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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and effective as of October 1, 1997,
by and between Xxxxxx X. Xxxxxxxxxxxx (the "Employee"), Waste Connections, Inc.,
a Delaware corporation (the "Company"), and X. Xxxxxxxx Xxxxxx, Xxxxx X. Xxxxxx
and Xxxxx X. Xxxxxx, Xx. (the "Founders"), with reference to the following
facts.
The Company desires to engage the services and employment of the
Employee for the period provided in this Agreement, and the Employee is willing
to accept employment by the Company for such period, on the terms and conditions
set forth below.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein, the Company and the Employee agree as follows:
1. Employment. The Company agrees to employ the Employee, and the
Employee agrees to accept employment with the Company, for the Term stated in
Section 3 hereof and on the other terms and conditions herein.
2. Position and Responsibilities. During the Term, the Employee shall
serve as Chief Executive Officer and President of the Company, and perform such
other duties and responsibilities as the Board of Directors (the "Board") of the
Company may reasonably assign to the Employee from time to time. In addition,
the Employee shall serve as a member of the Board for an initial term of three
(3) years beginning on the date hereof. While the Employee is a member of the
Board, he shall serve on the Executive and Finance Committees of the Board. The
Employee shall devote such time and attention to his duties as are necessary to
the proper discharge of his responsibilities hereunder. The Employee agrees to
perform all duties consistent with (a) policies established from time to time by
the Company and (b) all applicable legal requirements.
3. Term. The period of the Employee's employment under this Agreement
shall commence on the effective date of this Agreement and shall continue
through September 30, 2002, unless terminated earlier as provided herein or
extended by the vote of a majority of the Board (the "Term"). At the end of the
Term, this Agreement shall be renewed automatically for successive periods of
one year, unless either party shall have given the other notice of termination
hereof as provided herein.
4. Compensation, Benefits and Reimbursement of Expenses.
(a) Compensation. The Company shall compensate the Employee
during the Term of this Agreement as follows:
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(1) Base Salary. The Employee shall be paid a base
salary ("Base Salary") of not less than One Hundred Seventy Thousand Dollars
($170,000) per year in installments consistent with the Company's usual
practices. The Board shall review the Employee's Base Salary on October 1 of
each year or more frequently, at the times prescribed in salary administration
practices applied generally to management employees of the Company. In addition,
if an IPO Closing (as defined below) with respect to the Company's Common Stock
occurs on or before October 1, 1998, the Employee's Base Salary shall be
adjusted on October 1, 1998, to the greater of (i) Two Hundred Fifty Thousand
Dollars ($250,000) per year, or (ii) the average of the annual base salaries of
Chief Executive Officers of comparable small- to mid-cap solid waste management
companies as determined and approved by the Board. An "IPO Closing" means (x)
the date the shares of the Company's Common Stock issued in an initial public
offering registered under the Securities Act of 1933, as amended (an "IPO"), are
sold to the underwriter, if the IPO is a fully underwritten offering, or (y) the
day following the closing of the Company's IPO, if the IPO is a best efforts
offering.
(2) Performance Bonus. The Employee shall be entitled
to an annual cash bonus (the "Bonus") based on the Company's attainment of
reasonable financial objectives to be determined annually by the Board. The
maximum annual Bonus will equal one hundred percent (100%) of the applicable
year's ending Base Salary and will be payable if a majority of the Board
determines, in its sole and exclusive discretion, that that year's financial
objectives have been fully met. Notwithstanding the foregoing, the Employee will
receive an aggregate minimum Bonus of One Hundred Twenty-Five Thousand Dollars
($125,000) for the 15-month period ending December 31, 1998, if the following
conditions are met:
(i) If by December 31, 1998, the Company
consummates the acquisition of another company or companies or businesses with
aggregate annual revenues of at least $10,000,000 (for this purpose, the annual
revenues of each such company or business acquired shall equal its revenues in
the most recent four full quarters before the acquisition), the Employee shall
receive a Bonus of at least Seventy-Five Thousand Dollars ($75,000), to be paid
in installments; each installment shall be paid within 30 days after the closing
of such an acquisition and shall be in an amount equal to the product of $75,000
multiplied by a fraction, the numerator of which is the annual revenues of the
company or business acquired, and the denominator of which is $10,000,000.
(ii) If the Company's income before
interest, depreciation and taxes for the six-month period ending March 31, 1998,
is at least $1,475,754, the Employee shall receive a Bonus of at least $25,000
by April 15, 1998. In addition, if the Company's income before interest,
depreciation and taxes for the twelve-month period ending September 30, 1998, is
at least $3,016,841, the Employee shall receive an additional Bonus of at least
$25,000 by October 15, 1998; provided, that if the Company's income before
interest, depreciation and taxes for the six-month period ending March 31, 1998,
is less than $1,475,754 but for the
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twelve-month period ending September 30, 1998 is at least $3,016,841, the
Employee shall receive a Bonus of at least $50,000 by October 15, 1998.
The Bonus with respect to fiscal years beginning after
December 31, 1998 shall be paid in accordance with the Company's bonus plan, as
approved by the Board; provided that in no case shall any portion of the Bonus
with respect to any such fiscal year be paid more than seventy-five (75) days
after the end of such fiscal year.
(b) Other Benefits. During the Term, the Employee shall be
entitled to a vehicle allowance of Five Thousand Dollars ($5,000) per year net
after payment of all taxes. In addition, the Company shall pay or reimburse the
Employee for all fuel and maintenance on Employee's vehicle. During the Term,
the Company shall provide the Employee with a cellular telephone and will pay or
reimburse the Employee's monthly service fee and costs of calls attributable to
Company business. During the Term, the Company will also pay for the cost of a
fax line to Employee's residence. During the Term, the Employee shall be
entitled to receive all other benefits of employment generally available to
other management employees of the Company and those benefits for which
management employees are or shall become eligible, including, without limitation
and to the extent made available by the Company, medical, dental, disability and
prescription coverage, life insurance and tax-qualified retirement benefits. The
Employee shall be entitled to four (4) weeks of paid vacation each year of his
employment.
(c) Reimbursement of Other Expenses. The Company agrees to pay
or reimburse the Employee for all reasonable travel and other expenses incurred
by the Employee in connection with the performance of his duties under this
Agreement on presentation of proper expense statements or vouchers. All such
supporting information shall comply with all applicable Company policies
relating to reimbursement for travel and other expenses.
(d) Withholding. All compensation payable to the Employee
hereunder is subject to all withholding requirements under applicable law.
5. Confidentiality. During the Term of his employment, and at all times
thereafter, the Employee shall not, without the prior written consent of the
Company, divulge to any third party or use for his own benefit or the benefit of
any third party or for any purpose other than the exclusive benefit of the
Company, any confidential or proprietary business or technical information
revealed, obtained or developed in the course of his employment with the Company
and which is otherwise the property of the Company or any of its affiliated
corporations, including, but not limited to, trade secrets, customer lists,
formulae and processes of manufacture; provided, however, that nothing herein
contained shall restrict the Employee's ability to make such disclosures during
the course of his employment as may be necessary or appropriate to the effective
and efficient discharge of his duties to the Company.
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6. Property. Both during the Term of his employment and thereafter, the
Employee shall not remove from the Company's offices or premises any Company
documents, records, notebooks, files, correspondence, reports, memoranda and
similar materials or property of any kind unless necessary in accordance with
the duties and responsibilities of his employment. In the event that any such
material or property is removed, it shall be returned to its proper file or
place of safekeeping as promptly as possible. The Employee shall not make,
retain, remove or distribute any copies, or divulge to any third person the
nature or contents of any of the foregoing or of any other oral or written
information to which he may have access, except as disclosure shall be necessary
in the performance of his assigned duties. On the termination of his employment
with the Company, the Employee shall leave with or return to the Company all
originals and copies of the foregoing then in his possession or subject to his
control, whether prepared by the Employee or by others.
7. Termination By Company.
(a) Termination for Cause. The employment of the Employee may
be terminated for Cause at any time by the vote of a majority of the Board;
provided, however, that before the Company may terminate the Employee's
employment for Cause for any reason that is susceptible to cure, the Company
shall first send the Employee written notice of its intention to terminate this
Agreement for Cause, specifying in such notice the reasons for such Cause and
those conditions that, if satisfied by the Employee, would cure the reasons for
such Cause, and the Employee shall have 60 days from receipt of such written
notice to satisfy such conditions. If such conditions are satisfied within such
60-day period, the Company shall so advise the Employee in writing. If such
conditions are not satisfied within such 60-day period, the Company may
thereafter terminate this Agreement for Cause on written Notice of Termination
(as defined in Section 9(a)) delivered to the Employee describing with
specificity the grounds for termination. Immediately on termination pursuant to
this Section 7(a), the Company shall pay to the Employee in a lump sum his then
current Base Salary under Section 4(a)(1) on a prorated basis to the Date of
Termination (as defined in Section 9(b)). On termination pursuant to this
Section 7(a), the Employee shall forfeit (i) his Bonus under Section 4(a)(2) for
the year in which such termination occurs, and (ii) all unvested ISOs, other
stock options, warrants and rights relating to capital stock of the Company. For
purposes of this Agreement, Cause shall mean:
(1) a material breach of any of the terms of this
Agreement that is not immediately corrected following written notice of default
specifying such breach;
(2) repeated intoxication with alcohol or drugs while
on Company premises during its regular business hours to such a degree that, in
the reasonable judgment of the other managers of the Company, the Employee is
abusive or incapable of performing his duties and responsibilities under this
Agreement;
(3) conviction of a felony; or
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(4) misappropriation of property belonging to the
Company and/or any of its affiliates.
(b) Termination Without Cause. The employment of the Employee
may be terminated without Cause at any time by the vote of a majority of the
Board on delivery to the Employee of a written Notice of Termination (as defined
in Section 9(a)). On the Date of Termination (as defined in Section 9(b))
pursuant to this Section 7(b), the Company shall pay to the Employee in a lump
sum an amount equal to the sum of (i) all Base Salary payable under Section
4(a)(1) through the termination date, (ii) a pro-rated portion of the maximum
Bonus available to the Employee under Section 4(a)(2) for the year in which the
termination occurs, and (iii) an amount equal to three times the Total
Compensation paid to the Employee by the Company with respect to the twelve
months preceding the termination date. For purposes of this section 7(b), the
Employee's Total Compensation shall equal the sum of the Base Salary, Bonus,
vehicle allowance and other benefits and expense reimbursements described in
Section 4(b), and director's fees paid to the Employee by the Company. If the
Employee is terminated without Cause before the first anniversary of the
effective date of this Agreement, the Total Compensation paid to the Employee
through the termination date shall be annualized before calculating the amount
in clause (iii) above. In addition, on termination of the Employee under this
Section 7(b), all of the Employee's unvested ISOs, other stock options, warrants
and rights relating to capital stock of the Company shall immediately vest and
become exercisable. The term of any such options, warrants and rights shall be
extended to the fifth anniversary of the Employee's termination. The Employee
acknowledges that extending the term of any incentive stock option pursuant to
this Section 7(b), or Section 7(c), 7(d) or 8(a), could cause such option to
lose its tax-qualified status 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.
(c) Termination on Disability. If during the Term the Employee
should fail to perform his duties hereunder on account of physical or mental
illness or other incapacity which the Board shall in good faith determine
renders the Employee incapable of performing his duties hereunder, and such
illness or other incapacity shall continue for a period of more than six (6)
consecutive months ("Disability"), the Company shall have the right, on written
Notice of Termination (as defined in Section 9(a)) delivered to the Employee to
terminate the Employee's employment under this Agreement. During the period that
the Employee shall have been incapacitated due to physical or mental illness,
the Employee shall continue to receive the full Base Salary provided for in
Section 4(a)(1) hereof at the rate then in effect until the Date of Termination
(as defined in Section 9(b)) pursuant to this Section 7(c). On the Date of
Termination pursuant to this Section 7(c), the Company shall pay to the Employee
in a lump sum an amount equal to (i) the Base Salary remaining payable to the
Employee under Section 4(a)(1) for the full remaining Term, plus (ii) a
pro-rated portion of the maximum Bonus available to the Employee under Section
4(a)(2) for the year in which the termination occurs. In addition, on
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such termination, all of the Employee's unvested ISOs, other stock options,
warrants and rights relating to capital stock of the Company shall immediately
vest and become exercisable. The term of any such options, warrants and rights
shall be extended to the fifth anniversary of the Employee's termination.
(d) Termination on Death. If the Employee shall die during the
Term, the employment of the Employee shall thereupon terminate. On the Date of
Termination (as defined in Section 9(b)) pursuant to this Section 7(d), the
Company shall pay to the Employee's estate the payments and other benefits
applicable to termination without Cause set forth in Section 7(b) hereof. In
addition, on termination of the Employee under this Section 7(d), all of the
Employee's unvested ISOs, other stock options, warrants and rights relating to
capital stock of the Company shall immediately vest and become exercisable. The
term of any such options, warrants and rights shall be extended to the fifth
anniversary of the Employee's termination. The provisions of this Section 7(d)
shall not affect the entitlements of the Employee's heirs, executors,
administrators, legatees, beneficiaries or assigns under any employee benefit
plan, fund or program of the Company.
8. Termination By Employee.
(a) Termination for Good Reason. The Employee may terminate
his employment hereunder for Good Reason (as defined below). On the Date of
Termination pursuant to this Section 8(a), the Employee shall be entitled to
receive, and the Company agrees to pay and deliver, the payments and other
benefits applicable to termination without Cause set forth in Section 7(b)
hereof. In addition, on termination of the Employee under this Section 8(a), all
of the Employee's unvested ISOs, other stock options, warrants and rights
relating to capital stock of the Company shall immediately vest and become
exercisable. The term of any such options, warrants and rights shall be extended
to the fifth anniversary of the Employee's termination.
For purposes of this Agreement, "Good Reason" shall mean:
(1) assignment to the Employee of duties inconsistent
with his responsibilities as they existed on the date of this Agreement; a
substantial alteration in the title(s) of the Employee (so long as the existing
corporate structure of the Company is maintained); or a substantial alteration
in the status of the Employee in the Company organization as it existed on the
date of this Agreement;
(2) the relocation of the Company's principal
executive office to a location more than fifty (50) miles from its present
location;
(3) a reduction by the Company in the Employee's Base
Salary;
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(4) a failure by the Company to continue in effect,
without substantial change, any benefit plan or arrangement in which the
Employee was participating or the taking of any action by the Company which
would adversely affect the Employee's participation in or materially reduce his
benefits under any benefit plan (unless such changes apply equally to all other
management employees of Company);
(5) any material breach by the Company of any
provision of this Agreement without the Employee having committed any material
breach of his obligations hereunder, which breach is not cured within twenty
(20) days following written notice thereof to the Company of such breach; or
(6) the failure of the Company to obtain the
assumption of this Agreement by any successor entity.
(b) Termination Without Good Reason. The Employee may
terminate his employment hereunder without Good Reason on written Notice of
Termination delivered to the Company setting forth the effective date of
termination. If the Employee terminates his employment hereunder without Good
Reason, he shall be entitled to receive, and the Company agrees to pay on the
effective date of termination specified in the Notice of Termination, his
current Base Salary under Section 4(a)(1) hereof on a prorated basis to such
date of termination. On termination pursuant to this Section 8(b), the Employee
shall forfeit (i) his Bonus under Section 4(a)(2) for the year in which such
termination occurs, and (ii) all unvested ISOs, other stock options, warrants
and rights relating to capital stock of the Company.
9. Provisions Applicable to Termination of Employment.
(a) Notice of Termination. Any purported termination of
Employee's employment by the Company pursuant to Section 7 shall be communicated
by Notice of Termination to the Employee as provided herein, and shall state the
specific termination provisions in this Agreement relied on and set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Employee's employment ("Notice of Termination"). If the
Employee terminates under Section 8, he shall give the Company a Notice of
Termination.
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(b) Date of Termination. For all purposes, "Date of Termination"
shall mean, for Disability, thirty (30) days after Notice of Termination is
given to the Employee (provided the Employee has not returned to duty on a
full-time basis during such 30-day period), or, if the Employee's employment is
terminated by the Company for any other reason or by the Employee, the date on
which a Notice of Termination is given.
(c) Benefits on Termination. On termination of this Agreement by
the Company pursuant to Section 7 or by the Employee pursuant to Section 8, all
profit-sharing, deferred compensation and other retirement benefits payable to
the Employee under benefit plans in which the Employee then participated shall
be paid to the Employee in accordance with the provisions of the respective
plans.
10. Change In Control.
(a) Payments on Change in Control. Notwithstanding any provision
in this Agreement to the contrary, unless the Employee elects in writing to
waive this provision, a Change in Control (as defined below) of the Company
shall be deemed a termination of the Employee without Cause, and the Employee
shall be entitled to receive and the Company agrees to pay to the Employee in a
lump sum the same amount determined under Section 7(b) that is payable to the
Employee on termination without Cause. In addition, on a Change of Control, all
of the Employee's unvested ISOs, other stock options, warrants and rights
relating to capital stock of the Company shall immediately vest and become
exercisable, and the term of any such options, warrants and rights shall be
extended to the fifth anniversary of the Employee's termination.
After a Change in Control, if any option, warrant 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:
(i) Issue an option, warrant or right, as appropriate
(the "Successor Option"), to purchase common stock of such successor or Parent
in an amount such that on exercise of the Successor Option the Employee would
receive the same number of shares of the successor's/Parent's common stock as
the Employee would have received had the Employee exercised the Terminated
Option immediately prior to the transaction resulting in the Change in Control
and received shares of such successor/Parent in such transaction. The aggregate
exercise price for all of the shares covered by such Successor Option shall
equal the aggregate exercise price of the Terminated Option; or
(ii) Pay the Employee a bonus within ten (10) days
after the consummation of the Change in Control, in an amount agreed to by the
Employee and the Company. Such amount shall be at least equivalent on an
after-tax basis to the net after-tax gain that the Employee would have realized
if he had been issued a Successor Option under clause (i) above
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and had immediately exercised such Successor Option and sold the underlying
stock, taking into account the different tax rates that apply to such bonus and
to such gain, and such amount shall also reflect other differences to the
Employee between receiving a bonus under this clause (ii) and receiving a
Successor Option under clause (i) above.
(b) Definitions. For the purposes of this Agreement, a Change
in Control shall be deemed to have occurred if (i) there shall be consummated
(aa) any reorganization, liquidation or consolidation of the Company, or any
merger or other business combination of the Company with any other corporation,
other than any such merger or other combination that would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty percent (50%) of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such transaction, (bb) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company, or if
(ii) any "person" (as defined in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), shall become the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of fifty percent (50%) or more of the Company's outstanding
voting securities (except that for purposes of this Section 10(b), "person"
shall not include any person (or any person that controls, is controlled by or
is under common control with such person) who as of the date of this Agreement
owns ten percent (10%) or more of the total voting power represented by the
outstanding voting securities of the Company, or a trustee or other fiduciary
holding securities under any employee benefit plan of the Company, or a
corporation that is owned directly or indirectly by the stockholders of the
Company in substantially the same percentage as their ownership of the Company)
or if (iii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the entire Board shall cease for any reason
to constitute at least one-half of the membership thereof unless the election,
or the nomination for election by the Company's shareholders, of each new
director was approved by a vote of at least one-half of the directors then still
in office who were directors at the beginning of the period.
The term "Parent" means a corporation, partnership, trust, limited
liability company or other entity that is the ultimate "beneficial owner" (as
defined above) of fifty percent (50%) or more of the Company's outstanding
voting securities.
11. Gross Up Payments. If all or any portion of any payment or benefit
that the Employee is entitled to receive from the Company pursuant to this
Agreement (a "Payment") constitutes an "excess parachute payment" within the
meaning of Section 280G of the Code, and as such is subject to the excise tax
imposed by Section 4999 of the Code or to any similar Federal, state or local
tax or assessment (the "Excise Tax"), the Company or its successors or assigns
shall pay to the Employee an additional amount (the "Gross-Up Payment") with
respect to such Payment. The amount of the Gross-Up Payment shall be sufficient
that, after paying (a)
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any Excise Tax on the Payment, (b) any Federal, state or local income or
employment taxes and Excise Tax on the Gross-Up Payment, and (c) any interest
and penalties imposed in respect of the Excise Tax, the Employee shall retain an
amount equal to the full amount of the Payment. For the purpose of determining
the amount of any Gross-Up Payment, the Employee shall be deemed to pay Federal
income taxes at the highest marginal rate applicable in the calendar year in
which the Gross-Up Payment is made, and state and local income taxes at the
highest marginal rate applicable in the state and locality where the Employee
resides on the date the Gross-Up Payment is made, net of the maximum reduction
in Federal income taxes that could be obtained from deducting such state and
local taxes.
The Gross-Up Payment with respect to any Payment shall be paid to
the Employee within ten (10) days after the Internal Revenue Service or any
other taxing authority issues a notice stating that an Excise Tax is due with
respect to the Payment, unless the Company undertakes to challenge the taxing
authority on the applicability of such Excise Tax and indemnifies the Employee
for (a) any amounts ultimately determined to be payable, including the Excise
Tax and any related interest and penalties, (b) all expenses (including
attorneys' and experts' fees) reasonably incurred by the Employee in connection
with such challenge, as such expenses are incurred, and (c) all amounts that the
Employee is required to pay to the taxing authorities during the pendency of
such challenge (such amounts to be repaid by the Employee to the Company if they
are ultimately refunded to the Employee by the taxing authority).
12. Indemnification. As an employee and agent of the Company, the
Employee shall be fully indemnified by the Company to the fullest extent
permitted by applicable law in connection with his employment hereunder. In
addition, the Company shall pay all legal costs and expenses reasonably incurred
by the Employee (including attorneys' and expert witness fees), as such expenses
are incurred, in defending against any claim by United Waste Systems, Inc.
("United"), or USA Waste Services, Inc., that by entering into and performing
under this Agreement the Employee has violated any provision of his previous
employment or consulting agreement with United prohibiting competition, use of
confidential information, or solicitation of employees or prospective customers;
provided that the Company shall not be liable for any other damages that the
Employee incurs in connection with such a claim, including any amount the
Employee pays to settle such a claim or to satisfy a judgment in connection with
such a claim.
13. Board Representation. The Company agrees that during the Term,
beginning on the date that the personal guarantees of Xxxx Xxxxxx, Xxxxx Xxxxxx,
Xxx Xxxxxx and the Employee to Imperial Bank with respect to indebtedness of the
Company are removed, the Employee may recommend nominees for election to the
Board, such that at all times that there are five (5) or fewer members of the
Board, the Employee shall have recommended at least two (2) nominees for
election to such Board, and at all times that there are more than five (5)
members of the Board, the Employee shall have recommended at least three (3)
nominees for election to such Board.
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14. Additional Equity Investment by the Employee. On the date of this
Agreement, the Company shall sell to the Employee, for $0.01 per share in cash,
617,500 shares of the Company's Common Stock, which amount is equal to 12.35% of
the Company's total initial authorized number of shares of Common and Preferred
Stock (such number of total initial authorized shares of Common and Preferred
Stock is called the "Total Initial Shares").
In addition, the Employee agrees, concurrently with the date of
this Agreement, to purchase a number of shares of Series A Preferred Stock of
the Company equal to seven and one-eighth percent (7.125%) of the Company's
Total Initial Shares, for consideration in the amount of One Million Dollars
($1,000,000), in the form of a cashier's check payable to the Company.
The Company agrees that if on January 1, 1998, the Employee desires
to sell shares of Series A Preferred Stock of the Company and has not yet
obtained a commitment from a buyer on terms satisfactory to the Employee, the
Company will use its best efforts to obtain additional equity financing, which
shall be used to purchase from the Employee shares of the Company's Series A
Preferred Stock representing three and nine-sixteenths percent (3.5625%) of the
Company's Total Initial Shares, for cash consideration to the Employee in the
amount of Five Hundred Thousand Dollars ($500,000).
15. Management Stock Pool. The Company agrees that at the IPO Closing,
the Company shall reserve at least eight percent (8%) of the Company's Total
Initial Shares (or, if the number of shares of Common Stock issued in the IPO
exceeds the number included in the Total Initial Shares, the Company's Total
Initial Shares plus such excess) for issuance to management employees of the
Company pursuant to stock options and warrants. Such options and warrants shall
be issued to management employees from time to time as approved by a majority of
the Board, for the purposes of recruiting, retaining and motivating such
management employees.
16. Survival of Provisions. The obligations of the Company under
Section 12 of this Agreement shall survive both the termination of the
Employee's employment and this Agreement.
17. 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.
18. 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
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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.
19. Notice. Any written notice under this Agreement shall be personally
delivered to the other party or sent by certified or registered mail, return
receipt requested and postage prepaid, to such party at the address set forth in
the records of the Company or to such other address as either party may from
time to time specify by written notice.
20. 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. This Agreement may not be changed except by an agreement in
writing signed by the Company and the Employee.
21. Waiver. The waiver of a breach of any provision of this Agreement
shall not operate or as be construed to be a waiver of any other provision or
subsequent breach of this Agreement.
22. 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.
23. 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.
24. 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 or 6 of this Agreement, and, in any action or
proceeding to enforce the provisions of Sections 5 or 6 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.
25. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and both of which together shall constitute
one and the same instrument.
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26. Due Authorization. The execution of this Agreement has been duly
authorized by the Company by all necessary corporate action.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year set forth above.
WASTE CONNECTIONS, INC., a Delaware
corporation
By:
---------------------------------------------------
Printed Name:
------------------------------------------
Title:
-------------------------------------------------
EMPLOYEE:
-------------------------------------------------------
Xxxxxx X. Xxxxxxxxxxxx
FOUNDERS:
-------------------------------------------------------
J. Xxxxxxxx Xxxxxx
-------------------------------------------------------
Xxxxx X. Xxxxxx
-------------------------------------------------------
Xxxxx X. Xxxxxx, Xx.
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