “Parent” means a
corporation, partnership, trust, limited liability company or other entity that
is the ultimate “beneficial owner” (as defined above) of fifty percent (50%) or
more of the Company’s outstanding voting securities.
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11. Non-Competition and
Non-Solicitation.
11.1 In
consideration of the provisions hereof, for the Restricted Period (as defined
below), the Employee will not, except as specifically provided below, anywhere
in any county of any state within the geographic boundaries of the Company’s
operations, which, for the purposes of any event occurring prior to the Date of
Termination, shall mean the Company’s operations as existing as of the date of
such event and, for the purpose of any event occurring on or after the Date of
Termination, shall mean the Company’s operations as existing on the Date of
Termination (the “Restricted
Territory”), directly or indirectly, acting individually or as the owner,
shareholder, partner or management employee of any entity: (i) engage in the
operation of a solid waste collection, transporting or disposal business,
transfer facility, recycling facility, materials recovery facility or solid
waste landfill; or (ii) enter the employ as a manager of, or render any personal
services to or for the benefit of, or assist in or facilitate the solicitation
of customers for, or receive remuneration in the form of management salary,
commissions or otherwise from, any business engaged in such activities in such
counties; or (iii) receive or purchase a financial interest in, make a loan to,
or make a gift in support of, any such business in any capacity, including
without limitation, as a sole proprietor, partner, shareholder, officer,
director, principal agent or trustee; provided, however, that the Employee may
own, directly or indirectly, solely as an investment, securities of any business
traded on any national securities exchange or quoted on any NASDAQ market,
provided the Employee is not a controlling person of, or a member of a group
which controls, such business and further provided that the Employee does not,
in the aggregate, directly or indirectly, own two percent (2%) or more of any
class of securities of such business. The term “Restricted Period”
shall mean the period commencing on the Effective Date and ending on the Date of
Termination.
11.2 After
termination of this Agreement by the Company or the Employee pursuant to Section
7 or 8 or termination of this Agreement upon a Change in Control pursuant to
Section 10, the Employee shall not: (i) solicit any residential or commercial
customer of the Company to whom the Company provides service pursuant to a
franchise agreement with a public entity in the Restricted Territory; or (ii)
solicit any residential or commercial customer of the Company to enter into a
solid waste collection account relationship with a competitor of the Company in
the Restricted Territory; or (iii) solicit any such public entity to enter into
a franchise agreement with any such competitor, or (iv) solicit any officer,
employee or contractor of the Company to enter into an employment or contractor
agreement with a competitor of the Company or otherwise interfere in any such
relationship; or (v) solicit on behalf of a competitor of the Company any
prospective customer of the Company in the Restricted Territory that the
Employee called on or was involved in soliciting on behalf of the Company during
the Term, in each case until the first (1st)
anniversary of either the Date of Termination or the effective date of such
Change in Control (whichever is later), unless otherwise permitted to do so by
Section 11.1.
11.3 If
the final judgment of a court of competent jurisdiction declares that any term
or provision of this Section 11 is invalid or unenforceable, the parties agree
that the court making the determination of invalidity or unenforceability shall
have the power to reduce the scope, duration or area of the term or provision,
to delete specified words or phrases or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified after
the expiration of the time within which the judgment may be
appealed.
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12. Indemnification. As
an officer and agent of the Company, the Employee shall be fully indemnified by
the Company to the fullest extent permitted by applicable law in connection with
his employment hereunder.
13. Survival of
Provisions. The obligations of the Company under Section 12 of
this Agreement, and of the Employee under Sections 5, 6 and 11 of this
Agreement, shall survive both the termination of the Employee’s employment and
this Agreement.
14. No Duty to Mitigate; No
Offset. The Employee shall not be required to mitigate damages
or the amount of any payment contemplated by this Agreement, nor shall any such
payment be reduced by any earnings that the Employee may receive from any other
sources or offset against any other payments made to him or required to be made
to him pursuant to this Agreement.
15. Assignment; Binding
Agreement. The Company may assign this Agreement to any
parent, subsidiary, affiliate or successor of the Company. This
Agreement is not assignable by the Employee and is binding on him and his
executors and other legal representatives. This Agreement shall bind
the Company and its successors and assigns and inure to the benefit of the
Employee and his heirs, executors, administrators, personal representatives,
legatees or devisees. The Company shall assign this Agreement to any
entity that acquires its assets or business.
16. Notice. Any written
notice under this Agreement shall be personally delivered to the other party or
sent by a nationally recognized overnight delivery service or by certified or
registered mail, return receipt requested and postage prepaid, to such party at
the address set forth in the records of the Company or to such other address as
either party may from time to time specify by written notice.
17. Entire Agreement;
Amendments. This Agreement contains the entire agreement of
the parties relating to the Employee’s employment and supersedes all oral or
written prior discussions, agreements and understandings of every nature between
them, except for that certain Indemnification Agreement, dated on or about the
date hereof, by and between the Company and the Employee, which shall remain in
full force and effect. This Agreement may not be changed except by an
agreement in writing signed by the Company and the Employee.
18. Waiver. The waiver
of a breach of any provision of this Agreement shall not operate as or be
construed to be a waiver of any other provision or subsequent breach of this
Agreement.
19. Governing Law and Jurisdictional
Agreement. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of
California. The parties irrevocably and unconditionally submit to the
jurisdiction and venue of any court, federal or state, situated within
Sacramento County, California, for the purpose of any suit, action or other
proceeding arising out of, or relating to or in connection with, this
Agreement.
20. Severability. In
case any one or more of the provisions contained in this Agreement is, for any
reason, held invalid in any respect, such invalidity shall not affect the
validity of any other provision of this Agreement, and such provision shall be
deemed modified to the extent necessary to make it enforceable.
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Employment
Agreement: XXXXX XXXXXXXXX
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Page 10
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21. Enforcement. It is
agreed that it is impossible to measure fully, in money, the damage which will
accrue to the Company in the event of a breach or threatened breach of Sections
5, 6, or 11 of this Agreement, and, in any action or proceeding to enforce the
provisions of Sections 5, 6 or 11 hereof, the Employee waives the claim or
defense that the Company has an adequate remedy at law and will not assert the
claim or defense that such a remedy at law exists. The Company is
entitled to injunctive relief to enforce the provisions of such sections as well
as any and all other remedies available to it at law or in equity without the
posting of any bond. The Employee agrees that if the Employee
breaches any provision of Section 11, the Company may recover as partial damages
all profits realized by the Employee at any time prior to such recovery on the
exercise, grant or issuance of any stock option, restricted stock,
RSU or other equity incentive and the subsequent sale of any shares of the
Company’s Common Stock obtained through such exercise, grant or issuance, and
may also cancel all outstanding such stock options, restricted stock, RSUs or
other equity incentives.
22. Counterparts. This
Agreement may be executed in one or more facsimile or original counterparts,
each of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
23. Due Authorization. The
execution of this Agreement has been duly authorized by the Company by all
necessary corporate action.
[Signatures
appear on the following page]
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Employment
Agreement: XXXXX XXXXXXXXX
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IN WITNESS WHEREOF, this
Employment Agreement has been duly executed by or on behalf of the parties
hereto as of the date first above written.
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EMPLOYEE
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/s/
Xxxxx Xxxxxxxxx
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By:
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/s/ Xxxxxx X. Xxxxxxxxxxxx | ||
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Xxxxx
Xxxxxxxxx
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Xxxxxx
X. Xxxxxxxxxxxx,
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Chief
Executive Officer
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Address:
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Employment
Agreement: XXXXX XXXXXXXXX
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