1
EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT") between ALLWASTE, INC., a
Delaware corporation (the "COMPANY"), and T. XXXXX XXXX (the "EMPLOYEE") is
hereby entered into effective as of the 11th day of November, 1996.
RECITALS:
The following statements are true and correct:
As of the date of this Agreement, the Company, through its
wholly-owned subsidiaries, is engaged in the business of providing industrial
and environmental services.
The Employee is or will be employed by the Company in a confidential
relationship pursuant to which the Employee, in the course of his employment
with the Company, will have access to and will become aware of and familiar
with certain business, technical and other confidential information pertaining
to the Company's specific manner of doing business and its future plans with
respect thereto, including, without limitation, information relating to
pricing, customers, suppliers, methods, techniques, processes, products,
services and know-how of the Company (collectively, the "CONFIDENTIAL
INFORMATION"), which Confidential Information has been or will be established
by and maintained at great expense to the Company and is proprietary to and
constitutes the trade secrets and valuable goodwill of the Company.
The Employee recognizes that the Company's business is dependent on
such Confidential Information and that disclosure of any of the Company's
Confidential Information by the Employee would have a detrimental effect on the
Company's business. The protection of its Confidential Information is of
critical importance to the Company.
The Company will sustain great loss and damage if, during the term of
this Agreement and for a period of two (2) years immediately following
termination of this Agreement for any reason, the Employee should violate any
provision of Section 3 of this Agreement. The parties acknowledge that
monetary damages for any such loss would be extremely difficult to measure.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT AND RESPONSIBILITIES.
(a) EMPLOYMENT. The Company hereby employs Employee as
its Senior Vice President -- Chief Financial Officer and Treasurer.
The Company's President or Board of Directors may request that the
Employee serve in various capacities for the Company's subsidiaries;
however, in connection with such service, the Employee shall not be
requested to undertake duties and responsibilities that are
substantially different than those assigned to the Employee as a
result of his primary position with the Company or that are
unreasonable (or
2
inconsistent with those given to similarly-situated employees)
considering the skills and expertise of the Employee and the condition
of the Company . The Employee hereby accepts this employment under
the terms and provisions herein contained and agrees to devote his
full time, attention and efforts to promote and further the business
and services of the Company. The Employee shall faithfully adhere to,
execute and fulfill all policies (written and unwritten) established
by the Company.
(b) AUTHORITY. The Employee shall have authority
commensurate with the authority normally accorded his position. All
actions of the Employee shall be in conformance with all policies of
the Company in effect and consistent with the Company's policy manual.
(c) AFFILIATES. The Employee may from time to time be
required to perform services for divisions, subsidiaries or affiliates
of the Company, in which event the terms and conditions of this
Agreement shall apply as if such affiliated company were a party to
this Agreement.
(d) SOLE EMPLOYMENT. The Employee shall not, during the
term of his employment hereunder, be engaged in any other business
activity pursued for gain, profit or other pecuniary advantage if such
activity interferes with Employee's duties and responsibilities
hereunder. This shall not, however, be construed as prohibiting the
Employee from engaging in other activities and making personal
investments which do not conflict with his responsibilities to the
Company.
2. COMPENSATION.
For all services rendered by the Employee to the Company, the
Company shall compensate the Employee as follows:
(a) BASE SALARY. The base salary payable to the Employee
under this Agreement shall be $185,000 per year, payable in equal bi-
weekly installments or on any other periodic basis consistent with the
Company's payroll procedures, which amount may be increased from time
to time.
(b) ADDITIONAL COMPENSATION. The Employee is eligible to
receive additional compensation from the Company as described below:
(i) The Employee shall be eligible to participate
in the Company's incentive bonus plan, deferred compensation
plan and supplemental executive retirement plan, as each may
be in effect from time to time.
(ii) Subject to the rules and regulations
applicable thereto and to the extent that his position,
tenure, salary, age, health and other qualifications make him
eligible to so participate, the Employee shall be entitled to
participate in the Company's employee benefit programs.
Page 2 of 10
3
(iii) The Employee shall be entitled to receive
stock option grants as and when authorized by the Compensation
Committee of the Company's Board of Directors.
(iv) The Employee shall be entitled to receive no
less than three (3) weeks of vacation time per year.
(v) The Employee shall be entitled to receive
such other executive perquisites from the Company as are
customary, including, without limitation, club membership dues
and personal financial and tax planning and tax preparation
services, together with reimbursement for all expenses
reasonably incurred in the performance of his duties, subject
to submission of appropriate documentation in accordance with
the Company's expense reimbursement policy in effect from time
to time.
3. NONCOMPETITION AGREEMENT.
(a) During the term of this Agreement and for a period of
two (2) years immediately following the termination of this Agreement,
the Employee shall not, for any reason whatsoever, directly or
indirectly, for himself or on behalf of, or in conjunction with, any
other person, persons, company, partnership, corporation or business
of whatever nature: (1) call on any customer of the Company, past or
present, including, but not limited to, any customers obtained for the
Company by the Employee, for the purpose of soliciting or selling any
products or services in competition with those of the Company; (2)
call on any employee of the Company for the purpose or with the intent
of enticing them away from or out of the employ of the Company for any
reason whatever; or (3) establish, enter into, be employed by or for,
advise, consult with or become an owner in or a part of, any company,
partnership, corporation or other business entity or venture, or in
any way engage in business for himself or for others, in competition
with the Company within 100 miles of the home office of the Company or
its subsidiaries having a permanent and known facility wherein the
Employee has served.
(b) These covenants on the part of the Employee shall be
construed as an agreement independent of any other provision of this
Agreement, and the existence of any claim or cause of action of the
Employee against the Company, whether predicated on this Agreement or
otherwise, shall not preclude the Company's enforcement of this
covenant. In the event of a breach or threatened breach by the
Employee of his obligations under this Section 3, the Employee
acknowledges that the Company will not have an adequate remedy at law
and shall be entitled to such equitable and injunctive relief as may
be available to restrain the Employee from the violation of the
provisions hereof. Nothing herein shall be construed as prohibiting
the Company from pursuing any other remedies available for such breach
or threatened breach, including the recovery of damages from the
Employee.
Page 3 of 10
4
(c) It is agreed by the parties that the covenants set
forth in this Section 3 impose a reasonable restraint on the Employee
in light of the activities and business of the Company on the date of
execution of this Agreement and in light of the future plans of the
Company. It is the intent of the parties that such covenants be
construed and enforced in light of the activities and business of the
Company on the date of termination of the Employee's employment with
the Company.
(d) The covenants in this Section 3 are severable and
separate, and the unenforceability of any specific covenant shall not
affect the provisions of any other covenant. Moreover, in the event
any court of competent jurisdiction shall determine that the scope,
time or territorial restrictions set forth herein are unreasonable,
then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable and
the Agreement shall thereby be reformed.
(e) All of the covenants set forth in this Section 3
shall be construed as an agreement independent of any other provision
of this Agreement, and the existence of any claim or cause of action
of the Employee against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of such covenants. It is agreed by the
parties that the two- year period stated at the beginning of this
Section 3, during which the agreements and covenants of the Employee
contained herein shall be effective, shall be computed by excluding
from such computation any time during which the Employee is in
violation of any provision of this Section 3 and any time during which
there is pending in any court of competent jurisdiction any action
(including any appeal from any final judgment) brought by any person,
whether or not a party to this Agreement, in which action, the Company
seeks to enforce the agreements and covenants of the Employee or in
which any person contests the validity of such agreement and covenants
or their enforceability or seeks to avoid their performance or
enforcement.
4. RETURN OF COMPANY PROPERTY.
All products, records, designs, patents, plans, manuals,
"field guides," memoranda, lists and other property delivered to the
Employee by or on behalf of the Company or by its customers
(including, without limitation, customers obtained for the Company by
the Employee), together with all correspondence with customers or
representatives, reports, charts, records, data and advertising
materials compiled or collected by the Employee, which pertain to the
business of the Company (including, without limitation, all such
reports, charts, records, data and other materials contained in
computer files, disks, magnetic tape and other such media), shall be
and remain the property of the Company and be subject at all times to
its discretion and control. All such property shall be delivered
promptly to the Company without request on the date the Employee is no
longer employed by the Company.
Page 4 of 10
5
5. INVENTIONS.
The Employee shall disclose promptly to the Company any and
all conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
the Employee solely or jointly with others during the period of
employment and which are related to the business or activities of the
Company or which the Employee conceives as a result of his employment
by the Company. Further, the Employee hereby assigns and agrees to
assign all his interests therein to the Company or its nominee.
Whenever requested to do so by the Company, the Employee shall execute
any and all applications, assignments or other instruments which the
Company shall deem necessary to apply for and obtain letters patent of
the United States or any foreign country or to otherwise protect the
Company's interest therein. These obligations shall continue beyond
the end of employment with respect to inventions, improvements and
valuable discoveries, whether patentable or not, conceived, made or
acquired by the Employee during the period of employment and shall be
binding on the Employee's assigns, executors, administrators and other
legal representatives.
6. TERM.
The term of this Agreement shall begin on the date of this
Agreement and, unless terminated as herein provided, continue for a
term of five (5) years and thereafter on a year-to-year basis on the
same terms and conditions contained herein.
7. TERMINATION; COMPENSATION AND OTHER RIGHTS ON TERMINATION.
(a) TERMINATION AS A RESULT OF THE EMPLOYEE'S DEATH.
(1) This Agreement will terminate automatically on
the death of the Employee.
(2) Compensation and Benefits. The Company shall pay
to the Employee's beneficiary an amount equal to accrued
compensation owing to the Employee on the date of his death
(including, without limitation, salary, pro rata bonus (if any
and subject to the terms and conditions of any applicable
bonus or incentive compensation plans), deferred compensation
and accrued vacation pay), together with applicable death
benefits, if any. In accordance with the Company's Amended
and Restated 1989 Replacement Non-Qualified Stock Option Plan
(as the same may be amended from time to time, the "Option
Plan"), the Employee's beneficiary shall be entitled to
exercise all exercisable stock options held by the Employee as
of the date of death until the earlier of (i) the one-year
period following the date of death or (ii) the date the option
would otherwise expire.
Page 5 of 10
6
(b) TERMINATION BY THE COMPANY ON ACCOUNT OF DISABILITY.
(1) If, as a result of the Employee's inability to
perform his duties under this Agreement (with or without
reasonable accomodation) because of 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, and if, within thirty (30) days after the Company has
given the Employee written notice of the Company's intention
to terminate the Employee's employment hereunder as a result
of such incapacity, the Employee shall not have returned to
the full-time performance of his duties hereunder, 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 benefit plans.
(2) Compensation and Benefits. The Company shall
pay to the Employee an amount equal to accrued compensation
owing to the Employee as of the date of termination
(including, without limitation, salary, pro rata bonus (if any
and subject to the terms and conditions of any applicable
bonus or incentive compensation plans), deferred compensation
and accrued vacation pay). Subject to approval by the
Compensation Committee of the Company's Board of Directors,
the Company shall cause all stock options held by the Employee
to be regranted under the Company's 1992 Limited Non-Qualified
Stock Option Plan (the "1992 Plan") so that such options
continue to vest and remain exercisable for a period of twelve
months following the date of termination. Whenever
compensation is payable to the Employee hereunder during a
period in which he is partially or totally disabled, and such
Disability would (except for the provisions hereof) entitle
the Employee to Disability income or salary continuation
payments from the Company according to the terms of any plan
or program presently maintained or hereafter established by
the Company, the Disability income or salary continuation paid
to the Employee pursuant to any such plan or program shall be
considered a portion of the payment to be made to the Employee
pursuant to this Section 7(b)(2) and shall not be in addition
hereto. If Disability income is payable directly to the
Employee by an insurance company under the terms of an
insurance policy paid for by the Company, the amounts paid to
the Employee by such insurance company shall be considered a
portion of the payment to be made to the Employee pursuant to
this Section 7(b)(2) and shall not be in addition hereto.
(c) TERMINATION BY THE COMPANY FOR CAUSE.
(1) The Company may at any time during the term of
this Agreement, in its sole discretion, terminate the
Employee's employment with the Company for "Cause." For
purposes of this Agreement, the following shall constitute
"CAUSE": (1) 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
Page 6 of 10
7
written demand for substantial performance is delivered to the
Employee by the President or the Chairman of the Board that
specifically identifies the manner in which the President or
the Board believes that the Employee has not substantially
performed the Employee's duties; (2) the Employee willfully
engages in gross misconduct that is materially and
demonstrably injurious to the Company; or (3) the Employee is
convicted of a felony crime by a court of competent
jurisdiction.
For purposes of this Section 7(c), 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 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 a majority 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 7(c) and specifying the particulars thereof in
reasonable detail.
(2) Compensation and Benefits. The Company shall pay
to the Employee an amount equal to accrued compensation owing
to the Employee as of the date of termination (including,
salary and accrued vacation pay). In accordance with the
Company's Option Plan, the Employee shall be entitled to
exercise all exercisable stock options held by the Employee as
of the date of termination until the expiration of the three-
month period following such date of termination.
(d) TERMINATION BY THE EMPLOYEE.
(1) At any time after the execution of this
Agreement, the Employee may elect to terminate this Agreement
and the Employee's employment hereunder.
(2) Compensation and Benefits. In the event the
Employee terminates this Agreement for any reason, the
Employee shall be entitled to receive an amount equal to
accrued compensation owing to the Employee as of the date of
termination (including, without limitation, salary, pro rata
bonus (if any and subject to the terms and conditions of any
applicable bonus or incentive compensation plans), deferred
compensation and accrued vacation pay). In accordance with
the Company's Option Plan, the Employee shall be entitled to
exercise all exercisable stock options held by the Employee as
of the date of termination until the expiration of the three-
month period following such date of termination.
Page 7 of 10
8
(e) TERMINATION BY THE COMPANY FOR OTHER THAN CAUSE.
(1) At any time after the execution of this
Agreement, the Company may, without Cause, elect to terminate
this Agreement and the Employee's employment hereunder;
provided, however, that in the event that severance benefits
are triggered by a Change in Control under any Executive
Severance Agreement between the Company and the Employee, the
compensation and benefits otherwise payable to the Employee
under this Section 7(e) shall be null and void.
(2) Compensation and Benefits. In the event the
Company elects to terminate this Agreement pursuant to this
Section 7(e), the Employee shall be entitled to receive his
base monthly salary for 18 months (the "Severance Period"),
payable in accordance with the Company's customary payroll
procedures, as severance. In addition, the Company shall pay
to the Employee an amount equal to accrued compensation owing
to the Employee as of the date of termination (including,
without limitation, salary, pro rata bonus (if any and subject
to the terms and conditions of any applicable bonus or
incentive compensation plans), deferred compensation and
accrued vacation pay). Subject to the approval of the
Compensation Committee, the Company shall cause all stock
options held by the Employee to be regranted under the
Company's 1992 Plan so that such options continue to vest in
accordance with the terms of the original grants during the
Severance Period and shall remain exercisable until three
months following the earlier of the date of final vesting of
any such option grant or the final date of the Severance
Period. The Company shall also pay to the Employee an amount
equal to (a) the amount of the monthly premium payment to
continue coverage for the Employee and the Employee's eligible
dependents under the Company's health insurance plan under
COBRA, multiplied by (b) 18 months. Further, the Employee
shall be credited with an additional 18 months of service
credit under the Company's Supplemental Executive Retirement
Plan (the "SERP").
(f) SURVIVING OBLIGATIONS FOLLOWING TERMINATION.
(1) In the event of termination of this Agreement
for any reason provided in this Section 7 herein or if
Employee resigns prior to the expiration of the term of this
Agreement, all rights and obligations of the Company and the
Employee under this Agreement shall cease immediately, except
that Employee's obligations under Sections 3, 4, 5 and 8
herein shall survive such termination, and except as otherwise
provided in this Section 7, the Employee shall thereafter have
no right to receive any compensation hereunder.
8. TRADE SECRETS.
The Employee agrees that he will not, during or after the term
of his employment with the Company, disclose the Company's distributors or
customers or any other trade secrets of the Company whether in existence or
proposed, to any person, firm, partnership, corporation or business for any
reason or purpose whatsoever.
Page 8 of 10
9
9. COMPLETE AGREEMENT.
This Agreement supersedes any and all other agreements, either
oral or in writing, between Company and the Employee with respect to the
employment of the Employee by the Company and contains all of the
representations, covenants and agreements between the Company and the Employee
with respect to such employment. This written Agreement may not be later
modified except by a further writing signed by the Company and the Employee,
and no term of this Agreement may be waived except by writing signed by the
party waiving the benefit of such term.
10. NO WAIVER.
No waiver by the parties hereto of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a
waiver of any subsequent default or breach of the same or any other term,
condition or covenant contained herein.
11. SEVERABILITY.
The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provision shall not affect the
validity and enforceability of the other provisions hereof. If any provision
of this Agreement is unenforceable for any reason whatsoever, such provision
shall be appropriately limited and given effect to the extent that it may be
enforceable.
12. GOVERNING LAW; PLACE OF PERFORMANCE.
This Agreement shall in all respects be construed according to
the laws of the State of Texas.
13. ATTORNEYS' FEES AND COSTS.
If any action at law or in equity is brought to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which it may be entitled.
14. ASSIGNMENT; BINDING EFFECT.
The Employee understands that he has been selected for
employment by the Company on the basis of his personal qualifications,
experience and skills. The Employee, therefore, agrees that he cannot assign
his rights and obligations hereunder or delegate his duties hereunder. Subject
to the preceding two sentences, this Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns. It is further understood and agreed that the Company may be merged or
consolidated with another
Page 9 of 10
10
entity and that any such entity shall automatically succeed to the rights,
powers and responsibilities of the Company hereunder.
WITNESS, this Employment Agreement has been executed as of the date
first hereinabove written.
ALLWASTE, INC. EMPLOYEE
By: /s/ Xxxxxx X. Xxxxxx /s/ T. Xxxxx Xxxx, Xx.
----------------------- ------------------------------------
Xxxxxx X. Xxxxxx T. Xxxxx Xxxx, Xx.
President and Social Security No.
Chief Executive Officer -------------------
Date: November 11, 1996 Home Address:
-----------------------
00000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
-----------------------------
Witness Signature Date: November 11, 1996
------------------------------
------------------------------------
Witness Signature
Page 10 of 10
