Exhibit 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of September 27,
2000, is entered into between Waste Corporation of America, Inc. (the "Company"
or the "Employer") and Xxxxxxx Xxxxxxxxxx (the "Executive"), is subject to the
closing (the "Closing") of that certain Asset Sale Agreement dated April 14,
2000 among the Company, Waste Management, Inc. ("WMI") and certain selling
subsidiaries of WMI and shall be effective as of the date of the Closing (the
"Effective Date").
RECITALS
A. The Executive is currently employed as an officer of the Company.
B. The stockholders of the Company have requested that the Board of
Directors provide incentives to the Executive to continue to work for a period
of at least five years toward (1) the substantial growth of the Company and (2)
the initial public offering or sale of the Company and, in connection with any
such sale of the Company, to seek the alternative which is in the best interest
of such stockholders.
C. The Board of Directors recognizes that, in connection with any sale
of the Company, the best alternative for the stockholders may involve the
replacement of the officers of the Company, including the Executive.
D. In order to induce the Executive to continue as an officer of the
Company for a period of at least five years despite the prospect of such a sale
of the Company, the Company and the Executive have agreed as set forth herein.
AGREEMENT
In consideration of the mutual terms, conditions, and covenants set forth
herein, the Company and Executive agree to the following:
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 the period commencing on the Effective Date of this Agreement and
ending on the earlier of: (a) the fifth anniversary of the Effective Date or (b)
such earlier date as this Agreement is terminated pursuant to Section 2. The
period between the Effective Date of this Agreement and the fifth anniversary of
the Effective Date is referred to herein as the "Term."
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 Employer's disability plans for a period of 18 consecutive
months, either Employer or Executive sending the other party written notice that
Executive is "permanently disabled" as
such term is defined in the Company's long term disability plan as in effect
from time to time; 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 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, Executive's conviction of or plea of guilty to a
felony or Executive's conviction of a crime involving moral turpitude,
Executive's engagement in the fraud of or the misappropriation or embezzlement
of funds from Employer, 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 stock option plan, as applicable, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to such plan, or the failure by the Company to continue the
Executive's participation therein (or in such substitute or alternative plan) on
a basis not materially less favorable (as determined by the Executive in good
faith), both in terms of the amount or timing of payment of benefits provided
and the level of the Executive's participation relative to other participants,
as existed immediately prior to the Effective Date hereof; or (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; 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, and that the
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder;
(e) the expiration of the Term on the fifth Anniversary of the Effective
Date; provided, however, that the Company and the Executive may mutually agree
to continue Executive's employment on an "at-will" basis.
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3. Position and Duties.
(a) The Executive's positions shall be those of Senior Vice President
and Chief Financial 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 Employer, 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 (as defined in Section 10(c) of this Agreement) in which
case the Subsidiary shall be jointly and severally responsible as, and shall be
treated as, the Company or the Employer 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
Employer.
(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 Employer 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, Employer shall pay
Executive a base salary of $225,000 per year, payable bi-monthly ("Base
Salary"). At least annually, Employer shall review Executive's Base Salary which
may be increased (but not decreased) in Employer's sole discretion.
5. Stock Options. Not later than the Effective Date of this Agreement,
the Board shall take appropriate action to ensure that Executive shall be
granted a stock option in the form of the nonstatutory stock option grant
agreement attached hereto as Appendix A.
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 Management Incentive
Plan, business and entertainment expense reimbursement policies, car allowance
policies, 401(k) plans, disability plans, pension plans, health insurance plans
and
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director and officer liability insurance policies) provided to similarly
situated Executives under Employer'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) Upon termination of Executive's employment with the Company for any
reason whatsoever, Employer 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 one (1) year of Executive's Base Salary 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
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
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.
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
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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, including information
concerning costs, profits, markets, sales, business development plans, fists 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 Company's landfills or similar facilities.
(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 Employer
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 Employer, 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 Employer 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
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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) In consideration of Executive's entering into this Agreement, on the
Effective Date the company shall pay to Executive, a lump sum in cash in the
aggregate amount of $75,000 less required withholding.
(b) During the Term, Executive shall participate, on comparable terms,
in the Company's annual incentive plan in which similarly situated executives of
the Company participate and can earn up to seventy-five percent (75%) of Base
Salary as more fully described in Appendix B which is attached hereto and
incorporated into this Agreement for all purposes.
(c) In the event of the occurrence of a "Change in Control" (defined
below), the Company shall pay to Executive, within thirty (30) days after such
Change in Control, a lump sum payment, in cash, equal to three (3) times
Executive's annual Base Salary as in effect immediately prior to the Change in
Control. "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 Company or the Subsidiary (as defined below) or
other securities entitled to voter 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 Company or the Subsidiary 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 Company or its Affiliates (including the
Subsidiary), immediately after which such Person has Beneficial Ownership
(as defined below) of fifty percent (50%) or more of the combined voting
power of the Company's or the Subsidiary'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 Company's or the Subsidiary's Voting Securities by an employee
benefit plan maintained by the Company or any of its Affiliates (including
the Subsidiary) 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 or the Board of Directors of the Subsidiary (the
"Incumbent Board"), cease for any reason to constitute at least two/thirds
(2/3) of the members of the Board or the Board of Directors of the
Subsidiary; provided, however, that an individual will be treated as a
member of the Incumbent Board if the members of the Board or the Board of
Directors of the Subsidiary prior to such individual's nomination
unanimously approve such individual's nomination and election to the Board
or the Board of Directors of the Subsidiary 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
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consents by or on behalf of a Person other than the Board or the Board of
Directors of the Subsidiary (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 Company or the Subsidiary or in which securities of
the Company or the Subsidiary 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 Company or
the Subsidiary; or
(C) The sale or other disposition of all or substantially
all of the assets of the Company or the Subsidiary to
any Person (other than a transfer to an employee benefit
plan or Affiliate of the Company or under conditions
that would constitute a Non-Control Transaction with the
disposition of assets being regarded as a Merger of this
purpose).
Notwithstanding any other provision hereof to the contrary, no transaction
involving a sale or exchange or other disposition of Voting Securities that are
issued and outstanding on the Effective Date for a price of less than three
dollars ($3.00) a share shall qualify as a Change in Control. As used herein 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 Company or the Subsidiary 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 Company's or the Subsidiary'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.
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(iv) "Subsidiary" means WCA Waste Systems, Inc., a Delaware
Corporation, or any other entity in which the Company owns fifty percent
(50%) or more of the outstanding equity securities entitled to vote in the
election of directors or their equivalent and shall include any successor
to the business and/or assets of such entity.
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
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
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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:
Waste Corporation of America, Inc..
Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxx Xxxxx, Xx.
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.
[This space intentionally has been left blank.]
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The parties have executed this Employment Agreement as of the date first
set forth above.
WASTE CORPORATION OF AMERICA, INC.
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: President
------------------------------------
EXECUTIVE:
/s/ XXXXXXX X. XXXXXXXXXX
------------------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Title: Senior Vice President & CFO
------------------------------------
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AMENDMENT #1
EMPLOYMENT AGREEMENT
This Amendment 1 to the Employment Agreement dated September 27, 2000 is entered
into between Waste Corporation of America, Inc. (the "Company" or the Employer")
and Xxxxxxx Xxxxxxxxxx (the "Executive") and shall be effective as of February
18, 2002.
The following Amendment has been agreed upon by both parties:
SECTION 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, Employer shall pay
Executive a base salary of $225,000 per year, payable bi-monthly ("Base
Salary"). The Base Salary will be increased each year on the anniversary
(beginning September 30, 2002) of the Employment Agreement by 5% (five percent).
The parties have executed this Amendment 1 as of this 18th day of February,
2002.
Waste Corporation of America, Inc.
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: President
------------------------------------
Executive
By: /s/ XXXXXXX X. XXXXXXXXXX
-------------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxxxx
-----------------------------
SECOND AMENDMENT TO
EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement ("Amendment"), is entered
into between WCA Management Company, L.P. (the "Company"), Waste Corporation of
America, Inc. (the "Guarantor") and Xxxxxxx X. Xxxxxxxxxx (the "Executive") and
is effective as of May 1, 2002.
RECITALS
WHEREAS, the Executive is currently employed as an officer of the Company
pursuant to that certain Employment Agreement dated as of September 27, 2000, as
amended by that certain Amendment Number One dated February 18, 2002
(collectively, the "Employment Agreement") by and between the Guarantor and
Executive, which Employment Agreement was assigned to and assumed by the Company
as of January 1, 2002;
WHEREAS, the Employment Agreement provides for certain payments, or
acceleration of payments to the Executive in the event of a "Change in Control"
as such term is defined in the Employment Agreement;
WHEREAS, the Executive was granted nonstatutory stock options (the
"Stock Options") pursuant to the terms of the Waste Corporation of America,
Inc. 1999 Non-Qualified Stock Option Plan (the "Stock Option Plan");
WHEREAS, the vesting of such Stock Options may be accelerated in the event
of a "Change in Control" as defined in such Stock Option Plan; and
WHEREAS, such payments and such acceleration of vesting of the Stock
Options could result in "excess parachute payments" (as such term is defined in
Section 280G(b) of the Internal Revenue Code of 1986 as amended (the "Code") to
the Executive, resulting in an excise tax to the Executive under Section 4999 of
the Code and a disallowance of deductions to the Company under Section 280G(a)
of the Code;
NOW THEREFORE, in consideration of the mutual terms, conditions, and
covenants set forth herein, the Company and Executive agree to amend the
Employment Agreement as follows:
1. 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 to or for the Executive, whether paid or payable or distributed or
distributable under the Employment Agreement, this Amendment or under any
other agreement, policy, plan, program or arrangement, including but not
limited to the Employment Agreement or the Stock Option Plan, 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
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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 of
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.
2. 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.
3. Determination of Parachute Payments or Gross-Up. Any determination of the
amount of Payments or Gross-Up required to be made under this Amendment
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.
4. 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 five
(5) 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. If
the Company notifies Executive in writing prior to the expiration of such
period that it desires to contest such claim, Executive will:
(i) Provide the Company with any written records or documents in his or
her possession relating to such claim reasonably requested by the
Company;
(ii) Take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time,
including without limitation
2
accepting legal representation with respect to such claim by an
attorney competent in respect of the subject matter and reasonably
selected by the Company;
(iii) 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
(iv) 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.
5. Dispute Resolution. The Company and Executive agree that any dispute
regarding the interpretation or enforcement of the Employment Agreement or
this Amendment 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 the Employment Agreement or this Amendment, 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.
6. Guarantee by Waste Corporation of America, Inc. Notwithstanding the
assignment of the Employment Agreement from the Guarantor to the Company,
and the acceptance of all obligations of the Guarantor under the
Employment Agreement by the Company, the Guarantor shall remain jointly
and severally liable with respect to all obligations of the Guarantor
under the Employment Agreement and hereby guarantees all the obligations
of the Company under this Amendment.
7. Employment Agreement Affirmed. Except as specifically amended by this
amendment, the Employment Agreement is hereby ratified and affirmed in all
respects.
The parties have executed this Amendment as of the date first set forth
above.
[SIGNATURE PAGE TO FOLLOW]
0
XXXXX XXXXXXXXXXX XX XXXXXXX, INC.
By: /s/ XXXXXX X. XXXXXXX
---------------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: President
------------------------------------
WCA MANAGEMENT COMPANY, L.P.
By: WCA Management General, Inc.
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
-----------------------
Title: President
------------------------------
Its: General Partner
EXECUTIVE:
By: /s/ XXXXXXX X. XXXXXXXXXX
---------------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Title: Senior Vice President & CFO
------------------------------------
4
THIRD AMENDMENT TO
EMPLOYMENT AGREEMENT
This Third Amendment to Employment Agreement ("Third Amendment"), is
entered into between WCA Management Company, L.P. (the "Company"), Waste
Corporation of America, Inc. (the "Guarantor") and Xxxxxxx X. Xxxxxxxxxx (the
"Executive") and is entered into on April 13, 2004 ("Effective Date").
RECITALS
WHEREAS, the Executive is currently employed as an officer of the Company
pursuant to that certain Employment Agreement dated as of September 27, 2000 by
and between the Guarantor and Executive, which was assigned to and assumed by
the Company as of January 1, 2002 and which was amended by that certain First
Amendment to Employment Agreement dated February 18, 2002 and that certain
Second Amendment to Employment Agreement on or about May 1, 2002 (such
agreement, as assigned and amended, the "Employment Agreement"); and
WHEREAS, the parties to the Employment desire to renew and extend the term
of the Employment Agreement and to amend the Agreement as set forth in this
Third Amendment.
NOW THEREFORE, in consideration of the mutual terms, conditions, and
covenants set forth herein, the Company and Executive agree to amend the
Employment Agreement as follows:
1. Section 1, "Term of Employment" is amended by striking the section in its
entirety and substituting the following in its stead:
"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 on each
subsequent anniversary of the Effective Date this Agreement will
automatically renew for a three year term (the "Term"). 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."
2. Section 2, "Termination of Employment" is amended by striking subsection
(e) in its entirety.
3. Section 7, "Effects of Termination of Employment" is amended by striking
"equal to one (1) year of Executives' Base Salary" in the second sentence
in subsection (a) and substituting the following in its stead:
"equal to the Executives' Base Salary for the Remaining Term of the
Agreement"
4. Employment Agreement Affirmed. Except as specifically amended by this
amendment, the Employment Agreement is hereby ratified and affirmed in all
respects.
The parties have executed this Amendment as of the date first set forth above.
WASTE CORPORATION OF AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
Title: President
WCA MANAGEMENT COMPANY, L.P.
By: WCA Management General, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
Title: President
Its: General Partner
EXECUTIVE:
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior VP & CFO
