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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
USA WASTE SERVICES, INC. (the "Company"), and XXXX X. XXXXX (the "Executive")
hereby enter into this EMPLOYMENT AGREEMENT ("Agreement") dated as of June 1,
1997, as follows:
1. EMPLOYMENT.
The Company shall employ Executive, and Executive shall be employed by the
Company upon the terms and subject to the conditions set forth in this
Agreement.
2. TERM OF EMPLOYMENT.
The period of Executive's employment under this Agreement be for continuously
renewing five (5) year terms (the "Employment Term"), without any further action
by either the Company or Executive, unless Executive's employment is terminated
in accordance with Section 5 below.
3. DUTIES AND RESPONSIBILITIES.
(a) Executive shall serve as Chief Executive Officer. In such capacity,
Executive shall perform such duties, and have such power, authority and
functions as may be assigned to Executive from time to time by the
Board of Directors of the Company.
(b) Executive shall faithfully serve the Company, and/or its affiliated
corporations, devote Executive's full working time, attention and
energies to the business of the Company, and/or its affiliated
corporations, and perform the duties under this Agreement to the best
of Executive's abilities. Executive may make and manage his personal
investments, provided such investments in other activities do not
violate, in any material respect, the provisions of Section 8 of this
Agreement.
(c) Executive shall (i) comply with all applicable laws, rules and
regulations, and all requirements of all applicable regulatory,
self-regulatory, and administrative bodies; (ii) comply with the
Company's rules, procedures, policies, requirements, and directions;
and (iii) not engage in any other business or employment without the
written consent of the Company except as otherwise specifically
provided herein.
4. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary at the annual rate of six hundred thousand
($600,000) dollars per year or such higher rate as may be determined
from time to time by the Company ("Base Salary"). Such Base Salary
shall be paid in accordance with the Company's standard payroll
practice for principal executive officer. The phrases "principal
executive officer" or "senior executive" as used in this Agreement
shall mean the chief executive officer of the Company and other senior
corporate officers of the Company who are from time to time designated
as principal executive officers by the Compensation Committee.
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(b) OTHER COMPENSATION. Executive shall be entitled to participate in any
incentive or supplemental compensation plan or arrangement instituted
by the Company, and covering its principal executive officers, and to
receive additional compensation from the Company in such form, and to
such extent, if any, as the Compensation Committee may in its sole
discretion from time to time specify and determine with respect to the
Company's principal executive officers, generally.
(c) EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Executive
for the ordinary and necessary business expenses incurred by Executive
in the performance of the duties hereunder in accordance with the
Company's customary practices applicable to principal executive
officers, provided that such expenses are incurred and accounted for in
accordance with the Company's policy.
(d) BENEFIT PLANS. Executive shall be eligible to participate in or receive
benefits under any pension plan, profit sharing plan, medical and
dental benefits plan, life insurance plan, short-term and long-term
disability plans, supplemental and/or incentive compensation plans, or
any other fringe benefit plan, generally made available by the Company
to principal executive officers.
(e) EMPLOYEE'S EXPENSES. All costs and expenses (including reasonable
legal, accounting and other advisory fees) incurred by the Executive to
(i) defend the validity of this Agreement, (ii) contest any
determination by the Company concerning the amounts payable (or
reimbursable) by the Company to the Executive under this Agreement,
(iii) determine in any tax year of the Executive, the tax consequences
to the Executive of any amount payable (or reimbursable) under Section
7(b) or 7(c) hereof, or (iv) prepare responses to an Internal Revenue
Service audit of, and to otherwise defend, his personal income tax
return for any year which is the subject of any such audit, or an
adverse determination, administrative proceedings or civil litigation
arising therefrom that is occasioned by or related to any audit by the
Internal Revenue Service of the Company's income tax returns, are, upon
written demand by the Executive, to be promptly advanced or reimbursed
to the Executive, or paid directly, on a current basis, by the Company
or its successors.
5. TERMINATION OF EMPLOYMENT.
Executive's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. Executive's employment hereunder shall terminate upon
Executive's death.
(b) TOTAL DISABILITY. The Company may terminate Executive's employment
hereunder upon Executive becoming "Totally Disabled". For purposes of
this Agreement, Executive shall be "Totally Disabled" if Executive is
physically or mentally
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incapacitated so as to render Executive incapable of performing
Executive's usual and customary duties under this Agreement.
Executive's receipt of disability benefits under the Company's
long-term disability plan or receipt of Social Security disability
benefits shall be deemed conclusive evidence of Total Disability for
purpose of this Agreement; provided, however, that in the absence of
Executive's receipt of such long-term disability benefits or Social
Security benefits, the Company's Board of Directors may, in its
reasonable discretion (but based upon appropriate medical evidence),
determine that Executive is Totally Disabled.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
Executive's employment hereunder for "Cause" at any time after
providing written notice to Executive.
(i) For purposes of this Agreement, the term "Cause" shall mean any
of the following: (A) conviction of a crime (including
conviction on a nolo contendere plea) involving a felony or, in
the good faith judgment of the Company's Board of Directors,
fraud, dishonesty, or moral turpitude; (B) deliberate and
continual refusal to perform employment duties reasonably
requested by the Company or an affiliate after thirty (30) days'
written notice by certified mail of such failure to perform,
specifying that the failure constitutes cause (other than as a
result of vacation, sickness, illness or injury); (C) fraud or
embezzlement determined in accordance with the Company's normal,
internal investigative procedures consistently applied in
comparable circumstances; (D) gross misconduct or gross
negligence in connection with the business of the Company or an
affiliate which has substantial effect on the Company or the
affiliate; or (E) breach of any of the covenants set forth in
Section 8 hereof.
(ii) An individual will be considered to have been terminated for
Cause if the Company determines that the individual engaged in
an act constituting Cause at any time prior to a payment date
for an award, regardless of whether the individual terminates
employment voluntarily or is terminated involuntarily, and
regardless of whether the individual's termination initially was
considered to have been for Cause.
(iii) Any determination of Cause under this Agreement shall be made by
resolution of the Company's Board of Directors adopted by the
affirmative vote of not less than a majority of the entire
membership of the Board of Directors at a meeting called and
held for that purpose and at which Executive is given an
opportunity to be heard.
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(d) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate employment
hereunder at any time after providing ninety (90) days' written notice
to the Company, or for good reason as described in Section 7 of this
Agreement.
(e) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
Executive's employment hereunder without Cause at any time after
providing written notice to Executive. Unless the provisions of Section
7 apply, a change in Executive's position as Chief Executive Officer,
or a reduction in his annual base pay shall be deemed a termination
without cause and Executive shall have sixty (60) days from notice of
said change to notify Company of his intent to terminate his employment
and receive the compensation described in Section 6(e) below.
6. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
In the event that Executive's employment hereunder is terminated, Executive
shall be entitled to the following compensation and benefits upon such
termination:
(a) TERMINATION BY REASON OF DEATH. In the event that Executive's
employment is terminated by reason of Executive's death, the Company
shall pay the following amounts to Executive's beneficiary or estate:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of death, any accrued but unpaid expenses required to be
reimbursed under this Agreement; a pro-rata "bonus" or incentive
compensation payment to the extent payments are awarded senior
executives and paid at the same time as senior executives are
paid; and any vacation accrued to the date of death.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof, as determined and paid in accordance with the terms of
such plans, policies and arrangements.
(iii) An amount equal to the Base Salary (at the rate in effect as of
the date of Executive's death) which would have been payable to
Executive if Executive had continued in employment until the end
of the current Employment Term (i.e., five [5] years). Said
payments will be paid to Executive's estate or beneficiary at
the same time and in the same manner as such compensation would
have been paid if Executive had remained in active employment
for the five (5) year term.
(iv) As of the date of termination by reason of Executive's death,
stock options awarded to Executive shall be fully vested and
Executive's estate or beneficiary shall have up to one (1) year
from the date of death to exercise all such options.
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(b) TERMINATION BY REASON OF TOTAL DISABILITY. In the event that
Executive's employment is terminated by reason of Executive's Total
Disability as determined in accordance with Section 5(b), the Company
shall pay the following amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expenses required to
be reimbursed under this Agreement, any vacation accrued to the
date of termination. Executive shall also be eligible for a
pro-rata bonus or incentive compensation payment to the extent
such awards are made to senior executives for the year in which
Executive is terminated.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof shall be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(iii) An amount equal to the Base Salary (at the rate in effect as of
the date of Executive's Total Disability) which would have been
payable to Executive if Executive had continued in active
employment until the end of the current Employment Term (five
[5] years from the date of termination by reason of total
disability). Payment shall be made at the same time and in the
same manner as such compensation would have been paid if
Executive had remained in active employment until the end of
such period.
(iv) As of the date of termination by reason of Executive's total
disability, Executive shall be fully vested in all stock option
awards and Executive shall have up to one (1) year from the date
of termination by reason of total disability to exercise all
such options.
(c) TERMINATION FOR CAUSE. In the event that Executive's employment is
terminated by the Company for Cause pursuant to Section 5(c), the
Company shall pay the following amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expenses required to
be reimbursed under this Agreement, any vacation accrued to the
date of termination.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof shall be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(d) VOLUNTARY TERMINATION BY EXECUTIVE. In the event that Executive
terminates employment pursuant to Section 5(d), and other than for a
resignation tendered pursuant
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to Section 7 of this Agreement, or other than for a resignation
tendered following a change of Executive's position or base pay, as
described in Section 5(e) above, the Company shall pay the following
amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expenses required to
be reimbursed under this Agreement, any vacation accrued to the
date of termination.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof shall be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(e) TERMINATION BY THE COMPANY WITHOUT CAUSE. In the event that Executive's
employment is terminated by the Company pursuant to Section 5(e) for
reasons other than death, Total Disability or Cause, the Company shall
pay the following amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expenses required to
be reimbursed under this Agreement, any vacation accrued to the
date of termination.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof shall be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(iii) An annual amount equal to 75 percent (75%) of the average of
Executive's "Total Annual Direct Compensation" for the two
highest of the three most recent calendar years prior to
Executive's termination. Such annual amount shall be paid during
the five (5) year period beginning on the date of Executive's
termination and shall be paid at the same time and in the same
manner as Base Salary would have been paid if Executive had
remained in active employment until the end of such period. For
purposes of this Agreement, the term "Total Annual Direct
Compensation" means the total of the Base Salary and other cash
compensation payable to Executive attributable to a calendar
year (A) including any cash compensation which would have been
payable for such year but for Executive's election to defer
payment of such compensation and (B) excluding any amounts
recognized as compensation as a result of Executive's exercise
of a stock option or receipt of a stock award.
(iv) The Company completely at its expense will continue for
Executive and Executive's spouse and dependents, all health
benefit plans, programs or arrangements, whether group or
individual, and also including deferred
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compensation, disability, automobile, stock option and other
benefit plans, in which Executive was entitled to participate at
any time during the twelve-month period prior to the date of
termination, until the earliest to occur of (A) five years after
the date of termination; (B) Executive's death (provided that
benefits payable to Executive's beneficiaries shall not
terminate upon Executive's death); or (C) with respect to any
particular plan, program or arrangement, the date Executive
becomes covered by a comparable benefit by a subsequent
employer. In the event that Executive's continued participation
in any such plan, program, or arrangement of the Company is
prohibited, the Company will arrange to provide Executive with
benefits substantially similar to those which Executive would
have been entitled to receive under such plan, program, or
arrangement, for such period.
(v) Except to the extent prohibited by law, Executive will be 100%
vested in all benefits, awards, and grants accrued but unpaid as
of the date of termination under any pension plan, profit
sharing plan, supplemental and/or incentive compensation plans
in which Executive was a participant as of the date of
termination. Executive shall also be eligible for a bonus or
incentive compensation payment, at the same time, on the same
basis, and to the same extent payments are made to senior
executives, pro-rated for the fiscal year in which the Executive
is terminated.
(vi) As of the effective date of Executive's termination from active
employment, Executive shall be 100% vested in all stock option
awards. Executive shall have five (5) years to exercise all
options, unless by virtue of the particular stock option award,
the option grant expires on an earlier date.
(f) NO OTHER BENEFITS OR COMPENSATION. Except as may be provided under this
Agreement, under the terms of any incentive compensation, employee
benefit, or fringe benefit plan applicable to Executive at the time of
Executive's termination or resignation of employment, Executive shall
have no right to receive any other compensation, or to participate in
any other plan, arrangement or benefit, with respect to future periods
after such termination or resignation.
(g) SUSPENSION OR TERMINATION OF BENEFITS AND COMPENSATION. In the event
that the Company, in its sole discretion determines that, without the
Company's express written consent, Executive has
(i) directly or indirectly engaged in, assisted or have any active
interest or involvement whether as an employee, agent,
consultant, creditor, advisor, officer, director, stockholder
(excluding holding of less than 1% of the stock of a public
company), partner, proprietor, or any type of principal
whatsoever, in
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any person, firm, or business entity which is directly or
indirectly competitive with the Company or any of its
affiliates, or
(ii) directly or indirectly, for or on behalf of any person, firm, or
business entity which is directly or indirectly competitive with
the Company or any of its affiliates (A) solicited or accepted
from any person or entity who is or was a client of the Company
during the term of Executive's employment hereunder or during
any of the twelve calendar months preceding or following the
termination of Executive's employment any business for services
similar to those rendered by the Company, (B) requested or
advised any present or future customer of the Company to
withdraw, curtail or cancel its business dealings with the
Company, or (C) requested or advised any employee of the Company
to terminate his or her employment with the Company; the Company
shall have the right to suspend or terminate any or all
remaining benefits payable pursuant to Section 6 of this
Agreement. Such suspension or termination of benefits shall be
in addition to and shall not limit any and all other rights and
remedies that the Company may have against Executive.
7. RESIGNATION BY EXECUTIVE FOR GOOD REASON AND COMPENSATION PAYABLE FOLLOWING
CHANGE IN CONTROL.
(a) RESIGNATION FOR GOOD REASON FOLLOWING CHANGE IN CONTROL. In the event a
"Change in Control" occurs, Executive will be paid the compensation
described in this Section 7 if (1) Executive resigns by giving notice
to the Secretary of the Company that he intends to elect to exercise
his rights under this Section 7 ("Notice of Intention"), or (2) is
terminated from employment with the Company at any time prior to the
six (6) month anniversary of the date of the Change in Control
following the occurrence of any of the following events:
(i) without Executive's express written consent, the assignment to
Executive of any duties inconsistent with Executive's positions,
duties, responsibilities and status with the Company immediately
before a Change in Control, or a change in Executive's
reporting, responsibilities, titles or offices as in effect
immediately before a Change in Control, or any removal of
Executive from, or any failure to re-elect Executive to, any of
such positions, except in connection with the termination of
Executive's employment as a result of death, or by the Company
for Disability or Cause, or by Executive other than for the
reasons described in this Section 7(a);
(ii) a reduction by the Company in Executive's Base Salary as in
effect immediately before a Change in Control plus all increases
therein subsequent thereto;
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(iii) the failure of the Company substantially to maintain and to
continue Executive's participation in the Company's benefit
plans as in effect immediately before a Change in Control and
with all improvements therein subsequent thereto (other than
those plans or improvements that have expired thereafter in
accordance with their original terms), or the taking of any
action which would materially reduce Executive's benefits under
any of such plans or deprive Executive of any material fringe
benefit enjoyed by Executive immediately before a Change in
Control, unless such reduction or termination is required by
law;
(iv) the failure of the Company to pay Executive with an appropriate
adjustment to compensation, such as a lump sum relocation bonus,
salary adjustment and/or housing allowance so that Executive can
purchase comparable primary housing if required to relocate (it
being the intention of this Section 7[a][iv] to keep the
Executive "whole" if required to relocate). In this regard,
comparable housing shall be determined by comparing factors such
as location (taking into account, by way of example, items such
as the value of the surrounding neighborhood, reputation of the
public school district, if applicable, security and proximity to
Executive's place of work), quality of construction, design,
age, size of the housing and the ratio of the monthly payments
including principle, interest, taxes and insurance, to the
Executive's take-home-pay, to housing most recently owned by
Executive prior to, or as of the effective date of the change of
control;
(v) the failure by the Company to pay Executive any portion of
Executive's current compensation, or any portion of Executive's
compensation deferred under any plan, agreement or arrangement
of or with the Company, within seven (7) days of the date such
compensation is due; or
(vi) the failure by the Company to obtain an assumption of, and
agreement to perform the obligations of the Company under this
Agreement by any successor to the Company.
(b) COMPENSATION PAYABLE. In the event that Executive terminates employment
pursuant to Section 7(a), the Company shall pay the following amounts
to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expenses required to
be reimbursed under this Agreement, any vacation accrued to the
date of termination.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c)
hereof, shall be determined and paid in accordance with the
terms of such plans, policies and arrangements.
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(iii) An amount equal to $1.00 less than three (3) times Executive's
"base amount" within the full meaning of Section 280G of the
Internal Revenue Code. Such amount shall be paid to Executive in
a single lump sum cash payment within five (5) business days
after the effective date of Executive's resignation.
(iv) Executive will be 100% vested in all benefits, awards, and
grants (including stock option grants) accrued but unpaid as of
the date of termination under any non-qualified pension plan,
supplemental and/or incentive compensation or bonus plans, in
which Executive was a participant as of the date of termination.
The Executive will have until the expiration date shown on the
Stock Option Award in which to exercise all options which have
vested pursuant to the terms of this Section 7(b)(iv). Executive
shall also be eligible for a bonus or incentive compensation
payment (the "bonus payment"), payable at 100% of the maximum
bonus available to Executive, pro-rated as of the effective date
of the termination. The bonus payment shall be payable within
five (5) days after the effective date of Employee's
termination. Except as may be provided under this Section 7 or
under the terms of any incentive compensation, employee benefit,
or fringe benefit plan applicable to Executive at the time of
Executive's resignation from employment, Executive shall have no
right to receive any other compensation, or to participate in
any other plan, arrangement or benefit, with respect to future
periods after such resignation or termination.
(c) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. In the event that any
portion of the benefits payable under this Agreement, and any other
payments and benefits under any other agreement with, or plan of the
Company to or for the benefit of the Executive (in aggregate, "Total
Payments") constitute an "excess parachute payment" within the meaning
of Section 280G of the Internal Revenue Code (the "Code"), then the
Company shall pay the Executive as promptly as practicable following
such determination an additional amount (the "Gross-up Payment")
calculated as described below to reimburse the Executive on an
after-tax basis for any excise tax imposed on such payments under
Section 4999 of the Code. The Gross-up Payment shall equal the amount,
if any, needed to ensure that the net parachute payments (including the
Gross-up Payment) actually received by the Executive after the
imposition of federal and state income, employment and excise taxes
(including any interest or penalties imposed by the Internal Revenue
Service), are equal to the amount that the Executive would have netted
after the imposition of federal and state income and employment taxes,
had the Total Payments not been subject to the taxes imposed by Section
4999. For purposes of this calculation, it shall be assumed that the
Executive's tax rate will be the maximum federal rate to be computed
with regard to Section 1(g) of the Code.
In the event that the Executive and the Company are unable to agree as
to the amount of the Gross-up Payment, if any, the Company shall select
a law firm or accounting firm
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from among those regularly consulted (during the twelve-month period
immediately prior to a Change-in-Control) by the Company regarding
federal income tax matters and such law firm or accounting firm shall
determine the amount of Gross-up Payment and such determination shall
be final and binding upon the Executive and the Company.
(d) CHANGE IN CONTROL. For purposes of this Agreement, "Change in Control"
means the occurrence of any of the following events:
(i) Any transfer to, assignment to, or any acquisition by any
person, corporation or other entity, or group thereof, of the
beneficial ownership, within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, of any securities of the
Company, which transfer, assignment or acquisition results in
such person, corporation, entity, or group thereof, becoming the
beneficial owner, directly or indirectly, of securities of the
Company representing 25 percent (25%) or more of the combined
voting power of the Company's then outstanding securities; or
(ii) As a result of a tender offer, merger, consolidation, sale of
assets, or contested election, or any combination of such
transactions, the persons who were directors immediately before
the transaction shall cease to constitute a majority of the
Board of Directors of the Company or any successor to the
Company.
8. RESTRICTIVE COVENANTS
(a) COMPETITIVE ACTIVITY. Executive covenants and agrees that at all times
during Executive's period of employment with the Company, and during
the period that payments are made to Executive pursuant to Section 6 of
this Agreement, Executive will not engage in, assist, or have any
active interest or involvement, whether as an employee, agent,
consultant, creditor, advisor, officer, director, stockholder
(excluding holding of less than 1% of the stock of a public company),
partner, proprietor or any type of principal whatsoever in any person,
firm, or business entity which, directly or indirectly, is engaged in
the same business as that conducted and carried on by the Company,
without the Company's specific written consent to do so. Executive
further agrees that for a period of one (1) year after the date
payments made to Executive pursuant to Section 6 of this Agreement
cease, or for a period of two (2) years following the date of
termination, whichever is later, Executive will not, directly or
indirectly, within 75 miles of any operating location of any affiliate
of the Company, engage in, assist, or have any active interest or
involvement, whether as an employee, agent, consultant, creditor,
advisor, officer, director, stockholder (excluding holding of less than
1% of the stock of a public company), partner, proprietor or any type
of principal whatsoever in any person, firm, or business entity which,
directly or indirectly, is engaged in the same business as that
conducted and carried on by the Company or any of its affiliated
companies, without the Company's specific written consent to do so.
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(b) NON-SOLICITATION. Executive covenants and agrees that at all times
during Executive's period of employment with the Company, and for a
period of one (1) year after the date payments made to Executive
pursuant to Section 6 of this Agreement cease, or two (2) years after
the date of termination of the Executive's employment, whichever date
is later, whether such termination is voluntary or involuntary by
wrongful discharge, or otherwise, Executive will not directly or
indirectly (i) induce any customers of the Company or corporations
affiliated with the Company to patronize any similar business which
competes with any material business of the Company; (ii) canvass,
solicit or accept any similar business from any customer of the Company
or corporations affiliated with the Company; (iii) directly or
indirectly request or advise any customers of the Company or
corporations affiliated with the Company to withdraw, curtail or cancel
such customer's business with the Company; (iv) directly or indirectly
disclose to any other person, firm or corporation the names or
addresses of any of the customers of the Company or corporations
affiliated with the Company; or (v) individually or through any person,
firm, association or corporation with which he is now, or may hereafter
become associated, cause, solicit, entice or induce any present or
future employee of the Company, or any corporation affiliated with the
Company, to leave the employ of the Company, or such other corporation,
to accept employment with, or compensation from the Employee, or any
such person, firm, association or corporation without prior written
consent of the Company.
(c) NON-DISPARAGEMENT. Executive covenants and agrees that Executive shall
not engage in any pattern of conduct that involves the making or
publishing of written or oral statements or remarks (including, without
limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging,
deleterious or damaging to the integrity, reputation or good will of
the Company, its management, or of management of corporations
affiliated with the Company.
(d) PROTECTED INFORMATION. Executive recognizes and acknowledges that
Executive has had and will continue to have access to various
confidential or proprietary information concerning the Company and
corporations affiliated with the Company of a special and unique value
which may include, without limitation, (i) books and records relating
to operation, finance, accounting, sales, personnel and management,
(ii) policies and matters relating particularly to operations such as
customer service requirements, costs of providing service and
equipment, operating costs and pricing matters, and (iii) various trade
or business secrets, including customer lists, route sheets, business
opportunities, marketing or business diversification plans, business
development and bidding techniques, methods and processes, financial
data and the like (collectively, the "Protected Information").
Executive therefore covenants and agrees that Executive xxxx
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not at any time, either while employed by the Company or afterwards,
knowingly make any independent use of, or knowingly disclose to any
other person or organization (except as authorized by the Company) any
of the Protected Information.
9. ENFORCEMENT OF COVENANTS.
(a) TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. Executive
agrees that any breach by Executive of any of the covenants set forth
in Section 8 hereof during Executive's employment by the Company, shall
be grounds for immediate dismissal of Executive and forfeiture of any
accrued and unpaid salary, bonus, commissions or other compensation of
such Executive as liquidated damages, which shall be in addition to and
not exclusive of any and all other rights and remedies the Company may
have against Executive.
(b) RIGHT TO INJUNCTION. Executive acknowledges that a breach of the
covenants set forth in Section 8 hereof will cause irreparable damage
to the Company with respect to which the Company's remedy at law for
damages will be inadequate. Therefore, in the event of breach of
anticipatory breach of the covenants set forth in this section by
Executive, Executive and the Company agree that the Company shall be
entitled to the following particular forms of relief, in addition to
remedies otherwise available to it at law or equity; (i) injunctions,
both preliminary and permanent, enjoining or retraining such breach or
anticipatory breach and Executive hereby consents to the issuance
thereof forthwith and without bond by any court of competent
jurisdiction; and (ii) recovery of all reasonable sums expended and
costs, including reasonable attorney's fees, incurred by the Company to
enforce the covenants set forth in this section.
(c) SEPARABILITY OF COVENANTS. The covenants contained in Section 8 hereof
constitute a series of separate covenants, one for each applicable
State in the United States and the District of Columbia, and one for
each applicable foreign country. If in any judicial proceeding, a court
shall hold that any of the covenants set forth in Section 8 exceed the
time, geographic, or occupational limitations permitted by applicable
laws, Executive and the Company agree that such provisions shall and
are hereby reformed to the maximum time, geographic, or occupational
limitations permitted by such laws. Further, in the event a court shall
hold unenforceable any of the separate covenants deemed included
herein, then such unenforceable covenant or covenants shall be deemed
eliminated from the provisions of this Agreement for the purpose of
such proceeding to the extent necessary to permit the remaining
separate covenants to be enforced in such proceeding.
Executive and the Company further agree that the covenants in Section 8 shall
each be construed as a separate agreement independent of any other provisions of
this Agreement, and the existence of any claim or cause of action by Executive
against the Company whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of any of the covenants
of Section 8.
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10. EMPLOYEE CONDUCT.
(a) The Executive represents and agrees with the Company that he will make
no disbursement or other payment of any kind or character out of the
compensation paid, or expenses reimbursed to him pursuant hereto, or
with any other fund, with contravene, in any material respect, any
policy of the Company or, in any material respect, any applicable
statute or rule, regulation or order of any jurisdiction, foreign or
domestic. The Executive further agrees to indemnify and save harmless
the Company for any liabilities, obligations, claims, penalties, fines
or losses resulting from any unauthorized or unlawful acts of the
Employee which contravene, in any material respect, any policy of the
Company or any statute, rule, regulation or order of any jurisdiction,
foreign or domestic, applicable to the Executive or the Company. The
provisions of this Section 8 shall survive the dissolution or
termination of Executive's employment under this Agreement.
(b) Executive acknowledges that he has been furnished with a current copy
of the policy and procedures manual of the Company, that he has read
and understands such policies and procedures set forth in such manual,
that he understands such policies and procedures (and will read and
become familiar with any revisions or supplements to this manual) are
applicable to Executive in the performance of his duties and job
performance for the Company, and that he agrees to observe in all
material respects the Company's policies and procedures in the conduct
of Executive of his employment duties for the Company.
(c) Executive agrees to disclose, honestly and fully, all information and
documentation in his possession concerning all transactions or events
relating to, or affecting, the Company or any entity owned, controlled
(or otherwise affiliated) by the Company, as and to the extent such
information or documentation is requested by the Company or the
authorized representatives thereof; provides that if Executive
indicates to the Company that the information or documentation
requested is privileged, confidential or personally sensitive,
appropriate steps will be taken to attempt to protect such privilege,
confidentiality or privacy to the extent possible consistent with the
ethical or legal obligations applicable to the Company, but neither
such assertions by Executive not the undertakings attempted by the
Company with respect thereto shall qualify the unconditional disclosure
obligation of Executive, set forth above.
11. DISPUTES AND PAYMENT OF ATTORNEY'S FEES.
If at any time during the term of this Agreement or afterwards there should
arise any dispute as to the validity, interpretation or application of any term
or condition of this Agreement, the
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Company agrees, upon written demand by Executive (and Executive shall be
entitled upon application to any court of competent jurisdiction, to the entry
of a mandatory injunction, without the necessity of posting any bond with
respect thereto, compelling the Company) to promptly provide sums sufficient to
pay on a current basis (either directly or by reimbursing Executive) Executive's
costs and reasonable attorney's fees (including expenses of investigation and
disbursements for the fees and expenses of experts, etc.) incurred by Executive
in connection with any such dispute or any litigation, (a) provided that
Executive shall repay any such amounts paid or advanced if Executive is not the
prevailing party with respect to any dispute or litigation arising under
Sections 5c or 8 of this Agreement, or (b) regardless of whether Executive is
the prevailing party in a dispute or in litigation involving any other provision
of this Agreement, provided that the court in which such litigation is first
initiated determines with respect to this obligation, upon application of either
party hereto, Executive did not initiate frivolously such litigation. Under no
circumstances shall Executive be obligated to pay or reimburse the Company for
any attorneys' fees, costs or expenses incurred by the Company. The provisions
of this Section 10 shall survive the expiration or termination of this Agreement
and of Executive's employment hereunder.
12. WITHHOLDING OF TAXES.
The Company may withhold from any compensation and benefits payable under this
Agreement all applicable federal, state, local, or other taxes.
13. NON-DISCLOSURE OF AGREEMENT TERMS.
Executive agrees that Executive will not disclose the terms of this Agreement to
any third party other than Executive's immediate family, attorney, accountants,
or other consultants or advisors or except as may be required by any
governmental authority. The Company agrees with Executive that, except to the
extent required by law, it will not make or publish, without the express written
consent of Executive, any written or oral statement concerning the terms of
Executive's employment relationship with the Company and will not, if Executive
is terminated for any reason or xxxxxx his employment with the Company, make or
publish any written or oral statement concerning Executive, including, without
limitation, his work-related performance or the reasons or basis for Executive's
termination or otherwise severing Executive's employment relationship with the
Company.
14. SOURCE OF PAYMENTS.
All payments provided under this Agreement, other than payments made pursuant to
a plan which provides otherwise, shall be paid from the general funds of the
Company, and no special or separate fund shall be established, and no other
segregation of assets made, to assure payment. Executive shall have no right,
title or interest whatever in or to any investments which the Company may make
to aid the Company in meeting its obligations hereunder. To
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the extent that any person acquires a right to receive payments from the Company
hereunder, such right shall be no greater than the right of an unsecured
creditor of the Company.
15. ASSIGNMENT.
Except as otherwise provided in this Agreement, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns. This Agreement shall not be
assignable by Executive, and shall be assignable by the Company only to any
financially solvent corporation or other entity resulting from the
reorganization, merger or consolidation of the Company with any other
corporation or entity or any corporation or entity to or with which the
Company's business or substantially all of its business or assets may be sold,
exchanged or transferred, and it must be so assigned by the Company to, and
accepted as binding upon it by, such other corporation or entity in connection
with any such reorganization, merger, consolidation, sale, exchange or transfer
(the provisions of this sentence also being applicable to any successive such
transaction).
16. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Executive and the Company or any of its
subsidiaries or affiliated entities relating to the terms of Executive's
employment by the Company. It may not be amended except by a written agreement
signed by both parties.
17. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Texas applicable to agreements made and to be performed in that
State, without regard to its conflict of laws provisions.
18. REQUIREMENT OF TIMELY PAYMENTS.
If any amounts which are required, or determined to be paid or payable, or
reimbursed or reimbursable, to Executive under this Agreement (or any other
plan, agreement, policy or arrangement with the Company) are not so paid
promptly at the times provided herein or therein, such amounts shall accrue
interest, compounded daily, at the annual percentage rate which is three (3)
percentage points above the interest rate which is announced by the First
National Bank of Boston, Boston, Massachusetts, from time to time, as its Base
Rate (or prime lending rate), from the date such amounts were required or
determined to have been paid or payable, reimbursed or reimbursable to
Executive, until such amounts and any interest accrued thereon are finally and
fully paid, provided, however, that in no event shall the amount of interest
contracted for, charged or received hereunder, exceed the maximum non-usurious
amount of interest allowed by applicable law.
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19. NOTICES.
Any notice, consent, request or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by registered or certified mail, return receipt
requested, or by facsimile or by hand delivery, to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To the Company: USA Waste Services, Inc.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Corporate Secretary
To Executive: At the address for Executive set forth below
20. MISCELLANEOUS.
(a) WAIVER. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(b) SEPARABILITY. Subject to Section 9 hereof, if any term or provision of
this Agreement is declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable, such
term or provision shall immediately become null and void, leaving the
remainder of this Agreement in full force and effect.
(c) HEADINGS. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this
Agreement.
(d) RULES OF CONSTRUCTION. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts will together constitute but one
Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
USA WASTE SERVICES, INC.
By: /s/ Xxxx Xxxxxxxx
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Title: Vice President / General Counsel /Secretary
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Date: June 1, 1997
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EXECUTIVE
/s/ Xxxx X. Xxxxx
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Date: June 1, 1997
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Address: 0000 Xxxxxx, Xxxxx 0000
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Xxxxxxx, XX 00000
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