EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.8
This EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into effective November
30, 2001, by and between ALLIED WASTE INDUSTRIES, INC., a Delaware corporation having its principal
office at 15880 Xxxxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (“Company”) and
XXXX X. XXXXX (“Executive”).
W I T N E S S E T H:
WHEREAS, the Company and the Executive previously entered into an employment agreement
regarding the employment of Executive as the Company’s Assistant Controller (“Prior Agreement”);
and
WHEREAS, the Company has promoted Executive to the position of Vice President, Financial
Analysis and Planning, and the Company and the Executive desire to enter into a new employment
agreement (as contained herein), which shall supersede the Prior Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Company and the Executive hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms have the meanings
prescribed below:
Affiliate is used in this Agreement to define a relationship to a person or entity and means a
person or entity who, directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such person or entity.
Annual Bonus shall have the meaning assigned thereto in Section 4.2 hereof.
Base Salary shall have the meaning assigned thereto in Section 4.1 hereof.
Beneficial Owner shall have the meaning assigned thereto in Rule 13(d)-3 under the Exchange
Act; provided, however, and without limitation, that any individual, corporation, partnership,
group, association or other person or entity that has the right to acquire any Voting Stock at any
time in the future, whether such right is (a) contingent or absolute or (b) exercisable presently
or at any time in the future, pursuant to any agreement or understanding or upon the exercise or
conversion of rights, options or warrants, or otherwise, shall be the Beneficial Owner of such
Voting Stock.
Cause shall have the meaning assigned thereto in Section 5.3 hereof.
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Change in Control of the Company shall be deemed to have occurred if (a) the Company merges or
consolidates, or agrees to merge or to consolidate, with any other corporation (other than a
wholly-owned direct or indirect subsidiary of the Company) and is not the surviving corporation (or
survives as a subsidiary of another corporation), (b) the Company sells, or agrees to sell, all or
substantially all of its assets to any other person or entity, (c) the Company is dissolved, (d)
any third person or entity (other than a trustee or committee of any qualified employee benefit
plan of the Company) together with its Affiliates shall become or shall have publicly announced its
intention to become (by tender offer or otherwise), directly or indirectly, the Beneficial Owner of
at least 30% of the Voting Stock of the Company, or (e) the individuals who constitute the Board of
Directors of the Company as of the Effective Date (“Incumbent Board”) shall cease for any reason to
constitute at least a majority of the Board of Directors; provided, that any person becoming a
director whose election or nomination for election was approved by a majority of the members of the
Incumbent Board shall be considered, for the purposes of this Agreement, a member of the Incumbent
Board.
Code means the Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated by the Internal Revenue Service thereunder, all as in effect from time to time during
the Employment Period.
Common Stock means the Company’s common stock, par value $.01 per share.
Company means Allied Waste Industries, Inc., a Delaware corporation, the principal office of
which is located at 00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
Confidential Information shall have the meaning assigned thereto in Section 8.2 hereof.
Date of Termination means the earliest to occur of (a) the date of the Executive’s death, (b)
the date on which the Executive terminates this Agreement for any reason other than Good Reason, or
(c) the date of receipt of the Notice of Termination, or such later date as may be prescribed in
the Notice of Termination in accordance with Section 5.6 hereof.
Disability means an illness or other disability which prevents the Executive from discharging
his responsibilities under this Agreement for a period of 180 consecutive calendar days, or an
aggregate of 180 calendar days in any calendar year, during the Employment Period, all as
determined in good faith by the Board of Directors of the Company (or a committee thereof).
Effective Date means November 30, 2001.
Employment Period shall have the meaning assigned thereto in Section 3 hereof.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Securities and Exchange Commission thereunder, all as in effect from
time to time during the Employment Period.
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Executive means Xxxx X. Xxxxx.
Good Reason shall have the meaning assigned thereto in Section 5.5 hereof.
Notice of Termination shall have the meaning assigned thereto in Section 5.6 hereof.
Vacation Time shall have the meaning assigned thereto in Section 4.3 hereof.
Voting Stock means all outstanding shares of capital stock of the Company entitled to vote
generally in an election of directors; provided, however, that if the Company has shares of Voting
Stock entitled to more or less than one (1) vote per share, each reference to a proportion of the
issued and outstanding shares of Voting Stock shall be deemed to refer to the proportion of the
aggregate votes entitled to be cast by the issued and outstanding shares of Voting Stock.
Without Cause shall have the meaning assigned thereto in Section 5.4 hereof.
2. General Duties of Company and Executive.
2.1. The Company agrees to employ the Executive, and the Executive agrees to accept employment
by the Company and to serve the Company as its Vice President, Financial Analysis and Planning. The
authority, duties and responsibilities of the Executive shall be those assigned by the Board of
Directors (or a committee thereof) and agreed to by the Executive. While employed hereunder, the
Executive shall devote reasonable time and attention during normal business hours to the affairs of
the Company and use his best efforts to perform faithfully and efficiently his duties and
responsibilities. The Executive may (a) serve on corporate, civic or charitable boards or
committees, (b) deliver lectures, fulfill speaking engagements or teach at educational
institutions, and (c) manage personal investments, so long as such activities do not significantly
interfere with the performance of the Executive’s duties and responsibilities.
2.2. The Executive agrees and acknowledges that he owes a fiduciary duty of loyalty, fidelity
and allegiance to act at all times in the best interests of the Company and to do no act and to
make no statement, oral or written, which would injure Company’s business, its interests or its
reputation.
2.3. The Executive agrees to comply at all times during the Employment Period with all
applicable policies, rules and regulations of the Company, including, without limitation, the
Company’s Code of Ethics and the Company’s policy regarding trading Common Stock, as each is in
effect from time to time during the Employment Period.
3. Term. Unless sooner terminated pursuant to Section 5 of this Agreement, the Executive’s
Employment Period under this Agreement shall be a continuous period of two (2) years, such that on
any given date thereafter, the Executive’s Employment Period shall always be two (2) years from the
date in question.
4. Compensation and Benefits.
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4.1. Base Salary. As compensation for his services to the Company, the Company shall pay to
the Executive an annual base salary (“Base Salary”) of (a) the amount specified as Base Salary in
the Prior Agreement, through December 31, 2001, and (b) $225,000.00, beginning January 1, 2002 and
until the Date of Termination. The Board of Directors (or a committee thereof), in its discretion,
may increase the Base Salary based upon relevant circumstances. The Base Salary shall be payable in
equal semimonthly installments or in accordance with the Company’s established policy, subject only
to such payroll and withholding deductions as may be required by law and other deductions applied
generally to employees of the Company for insurance and other employee benefit plans. For all
purposes under this Agreement, the Executive’s Base Salary shall include any amount which is
deferred under any nonqualified plan or arrangement.
4.2. Annual Bonus. In addition to the Base Salary, the Executive shall be awarded, for each
fiscal year until the Date of Termination, an annual bonus (either pursuant to a bonus or incentive
plan or program of the Company or otherwise) in an amount to be determined by the Board of
Directors (or a committee thereof) in its sole discretion (“Annual Bonus”). The Annual Bonus shall
be based upon a targeted percentage (initially 80%) of the Executive’s Base Salary each year, and
the Board of Directors (or a committee thereof) shall determine each year, in its sole discretion,
the amount of the targeted percentage and may adjust such percentage (upward or downward) in its
sole discretion. Each such Annual Bonus shall be payable at a time to be determined by the Board of
Directors (or a committee thereof) in its sole discretion. For all purposes under this Agreement,
the Executive’s Annual Bonus shall include any amount which is deferred under any nonqualified plan
or arrangement.
4.3. Vacation. Commencing on the Effective Date and continuing until the Date of Termination,
for each full calendar year that this Agreement is in effect, the Executive shall be entitled to
four (4) weeks paid vacation (“Vacation Time”). For any partial calendar year during which this
Agreement is in effect, the amount of vacation time to which the Executive is entitled shall be
prorated. Vacation Time must be taken during the calendar year in which it accrued and will be
forfeited at the end of the calendar year if not used.
4.4. Automobile Allowance. Until the Date of Termination, the Executive shall receive an
automobile allowance of $600.00 per month (“Automobile Allowance”). The Board of Directors (or a
committee thereof), in its discretion, may increase the Automobile Allowance based upon relevant
circumstances.
4.5. Club Membership Dues. Until the Date of Termination, the Executive shall receive an
amount per month equal to the monthly membership dues (i.e., the regular membership fee, and not
incidental or ancillary charges such as food, beverages, rentals, coaching, training, supplies,
therapy, spa, etc.) which the Executive pays for one club or organization of Executive’s choice.
4.6. Incentive, Savings, Retirement and Stock Plans. The Executive shall participate in and be
eligible to receive all benefits under all executive incentive, savings, retirement and stock
(including any stock option, restricted stock, phantom stock and other stock rights) plans and
programs currently maintained or hereinafter established by the Company for the
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benefit of its executive officers and/or employees (collectively “Compensation Plans”). The
Executive’s participation in all such Plans shall be governed by the terms and provisions of each
such Plan.
4.7. Welfare Benefit Plans. The Executive and/or the Executive’s family, as the case may be,
shall be eligible to participate in and shall receive all benefits under each welfare benefit plan
of the Company currently maintained or hereinafter established by the Company for the benefit of
its employees. Such welfare benefit plans may include, without limitation, medical, dental, vision,
disability, group life, accidental death and travel accident insurance plans and programs
(collectively “Welfare Plans”). The Executive’s and/or the Executive’s family’s participation in
the Welfare Plans shall be subject to the terms and conditions of each Welfare Plan.
4.8. Reimbursement of Expenses. The Executive may from time to time until the Date of
Termination incur various business expenses customarily incurred by persons holding positions of
like responsibility, including, without limitation, travel, entertainment and similar expenses
incurred for the benefit of the Company. Subject to the Company’s policy regarding the
reimbursement of such expenses as in effect from time to time during the Employment Period, which
does not necessarily allow reimbursement of all such expenses, the Company shall reimburse the
Executive for such expenses from time to time, at the Executive’s request, and the Executive shall
account to the Company for all such expenses.
5. Termination.
5.1. Death. This Agreement shall terminate automatically upon the death of the Executive.
5.2. Disability. The Company may terminate this Agreement, upon written notice to the
Executive delivered in accordance with Sections 5.6 and 12.1 hereof, upon the Disability of the
Executive.
5.3. Cause. The Company may terminate this Agreement, upon written notice to the Executive
delivered in accordance with Sections 5.6 and 12.1 hereof, for Cause. For purposes of this
Agreement, “Cause” means (a) the conviction of the Executive for a felony, (b) the Executive’s
willful refusal, without proper legal cause, to perform his duties and responsibilities as
contemplated in this Agreement, or (c) the Executive’s willfully engaging in activities which (1)
constitute a breach of any term of this Agreement, the Company’s Code of Ethics, the Company’s
policies regarding trading Common Stock or reimbursement of business expenses or any other
applicable policies, rules or regulations of the Company or (2) result in a material injury to the
business, condition (financial or otherwise), results of operations or prospects of the Company or
its Affiliates (as determined in good faith by the Board of Directors of the Company or a committee
thereof). For purposes of the definition of “Cause,” no act or failure to act shall be considered
“willful” unless it is done, or omitted to be done, in bad faith without reasonable belief that the
action or omission was in the best interests of the Company.
5.4. Without Cause. The Company may terminate this Agreement Without Cause, upon written
notice to the Executive delivered in accordance with Sections 5.6 and 12.1
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hereof. For purposes of this Agreement, the Executive will be deemed to have been terminated
“Without Cause” if the Executive is terminated by the Company for any reason other than Cause,
Disability or Death.
5.5. Good Reason. The Executive may terminate this Agreement for Good Reason, upon written
notice to the Company delivered in accordance with Sections 5.6 and 12.1 hereof. For purposes of
this Agreement, “Good Reason” means (a) the assignment to the Executive of any duties inconsistent
in any respect with the Executive’s duties or responsibilities as contemplated in this Agreement,
(b) any other action by the Company which results in a diminishment in the Executive’s position
(including status, offices, titles and reporting requirements), authority, duties or
responsibilities, (c) any breach by the Company of any of the provisions of this Agreement, (d)
requiring the Executive to relocate permanently to any office or location other than the
Phoenix-Scottsdale metropolitan area, without his consent, or (e) any reduction, or attempted
reduction, at any time during the Employment Period, of the Base Salary or of any of the
compensation or benefits described in Section 4 of this Agreement (provided, however, that any
change in the target percentage for the Annual Bonus, any change in the Company’s reimbursement
policies, or any change in any Compensation Plans or Welfare Plans, which affects a majority of the
employees covered by those policies or plans, shall not be considered “Good Reason”).
5.6. Notice of Termination. Any termination of this Agreement by the Company for Cause,
Without Cause or as a result of the Executive’s Disability, or by the Executive for Good Reason,
shall be communicated by Notice of Termination to the other party hereto given in accordance with
this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice
which (a) indicates the specific termination provision in this Agreement relied upon, (b) sets
forth in reasonable detail the facts and circumstances claimed to provide a basis for termination
of the Executive’s employment under the provision so indicated, and (c) specifies the termination
date, if such date is other than the date of receipt of such notice (which termination date shall
not be more than fifteen (15) days after the giving of such notice).
6. Obligations of Company Upon Termination.
6.1. Cause, Other than Good Reason. If this Agreement is terminated either by the Company for
Cause or by the Executive for any reason other than Good Reason, the Company shall pay to the
Executive, in a lump sum cash payment within thirty (30) days after the Date of Termination, the
aggregate of the Executive’s Base Salary (as in effect on the Date of Termination) owing as of the
Date of Termination, if not theretofore paid, and, in the case of compensation previously deferred
by the Executive, all amounts of such compensation previously deferred and not yet paid by the
Company (unless such payment is inconsistent with the terms of any payment election made by the
Executive with respect to such deferred compensation). The Company also shall, promptly upon
submission by the Executive of supporting documentation, pay or reimburse to the Executive any
costs and expenses (and moving and relocation expenses, if otherwise agreed to by the Company) paid
or incurred by the Executive which would have been payable under Section 4.8 of this Agreement if
the Executive’s employment had not terminated.
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All other obligations of the Company and rights of the Executive hereunder shall terminate
effective as of the Date of Termination; provided, however, that the Executive’s rights under any
Compensation Plan or Welfare Plan shall be governed by the terms and provisions of each such plan
and are not necessarily severed on the Date of Termination.
6.2. Death or Disability.
(a) Subject to the provisions of this Section 6.2, if this Agreement is terminated as a result
of the Executive’s death or Disability, the Company shall pay to the Executive or his estate, in a
lump sum cash payment within thirty (30) days after the Date of Termination, the greater of (1)
that portion of the Executive’s Base Salary (as in effect on the Date of Termination) owing in
respect of the balance of the Employment Period pursuant to Section 3 hereof or (2) the Executive’s
Base Salary (as in effect on the Date of Termination). The Company may purchase insurance to cover
all or any part of the obligation contemplated in the foregoing sentence, and the Executive agrees
to submit to a physical examination to facilitate the procurement of such insurance. The Company
also shall, promptly upon submission by the Executive of supporting documentation, pay or reimburse
to the Executive any costs and expenses (and moving and relocation expenses, if otherwise agreed to
by the Company) paid or incurred by the Executive which would have been payable under Section 4.8
of this Agreement if the Executive’s employment had not terminated. The Company shall continue
providing medical, dental, and/or vision coverage to the Executive and/or the Executive’s family,
at least equal to that which would have been provided to them under Section 4.7 if the Executive’s
employment had not terminated, until the earlier of (1) the date the Executive becomes eligible for
any other medical, dental, or vision coverage (whether or not equal to that provided by the
Company) provided by any other employer or (2) the fifth anniversary of the Executive’s Date of
Termination. Notwithstanding the foregoing, such coverage shall cease immediately if the Executive
violates any of the applicable provisions of Article 11.
(b) Whenever compensation is payable to the Executive hereunder during a period in which he is
partially or totally disabled, and such Disability would (except for the provisions hereof) entitle
the Executive 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 Executive pursuant to any such plan or program
shall be considered a portion of the payment to be made to the Executive pursuant to this Section
6.2 and shall not be in addition hereto. If Disability income is payable directly to the Executive
by an insurance company under the terms of an insurance policy paid for by the Company, the amounts
paid to the Executive by such insurance company shall be considered a portion of the payment to be
made to the Executive pursuant to this Section 6.2 and shall not be in addition hereto.
6.3. Good Reason; Without Cause. If this Agreement is terminated either by the Executive for
Good Reason or by the Company Without Cause:
(a) the Company shall pay to the Executive, in a lump sum cash payment within thirty (30) days
after the Date of Termination, the aggregate of the following amounts:
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(1) if not theretofore paid, the Executive’s Base Salary (as in effect on the Date of
Termination) through the Date of Termination;
(2) an amount equal to the largest Annual Bonus paid to the Executive out of the last
three (3) fiscal years preceding the Date of Termination; and
(3) in the case of compensation previously deferred by the Executive, all amounts of
such compensation previously deferred and not yet paid by the Company (unless such payment
is inconsistent with the terms of any payment election made by the Executive with respect to
such deferred compensation).
(b) the Company shall, promptly upon submission by the Executive of supporting documentation,
pay or reimburse to the Executive any costs and expenses (and moving and relocation expenses, if
otherwise agreed to by the Company) paid or incurred by the Executive which would have been payable
under Section 4.8 of this Agreement if the Executive’s employment had not terminated;
(c) the Company shall continue providing medical, dental, and/or vision coverage to the
Executive and/or the Executive’s family, at least equal to that which would have been provided to
them under Section 4.7 if the Executive’s employment had not terminated, until the earlier of (1)
the date the Executive becomes eligible for any other medical, dental, or vision coverage (whether
or not equal to that provided by the Company) provided by any other employer or (2) the fifth
anniversary of the Executive’s Date of Termination; provided that such coverage shall cease
immediately if the Executive violates any of the applicable provisions of Article 11; and
(d) the Company shall pay to the Executive, in equal semi-monthly installments, the greater of
(1) that portion of the Executive’s Base Salary (as in effect on the Date of Termination) owing, in
respect of the balance of the Employment Period pursuant to Section 3 hereof or (2) the Executive’s
Base Salary (as in effect on the Date of Termination); provided that such payments shall cease
immediately if the Executive violates any applicable provision of Article 11.
6.4. Change in Control. If (a) this Agreement is terminated either by the Executive for Good
Reason or by the Company Without Cause and (b) a Change in Control of the Company has occurred
within the two (2) year period preceding, or within the one (1) year period following, the Date of
Termination, then, in addition to the obligations of the Company set forth in Section 6.3 hereof,
the Company shall pay to the Executive, in a lump sum cash payment within thirty (30) days after
the Date of Termination, two (2) times the sum of (x) the Executive’s Base Salary (as in effect on
the Date of Termination or such higher rate as may have been in effect at any time during the
ninety (90) day period preceding the Date of Termination) and (y) the Annual Bonus paid to the
Executive for the last full fiscal year. The rights given to the Executive herein do not apply to
the Change of Control of the Company which occurred when Apollo Advisors, L.P. and The Blackstone
Group acquired the Common Stock of Xxxxxxx Transportation, Inc.
7. Executive’s Obligation to Avoid Conflicts of Interest.
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7.1. In keeping with the Executive’s fiduciary duties to the Company, the Executive agrees
that he shall not knowingly become involved in a conflict of interest with the Company, or upon
discovery thereof, allow such a conflict to continue. The Executive further agrees to disclose to
the Company, promptly after discovery, any facts or circumstances which might involve a conflict of
interest with the Company.
7.2. The Company and the Executive recognize that it is impossible to provide an exhaustive
list of actions or interests which constitute a “conflict of interest.” Moreover, the Company and
the Executive recognize that there are many borderline situations. In some instances, full
disclosure of facts by the Executive to the Company is all that is necessary to enable the Company
to protect its interests. In others, if no improper motivation appears to exist and the Company’s
interests have not suffered, prompt elimination of the outside interest will suffice. In still
others, it may be necessary for the Company to terminate the employment relationship. The Company
and the Executive agree that the Company’s determination as to whether or not a conflict of
interest exists shall be conclusive. The Company reserves the right to take such action as, in its
judgment, will end the conflict of interest.
7.3. In this connection, it is agreed that any direct or indirect interest in, connection with
or benefit from any outside activities, particularly commercial activities, which interest might in
any way adversely affect the Company or its Affiliates, involves a possible conflict of interest.
Circumstances in which a conflict of interest on the part of the Executive would or might arise,
and which should be reported immediately to the Company, include, but are not limited to, the
following:
(a) Ownership of a material interest in any lender, supplier, contractor, subcontractor,
customer or other entity with which the Company does business.
(b) Acting in any capacity, including director, officer, partner, consultant, employee,
distributor, agent or the like, for any lender, supplier, contractor, subcontractor, customer or
other entity with which the Company does business.
(c) Acceptance, directly or indirectly, of payments, services or loans from a lender,
supplier, contractor, subcontractor, customer or other entity with which the Company does business,
including, without limitation, gifts, trips, entertainment or other favors of more than a nominal
value, but excluding loans from publicly held insurance companies and commercial or savings banks
at market rates of interest.
(d) Use of information or facilities to which the Executive has access in a manner which will
be detrimental to the Company’s interests, such as use for the Executive’s own benefit of know-how
or information developed through the Company’s business activities.
(e) Disclosure or other misuse of information of any kind obtained through the Executive’s
connection with the Company.
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(f) Acquiring or trading in, directly or indirectly, other properties or interests connected
with the design or marketing of products or services designed or marketed by the Company.
8. Executive’s Confidentiality Obligation.
8.1. The Executive hereby acknowledges, understands and agrees that all Confidential
Information is the exclusive and confidential property of the Company and its Affiliates which
shall at all times be regarded, treated and protected as such in accordance with this Section 8.
The Executive acknowledges that all such Confidential Information is in the nature of a trade
secret.
8.2. For purposes of this Agreement, “Confidential Information” means information, that is
used in the business of the Company or its Affiliates and (a) is proprietary to, about or created
by the Company or its Affiliates, (b) gives the Company or its Affiliates some competitive business
advantage or the opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company or its Affiliates, (c) is designated as Confidential
Information by the Company or its Affiliates, is known by the Executive to be considered
confidential by the Company or its Affiliates, or from all the relevant circumstances should
reasonably be assumed by the Executive to be confidential and proprietary to the Company or its
Affiliates, or (d) is not generally known by non-Company personnel. Such Confidential Information
includes, without limitation, the following types of information and other information of a similar
nature (whether or not reduced to writing or designed as confidential):
(a) Internal personnel and financial information of the Company or its Affiliates, vendor
information (including vendor characteristics, services, prices, lists and agreements), purchasing
and internal cost information, internal service and operational manuals, and the manner and methods
of conducting the business of the Company or its Affiliates;
(b) Marketing and development plans, price and cost data, price and fee amounts, pricing and
billing policies, quoting procedures, marketing techniques, forecasts and forecast assumptions and
volumes, and future plans and potential strategies (including, without limitation, all information
relating to any acquisition prospect and the identity of any key contact within the organization of
any acquisition prospect) of the Company or its Affiliates which have been or are being discussed;
(c) Names of customers and their representatives, contracts (including their contents and
parties), customer services, and the type, quantity, specifications and content of products and
services purchased, leased, licensed or received by customers of the Company or its Affiliates; and
(d) Confidential and proprietary information provided to the Company or its Affiliates by any
actual or potential customer, government agency or other third party (including businesses,
consultants and other entities and individuals).
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8.3. As a consequence of the Executive’s acquisition or anticipated acquisition of
Confidential Information, the Executive shall occupy a position of trust and confidence with
respect to the affairs and business of the Company and its Affiliates. In view of the foregoing,
and of the consideration to be provided to the Executive, the Executive agrees that it is
reasonable and necessary that the Executive make each of the following covenants:
(a) At any time during the Employment Period and thereafter, the Executive shall not disclose
Confidential Information to any person or entity, either inside or outside of the Company, other
than as necessary in carrying out his duties and responsibilities as set forth in Section 2 hereof,
without first obtaining the Company’s prior written consent (unless such disclosure is compelled
pursuant to court orders or subpoena, and at which time the Executive shall give notice of such
proceedings to the Company).
(b) At any time during the Employment Period and thereafter, the Executive shall not use, copy
or transfer Confidential Information other than as necessary in carrying out his duties and
responsibilities as set forth in Section 2 hereof, without first obtaining the Company’s prior
written consent.
(c) On the Date of Termination, the Executive shall promptly deliver to the Company (or its
designee) all written materials, records and documents made by the Executive or which came into his
possession prior to or during the Employment Period concerning, the business or affairs of the
Company or its Affiliates, including, without limitation, all materials containing Confidential
Information.
9. Disclosure of Information, Ideas, Concepts, Improvements, Discoveries and Inventions.
Consistent with the Executive’s fiduciary duties to the Company, the Executive agrees that during
his employment by the Company, the Executive shall promptly disclose in writing to the Company all
information, ideas, concepts, improvements, discoveries and inventions, which are conceived,
developed, made or acquired by the Executive, either individually or jointly with others, and which
relate to the business, products or services of the Company or its Affiliates, irrespective of
whether the Executive used the Company’s time or facilities and irrespective of whether such
information, idea, concept, improvement, discovery or invention was conceived, developed,
discovered or acquired by the Executive on the job, at home, or elsewhere. This obligation extends
to all types of information, ideas and concepts, including, information, ideas and concepts
relating to new types of services, corporate opportunities, acquisition prospects, the identity of
key representatives within acquisition prospect organizations, prospective names or service marks
for the Company’s business activities, and the like.
10. Ownership of Information, Ideas, Concepts, Improvements, Discoveries and all Original
Works of Authorship.
10.1. All information, ideas, concepts, improvements, and discoveries which are conceived,
made, developed or acquired by the Executive or which are disclosed or made known to the Executive,
individually or in conjunction with others, during the Executive’s employment by the Company and
which relate to the business, products or services of the Company or its Affiliates (including,
without limitation, all such information relating to corporate opportunities, research,
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financial and sales data, pricing and trading terms, evaluations, opinions, interpretations,
acquisition prospects, the identity of customers or their requirements, the identity of key
contacts within the customers’ organizations or within the organization of acquisition prospects,
marketing and merchandising techniques, and prospective names and service marks) are and shall be
the sole and exclusive property of the Company. Furthermore, all drawings, memoranda, notes,
records, files, correspondence, manuals, models, specifications, computer programs, maps and all
other writings or materials of any type embodying any of such information, ideas, concepts,
improvements, and discoveries are and shall be the sole and exclusive property of the Company.
10.2. In particular, the Executive hereby specifically sells, assigns, transfers and conveys
to the Company all of his worldwide right, title and interest in and to all such information,
ideas, concepts, improvements, and discoveries, and any United States or foreign applications
therefor. The Executive shall assist the Company and its nominee at all times and in all manners,
during the Employment Period and thereafter, in the protection of such information, ideas,
concepts, improvements, or discoveries.
10.3. In the event the Executive creates, during the Employment Period, any original work of
authorship fixed in any tangible medium of expression which is the subject matter of copyright such
as videotapes, written presentations on acquisitions, computer programs, drawings, maps,
architectural renditions, models, manuals, brochures or the like relating to the Company’s business
products or services, whether such work is created solely by the Executive or jointly with others,
the Company shall be deemed the author of such work if the work is prepared by the Executive within
the scope of his employment; or, if the work is not prepared by the Executive within the scope of
his employment but is specially ordered by the Company as a contribution to a collective work, as a
part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a
compilation or as an instructional text, then the work shall be considered to be a work made for
hire, and the Company shall be the author of such work. If such work is neither prepared by the
Executive within the scope of his employment nor a work specially ordered and deemed to be a work
made for hire, then the Executive hereby agrees to sell, transfer, assign and convey, and by these
presents, does sell, transfer, assign and convey, to the Company all of the Executive’s worldwide
right, title and interest in and to such work and all rights of copyright therein. The Executive
agrees to assist the Company and its Affiliates, at all times, during the Employment Period and
thereafter, in the protection of the Company’s worldwide right, title and interest in and to such
work and all rights of copyright therein, which assistance shall include, but shall not be limited
to, the execution of all documents requested by the Company or its nominee and the execution of all
lawful oaths and applications for registration of copyright in the United States and foreign
countries.
11. Executive’s Non-Competition and Non-Solicitation Obligations.
11.1. (a) Until the Date of Termination, the Executive shall not, acting alone or in
conjunction with others, directly or indirectly, engage, participate, invest, accept employment or
render services as a principal, director, officer, agent, employee, employer, consultant or in any
other individual or representative capacity in or with any business which competes, directly or
indirectly, with the Company’s business in any of the business territories in which the Company or
any of its Affiliates is presently or from time to time during the Employment Period conducting
12
business, or take any action inconsistent with the fiduciary relationship of an employee to
his employer; provided, however, that the beneficial ownership by the Executive of up to three (3)
percent of the Voting Stock of any corporation subject to the periodic reporting requirements of
the Exchange Act shall not violate this Section 11.1(a).
(b) In addition to the other obligations agreed to by the Executive in this Agreement, the
Executive agrees that until the Date of Termination, he shall not, directly or indirectly, (1)
induce, entice or solicit any employee of the Company to leave his employment, (2) contact,
communicate or solicit any customer or acquisition prospect of the Company derived from any
customer list, customer lead, mail, printed matter or other information secured from the Company or
its present or past employees (other than in connection with the performance of his services for
the Company in accordance with Section 2 of this Agreement), or (3) in any other manner use any
customer lists or customer leads, mail, telephone numbers, printed material or other information of
the Company relating thereto (other than in connection with the performance of his services for the
Company in accordance with Section 2 of this Agreement).
11.2. (a) If this Agreement is terminated either by the Company for Cause or by the Executive
for any reason other than Good Reason, then for a period of three (3) years following the Date of
Termination, the Executive shall not, acting alone or in conjunction with others, directly or
indirectly, engage, participate, invest, accept employment, or render services as a principal,
director, officer, agent, employee, employer, consultant or in any other individual or
representative capacity in or with any business which competes, directly or indirectly, with the
Company’s business and which is located in any of the business territories in which the Company or
any of its Affiliates is presently or at the Date of Termination conducting business, or take any
action inconsistent with the fiduciary relationship of an employee to his employer; provided,
however, that the beneficial ownership by the Executive of up to three (3) percent of the Voting
Stock of any corporation subject to the periodic reporting requirements of the Exchange Act shall
not violate this Section 11.2(a).
(b) In addition to the other obligations agreed to by the Executive in this Agreement, the
Executive agrees that if this Agreement is terminated either by the Company for Cause or by the
Executive for any reason other than Good Reason, then for a period of three (3) years following the
Date of Termination, he shall not, directly or indirectly, (1) induce, entice or solicit any
employee of the Company to leave his employment, (2) contact, communicate or solicit any customer
or acquisition prospect of the Company derived from any customer list, customer lead, mail, printed
matter or other information secured from the Company or its present or past employees, or (3) in
any other manner use any customer lists or customer leads, mail, telephone numbers, printed
material or other information of the Company relating thereto.
11.3. (a) If this Agreement is terminated either by the Executive for Good Reason or by the
Company Without Cause, provided that no Change in Control of the Company has occurred during the
two (2) year period preceding or within the one (1) year period following the Date of Termination
then, for a period of one (1) year following the Date of Termination, the Executive shall not,
acting alone or in conjunction with others, directly or indirectly, engage, participate, invest,
accept employment, or render services as a principal, director, officer, agent, employee, employer,
consultant, or in any other individual or representative capacity in or with any
13
business which competes, directly or indirectly, with the Company’s business and which is
located in any of the business territories in which the Company or any of its Affiliates is
presently or at the Date of Termination conducting business, or take any action inconsistent with
the fiduciary relationship of an employee to his employer; provided, however, that the beneficial
ownership by the Executive of up to three (3) percent of the Voting Stock of any corporation
subject to the periodic reporting requirements of the Exchange Act shall not violate this Section
11.3(a).
(b) In addition to the other obligations agreed to by the Executive in this Agreement, the
Executive agrees that if this Agreement is terminated either by the Executive for Good Reason or by
the Company Without Cause, provided that no Change in Control of the Company has occurred during
the two (2) year period preceding or within the one (1) year period following the Date of
Termination, then for a period of one (1) year following the Date of Termination, he shall not,
directly or indirectly, (1) induce, entice or solicit any employee of the Company to leave his
employment, (2) contact, communicate or solicit any customer or acquisition prospect of the Company
derived from any customer list, customer lead, mail, printed matter or other information secured
from the Company or its present or past employees, or (3) in any other manner use any customer
lists or customer leads, mail, telephone numbers, printed material or other information of the
Company relating thereto.
11.4. If this Agreement is terminated (a) either by the Executive for Good Reason or by the
Company Without Cause and (b) a Change in Control of the Company has occurred during the two (2)
year period preceding, or the one (1) year period following, the Date of Termination, or if this
Agreement is terminated, as a result of the Executive’s Disability, then the Executive shall not be
subject to any obligations under this Section 11.
12. Miscellaneous.
12.1.
Notices. All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and shall be deemed to have been
given when delivered by hand or mailed by registered or certified mail, return receipt requested,
as follows (provided that notice of a change of address shall be deemed given only when received):
If to the Company:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If to the Executive:
Xxxx X. Xxxxx
[Redacted]
[Redacted]
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or to such other names or addresses as the Company or the Executive, as the case may be, shall
designate by notice to the other party hereto in the manner specified in this Section 12.1.
12.2. Waiver of Breach. The waiver by any party hereto of a breach of any provision of this
Agreement shall neither operate nor be construed as a waiver of any subsequent breach by any party.
12.3. Assignment. This Agreement shall be binding upon and inure to the benefit of the
Company, its successors, legal representatives and assigns, and upon the Executive, his heirs,
executors, administrators, legal representatives and assigns; provided, however, the Executive
agrees that his rights and obligations hereunder are personal to him and may not be assigned
without the express written consent of the Company.
12.4. Entire Agreement, No Oral Amendments. This Agreement, together with any schedule or
exhibit attached hereto and any document, policy, rule or regulation referred to herein, replaces
and merges all previous agreements and discussions relating to the same or similar subject matter
between the Executive and the Company and constitutes the entire agreement between the Executive
and the Company with respect to the subject matter of this Agreement. This Agreement may not be
modified in any respect by any verbal statement, representation or agreement made by any employee,
officer, or representative of the Company or by any written agreement unless signed by an officer
of the Company who is expressly authorized by the Company to execute such document.
12.5. Enforceability. If any provision of this Agreement or application thereof to anyone or
under any circumstances shall be determined to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions or applications of this Agreement which can
be given effect without the invalid or unenforceable provision or application.
12.6. Jurisdiction, Venue. The laws of the State of Arizona shall govern the interpretation,
validity and effect of this Agreement without regard to the place of execution or the place for
performance thereof, and the Company and the Executive agree that the courts situated in Maricopa
County, Arizona shall have personal jurisdiction over the Company and the Executive to hear all
disputes arising under this Agreement. This Agreement is to be at least partially performed in
Maricopa County, Arizona, and as such, the Company and the Executive agree that venue shall be
proper with the courts in Maricopa County, Arizona to hear such disputes. In the event either the
Company or the Executive is not able to effect service of process upon the other party hereto with
respect to such disputes, the Company and the Executive expressly agree that the Secretary of State
for the State of Arizona shall be an agent of the Company and/or the Executive to receive service
of process on behalf of the Company and/or the Executive with respect to such disputes.
12.7. Injunctive Relief. The Company and the Executive agree that a breach of any term of this
Agreement by the Executive would cause irreparable damage to the Company and that, in the event of
such breach, the Company shall have, in addition to any and all remedies of law, the right to any
injunction, specific performance and other equitable relief to prevent or to redress the violation
of the Executive’s duties or responsibilities hereunder.
15
IN WITNESS WHEREOF, the undersigned, intending to be early bound, have executed this Agreement
as of the date first written above.
| ALLIED WASTE INDUSTRIES, INC. | ||
| By | ||
| Title |
“Company”
| Xxxx X. Xxxxx |
“Executive”
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