1
EXHIBIT 10.46
AMENDMENT AND RESTATEMENT OF
EXECUTIVE SEVERANCE AGREEMENT
THIS AMENDMENT AND RESTATEMENT OF EXECUTIVE SEVERANCE AGREEMENT, by
and between ALLWASTE, INC., a Delaware corporation (the "COMPANY"), and XXXXXXX
X. XXXXXXX (the "EMPLOYEE"), which was effective as of November 11, 1996 (as so
amended and restated, the "AGREEMENT"), is entered into this 5th day of March
1997, to become effective only as provided in Section 1 hereof.
W I T N E S S E T H:
WHEREAS, the Employee is a key employee of the Company, and the
Employee's experience and knowledge of the affairs of the Company are extremely
valuable to the Company; and
WHEREAS, the Company and the Employee have entered into that certain
Employment Agreement dated November 11, 1996 governing the Employee's
employment with the Company (the "EMPLOYMENT AGREEMENT"); and
WHEREAS, the Board of Directors of the Company (the "BOARD") believes
it imperative that the Company be able to rely on the Employee to continue his
services to the Company without concern that the Employee may be distracted by
the personal uncertainties and risks created by the possibility of a change in
control; and
WHEREAS, the Company is entering into this Agreement with the Employee
in order to ensure the Employee's continued services, dedication and
objectivity during such period as the Company may be susceptible to a change in
control and to define the nature and terms of the Employee's severance benefits
following a Change in Control (as defined in Section 9 below); and
WHEREAS, an Agreement and Plan of Merger is being executed currently
herewith among the Company, Xxxxxx Environmental Inc., Taro Aggregates Ltd.,
and Xxxxxx/Atlas Merger Corp. (the "MERGER AGREEMENT");
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements herein contained, the Company and the Employee
hereby agree as follows.
SECTION 1. TERM. Subject to the second sentence of this Section
1, this Agreement shall become effective (the "EFFECTIVE TIME") immediately
prior to (and subject to the occurrence of) approval of the Merger Agreement by
the Company's stockholders and shall continue until the expiration or
termination of the Employment Agreement, and to the extent that the Employment
Agreement is renewed for successive one-year periods, this Agreement shall be
similarly renewed (the "TERM"). If this Agreement becomes effective, the
Employee's original Executive Severance Agreement (and any prior amendments
thereto) described in the preamble hereto shall simultaneously become null and
void; provided that, if the Merger Agreement is terminated, then, on the date
of such termination, this Agreement shall terminate
-1-
2
and the Employee's original Executive Severance Agreement shall remain in full
force and effect. Notwithstanding any provision of this Agreement to the
contrary, termination of this Agreement shall not alter or impair any rights of
the Employee (or the Employee's estate or beneficiaries) that have arisen under
this Agreement prior to such termination.
SECTION 2. TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN
CONTROL.
2.1 GENERAL. For purposes of this Agreement, the "PROTECTED
PERIOD" shall mean the period of time beginning with a Change in Control which
occurs during the Term and ending 18 months following such Change in Control;
provided, however, if the Employee's employment with the Company terminates for
any reason (other than a termination (i) due to the Employee's death, (ii) by
the Company on account of the Employee's Disability as provided in Section 2.2
below, (iii) by the Company for Cause as provided in Section 2.3 below, or (iv)
by the Employee for other than Good Reason as provided in Section 2.4 below)
prior to, but within six months of, the date on which such a Change in Control
occurs, then, for all purposes of this Agreement: (A) the Employee shall be
deemed to have continued employment with the Company until the date of the
Change in Control and then terminated his employment on such date for Good
Reason, and (B) the Protected Period shall be deemed to have commenced
immediately prior to the Employee's actual termination of employment.
2.2 TERMINATION BY COMPANY ON ACCOUNT OF DISABILITY. If a Change
in Control occurs during the Term, and if, as a result of the Employee's
illness, physical or mental disability, or other incapacity which continues for
an uninterrupted period in excess of three (3) months or a cumulative period of
six (6) months in any twelve (12) month period during the Protected Period, and
if, within 30 days after the Company has given the Employee written notice of
the Company's intention to terminate the Employee on account of such
incapacity, the Employee shall not have returned to the full-time performance
of the Employee's duties, then the Company may thereafter terminate the
Employee's employment on account of "DISABILITY"; provided, however, such
termination shall not by itself alter or impair the Employee's rights as a
"DISABLED EMPLOYEE" or otherwise under any of the Company's employee benefits
plans.
2.3 TERMINATION BY COMPANY FOR CAUSE. If a Change in Control
occurs during the Term, the Company may, at any time during the Protected
Period, terminate the Employee's employment for Cause. For purposes of this
Agreement, the Company shall have "CAUSE" to terminate the Employee's
employment hereunder only if: (a) the Employee willfully and continually fails
to perform substantially the Employee's duties with the Company (other than any
such failure resulting from the Employee's incapacity due to physical or mental
illness), which failure continues unabated after a demand for substantial
performance is delivered to the Employee by the Board that specifically
identifies the manner in which the Board believes that the Employee has not
substantially performed the Employee's duties, or (b) the Employee willfully
engages in gross misconduct that is materially and demonstrably injurious to
the Company. For purposes of this Section 2.3, an act or failure to act on the
Employee's part shall be considered "WILLFUL" if done or omitted to be done by
the Employee otherwise than in good faith and without reasonable belief that
the Employee's action or omission was in the best interest of the Company.
Notwithstanding the foregoing, the Employee shall not be deemed to
-2-
3
have been terminated by the Company for Cause unless and until the Company
shall have delivered to the Employee a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of
the Board, at a meeting of the Board called and held for the purpose (after
reasonable notice to the Employee and an opportunity for the Employee, together
with the Employee's counsel, to be heard before the Board), finding that, in
the good faith opinion of the Board, the Employee was guilty of conduct set
forth in clauses (a) or (b) of the second sentence of this Section 2.3 and
specifying the particulars thereof in reasonable detail.
2.4 TERMINATION BY EMPLOYEE FOR GOOD REASON. If a Change in
Control occurs during the Term, the Employee may terminate the Employee's
employment for Good Reason at any time during the Protected Period. For
purposes of this Agreement "GOOD REASON" shall mean any of the following:
(a) The Employee is assigned any duties materially
inconsistent with, or diminished from, the Employee's positions,
duties, responsibilities and status with the Company immediately prior
to the commencement of the Protected Period, or the Employee's status,
reporting responsibilities, titles or offices are materially
diminished from those in effect immediately prior to the commencement
of the Protected Period, or the Employee is removed from or is not
re-elected or appointed to any of such responsibilities, titles,
offices or positions, except in each case in connection with the
termination of the Employee's employment by the Company for Cause or
on account of Disability, or as a result of the Employee's death, or
by the Employee for other than Good Reason; provided, however, that
Good Reason shall not be triggered under this subsection (a) by an
insubstantial action not taken in bad faith and which is remedied by
the Company promptly after receipt of written notice from the
Employee; and provided further that Good Reason shall not be triggered
under this subsection (a) by any such alteration primarily
attributable to the fact that the Company may no longer be a public
company; or
(b) The Employee's annual rate of base salary is reduced
from that in effect immediately prior to the commencement of the
Protected Period or as the same may be increased from time to time
thereafter (such annual rate of base salary, as so increased (if
applicable) but prior to such reduction, is referred to hereinafter as
the "ANNUAL BASE SALARY"); provided, however, with respect to a
termination of employment prior to a Change in Control that is deemed
to have occurred on the date of the Change in Control, "ANNUAL BASE
SALARY" shall be the Employee's annual rate of base salary as in
effect immediately prior to the Employee's actual date of termination,
but disregarding any reduction therein made within 30 days of the
Employee's actual termination date; or
(c) The Company fails to continue in effect any benefit
or compensation plan (except the Supplemental Executive Retirement
Plan) which is material to the Employee's total compensation,
including, but not limited to, the Company's annual bonus plan,
qualified retirement plan, executive life insurance plan and/or health
and accident plan, in which the Employee is participating immediately
prior to the commencement of the Protected Period, or plans providing
the Employee with
-3-
4
substantially similar benefits, or the Company takes any action that
would materially adversely affect the Employee's participation in or
reduce the Employee's benefits under any of such plans (excluding any
such action by the Company that is required by law); or
(d) The Company's principal executive offices are
relocated at any time following a Change in Control more than 35 miles
from where such offices were located immediately prior to such Change
in Control; or
(e) The Company requires the Employee at any time
following a Change in Control to relocate more than 35 miles from
where the Company's principal executive offices were located
immediately prior to such Change in Control; or
(f) The Company fails to obtain the assumption of the
obligation to perform this Agreement by any successor as contemplated
in Section 7.1 hereof; or
(g) Any purported termination of the Employee's
employment by the Company that is not effected pursuant to a Notice of
Termination satisfying the requirements of Section 2.5 below and, if
applicable, the procedures described in Section 2.3 above; or
(h) The Company shall violate or breach any obligation of
the Company in effect immediately prior to the commencement of the
Protected Period (regardless whether such obligation be set forth in
the Employment Agreement or any other separate agreement entered into
between the Company and the Employee) to indemnify the Employee
against any claim, loss, expense or liability sustained or incurred by
the Employee by reason, in whole or in part, of the fact that the
Employee is or was an officer or director of the Company; or
(i) The Company shall violate or breach any other
material obligation of the Company owing to the Employee in effect
immediately prior to the commencement of the Protected Period relating
to the Employee's employment with the Company, but only if such
violation or breach (if capable of being remedied) shall continue
unremedied for more than 15 days after written notice thereof is given
by the Employee to the Company; or
(j) The Board (or any nominating committee of the Board)
fails to recommend and support the Employee's re-election as a
director of the Company if the Employee is a director of the Company
immediately prior to the commencement of the Protected Period.
2.5 NOTICE OF TERMINATION. Any termination by the Company
pursuant to Section 2.2 or 2.3 above or by the Employee pursuant to Section 2.4
above shall be communicated by written Notice of Termination to the other party
hereto; provided, however, that in the case of events of Good Reason enumerated
in subsections (f), (h), (i) or (l) of Section 2.4 hereof, the Company shall
have the obligation to provide the Employee with written notice of the
occurrence of any of such events and the Employee shall then have the
opportunity
-4-
5
to provide the Company with Notice of Termination if he so elects. The
Employee shall retain the ability to terminate his employment for Good Reason
under subsections (f), (h), (i) or (l) of Section 2.4 hereof, even if the
Company fails to provide written notice of the occurrence of any of the events
specified in such subsections as provided herein. For purposes of this
Agreement, a "NOTICE OF TERMINATION" shall mean a notice that shall indicate
the specific termination provision in this Agreement relied on and, except in
the case of the termination referred to in the last subsection of Section 2.4
above, shall set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee's employment under the
provision so indicated. Any purported termination of this Agreement not in
compliance with the requirements of this Section 2.5 or, if applicable, the
procedures described in Section 2.3 above shall be ineffective.
2.6 DATE OF TERMINATION. For purposes of this Agreement, "DATE OF
TERMINATION" shall mean: (a) if the Employee is terminated on account of
Disability pursuant to Section 2.2 above, 30 days after Notice of Termination
is given, provided that the Employee shall not have returned to the performance
of the Employee's duties on a full-time basis during such 30-day period; (b) if
the Employee's employment is terminated for Cause pursuant to Section 2.3
above, the date specified in the Notice of Termination; (c) with respect to a
termination of employment prior to a Change in Control that is deemed to have
occurred on the date of the Change in Control, the date of such Change in
Control; and (d) if the Employee's employment is terminated for any other
reason on or after a Change in Control, the date on which a Notice of
Termination is given; provided, however, in the event of any dispute or
controversy concerning the Employee's entitlement to payment under this
Agreement, solely for purposes of Section 3.3 and 3.4 below, concerning the
timing of the payment of amounts under this Agreement, the "DATE OF
TERMINATION" shall mean the date of final resolution of such dispute or
controversy.
SECTION 3. COMPENSATION DURING DISABILITY, DURING PROTECTED
PERIOD OR ON TERMINATION.
3.1 If a Change in Control occurs during the Term and if, during
the Protected Period, the Employee fails to perform the Employee's normal
duties as a result of Disability (as defined in Section 2.2 hereof), the
Employee shall continue during the period of Disability to receive: (i) the
Employee's full Annual Base Salary at the rate then in effect, (ii) any awards,
deferred and non-deferred, payable during such period of disability under the
Company's annual bonus plan, less any amounts paid to the Employee during such
period of Disability pursuant to the Company's sick-leave or disability program
until the Employee's employment is terminated on account of Disability pursuant
to Section 2.2 hereof, and (iii) all other applicable perquisites, insurance
and other employee benefits.
3.2 If a Change in Control occurs during the Term and if, during
the Protected Period, the Employee's employment shall be terminated by the
Company for Cause pursuant to Section 2.3 above, the Company shall pay the
Employee's earned but unpaid Annual Base Salary through the Date of Termination
at the rate in effect at the time Notice of Termination is given, and the
Company shall have no further obligations to the Employee under this Agreement,
except those arising hereunder prior to the Date of Termination.
-5-
6
3.3 If a Change in Control occurs during the Term pursuant to the
Merger Agreement, then, subject to the conditions stated in the last sentence
of this Section 3.3, the Company shall pay the Employee the following amount by
certified or bank cashier's check on each of two dates:
An amount equal to the sum of the Annual Base Salary and an annual
target bonus of 60% of the Annual Base Salary
The foregoing amount shall be paid to the Employee on each of the following
dates, if the conditions stated in the following sentence are met: (1) the
date (the "MERGER EFFECTIVE DATE") on which the Effective Time of the Merger as
defined in the Merger Agreement (the "MERGER EFFECTIVE TIME") occurs, and (2)
the later of January 1, 1998, or the six- month anniversary of the Merger
Effective Date. The amounts shall be paid on those two dates only if the
Employee is employed by the Company on the Merger Effective Date, or if the
Company shall have terminated the employment of the Employee during the
Protected Period prior to the Merger Effective Date other than pursuant to
Sections 2.2 or 2.3 hereof, or if the Employee shall have terminated the
Employee's employment during the Protected Period prior to the Merger Effective
Date for Good Reason in accordance with Section 2.4 hereof.
3.4 If a Change in Control occurs during the Term and if, during
the Protected Period, the Company shall terminate the Employee other than
pursuant to Sections 2.2 or 2.3 hereof or if, during the Protected Period, the
Employee shall terminate the Employee's employment for Good Reason in
accordance with Section 2.4 hereof, then, subject to Section 5 below and the
following provisions of this Section 3.4, the Company shall pay to the
Employee, in a single lump sum by certified or bank cashier's check within five
days of such Date of Termination, the sum of the amounts specified in clauses
(a) and (b) below:
(a) an amount equal to that portion of the Annual Base
Salary earned, but not paid, and vacation earned, but not taken, in
each case, to the Date of Termination, and all other amounts
previously deferred by the Employee (except any amounts in any
tax-qualified retirement or savings plan, which shall be governed by
the terms of such plan) or earned but not paid as of such date under
all Company incentive or deferred compensation plans or programs; and
(b) an amount equal to (i) the amount of the maximum
monthly premium payment that may be charged to continue coverage for
the Employee and the Employee's eligible dependents under the
Company's health insurance plan under COBRA, multiplied by (ii) 24
months.
SECTION 4. ACCELERATION OF OPTION AND RESTRICTED STOCK GRANTS
4.1 If a Change in Control occurs during the Term pursuant to the
Merger Agreement and the Employee holds outstanding unexercisable options under
the Company's stock option plan(s) immediately prior to the Merger Effective
Time (the "UNEXERCISABLE OPTIONS"), then, notwithstanding any provisions of
such plans or prior agreements between the Company and the Employee (and in
lieu of any exercisability or vesting schedules therein), each
-6-
7
date on which a portion of an Unexercisable Option would otherwise vest and
become exercisable (a "VESTING DATE") shall be accelerated by two years;
provided, however, that no accelerated Vesting Date shall be deemed to occur
earlier than immediately prior to the Merger Effective Time. Notwithstanding
the foregoing provisions of this Section 4.1, a portion of an Unexercisable
Option shall become exercisable on a projected accelerated Vesting Date only if
the Employee is employed by the Company on such date; provided, however, in the
event the employee's employment is terminated subsequent to the Effective Time
of this Agreement while the Employee holds Unexercisable Options, (i) due to
the Employee's death, (ii) by the Company on account of the Employee's
Disability as provided in Section 2.2 hereof, (iii) by the Company other than
for Cause as provided in Section 2.3 hereof, or (iv) by the Employee for Good
Reason as provided in Section 2.4 hereof, then, notwithstanding any provision
of this Agreement to the contrary, each Unexercisable Option shall become fully
vested and exercisable on the later of (x) the date of such termination or (y)
immediately prior to the Merger Effective Time.
4.2 If a Change in Control occurs during the Term pursuant to the
Merger Agreement and the Employee holds any outstanding shares of restricted
stock issued by the Company to the Employee under the Company's stock plan(s)
(including those granted under the Company's Target 2000: One, Two, Four Plan)
which remain subject to restrictions and/or performance or other criteria
relating thereto (the "RESTRICTIONS") immediately prior to the Merger Effective
Time (the "RESTRICTED SHARES"), then, notwithstanding any provisions of such
plans or prior agreements between the Company and the Employee (and in lieu of
any schedules for the lapsing of restrictions contained therein), each date on
which Restrictions on a portion of the Restricted Shares would otherwise lapse
or be deemed satisfied in full, as applicable (a "Lapsing Date"), shall be
accelerated by two years; provided, however, that no accelerated Lapsing Date
shall be deemed to occur earlier than immediately prior to the Merger Effective
Time. Notwithstanding the foregoing provisions of this Section 4.2,
Restrictions shall lapse on such portion of the Restricted Shares on a
projected accelerated Lapsing Date only if the Employee is employed by the
Company on such date; provided, however, in the event the employee's employment
is terminated subsequent to the Effective Time of this Agreement while the
Employee holds Restricted Shares, (i) due to the Employee's death, (ii) by the
Company on account of the Employee's Disability as provided in Section 2.2
hereof, (iii) by the Company other than for Cause as provided in Section 2.3
hereof, or (iv) by the Employee for Good Reason as provided in Section 2.4
hereof, then, notwithstanding any provision of this Agreement to the contrary,
all Restrictions on all such Restricted Shares shall lapse or be deemed
satisfied in full, as applicable, on the later of (x) the date of such
termination or (y) immediately prior to the Merger Effective Time. No later
than the fifth day following any such lapse of Restrictions, the Company shall
cause the relevant unrestricted shares of stock to be delivered to the
Employee.
SECTION 5. GROSS-UP OF PARACHUTE PAYMENT.
5.1 To provide the Employee with adequate protection in connection
with his ongoing employment with the Company, this Agreement provides the
Employee with various benefits in the event of termination of the Employee's
employment with the Company during the Protected Period. If the Employee's
employment is terminated following a "CHANGE IN CONTROL" of the Company, within
the meaning of Section 280G of the Internal Revenue Code of 1986, as
-7-
8
amended (the "CODE"), a portion of those benefits could be characterized as
"EXCESS PARACHUTE PAYMENTS" within the meaning of Section 280G of the Code.
The parties hereto acknowledge that the protections set forth in this Section 5
are important, and it is agreed that the Employee should not have to bear the
burden of any excise tax that might be levied under Section 4999 of the Code,
in the event that a portion of the benefits payable to the Employee pursuant to
this Agreement are treated as an excess parachute payment. The parties,
therefore, have agreed as set forth in this Section 5.
5.2 Anything in this Agreement to the contrary notwithstanding, if
it shall be determined that any payment or distribution by the Company or any
other person to or for the benefit of the Employee (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 5) (a "PAYMENT") would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred by the
Employee with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"EXCISE TAX"), then the Company shall pay an additional payment (a "GROSS-UP
PAYMENT") in an amount such that after payment by the Employee of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed on the Gross-Up Payment,
the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed on the Payments.
5.3 Subject to the provisions of Section 5.4 below, all
determinations required to be made under this Section 5, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by an independent public accounting firm with a national reputation that is
selected by the Employee (the "ACCOUNTING FIRM") which shall provide detailed
supporting calculations both to the Company and to the Employee within 15
business days after each receipt of notice from the Employee that there has
been a Payment, or such earlier time as is requested by the Company. In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the change in control of the Company, the
Employee shall appoint another nationally recognized accounting firm to make
the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. The Company shall
indemnify and hold harmless the Employee, on an after-tax basis, for any Excise
Tax or income tax (including interest and penalties with respect thereto)
imposed on the Employee as a result of such payment of fees and expenses. Any
Gross-Up Payment with respect to the respective Payment, as determined pursuant
to this Section 5, shall be paid by the Company to the Employee within five
days of the receipt of the Accounting Firm's determination. If the Accounting
Firm determines that no Excise Tax is payable by the Employee with respect to
the respective Payment, it shall furnish the Employee with a written opinion
that failure to report the Excise Tax on the Employee's applicable federal
income tax return would not result in the imposition of a negligence or similar
penalty. Any determination by the Accounting Firm shall be binding on the
Company and the Employee. As a result of uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments may not have
been made by the Company which should have been made ("UNDERPAYMENT"),
consistent with the
-8-
9
calculations required to be made hereunder. If the Company exhausts its
remedies pursuant to Section 5.4 below and the Employee thereafter is required
to make a payment of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Employee.
5.4 The Employee shall notify the Company in writing of any claim
(including any threatened tax lien related to or based on any such claim) by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than 10 business days after the Employee is
informed in writing of such claim (or threatened lien) and shall apprise the
Company of the nature of such claim and the date on which such claim is
requested to be paid. The Employee shall not pay such claim prior to the
expiration of the 30-day period following the date on which the Employee gives
such notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due or such tax lien would be
imposed). If the Company notifies the Employee in writing prior to the
expiration of such period that it desires to contest such claim (or threatened
lien), the Employee shall:
(a) give the Company any information reasonably requested
by the Company relating to such claim (or threatened lien);
(b) take such action in connection with contesting such
claim (or threatened lien) as the Company shall reasonably request in
writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney
reasonably selected by the Company;
(c) cooperate with the Company in good faith in order
effectively to contest such claim (or threatened lien); and
(d) permit the Company to participate in any proceedings
relating to such claim (or threatened lien);
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Employee harmless, on an
after- tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions
of this Subsection 5.4, the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Employee to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Employee agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Employee shall
determine (but in no event shall the Company permit or direct the Employee to
allow a tax lien to be imposed on the Employee's property); provided, further,
that if the Company directs the Employee to pay such claim and xxx for a
refund, the Company shall advance the amount of such payment to the
-9-
10
Employee, on an interest-free basis, and shall indemnify and hold the Employee
harmless on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such
advance or with respect to any imputed income with respect to such advance; and
further, provided, that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Employee with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. In addition, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder, and
the Employee shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
5.5 If, after the receipt by the Employee of an amount advanced by
the Company pursuant to Section 5.2, 5.3 or 5.4, the Employee becomes entitled
to receive any refund with respect to such amount, the Employee shall (subject
to the Company's complying with the requirements of Section 5.4 above) promptly
pay to the Company the amount of such refund (together with any interest paid
or credited thereon after taxes applicable thereto). If after the receipt by
the Employee of an amount advanced by the Company pursuant to Section 5.2, 5.3
or 5.4 above, a determination is made that the Employee shall not be entitled
to any refund with respect to such amount and the Company does not notify the
Employee in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
SECTION 6. NO MITIGATION OF DAMAGES. The provisions of this
Agreement are not intended to, nor shall they be construed to, require that the
Employee seek or accept other employment following a termination of employment
and, amounts payable and benefits provided under this Agreement to the Employee
shall not be reduced by the Employee's acceptance of (or failure to seek or
accept) employment with another person. The Company's obligations to make the
payments and provide the benefits required for in this Agreement and otherwise
to perform its obligations hereunder shall not be affected by any set off,
counterclaim, recoupment, defense or other claim, rights or action that the
Company may have against the Employee or others.
SECTION 7. SUCCESSORS; BINDING AGREEMENT.
7.1 The Company will require any successor, whether direct or
indirect, by purchase, merger, consolidation or otherwise, of all or
substantially all of the business and/or assets of the Company, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent as the Company would have been required if no such succession had taken
place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Employee to compensation from the Company in the same amount
and on the same terms as the Employee would be entitled hereunder if the
Employee terminated the Employee's employment for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "COMPANY" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid that executes and delivers
the agreement provided for in
-10-
11
this Section 7.1 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
7.2 This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Employee should die while any amounts would still be payable to the Employee
hereunder if the Employee had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Employee's devisee, legatee or other designee or, if none, to
the Employee's estate.
SECTION 8. NOTICE. For the purpose of this Agreement, notices
and all other communications provided for herein shall be in writing and shall
be deemed to have been duly given when delivered or five days after deposit in
the United States mail, registered and return receipt requested, postage
prepaid, addressed to the respective addresses set forth below or to such other
address as either party shall have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be
effective only on receipt.
If to the Company:
Allwaste, Inc.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Chairman of the Compensation
Committee of the Board of Directors
If to Employee:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxx 00000
SECTION 9. CHANGE IN CONTROL. For purposes of this Agreement, a
"CHANGE IN CONTROL" shall be deemed to have occurred upon the consummation of
the transactions contemplated by the Merger Agreement at the Effective Time of
the Merger (as defined in the Merger Agreement).
SECTION 10. EMPLOYMENT WITH SUBSIDIARIES AND PARENTS. Employment
with the Company for purposes of this Agreement includes employment with any
entity (a "PARENT") which owns, directly or indirectly, 50% or more of the
total combined voting power of the Company's outstanding equity interests and
employment with any entity in which the Company or the Parent has a direct or
indirect ownership interest of 50% or more of the total combined voting power
of all outstanding equity interests, it being understood that for purposes of
clause (a) of Section 2.4 hereof, "GOOD REASON" shall be construed to refer to
each of the Employee's positions, duties, responsibilities (reporting and
other), status, titles and offices with the Company and each of its
subsidiaries and parents.
-11-
12
SECTION 11. MISCELLANEOUS. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Employee and by the Chairman of the
Compensation Committee of the Board or other authorized officer of the Company.
No waiver by either party hereto at any time of any breach by the other party
hereto of, or 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. Any payments provided for hereunder shall be paid net of any applicable
withholding required under federal, state or local law and any additional
withholding to which the Employee has agreed.
SECTION 12. VALIDITY. THE INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE
PRINCIPLE OF CONFLICTS OF LAWS. The invalidity or unenforceability of any
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, each of which shall remain in full force
and effect.
SECTION 13. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original but all
of which together shall constitute one and the same instrument.
SECTION 14. DESCRIPTIVE HEADINGS. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement.
SECTION 15. CORPORATE APPROVAL. This Agreement has been approved
by the Board of Directors, and has been duly executed and delivered by Employee
and on behalf of the Company by its duly authorized representative.
SECTION 16. DISPUTE RESOLUTION.
16.1 In the event a dispute shall arise between the parties as to
whether the provisions of this Agreement have been complied with (a "DISPUTE")
the parties agree to resolve such Dispute in accordance with the following
procedure:
(a) A meeting shall be held promptly between the parties,
attended by (in the case of the Company) one or more individuals with
decision-making authority regarding the Dispute, to attempt in good
faith to negotiate a resolution of the Dispute.
(b) If, within 10 days after such meeting, the parties
have not succeeded in negotiating a resolution of the Dispute, the
parties agree to submit the Dispute to mediation in accordance with
the Commercial Mediation Rules of the American Arbitration
Association.
(c) The parties will jointly appoint a mutually
acceptable mediator, seeking assistance in such regard from the
American Arbitration Association if they
-12-
13
have been unable to agree on such appointment within 10 days following
the 10-day period referred to in clause (b) above.
(d) On appointment of the mediator, the parties agree to
participate in good faith in the mediation and negotiations relating
thereto for 15 days.
(e) If the parties are not successful in resolving the
Dispute through mediation within such 15-day period, the parties agree
that the Dispute shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association.
(f) The fees and expenses of the mediator/arbitrators
shall be borne solely by the non-prevailing party or, in the event
there is no clear prevailing party, shall be borne by the Company.
(g) If any dispute shall arise under this Agreement
involving termination of the Employee's employment with the Company or
involving the failure or refusal of the Company to fully perform in
accordance with the terms hereof, the Company shall reimburse the
Employee, on a current basis, for all legal fees and expenses, if any,
incurred by the Employee in connection with such dispute, together
with interest thereon at the prevailing legal rate of interest, such
interest to accrue from the date of Notice of Termination through the
date of payment thereof; provided, however, that in the event the
resolution of such dispute in accordance with this Section 16 includes
a finding denying, in total, the Employee's claims in such dispute,
the Employee shall be required to reimburse the Company, over a period
determined by the Employee but not to exceed 12 months from the date
of such resolution, for all sums advanced to the Employee with respect
to such dispute pursuant to this clause (g).
(h) Except as provided above, each party shall pay its
own costs and expenses (including, without limitation, reasonable
attorneys' fees) relating to any mediation/arbitration proceeding
conducted under this Section 16.
(i) All mediation/arbitration conferences and hearings
will be held in Houston, Texas.
16.2 In the event there is any disputed question of law involved in
any arbitration proceeding, such as the proper legal interpretation of any
provision of this Agreement, the arbitrators shall make separate and distinct
findings of all facts material to the disputed question of law to be decided
and, on the basis of the facts so found, express their conclusion of the
question of law. The facts so found shall be conclusive and binding on the
parties, but any legal conclusion reached by the arbitrators from such facts
may be submitted by either party to a court of law for final determination by
initiation of a civil action in the proper state or Federal court sitting in
Xxxxxx County, Texas. Such action, to be valid, must be commenced within 20
days after receipt of the arbitrators' decision. If no such civil action is
commenced within such 20-day period, the legal conclusion reached by the
arbitrators shall be conclusive and binding on the parties. Any such civil
action shall be submitted, heard and determined solely on the basis of the
facts found by the arbitrators. Neither of the parties shall, or shall be
entitled to, submit
-13-
14
any additional or different facts for consideration by the court. In the event
any civil action is commenced under this Section 16.2, the party who prevails
or substantially prevails (as determined by the court) in such civil action
shall be entitled to recover from the other party all costs, expenses and
reasonable attorneys' fees incurred in connection with such action and on
appeal.
16.3 Except as limited by Section 16.2 above, the parties agree
that judgment on the award rendered by the arbitrators may be entered in any
court of competent jurisdiction. In the event legal proceedings are commenced
to enforce the rights awarded in an arbitration proceeding, the party who
prevails or substantially prevails in such legal proceeding shall be entitled
to recover from the other party all costs, expenses and reasonable attorneys'
fees incurred in connection with such legal proceeding and on appeal.
16.4 Except as provided above, no legal action may be brought by
either party with respect to any Dispute. All Disputes shall be determined
only in accordance with the procedures set forth above.
SECTION 17. NO OTHER SEVERANCE BENEFITS. In the event the
Employee becomes entitled to severance payments under Section 3.3 or 3.4 of
this Agreement, then the amounts payable under this Agreement to the Employee
shall be in lieu of, and not in addition to, any similar severance amounts to
which the Employee may otherwise be entitled under a severance plan or program
of the Company or any employment contract or agreement with the Company.
IN WITNESS WHEREOF, the Company and the Employee have entered into
this Agreement as of the day and year first above written.
ALLWASTE, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx
-14-
