Exhibit 4.28
EMPLOYMENT AGREEMENT
CAPITAL ENVIRONMENTAL RESOURCE INC. (the "Company") and XXXXXXX X. XXXXXXXX (the
"Executive") hereby enter into this EMPLOYMENT AGREEMENT ("Agreement") dated as
of June 1, 2003 (the "Effective Date").
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth
herein, the receipt and adequacy of which are hereby acknowledged, the Company
and the Executive agree as follows:
1. EMPLOYMENT.
The Company shall employ Executive, and Executive shall be employed by the
Company, upon the terms and subject to the conditions set forth in this
Agreement.
2. TERM OF EMPLOYMENT.
2.1 TERM. Subject to Section 2.2 and the termination provisions hereinafter
provided, the term of Executive's employment under this Agreement shall
begin on the Effective Date and end on the second anniversary of the
Effective Date (the "Employment Term").
3. DUTIES AND RESPONSIBILITIES.
Executive shall serve as Executive Vice-President- Operations of the Company.
Executive's duties shall include the responsibilities, duties and authorities
attenuate to this office and he shall report to the Chief Executive Officer of
the Company.
4. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary at the annual rate of three hundred thousand
U.S. dollars ($300,000), or such higher rate as may be determined from
time to time by the Board of Directors (or a duly authorized committee
thereof) (such amount, as increased from time to time, the "Base
Salary"). Such Base Salary shall be paid on the Company's regular pay
days in accordance with the Company's standard payroll practice for
executive officers.
(b) OTHER COMPENSATION AND BENEFITS.
(i) In addition to the Base Salary, Executive shall be entitled to
an annual cash bonus of up to 100% of the Base Salary, subject
to satisfaction of annual performance objectives mutually
agreed upon at the beginning of each fiscal year.
(ii) Effective on the Effective Date, Company shall grant to
Executive pursuant to the Company's 1999 Stock Option Plan,
options to purchase 500,000 common shares of common stock of
the Company. The exercise price of the optioned shares shall
be fixed at the date of grant.
(ii) Executive shall be eligible to participate in any supplemental
or incentive compensation, stock option or other fringe
benefit plans generally made available to executive officers
of the Company and to receive additional compensation from the
Company in such form and to such extent, if any, as the Board
of Directors (or a duly authorized committee thereof) may from
time to time specify and determine with respect to the
Company's executive officers.
(iii) In addition to normal holidays recognized by the Company,
Executive shall be entitled to the greater of (a) four (4)
weeks of paid vacation annually and (b) such other amount of
paid vacation as may be afforded executive officers under the
Company's policies in effect from time to time.
(c) EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Executive
for travel and other out-of-pocket expenses incident to his position in
accordance with the Company's customary practices applicable to full
time executive officers.
(d) BENEFIT PLANS. Executive shall be eligible to participate in or receive
benefits under any retirement plans, pension plans, profit-sharing
plan, medical or dental benefit plans, life insurance plans, short-term
or long-term disability plans or other fringe benefit plans as are
generally made available to full time executive officers of the
Company.
(e) EMPLOYEE'S EXPENSES. All costs and expenses (including reasonable
legal, accounting and other advisory fees) incurred by Executive to (i)
determine in any tax year of Executive, the Tax consequences to
Executive of any amount payable (or reimbursable) under Section 7(b) or
7(c) hereof, or (ii) prepare responses to an Internal Revenue Service
or Canada Customs and Revenue Agency audit of, and to otherwise defend,
his personal income tax return for any year which is the subject of any
such audit, or an adverse determination, administrative proceeding or
civil litigation arising therefrom that is occasioned by or related to
any audit by Internal Revenue Service or the Canada Customs and Revenue
Agency of the Company's income tax returns, shall, upon written demand
by Executive, be promptly advanced or reimbursed to Executive, or paid
directly, on a current basis, by the Company or its successors;
provided, however, in no event shall the Company be required to advance
or reimburse to Executive or pay directly more than seventy-five
thousand Canadian dollars ($75,000 CDN) in any given fiscal year
pursuant to this Section 4(e).
5. TERMINATION OF EMPLOYMENT.
Subject to the payment to Executive of all amounts required by Sections 6 and 7
below, Executive's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. Executive's employment hereunder shall terminate upon
Executive's death.
(b) TOTAL DISABILITY. The Company shall terminate Executive's employment
hereunder upon Executive becoming "Totally Disabled." For purposes of
this Agreement, Executive shall be "Totally Disabled" if, in the good
faith determination of
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the Board of Directors, based on sound medical advice, Executive has
become physically or mentally incapable of performing Executive's usual
and customary duties under this Agreement for a continuous period of
one hundred eighty (180) days, in which event Executive will be deemed
Totally Disabled upon the expiration of such one hundred eighty (180)
day period. Executive's receipt of disability benefits under the
Company's long-term disability plan shall be deemed conclusive evidence
of Total Disability for purposes of this Agreement; provided, however,
that a determination of Total Disability also may be made by the Board
of Directors as provided above in the absence of Executive's receipt of
such long-term disability benefits.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
Executive's employment hereunder for "Cause" at any time after
providing written notice to Executive. For purposes of this Agreement,
the term "Cause" shall mean any of the following: (A) conviction of a
crime (including conviction on a nolo contendere plea) involving an
indictable offense or, in the good faith judgment of the Company's
Board of Directors, moral turpitude; (B) deliberate and continual
refusal to perform Executive's usual and customary duties under this
Agreement (other than as a result of vacation, sickness, illness or
injury) after thirty (30) days' written notice by registered mail to
Executive of such failure to perform, specifying that the failure
constitutes cause; (C) fraud or embezzlement determined in accordance
with the Company's internal investigative procedures consistently
applied in comparable circumstances; (D) gross misconduct or gross
negligence in connection with performance of Executive's duties under
this Agreement that has a material adverse effect on the Company; or
(E) breach of any of the covenants set forth in Section 8 hereof.
(d) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate his
employment hereunder (i) at any time during the Employment Term after
providing thirty (30) days' written notice to the Company, or (ii) at
any time within six (6) months after a Change of Control (as defined in
Section 7(a) hereof), without prior notice, as provided in Section 7 of
this Agreement.
(e) TERMINATION BY COMPANY WITHOUT CAUSE. At any time during the Employment
Term, the Company may terminate Executive's employment hereunder
without Cause effective immediately upon written notice to Executive.
6. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
In the event that Executive's employment hereunder is terminated, Executive
shall be entitled to the following compensation and benefits upon such
termination:
(a) TERMINATION BY REASON OF DEATH OR TOTAL DISABILITY. In the event that
Executive's employment is terminated by reason of Executive's death or
Total Disability:
(i) Executive or his beneficiaries or estate shall be entitled to
receive, within fourteen (14) days after the effective date of
termination, any accrued but unpaid Base
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Salary for services rendered by Executive to the Company prior
to the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, and cash
compensation (at a rate per day equal to the Base Salary
divided by the number of business days in the relevant year)
for any accrued vacation that remained unused by the Executive
at the time of termination.
(ii) Any earned benefits to which Executive (or his beneficiaries
or estate) may be entitled pursuant to the plans, policies and
arrangements referred to in Section 4(d) hereof shall be
determined and paid in accordance with the terms of such
plans, policies and arrangements.
(iii) Executive (or his beneficiaries or estate) shall be entitled
to be paid his Base Salary on the Company's regular pay days
for the greater of the balance of the Employment Term at the
time of Executive's death or six (6) months (the "Salary
Continuance Period"), plus the average of the cash bonus(es)
paid or payable to Executive in the most recently completed
fiscal year, pro rated for the balance of the Salary
Continuance Period.
(iv) Executive or his beneficiaries or estate shall be entitled to
continue to receive life insurance, medical, dental and
short-term and long-term disability benefits of the type and
amount made available to Executives immediately prior to
termination pursuant to the plans, policies and arrangements
referred to in Section 4(d) hereof for the Salary Continuance
Period; provided, however, if such plans, policies and
arrangements do not continue to be maintained by the Company
or are otherwise not available to Executive, the Company shall
provide for and make available to Executive substantially
similar economic benefits as were provided to Executive
pursuant to such plans, policies and arrangements as of the
effective date of termination.
(v) Any stock options granted Executive prior to the effective
date of termination will continue to vest (to the extent such
options were unvested at the time of termination) and
Executive or his beneficiaries or estate shall be permitted to
exercise such options at the same time and in the amounts as
would have been the case had Executive remained employed by
the Company.
(b) TERMINATION FOR CAUSE. In the event that Executive's employment is
terminated by the Company for Cause pursuant to Section 5(c):
(i) Executive shall be entitled to receive, within fourteen (14)
days after the effective date of termination, any accrued but
unpaid Base Salary for services rendered by Executive to the
Company prior to the date of termination, any accrued but
unpaid expenses required to be reimbursed under this
Agreement, and cash compensation (at a rate per day equal to
the Base Salary divided by the number of business days in the
relevant year) for any accrued vacation that remained unused
by the Executive at the time of termination.
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(ii) Any earned benefits to which Executive may be entitled
pursuant to the plans, policies and arrangements referred to
in Section 4(d) hereof shall be determined and paid in
accordance with the terms of such plans, policies and
arrangements.
(c) VOLUNTARY TERMINATION BY EXECUTIVE. In the event that Executive
terminates his employment pursuant to Section 5(d)(i) hereof:
(i) Executive shall be entitled to receive, within fourteen (14)
days after the effective date of termination, any accrued but
unpaid Base Salary for services rendered by Executive to the
Company prior to the date of termination, any accrued but
unpaid expenses required to be reimbursed under this
Agreement, and cash compensation (at a rate per day equal to
the Base Salary divided by the number of business days in the
relevant year) for any accrued vacation that remained unused
by the Executive at the time of termination.
(ii) Any earned benefits to which Executive may be entitled
pursuant to the plans, policies and arrangements referred to
in Section 4(d) hereof shall be determined and paid in
accordance with the terms of such plans, policies and
arrangements.
(d) TERMINATION BY COMPANY WITHOUT CAUSE. In the event that Executive's
employment is terminated by the Company without Cause pursuant to
Section 5(e) hereof:
(i) Executive shall be entitled to continue to receive his Base
Salary on the Company's regular pay days for the greater of
the remaining Employment Term at the time of termination, or
six (6) months (the "Severance Period").
(ii) Executive shall be entitled to continue to receive benefits
pursuant to the plans, policies and arrangements referred to
in Section 4(d) hereof throughout the Severance Period;
provided, however, that if such plans, policies and
arrangements do not continue to be maintained by the Company
or are otherwise not available to Executive throughout the
Severance Period, the Company shall provide for or make
available to Executive substantially similar economic benefits
as were provided to Executive pursuant to such plans, policies
and arrangements as of the effective date of termination
throughout the Severance Period.
(iii) Any stock options granted to Executive prior to the effective
date of termination will continue to vest (to the extent such
options were unvested at the time of termination) and
Executive shall be permitted to exercise such options at the
same time and in the amounts as would have been the case had
Executive remained employed by the Company;
provided, however, that if the Company terminates Executive's
employment without Cause within six (6) months after a Change of
Control, Executive shall be paid the amounts set forth in Sections 7(b)
and 7(c) hereof rather than the amounts set forth in this Section 6(d).
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(e) NO OTHER BENEFITS OR COMPENSATION. Except as may be provided under this
Agreement or under the terms of any incentive compensation, employee
benefit or fringe benefit plan applicable to Executive at the time of
Executive's termination of employment, Executive shall have no right to
receive any other compensation, or to participate in any other plan,
arrangement or benefit, with respect to future periods after such
termination or resignation.
(f) SUSPENSION OF TERMINATION OF BENEFITS AND COMPENSATION. Notwithstanding
anything herein to the contrary, in the event that the Board of
Directors determines in its good faith judgment that Executive has
violated Sections 8(a) or 8(b) hereof, the Company shall have the right
to suspend or terminate any or all remaining payments or benefits
payable pursuant to Section 6 of this Agreement. Such suspension or
termination of benefits shall be in addition to and shall not limit any
and all other rights and remedies that the Company may have against
Executive.
7. CHANGE OF CONTROL.
(a) RESIGNATION FOLLOWING CHANGE OF CONTROL. In the event that Executive
terminates his employment with the Company within six (6) months after
a "Change of Control" pursuant to Section 5(d)(ii) hereof, Executive
shall be entitled to the compensation described in this Section 7 upon
such termination. For purposes of this Agreement, a "Change of Control"
means (A) the sale or lease of all or substantially all of the assets
of the Company to any person or entity that, prior to such sale, was
not controlled by the Company, (B) a merger, amalgamation,
consolidation or other reorganization in which the Company is not the
surviving entity or becomes owned entirely by another entity, unless at
least 50% of the outstanding voting securities of the surviving or
parent corporation, as the case may be, immediately following such
transaction are beneficially held by such persons and entities in the
same proportion as such persons and entities beneficially held the
outstanding voting securities of the Company immediately prior to such
transaction, (C) the acquisition in a single transaction or series of
related transactions, other than pursuant to an acquisition by those
Investors described in a Subscription Agreement dated as of July 27,
2001 (such other acquisition by the Investors being referred to as an
"Investor Acquisition"), of more than 50% of the voting securities of
the Company by a single person or "group" within the meaning of Section
13(d)(3) of the United States Securities Exchange Act of 1934, as
amended, whether through the acquisition of previously issued and
outstanding voting securities or of voting securities that have not
been previously issued, or any combination thereof; provided, however,
that any Investor Acquisition shall constitute a Change of Control if
the Investor Acquisition is accompanied by a change in the board of
directors of the Company such that the directors of the Company prior
to such acquisition no longer constitute a majority of the board of
directors of the Company after such acquisition and (D) the voluntary
or involuntary dissolution, liquidation or winding up of the Company,
or the adoption of any resolution with respect thereto.
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(b) COMPENSATION PAYABLE. In the event that Executive terminates his
employment pursuant to Section 5(d)(ii) hereof:
(i) Executive shall be entitled to receive, within fourteen (14)
days after the effective date of termination, any accrued but
unpaid Base Salary for services rendered by Executive to the
Company prior to the date of termination, any accrued but
unpaid expenses required to be reimbursed under this
Agreement, and cash compensation (at a rate per day equal to
the Base Salary divided by the number of business days in the
relevant year) for any accrued vacation that remained unused
by Executive at the time of termination.
(ii) Executive shall be entitled to continue to receive his Base
Salary on the Company's regular pay days for greater of the
balance of the Employment Term at the effective date of
Executive's termination of his employment or six (6) months
(the "Salary Continuance Period"), plus the average of the
cash bonus(es) paid or payable to Executive in the most
recently completed fiscal year, pro rated for the balance of
the Salary Continuance Period.
(iii) Executive shall be entitled to continue to receive benefits
pursuant to the plans, policies and arrangements referred to
in Section 4(d) hereof throughout the Salary Continuance
Period; provided, however, if such plans, policies and
arrangements do not continue to be maintained by the Company
or are otherwise not available to Executive, the Company shall
provide for and make available to Executive substantially
similar economic benefits as were provided to Executive
pursuant to such plans, policies and arrangements as of the
effective date of termination.
(iv) Any stock options granted Executive prior to the effective
date of termination will continue to vest (to the extent such
options were unvested at the time of termination) and
Executive shall be permitted to exercise such options at the
same time and in the amounts as would have been the case had
Executive remained employed by the Company.
Except as may be provided under this Section 7 or under the terms of
any incentive compensation, employee benefit or fringe benefit plan
applicable to Executive at the time of termination, Executive shall
have no right to receive any other compensation, or to participate in
any other plan, arrangement or benefit, with respect to future periods
after such termination.
(c) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. In the event that any
portion of the compensation or benefits payable under this Agreement,
and any other payments and benefits under any other agreement with, or
plan of the Company to or for the benefit of Executive (collectively,
"Total Payments") constitute an "excess parachute payment" within the
meaning of Section 280G of the Internal Revenue Code (the "Code") (if
applicable), then the Company shall pay Executive as promptly as
practicable following such determination an additional amount (the
"Gross-up Payment") calculated as described below to reimburse
Executive on an after-tax basis for any excise tax
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imposed on such payments under Section 4999 of the Code. The Gross-up
Payment shall equal the amount, if any, needed to ensure that the net
parachute payments (including the Gross-up Payment) actually received
by Executive after the imposition of federal and state income,
employment and excise taxes (including any interest or penalties
imposed by the Internal Revenue Service), are equal to the amount that
Executive would have netted after the imposition of federal and state
income and employment taxes, had the Total Payments not been subject to
the taxes imposed by Section 4999. For purposes of this calculation, it
shall be assumed that Executive's tax rate will be the maximum federal
rate to be computed with regard to Section 1(g) of the Code.
In the event that Executive and the Company are unable to agree as to
the amount of the Gross-up Payment, if any, the Company shall select a
law firm or accounting firm from among those regularly consulted
(during the twelve-month period immediately prior to the Change of
Control) by the Company regarding federal income tax matters and such
law firm or accounting firm shall determine the amount of the Gross-up
Payment and such determination shall be final and binding upon
Executive and the Company.
8. RESTRICTIVE COVENANTS
(a) COMPETITIVE ACTIVITY. Executive covenants and agrees that at all times
during Executive's employment with the Company, and during the
Non-Compete Period (as defined below), Executive will not, without the
prior written consent of the Company, directly or indirectly, engage
in, assist, or have any active interest or involvement, whether as an
employee, agent, consultant, creditor, advisor, officer, director,
stockholder (excluding holdings of less than 1% of the stock of a
public company), partner, proprietor or any type of principal
whatsoever in any person, firm or business entity which is engaged in
the business of collecting, storing, transferring, recovering,
recycling, marketing or disposing of rubbish, garbage, paper, textile
wastes, or liquid or other wastes within 75 miles of any operating
location of the Company or any of its affiliates (as such term is
defined in U.S. securities laws), subsidiaries or successor
corporations.
(b) NON-SOLICITATION. Executive covenants and agrees that at all times
during Executive's employment with the Company, and during the
Non-Compete Period, Executive will not, without the prior written
consent of the Company, directly or indirectly (i) induce any customer
of the Company, or any of its subsidiaries, affiliates (as such term is
defined in U.S. securities laws) or successor corporations
(collectively in this section 8 referred to as "Related Corporations")
to patronize any similar business which competes with any material
business of the Company or any of its Related Corporations; (ii)
canvass, solicit or accept any similar business from any customer of
the Company or any of its Related Corporations; (iii) request or advise
any customer of the Company or any of its Related Corporations to
withdraw, curtail or cancel such customer's business with the Company
or any of its Related Corporations; (iv) disclose to any other person,
firm or corporation the names or addresses of any customer of the
Company or any of its Related Corporations other than as required in
connection with the performance of Executive's duties under this
Agreement; or (v) cause, solicit, entice or induce any present or
future employee of the Company or any of its Related Corporations to
leave
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the employ of the Company or any of its Related Corporations, or to
accept employment with, or compensation from, Executive.
(c) NON-DISPARAGEMENT. Executive covenants and agrees that Executive shall
not engage in any pattern of conduct that involves the making or
publishing of written or oral statements or remarks (including, without
limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging,
deleterious or damaging to the integrity, reputation or good will of
the Company or its management or any of its Related Corporations.
(d) PROTECTED INFORMATION. Executive recognizes and acknowledges that
Executive has had and will continue to have access to various
confidential and proprietary information concerning the Company and its
Related Corporations of a special and unique value which may include,
without limitation, (i) books and records relating to operations,
finance, accounting, sales, personnel and management, (ii) policies and
matters relating particularly to the Company's operations and those of
its Related Corporations such as customer service requirements, costs
of providing service and equipment, operating costs and pricing
matters, and (iii) various trade or business secrets, including
customer lists, route sheets, business opportunities, marketing or
business diversification plans, business development and bidding
techniques, methods and processes, financial data and the like
(collectively, the "Protected Information"). Executive therefore
covenants and agrees that Executive will not at any time, either while
employed by the Company or afterwards, knowingly make any independent
use of, or knowingly disclose to any other person or organization
(except as authorized by the Company or as required in connection with
the performance of Executive's duties under this Agreement) any of the
Protected Information.
(e) NON-COMPETE PERIOD. For purposes of this Agreement, the term
"Non-Compete Period" shall have the following meanings: (i) in the
event of a termination of Executive without Cause pursuant to Section
5(e) hereof, the Non-Compete Period shall mean the period during which
payments are being made to Executive pursuant to Section 6(d) hereof,
(ii) in the event Executive terminates his employment within six (6)
months after a Change of Control pursuant to Section 5(d)(ii) hereof,
in the case of a Change of Control that Executive supported by voting
in favour of the transaction as a director, the Non-Compete Period
shall mean the period beginning on the effective date of termination
and ending on the third anniversary of the effective date of
termination and, in the case of any other Change of Control, the
Non-Compete Period shall mean the period beginning on the effective
date of termination and ending on the second anniversary of the
effective date of termination.
9. ENFORCEMENT OF COVENANTS.
(a) TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. Executive
agrees that any breach by Executive of any of the covenants set forth
in Section 8 hereof during Executive's employment by the Company, shall
be grounds for immediate dismissal of Executive and forfeiture of any
accrued and unpaid Base Salary,
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bonus, commissions or other compensation of such Executive as
liquidated damages, which shall be in addition to and not exclusive of
any and all other rights and remedies the Company may have against
Executive.
(b) RIGHT TO INJUNCTION. Executive acknowledges that a breach of the
covenants set forth in Section 8 hereof will cause irreparable damage
to the Company with respect to which the Company's remedy at law for
damages will be inadequate. Therefore, in the event of a breach of the
covenants set forth in Section 8 by Executive, Executive and the
Company agree that the Company shall be entitled to the following
particular forms of relief, in addition to remedies otherwise available
to it at law or equity; (i) injunctions, both preliminary and
permanent, enjoining or restraining such breach or anticipatory breach
and Executive hereby consents to the issuance thereof forthwith and
without bond by any court of competent jurisdiction; and (ii) recovery
of all reasonable sums expended and costs, including reasonable
attorney's fees, incurred by the Company to enforce the covenants set
forth in this section.
(c) SEVARABILITY OF COVENANTS. The covenants contained in Section 8 hereof
constitute a series of separate covenants, one for each applicable
State in the United States and the District of Columbia, and one for
each province and Territory in Canada. If in any judicial proceeding, a
court shall hold that any of the covenants set forth in Section 8
exceed the time, geographic, or occupational limitations permitted by
applicable laws, Executive and the Company agree that such provisions
shall and are hereby reformed to the maximum time, geographic, or
occupational limitations permitted by such laws. Further, in the event
a court shall hold unenforceable any of the separate covenants deemed
included herein, then such unenforceable covenant or covenants shall be
deemed eliminated from the provisions of this Agreement for the purpose
of such proceeding to the extent necessary to permit the remaining
separate covenants to be enforced in such proceeding. Executive and the
Company further agree that the covenants in Section 8 shall each be
construed as a separate agreement independent of any other provisions
of this Agreement, and the existence of any claim or cause of action by
Executive against the Company whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of any of the covenants of Section 8.
10. DISPUTES AND PAYMENT OF ATTORNEY'S FFES.
If at any time during the term of this Agreement or afterwards there should
arise any dispute as to the validity, interpretation or application of any term
or condition of this Agreement, the Company agrees, upon written demand by
Executive (and Executive shall be entitled upon application to any court of
competent jurisdiction, to the entry of a mandatory injunction, without the
necessity of posting any bond with respect thereto, compelling the Company) to
promptly provide sums sufficient to pay on a current basis (either directly or
by reimbursing Executive) Executive's costs and reasonable attorney's fees
(including without limitation expenses of investigation and disbursements for
the fees and expenses of experts) incurred by Executive in connection with any
such dispute or any litigation, (a) provided that Executive shall repay any such
amounts paid or advanced if Executive is not the prevailing party with respect
to any
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dispute or litigation arising under Sections 5(c) or 8 of this Agreement, or (b)
regardless of whether Executive is the prevailing party in a dispute or in
litigation involving any other provision of this Agreement, provided that the
court in which such litigation is first initiated determines with respect to
this obligation, upon application of either party hereto, that Executive did not
initiate frivolously such litigation. Under no circumstances shall Executive be
obligated to pay or reimburse the Company for any attorneys' fees, costs or
expenses incurred by the Company. The provisions of this Section shall survive
the expiration or termination of this Agreement and Executive's employment
hereunder.
11. WITHHOLDING OF TAXES.
The Company may withhold all applicable taxes and other deductions required by
law from any compensation and benefits payable under this Agreement.
12. NON-DISCLOSURE OF AGREEMENT TERMS.
If Executive's employment with the Company is terminated for any reason, the
Company agrees that, except to the extent required by law, it will not make or
publish, without the express written consent of Executive, any written or oral
statement concerning Executive or the terms of Executive's employment with the
Company, including, without limitation, his work-related performance or the
reasons or basis for the termination of Executive's employment with the Company.
13. ASSIGNMENT.
Except as otherwise provided in this Agreement, this Agreement shall inure to
the benefit of, and be binding upon, the parties hereto and their respective
heirs, representatives, successors and assigns. This Agreement shall not be
assignable by Executive, and shall be assignable by the Company only to any
financially solvent corporation or other entity resulting from the
reorganization, plan of arrangement, merger, consolidation or amalgamation of
the Company with any other corporation or entity or any corporation or entity to
or with which the Company's business or substantially all of its business or
assets may be sold, exchanged or transferred, and it must be so assigned by the
Company to, and accepted as binding upon it by, such other corporation or entity
in connection with any such amalgamation, reorganization, plan of arrangement,
merger, consolidation, sale, exchange or transfer (the provisions of this
sentence also being applicable to any successive such transaction).
14. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Executive and the Company relating to the
terms of Executive's employment by the Company. It may not be amended except by
a written agreement signed by both parties.
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15. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
internal substantive laws of the Province of Ontario, without giving effect to
the conflict of law principles thereof.
16. NOTICES.
Any notice, consent, request or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally, mailed by registered or certified mail (return
receipt requested), or by confirmed facsimile to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To the Company: Capital Environmental Resource Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx X0X 0X0
Attention: Secretary
To Executive: At the address for Executive set forth below.
17. MISCELLANEOUS.
(a) WAIVER. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(b) SEVARABILITY. Subject to Section 9 hereof, if any term or provision of
this Agreement is declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable, such
term or provision shall immediately become null and void, leaving the
remainder of this Agreement in full force and effect.
(c) HEADINGS. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this
Agreement.
(d) RULES OF CONSTRUCTION. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts will together constitute but one
Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
CAPITAL ENVIRONMENTAL RESOURCE INC.
By: /s/ Xxxxxx X. Xxxxxx, III
-----------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
--------------------------------------
Date: May 28, 2003
--------------------------------------
EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
Date: May 28, 2003
---------------------------------------
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