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EXHIBIT 10.25
EMPLOYMENT AGREEMENT
USA WASTE SERVICES, INC. (the "Company") and XXXXXX X. XXXXX (the "Employee")
hereby enter into this EMPLOYMENT AGREEMENT ("Agreement") dated as of August 26,
1997, as follows:
1. EMPLOYMENT.
The Company shall employ Employee, and Employee 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 Employee's employment under this Agreement shall begin as of June
1, 1997, and shall continue for a period of three (3) years thereafter (the
"Initial Term") and shall be automatically renewed for successive one (1) year
periods thereafter, unless Employee's employment is terminated in accordance
with Section 5 below.
3. DUTIES AND RESPONSIBILITIES.
(a) Employee shall serve as Vice President, Treasurer. In such capacity,
Employee shall perform such duties as may be assigned to Employee from
time to time by the Company.
(b) Employee shall faithfully serve the Company and/or its affiliated
corporations, devote Employee'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 Employee's abilities.
(c) Employee 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 Employee
a base salary at the annual rate of one hundred forty-five thousand
($145,000) 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 employees.
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(b) EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Employee
for the ordinary and necessary business expenses incurred by Employee
in the performance of Employee's duties hereunder in accordance with
the Company's customary practices applicable to employees, provided
that such expenses are incurred and accounted for in accordance with
the Company's policy.
(c) BENEFIT PLANS. Employee 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 benefit plan or arrangement generally made available by the
Company to employees of similar status and responsibilities
(hereinafter referred to as "similarly situated employees").
5. TERMINATION OF EMPLOYMENT.
Employee's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. Employee's employment hereunder shall terminate upon Employee's
death.
(b) TOTAL DISABILITY. The Company may terminate Employee's employment
hereunder upon Employee's becoming "Totally Disabled". For purposes of
this Agreement, Employee shall be "Totally Disabled" if Employee is
physically or mentally incapacitated so as to render Employee incapable
of performing Employee's usual and customary duties under this
Agreement. Employee'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 Employee's receipt of such long-term disability benefits
or Social Security benefits, the Company may, in its reasonable
discretion (but based upon appropriate medical evidence), determine
that Employee is Totally Disabled.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
Employee's employment hereunder for "Cause" at any time after providing
written notice to Employee.
(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, 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;
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(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
the Company after giving Employee a reasonable opportunity to be
heard.
(d) VOLUNTARY TERMINATION BY EMPLOYEE. Employee may terminate employment
hereunder at any time after providing ninety (90) days' written notice
to the Company.
(e) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
Employee's employment hereunder without Cause at any time after
providing written notice to Employee.
6. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
In the event that Employee's employment hereunder is terminated, Employee shall
be entitled to the following compensation and benefits upon such termination:
(a) TERMINATION BY REASON OF DEATH. In the event that Employee's employment
is terminated by reason of Employee's death, the Company shall pay the
following amounts to Employee'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, and any vacation accrued to the
date of death.
(ii) Any benefits to which Employee 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 Employee's death) which would have been payable to
Employee if Employee had continued in employment until the end
of the 12-month period beginning on the date of Employee's
death. Such amount shall be paid in a single lump sum cash
payment within thirty (30) days after Employee's death.
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(iv) As of the date of termination by reason of Employee's death,
stock options awarded to Employee shall be fully vested.
Employee's estate or beneficiary shall have up to one (1) year
from date of termination/death to exercise all such options.
(b) TERMINATION BY REASON OF TOTAL DISABILITY. In the event that Employee's
employment is terminated by reason of Employee's Total Disability as
determined in accordance with Section 5(b), the Company shall pay the
following amounts to Employee:
(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 Employee 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
(A) the Base Salary (at the rate in effect as of the date of
Employee's Total Disability) which would have been
payable to Employee if Employee had continued in active
employment until the end of the 12-month period beginning
on the date of Employee's termination; reduced by
(B) the maximum annual amount of the long term disability
benefits payable to Employee under the Company's
long-term disability plan as determined prior to the
reduction of such benefits under the terms of the plan
for other disability income.
Payment shall be made at the same time and in the same manner as
such compensation would have been paid if Employee had remained
in active employment until the end of such period.
(iv) As of the date of Employee's termination by reason of Employee's
total disability, Employee shall be fully vested in all stock
option awards. Employee shall have up to one (1) year from date
of termination due to total disability to exercise all such
options.
(c) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION BY EMPLOYEE. In the
event that Employee's employment is terminated by the Company for Cause
pursuant to Section 5(c), or Employee terminates employment pursuant to
Section 5(d), the Company shall pay the following amounts to Employee:
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(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 Employee 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) TERMINATION BY THE COMPANY WITHOUT CAUSE. In the event that Employee'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 Employee:
(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 Employee 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) The Base Salary (at the rate in effect as of the date of
Employee's termination) which would have been payable to
Employee if Employee had continued in active employment until
the later of: (A) the period ending on the last day of the
Initial Term; or (B) the end of the 12-month period beginning on
the date of Employee's termination. Payment shall be made at the
same time and in the same manner as such compensation would have
been paid if Employee had remained in active employment until
the end of such period. The Employee shall also be eligible for
a bonus or incentive compensation payment, to the extent bonuses
are paid to similarly situated employees, pro-rated for the year
in which the Employee is terminated, and paid at the same time
as similarly situated employees are paid.
(iv) The Company, completely at its expense, will continue for
Employee and Employee's spouse and dependents, group health
plans, programs or arrangements, in which Employee was entitled
to participate at any time during the twelve-month period prior
to the date of termination, until the earlier of : (A) last day
of period during which Employee receives payment in accordance
with clause (iii) above; (B) Employee's death (provided that
benefits payable to Employee's beneficiaries shall not terminate
upon Employee's death); or (C) with respect to any particular
plan, program or arrangement, the date Employee becomes covered
by a comparable benefit provided by a subsequent employer.
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(v) As of the date of Employee's termination, Employee shall be
fully vested in all stock option awards. Employee shall have one
(1) year from the date of termination to exercise all such
options.
(e) 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 Employee at the time of
Employee's termination or resignation of employment, Employee 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.
(f) 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, Employee 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 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 Employee's employment hereunder or during any
of the twelve calendar months preceding or following the
termination of Employee'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 Employee.
7. RESTRICTIVE COVENANTS
(a) COMPETITIVE ACTIVITY. Employee covenants and agrees that at all times
during Employee's period of employment with the Company, and while
Employee is receiving payments pursuant to Section 6 of this Agreement,
Employee will not, directly or indirectly, engage
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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.
Furthermore, for a period of one (1) year after the date of termination
of Employee's employment, whether such termination is voluntary or
involuntary, by wrongful discharge, or otherwise, or one (1) year
following the cessation of payments made pursuant to Section 6 of this
Agreement, whichever date is later, Employee will not directly or
indirectly, within 75 miles of the principal place of business of the
Company, the principal place of business of any corporation or other
entity owned, controlled by (or otherwise affiliated with) the Company
by which Employee may also be employed or served by Employee, or any
other geographic location in which Employee has specifically
represented the interests of the Company or such other affiliated
entity, during the twelve (12) months prior to the termination of
Employee's employment, 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. Notwithstanding the above, it is understood
that the Employee's background and skills are in the treasury area, and
that after the expiration of six (6) months from the date of
termination, the Employee shall not be restricted from associating or
affiliating himself with other financial institutions or companies, so
long as such association or affiliation is strictly of a treasury
related manner or position.
(b) NON-SOLICITATION. Employee covenants and agrees that at all times
during Employee's period of employment with the Company, and for a
period of one (1) year after the date of termination of Employee's
employment, whether such termination is voluntary or involuntary by
wrongful discharge, or otherwise, or the date of the cessation of
payments made to the Employee pursuant to Section 6 of this Agreement,
whichever date is later. Employee 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; or (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.
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(c) NON-DISPARAGEMENT. Employee covenants and agrees that Employee 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. Employee recognizes and acknowledges that
Employee 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 business opportunities, marketing or
business diversification plans, business development and bidding
techniques, methods and processes, financial data and the like
(collectively, the "Protected Information"). Employee therefore
covenants and agrees that Employee will 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.
8. ENFORCEMENT OF COVENANTS.
(a) TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. Employee
agrees that any breach by Employee of any of the covenants set forth in
Section 7 hereof during Employee's employment by the Company, shall be
grounds for immediate dismissal of Employee and forfeiture of any
accrued and unpaid salary, bonus, commissions or other compensation of
such Employee 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 Employee.
(b) RIGHT TO INJUNCTION. Employee acknowledges that a breach of the
covenants set forth in Section 7 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
Employee, Employee 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 Employee 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.
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(c) SEPARABILITY OF COVENANTS. The covenants contained in Section 7 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 7 exceed the
time, geographic, or occupational limitations permitted by applicable
laws, Employee 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. Employee and the
Company further agree that the covenants in Section 7 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
Employee 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 7.
9. WITHHOLDING OF TAXES.
The Company may withhold from any compensation and benefits payable under this
Agreement all applicable federal, state, local, or other taxes.
10. NON-DISCLOSURE OF AGREEMENT TERMS.
Employee agrees that Employee will not disclose the terms of this Agreement to
any third party other than Employee's immediate family, attorney, accountants,
or other consultants or advisors or except as may be required by any
governmental authority.
11. 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. Employee 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 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.
12. 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 Employee.
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13. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Employee and the Company or any of its
subsidiaries or affiliated entities relating to the terms of Employee's
employment by the Company. It may not be amended except by a written agreement
signed by both parties.
14. 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.
15. 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 Employee: At the address for Employee set forth below.
16. 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 8 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.
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(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.
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 X. XxXxxxxx
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Title: Executive Vice President / CFO
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Date: August 26, 1997
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EMPLOYEE
/s/ Xxxxxx X. Xxxxx
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Date: August 26, 1997
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Address: 0000 Xxxxxx, Xxxxx 0000
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Xxxxxxx, XX 00000
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