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EXHIBIT 10.32
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of July 8, 1998, to become
effective as soon thereafter as the parties agree is possible, by and between
Waste Connections, Inc., a Delaware corporation (the "Company"), and Xxxxx X.
Xxxx (the "Employee"), with reference to the following facts.
The Company desires to engage the services and employment of the
Employee, and the Employee is willing to accept employment by the Company, on
the terms and conditions set forth below.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein, the Company and the Employee agree as follows:
1. Employment. The Company agrees to employ the Employee, and the
Employee agrees to accept employment with the Company, on the terms and
conditions stated herein.
2. Position and Responsibilities. During the Term, the Employee shall
serve as Vice President -- Business Development of the Company, reporting
directly to the Company's President. The Employee shall be responsible for
direct supervision of all business development personnel of the Company, for the
attainment of the Company's business development objectives, and for adherence
to the Company's strategic business plan and financial criteria in the conduct
of its business, and shall perform such other duties and responsibilities as the
President or the Board of Directors (the "Board") of the Company may reasonably
assign to the Employee from time to time. The Employee shall be based in
Roseville, California.The Employee shall devote such time and attention to his
duties as are necessary to the proper discharge of his responsibilities
hereunder. The Employee agrees to perform all duties consistent with (a)
policies established from time to time by the Company and (b) all applicable
legal requirements.
3. Term. The period of the Employee's employment under this Agreement
(the "Term") shall commence on the effective date of this Agreement and shall
continue until July 7, 2001, unless terminated earlier as provided herein or
extended by the vote of the Board. On that date, this Agreement shall be renewed
automatically for successive periods of one year, unless either party shall have
given the other notice of termination hereof as provided herein.
4. Compensation, Benefits and Reimbursement of Expenses.
(a) Compensation. The Company shall compensate the Employee
during the Term of this Agreement as follows:
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(1) Base Salary. The Employee shall be paid a base salary ("Base
Salary") of not less than Eighty Thousand Dollars ($80,000) per year in
installments consistent with the Company's usual practices. The Board shall
review the Employee's Base Salary on July 8 of each year or more frequently, at
the times prescribed in salary administration practices applied generally to
management employees of the Company.
(2) Performance Bonus.
(i) Amount. The Employee shall be entitled to an annual
cash bonus (the "Bonus") based on the Employee's contribution to the Company's
attainment of its acquisition growth targets, as established by the Board. The
Employee's Bonus with respect to the 1998 fiscal year shall be determined by the
President and the Board. For the 1999 fiscal year, the Employee will receive a
Bonus based on the Pro Forma Acquired Revenue of Qualifying Acquisitions
consummated by the Company in 1999, as follows:
Pro Forma Acquired Revenue
of Qualifying Acquisitions Bonus Amount
-------------------------- ------------
At least $60,000,000 but less
than $75,000,000 $100,000
At least $75,000,000 but less
than $100,000,000 $150,000
$100,000,000 or greater $220,000
For the purpose of this section 4(a)(2), "Pro Forma Acquired
Revenue" means the aggregate of the gross pro forma revenues estimated by the
Company to be earned by each company or business acquired by or merged with the
Company or any of its subsidiaries in the first twelve months after such
acquisition or merger. "Qualifying Acquisitions" means acquisitions and mergers
consummated by the Company or its subsidiaries that the Employee plays a
substantial role in initiating or negotiating or that are initiated and
negotiated by another employee or consultant under the Employee's supervision.
Qualifying Acquisitions do not include acquisitions and mergers that are
initiated and negotiated primarily by the Company's officers other than the
Employee. The Company's President, in his sole discretion, shall determine
whether an acquisition or merger is a Qualifying Acquisition. If the Employee
participates in an acquisition or merger but the President determines that the
Employee's participation is not substantial enough for it to be a Qualifying
Acquisition, the President, in his discretion, may nevertheless treat a portion
of the Pro Forma Acquired Revenue of that transaction as Pro Forma Acquired
Revenue of a Qualifying Acquisition for the purpose of determining the
Employee's Bonus.
Beginning in 2000, the President may in his discretion change
the structure of the Bonus. If the Bonus structure is not changed, the President
and the Board shall determine
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the levels of Pro Forma Acquired Revenue and the corresponding Bonus amounts
with respect to the year 2000 and each subsequent year, based on the Company's
acquisition growth targets established by the Board.
(ii) Payment of Bonus. The Bonus shall be paid in
accordance with the Company's bonus plan, as approved by the Board; provided
that in no case shall any portion of the Bonus with respect to any fiscal year
be paid more than seventy-five (75) days after the end of such fiscal year.
Notwithstanding the foregoing, on April 1, 1999 and on the first day of each
succeeding fiscal quarter during the term of this Agreement, the Employee may
elect to be paid in advance a portion of his estimated Bonus ("a Bonus Advance")
with respect to that fiscal year. The maximum Bonus Advance payable to the
Employee with respect to any fiscal quarter is the amount that, when added to
all other Bonus Advances paid made previously to the Employee during that year,
equals one-half of his Projected Bonus (as defined below) for the fiscal year in
which that quarter falls, multiplied by a fraction, the numerator of which is
the number of quarters elapsed to date in that year and the denominator of which
is 4. For the purpose of this Section 4(a)(2)(ii), "Projected Bonus" for a
fiscal year means the Bonus that the Employee would earn with respect to that
year if the Pro Forma Acquired Revenue from Qualifying Acquisitions consummated
to date in that year were annualized.
For example, if as of April 1, 1999, the Company has consummated
Qualifying Acquisitions in 1999 representing Pro Forma Acquired Revenue of
$20,000,000, the Employee's 1999 Projected Bonus would be $150,000, based on
estimated annualized Pro Forma Acquired Revenue of $80,000,000. In such case,
the Employee could elect on April 1, 1999, to be paid a Bonus Advance of up to
$18,750 (one-half of $150,000 multiplied by 1/4). If in the second fiscal
quarter of 1999 the Company consummates additional Qualifying Acquisitions
representing additional Pro Forma Acquired Revenue of $10,000,000, the
Employee's 1999 Projected Bonus would be $100,000, based on estimated annualized
Pro Forma Acquired Revenue of $60,000,000. On July 1, 1999, therefore, assuming
that the Employee was paid a Bonus Advance of $18,750 with respect to the first
quarter, the Employee could elect to be paid an additional Bonus Advance of up
to $6,250, or the amount that, when added to the $18,750 Bonus Advance paid with
respect to the first quarter, equals 50% of the Projected Bonus for 1999
multiplied by 2/4.
Each Bonus Advance shall be paid within 30 days after the
Employee elects to receive it. All Bonus Advances paid made during a fiscal year
shall be deducted from the Bonus to be paid to the Employee after the end of the
year with respect to that year. If the aggregate Bonus Advance payments to the
Employee during a fiscal year exceed the actual Bonus determined at the end of
that year to be payable to him with respect to that year, the Employee shall
repay the excess to the Company within 30 days after the end of that year.
(3) Grants of Options. On the date of this Agreement, the
Company shall grant to the Employee, for no additional consideration, incentive
stock options ("ISOs") to purchase 16,551 shares of the Company's Common Stock
under the Company's 1997 Stock Option Plan. These ISOs shall have a term of 10
years from the date of such grant and shall
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be exercisable at $18.125 per share. These ISOs shall vest with respect to 5,517
shares on each of October 1, 1998, October 1, 1999 and October 1, 2000.
In addition, on the date of this Agreement, the Company
shall grant to the Employee, for no additional consideration, nonqualified stock
options to purchase 33,449 shares of the Company's Common Stock under the
Company's 1997 Stock Option Plan. These options shall have a term of 10 years
from the date of such grant and shall be exercisable at $18.125 per share. These
options shall vest with respect to 11,150 shares on each of October 1, 1998 and
October 1, 1999, and with respect to 11,149 shares on October 1, 2000.
During the term of this Agreement, the Employee shall be
eligible for annual grants of additional stock options commensurate with his
position and with option grants to other employees of the Company, based on the
recommendation of the Company's President and as approved by the Board.
The terms of the options shall be described in more
detail in Stock Option Agreements to be entered into between the Employee and
the Company. If at any time while any of the options are still outstanding the
Company amends its 1997 Stock Option Plan to provide for a less favorable
vesting schedule for options than that provided herein, any options then
outstanding shall thereupon be converted to warrants entitling the Employee to
purchase the number of shares of Common Stock for which the Employee's then
outstanding options may be exercised, on the same terms as provided under such
options.
(b) Other Benefits. During the Term, the Company shall provide
the Employee with a cellular telephone and will pay or reimburse the Employee's
monthly service fee and costs of calls attributable to Company business. During
the Term, the Employee shall be entitled to receive all other benefits of
employment generally available to other management employees of the Company and
those benefits for which management employees are or shall become eligible,
including, without limitation and to the extent made available by the Company,
medical, dental, vision, disability and prescription coverage, life insurance
and tax-qualified retirement benefits. The Employee shall be entitled to three
(3) weeks of paid vacation in his first twelve months of employment by the
Company, and four (4) weeks per twelve-month period beginning with the second
twelve-month period of employment.
(c) Relocation Benefits. Subject to the condition set forth in
the last sentence of this paragraph, the Company shall pay the Employee, on the
first day of the Term, a lump sum of $85,000 for reasonable out-of-pocket
expenses related to the Employee's relocating from Monument, Colorado to the
Roseville, California area. Notwithstanding the foregoing, if before July 7,
2001, the Employee's employment under this Agreement is terminated under Section
7(a) by the Company for Cause or by the Employee for any reason, the Employee
shall on such termination pay to the Company an amount equal to $85,000
multiplied by a fraction, the numerator of which is (36 minus the number of full
months the Employee was employed under this Agreement), and the denominator of
which is 36.
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(d) Reimbursement of Other Expenses. The Company agrees to pay
or reimburse the Employee for all reasonable travel and other expenses
(including mileage for business use of the Employee's personal automobile at the
maximum rate permitted under Internal Revenue Service regulations) incurred by
the Employee in connection with the performance of his duties under this
Agreement on presentation of proper expense statements or vouchers. All such
supporting information shall comply with all applicable Company policies
relating to reimbursement for travel and other expenses.
(e) Withholding. All compensation payable to the Employee
hereunder is subject to all withholding requirements under applicable law.
5. Confidentiality. During the Term of his employment, and at all times
thereafter, the Employee shall not, without the prior written consent of the
Company, divulge to any third party or use for his own benefit or the benefit of
any third party or for any purpose other than the exclusive benefit of the
Company, any confidential or proprietary business or technical information
revealed, obtained or developed in the course of his employment with the Company
and which is otherwise the property of the Company or any of its affiliated
corporations, including, but not limited to, trade secrets, customer lists,
formulae and processes of manufacture; provided, however, that nothing herein
contained shall restrict the Employee's ability to make such disclosures during
the course of his employment as may be necessary or appropriate to the effective
and efficient discharge of his duties to the Company.
6. Property. Both during the Term of his employment and thereafter, the
Employee shall not remove from the Company's offices or premises any Company
documents, records, notebooks, files, correspondence, reports, memoranda and
similar materials or property of any kind unless necessary in accordance with
the duties and responsibilities of his employment. In the event that any such
material or property is removed, it shall be returned to its proper file or
place of safekeeping as promptly as possible. The Employee shall not make,
retain, remove or distribute any copies, or divulge to any third person the
nature or contents of any of the foregoing or of any other oral or written
information to which he may have access, except as disclosure shall be necessary
in the performance of his assigned duties. On the termination of his employment
with the Company, the Employee shall leave with or return to the Company all
originals and copies of the foregoing then in his possession or subject to his
control, whether prepared by the Employee or by others.
7. Termination.
(a) Termination by the Company for Cause or by the Employee. The
employment of the Employee may be terminated for Cause at any time by the vote
of the Board; provided, however, that before the Company may terminate the
Employee's employment for Cause for any reason that is susceptible to cure, the
Company shall first send the Employee written notice of its intention to
terminate this Agreement for Cause, specifying in such notice the reasons for
such Cause and those conditions that, if satisfied by the Employee, would cure
the reasons for such Cause, and the Employee shall have 60 days from receipt of
such written
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notice to satisfy such conditions. If such conditions are satisfied within such
60-day period, the Company shall so advise the Employee in writing. If such
conditions are not satisfied within such 60-day period, the Company may
thereafter terminate this Agreement for Cause on written Notice of Termination
(as defined in Section 8(a)) delivered to the Employee describing with
specificity the grounds for termination. The employment of the Employee may also
be terminated at any time by the Employee on written Notice of Termination
delivered to the Company. Immediately on termination pursuant to this Section
7(a), the Company shall pay to the Employee in a lump sum his then current Base
Salary under Section 4(a)(1) on a prorated basis to the Date of Termination (as
defined in Section 8(b)). On termination pursuant to this Section 7(a), the
Employee shall forfeit (i) his Bonus under Section 4(a)(2) for the year in which
such termination occurs, and (ii) all unvested warrants, options and rights
relating to capital stock of the Company. For purposes of this Agreement, Cause
shall mean:
(1) a material breach of any of the terms of this
Agreement that is not immediately corrected following written notice of default
specifying such breach;
(2) a breach of any of the provisions of Section 10;
(3) repeated intoxication with alcohol or drugs while on
Company premises during its regular business hours to such a degree that, in the
reasonable judgment of the other managers of the Company, the Employee is
abusive or incapable of performing his duties and responsibilities under this
Agreement;
(4) conviction of a felony; or
(5) misappropriation of property belonging to the
Company and/or any of its affiliates.
(b) Termination Without Cause. The employment of the Employee may
be terminated without Cause at any time by the vote of the Board on delivery to
the Employee of a written Notice of Termination (as defined in Section 8(a)). On
the Date of Termination (as defined in Section 8(b)) pursuant to this Section
7(b), the Company shall pay to the Employee in a lump sum an amount equal to the
sum of (i) all Base Salary payable under Section 4(a)(1) through the termination
date, (ii) a pro-rated portion of the maximum Bonus available to the Employee
under Section 4(a)(2) for the year in which the termination occurs (less the
aggregate of all Bonus Advances paid to the Employee in the year in which the
termination occurs), and (iii) an amount equal to the Total Prior Year's
Compensation. For purposes of this section 7(b), the Total Prior Year's
Compensation shall equal the sum of (i) the Base Salary paid to the Employee in
the twelve months prior to the termination date, (ii) the greater of $100,000 or
the average of the Bonuses paid to the Employee in the two years prior to the
termination date, and (iii) the other benefits and expense reimbursements
described in Section 4(b) paid to the Employee by the Company in the twelve
months prior to the termination date. In addition, on termination of the
Employee under this Section 7(b), all of the Employee's outstanding but unvested
warrants, options and rights relating to capital stock of the Company shall
immediately
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vest and become exercisable. The term of any such warrants, options and rights
shall be extended to the third anniversary of the Employee's termination. The
Employee acknowledges that extending the term of any ISO pursuant to this
Section 7(b), or Section 7(c) or 7(d), could cause such option to lose its
tax-qualified status under the Code and agrees that the Company shall have no
obligation to compensate the Employee for any additional taxes he incurs as a
result.
(c) Termination on Disability. If during the Term the Employee
should fail to perform his duties hereunder on account of physical or mental
illness or other incapacity which the Board shall in good faith determine
renders the Employee incapable of performing his duties hereunder, and such
illness or other incapacity shall continue for a period of more than six (6)
consecutive months ("Disability"), the Company shall have the right, on written
Notice of Termination (as defined in Section 8(a)) delivered to the Employee to
terminate the Employee's employment under this Agreement. During the period that
the Employee shall have been incapacitated due to physical or mental illness,
the Employee shall continue to receive the full Base Salary provided for in
Section 4(a)(1) hereof at the rate then in effect until the Date of Termination
(as defined in Section 8(b)) pursuant to this Section 7(c). On the Date of
Termination pursuant to this Section 7(c), the Company shall pay to the Employee
in a lump sum an amount equal to (i) the Base Salary remaining payable to the
Employee under Section 4(a)(1) for the full remaining Term, plus (ii) a
pro-rated portion of the maximum Bonus available to the Employee under Section
4(a)(2) for the year in which the termination occurs (less the aggregate of all
Bonus Advances paid to the Employee in the year in which the termination
occurs). In addition, on such termination, all of the Employee's outstanding but
unvested warrants, options and rights relating to capital stock of the Company
shall immediately vest and become exercisable. The term of any such warrants,
options and rights shall be extended to the third anniversary of the Employee's
termination.
(d) Termination on Death. If the Employee shall die during the
Term, the employment of the Employee shall thereupon terminate. On the Date of
Termination (as defined in Section 8(b)) pursuant to this Section 7(d), the
Company shall pay to the Employee's estate the payments and other benefits
applicable to termination without Cause set forth in Section 7(b) hereof. In
addition, on termination of the Employee under this Section 7(d), all of the
Employee's outstanding but unvested warrants, options and rights relating to
capital stock of the Company shall immediately vest and become exercisable. The
term of any such warrants, options and rights shall be extended to the third
anniversary of the Employee's termination. The provisions of this Section 7(d)
shall not affect the entitlements of the Employee's heirs, executors,
administrators, legatees, beneficiaries or assigns under any employee benefit
plan, fund or program of the Company.
8. Provisions Applicable to Termination of Employment.
(a) Notice of Termination. Any purported termination of the
Employee's employment by the Company or the Employee pursuant to Section 7 shall
be communicated by
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Notice of Termination to the Employee or the Company, as the case may be, as
provided herein ("Notice of Termination").
(b) Date of Termination. For all purposes, "Date of Termination"
shall mean the date on which a Notice of Termination is given.
(c) Benefits on Termination. On termination of this Agreement
pursuant to Section 7, all profit-sharing, deferred compensation and other
retirement benefits payable to the Employee under benefit plans in which the
Employee then participated shall be paid to the Employee in accordance with the
provisions of the respective plans. Except as otherwise provided in sections
7(b), 7(c), 7(d) and 9, if the Employee's employment by the Company is
terminated before all of the Employee's options, warrants and rights with
respect to the Company's capital stock have vested, the Employee shall forfeit
any such options, warrants and rights that are unvested as of the termination
date.
9. Change In Control.
(a) Payments on Change in Control. Notwithstanding any provision
in this Agreement to the contrary, unless the Employee elects in writing to
waive this provision, a Change in Control (as defined below) of the Company
shall be deemed a termination of the Employee by the Company without Cause, and
the Employee shall be entitled to receive and the Company agrees to pay to the
Employee the amount determined under Section 7(b) that is payable to the
Employee on termination by the Company without Cause; provided, however, that on
a Change in Control, all of the Employee's outstanding but unvested warrants,
options and rights relating to capital stock of the Company shall immediately
vest and become exercisable, and the term of any such warrants, options and
rights shall be extended to the third anniversary of the Employee's termination.
In addition, immediately prior to a Change in Control in which either the
Company is not the surviving entity or the executive officers of the Company
immediately prior to the Change in Control do not retain substantially similar
positions after such Change in Control, the Company shall grant to the Employee,
for no additional consideration, ISOs to purchase 20,000 shares of the Company's
Common Stock under the Company's 1997 Stock Option Plan. These ISOs shall have a
term of 10 years from the date of such grant and shall be exercisable
immediately at $22.00 per share.
After a Change in Control, if any previously outstanding warrant,
option or right (the "Terminated Option") relating to the Company's capital
stock does not remain outstanding, the successor to the Company or its then
Parent (as defined below) shall either:
(i) Issue an option, warrant or right, as appropriate (the
"Successor Option"), to purchase common stock of such successor or Parent in an
amount such that on exercise of the Successor Option the Employee would receive
the same number of shares of the successor's/Parent's common stock as the
Employee would have received had the Employee exercised the Terminated Option
immediately prior to the transaction resulting in the Change in Control and
received shares of such successor/Parent in such transaction. The aggregate
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exercise price for all of the shares covered by such Successor Option shall
equal the aggregate exercise price of the Terminated Option; or
(ii) Pay the Employee a bonus within ten (10) days after
the consummation of the Change in Control in an amount agreed to by the Employee
and the Company. Such amount shall be at least equivalent on an after-tax basis
to the net after-tax gain that the Employee would have realized if he had been
issued a Successor Option under clause (i) above and had immediately exercised
such Successor Option and sold the underlying stock, taking into account the
different tax rates that apply to such bonus and to such gain, and such amount
shall also reflect other differences to the Employee between receiving a bonus
under this clause (ii) and receiving a Successor Option under clause (i) above.
(b) Definitions. For the purposes of this Agreement, a Change in
Control shall be deemed to have occurred if (i) there shall be consummated (aa)
any reorganization, liquidation or consolidation of the Company, or any merger
or other business combination of the Company with any other corporation, other
than any such merger or other combination that would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty percent (50%) of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such transaction, (bb) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company, or if
(ii) any "person" (as defined in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), shall become the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of fifty percent (50%) or more of the Company's outstanding
voting securities (except that for purposes of this Section 9(b), "person" shall
not include any person or any person that controls, is controlled by or is under
common control with such person, who as of the date of this Agreement owns ten
percent (10%) or more of the total voting power represented by the outstanding
voting securities of the Company, or a trustee or other fiduciary holding
securities under any employee benefit plan of the Company, or a corporation that
is owned directly or indirectly by the stockholders of the Company in
substantially the same percentage as their ownership of the Company) or if (iii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the entire Board shall cease for any reason to
constitute at least one-half of the membership thereof unless the election, or
the nomination for election by the Company's shareholders, of each new director
was approved by a vote of at least one-half of the directors then still in
office who were directors at the beginning of the period.
The term "Parent" means a corporation, partnership, trust,
limited liability company or other entity that is the ultimate "beneficial
owner" (as defined above) of fifty percent (50%) or more of the Company's
outstanding voting securities.
10. Non-Competition and Non-Solicitation.
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(a) In consideration of the provisions hereof, for the period
commencing on the date hereof and ending on the termination of this Agreement,
the Employee will not, except as specifically provided below, anywhere in any
county in any state in which the Company is engaged in business as of such
termination date, directly or indirectly, acting individually or as the owner,
shareholder, partner or management employee of any entity, (i) engage in the
operation of a solid waste collection, transporting or disposal business,
transfer facility, recycling facility, materials recovery facility or solid
waste landfill; (ii) enter the employ as a manager of, or render any personal
services to or for the benefit of, or assist in or facilitate the solicitation
of customers for, or receive remuneration in the form of management salary,
commissions or otherwise from, any business engaged in such activities in such
counties; or (iii) receive or purchase a financial interest in, make a loan to,
or make a gift in support of, any such business in any capacity, including
without limitation, as a sole proprietor, partner, shareholder, officer,
director, principal agent or trustee; provided, however, that the Employee may
own, directly or indirectly, solely as an investment, securities of any business
traded on any national securities exchange or quoted on any NASDAQ market,
provided the Employee is not a controlling person of, or a member of a group
which controls, such business and further provided that the Employee does not,
in the aggregate, directly or indirectly, own two percent (2%) or more of any
class of securities of such business.
(b) After termination of this Agreement, the Employee shall not
(i) solicit any residential or commercial customer of the Company to whom the
Company provides service pursuant to a franchise agreement with a public entity
in any county in any state in which the Company is engaged in business as of
such termination date, (ii) solicit any residential or commercial customer of
the Company to enter into a solid waste collection account relationship with a
competitor of the Company in any such county, (iii) solicit any such public
entity to enter into a franchise agreement with any such competitor, (iv)
solicit any officer, employee or contractor of the Company to enter into an
employment or contractor agreement with a competitor of the Company or otherwise
interfere in any such relationship, or (v) solicit on behalf of a competitor of
the Company any prospective customer of the Company that the Employee called on
or was involved in soliciting on behalf of the Company during the Term, in each
case until the second anniversary of the date of such termination, unless
otherwise permitted to do so by Section 10(a).
(c) If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 10 is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration or area of the term or provision, to delete specified words or phrases
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
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11. Indemnification. As an employee and agent of the Company, the
Employee shall be fully indemnified by the Company to the fullest extent
permitted by applicable law in connection with his employment hereunder.
12. Survival of Provisions. The obligations of the Company under Section
11 of this Agreement, and of the Employee under Sections 5, 6 and 10 of this
Agreement, shall survive the termination of both the Employee's employment and
this Agreement.
13. No Duty to Mitigate; No Offset. The Employee shall not be required
to mitigate damages or the amount of any payment contemplated by this Agreement,
nor shall any such payment be reduced by any earnings that the Employee may
receive from any other sources or offset against any other payments made to him
or required to be made to him pursuant to this Agreement.
14. Assignment; Binding Agreement. The Company may assign this Agreement
to any parent, subsidiary, affiliate or successor of the Company. This Agreement
is not assignable by the Employee and is binding on him and his executors and
other legal representatives. This Agreement shall bind the Company and its
successors and assigns and inure to the benefit of the Employee and his heirs,
executors, administrators, personal representatives, legatees or devisees. The
Company shall assign this Agreement to any entity that acquires its assets or
business.
15. Notice. Any written notice under this Agreement shall be personally
delivered to the other party or sent by certified or registered mail, return
receipt requested and postage prepaid, to such party at the address set forth in
the records of the Company or to such other address as either party may from
time to time specify by written notice.
16. Entire Agreement; Amendments. This Agreement contains the entire
agreement of the parties relating to the Employee's employment and supersedes
all oral or written prior discussions, agreements and understandings of every
nature between them. This Agreement may not be changed except by an agreement in
writing signed by the Company and the Employee.
17. Waiver. The waiver of a breach of any provision of this Agreement
shall not operate or as be construed to be a waiver of any other provision or
subsequent breach of this Agreement.
18. Governing Law and Jurisdictional Agreement. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of California.
19. Severability. In case any one or more of the provisions contained in
this Agreement is, for any reason, held invalid in any respect, such invalidity
shall not affect the validity of any other provision of this Agreement, and such
provision shall be deemed modified to the extent necessary to make it
enforceable.
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20. Enforcement. It is agreed that it is impossible to measure fully, in
money, the damage which will accrue to the Company in the event of a breach or
threatened breach of Sections 5, 6 or 10 of this Agreement, and, in any action
or proceeding to enforce the provisions of Sections 5, 6 or 10 hereof, the
Employee waives the claim or defense that the Company has an adequate remedy at
law and will not assert the claim or defense that such a remedy at law exists.
The Company is entitled to injunctive relief to enforce the provisions of such
sections as well as any and all other remedies available to it at law or in
equity without the posting of any bond. The Employee agrees that if the Employee
breaches any provision of Section 10, the Company may recover as partial damages
all profits realized by the Employee at any time prior to such recovery on the
exercise of any warrant, option or right to purchase the Company's Common Stock
and the subsequent sale of such stock, and may also cancel all outstanding such
warrants, options and rights.
21. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and both of which together shall constitute
one and the same instrument.
22. Due Authorization. The execution of this Agreement has been duly
authorized by the Company by all necessary corporate action.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year set forth above.
WASTE CONNECTIONS, INC., a Delaware
corporation
By:_________________________________
Printed Name:_______________________
Title:______________________________
EMPLOYEE:
____________________________________
Xxxxx X. Xxxx
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