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EXHIBIT 10.30
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This Third Amendment to Employment Agreement (the "Amendment") is made
and entered into as of this 11th day of November, 1996, by and between
Allwaste, Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx
(the "Employee").
WHEREAS, the Company and the Employee are parties to an Employment
Agreement dated October 17, 1994 (the "Agreement") which is attached hereto as
Addendum 1 and is incorporated herein in its entirety by reference, pursuant to
which the Employee has performed certain services to the Company; and
WHEREAS, the Company and the Employee amended the Agreement pursuant
to that certain First Amendment to Employment Agreement dated October 26, 1995
(the "First Amendment") and that certain Second Amendment to Employment
Agreement dated October 25, 1996 (the "Second Amendment"); and
WHEREAS, the Company and the Employee desire to further amend the
Agreement as provided herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises and representations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged herein,
the Company and the Employee agree as follows:
1. Subparagraph 1(a) of the Agreement is hereby amended by deleting the
subparagraph in its entirety and substituting the following in replacement
thereof:
(a) EMPLOYMENT. The Company hereby employs
Employee as its President and Chief Executive Officer. The
Board of Directors may request that the Employee serve in
various capacities for the Company's subsidiaries; however, in
connection with such service, the Employee shall not be
requested to undertake duties and responsibilities that are
substantially different than those assigned to the Employee as
a result of his primary position with the Company or that are
unreasonable (or inconsistent with those given to
similarly-situated employees) considering the skills and
expertise of the Employee and the condition of the Company.
The Employee hereby accepts this employment under the terms
and provisions herein contained and agrees to devote his full
time, attention and efforts to promote and further the
business and services of the Company. The Employee shall
faithfully adhere to, execute and fulfill all policies
(written and unwritten) established by the Company.
2. Section 2(a) of the Agreement is hereby amended by deleting the
subparagraph in its entirety and substituting the following in replacement
thereof:
(a) BASE SALARY. The base salary payable to the Employee
under this Agreement shall be $325,000 per year, payable in
equal bi-weekly installments or
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on any other periodic basis consistent with the Company's
payroll procedures, which amount may be increased from time to
time.
3. Subparagraph 2(b)(iv) of the Agreement is hereby amended by deleting
the subparagraph in its entirety and substituting the following in replacement
thereof:
(iv) The Employee shall be eligible to participate
in the Company's incentive bonus plan, deferred compensation
plan, and supplementary executive retirement plan, as each may
be in effect from time to time.
4. Section 6 of the Agreement is hereby amended by deleting the
subparagraph in its entirety and substituting the following in replacement
thereof:
6. TERM; TERMINATION; COMPENSATION AND OTHER RIGHTS ON
TERMINATION.
The term of this Agreement shall begin on the date of this
Agreement and, unless terminated as herein provided, continue for a
term of five (5) years and thereafter on a year-to-year basis on the
same terms and conditions contained herein.
(a) TERMINATION AS A RESULT OF THE EMPLOYEE'S DEATH.
(1) This Agreement will terminate
automatically on the death of the Employee.
(2) Compensation and Benefits. The Company
shall pay to the Employee's beneficiary an amount
equal to accrued compensation owing to the Employee
on the date of his death (including, without
limitation, salary, pro rata bonus (if any and
subject to the terms and conditions of any applicable
bonus or incentive compensation plans), deferred
compensation and accrued vacation pay), together with
applicable death benefits, if any. In accordance
with the Company's Amended and Restated 1989
Replacement Non-Qualified Stock Option Plan (as the
same may be amended from time to time, the "Option
Plan"), the Employee's beneficiary shall be entitled
to exercise all exercisable stock options held by the
Employee as of the date of death until the earlier of
(i) the one-year period following the date of death
or (ii) the date the option would otherwise expire.
(b) TERMINATION BY THE COMPANY ON ACCOUNT OF DISABILITY.
(1) If, as a result of the Employee's
inability to perform his duties under this Agreement
(with or without reasonable accomodation) because of
illness, physical or mental disability, or other
incapacity which continues for
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an uninterrupted period in excess of three (3) months
or a cumulative period of six (6) months in any
twelve (12) month period, and if, within thirty (30)
days after the Company has given the Employee written
notice of the Company's intention to terminate the
Employee's employment hereunder as a result of such
incapacity, the Employee shall not have returned to
the full-time performance of his duties hereunder,
then the Company may thereafter terminate the
Employee's employment on account of "DISABILITY";
provided, however, such termination shall not by
itself alter or impair the Employee's rights as a
"disabled employee" or otherwise under any of the
Company's employee benefit plans.
(2) Compensation and Benefits. The Company
shall pay to the Employee an amount equal to accrued
compensation owing to the Employee as of the date of
termination (including, without limitation, salary,
pro rata bonus (if any and subject to the terms and
conditions of any applicable bonus or incentive
compensation plans), deferred compensation and
accrued vacation pay). Subject to approval by the
Compensation Committee, the Company shall cause all
stock options held by the Employee to be regranted
under the Company's 1992 Limited Non-Qualified Stock
Option Plan (the "1992 Plan") so that such options
continue to vest and remain exercisable for a period
of twelve months following the date of termination.
Whenever compensation is payable to the Employee
hereunder during a period in which he is partially or
totally disabled, and such Disability would (except
for the provisions hereof) entitle the Employee to
Disability income or salary continuation payments
from the Company according to the terms of any plan
or program presently maintained or hereafter
established by the Company, the Disability income or
salary continuation paid to the Employee pursuant to
any such plan or program shall be considered a
portion of the payment to be made to the Employee
pursuant to this Section 7(b)(2) and shall not be in
addition hereto. If Disability income is payable
directly to the Employee by an insurance company
under the terms of an insurance policy paid for by
the Company, the amounts paid to the Employee by such
insurance company shall be considered a portion of
the payment to be made to the Employee pursuant to
this Section 7(b)(2) and shall not be in addition
hereto.
(c) TERMINATION BY THE COMPANY FOR CAUSE.
(1) The Company may at any time during the
term of this Agreement, in its sole discretion,
terminate the Employee's employment with the Company
for "Cause." For purposes of this Agreement, the
following shall constitute "CAUSE": (1) the Employee
willfully and continually fails to perform
substantially the Employee's duties with the Company
(other than any such
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failure resulting from the Employee's incapacity due
to physical or mental illness), which failure
continues unabated after a written demand for
substantial performance is delivered to the Employee
by the President or the Chairman of the Board that
specifically identifies the manner in which the
President or the Board believes that the Employee has
not substantially performed the Employee's duties;
(2) the Employee willfully engages in gross
misconduct that is materially and demonstrably
injurious to the Company; or (3) the Employee is
convicted of a felony crime by a court of competent
jurisdiction.
For purposes of this Section 6(c), an act or
failure to act on the Employee's part shall be
considered "willful" if done or omitted to be done by
the Employee otherwise than in good faith and without
reasonable belief that the Employee's action or
omission was in the best interest of the Company.
Notwithstanding the foregoing, the Employee shall not
be deemed to have been terminated by the Company for
Cause unless and until the Company shall have
delivered to the Employee a copy of a resolution duly
adopted by the affirmative vote of not less than a
majority of the entire membership of the Board, at a
meeting of the Board called and held for the purpose
(after reasonable notice to the Employee and an
opportunity for the Employee, together with the
Employee's counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board,
the Employee was guilty of conduct set forth in
clauses (a) or (b) of the second sentence of this
Section 7(c) and specifying the particulars thereof
in reasonable detail.
(2) Compensation and Benefits. The Company
shall pay to the Employee an amount equal to accrued
compensation owing to the Employee as of the date of
termination (including, salary and accrued vacation
pay). In accordance with the Company's Option Plan,
the Employee shall be entitled to exercise all
exercisable stock options held by the Employee as of
the date of termination until the expiration of the
three-month period following such date of
termination.
(d) TERMINATION BY THE EMPLOYEE.
(1) At any time after the execution of this
Agreement, the Employee may elect to terminate this
Agreement and the Employee's employment hereunder.
(2) Compensation and Benefits. In the event
the Employee terminates this Agreement for any
reason, the Employee shall be entitled to receive an
amount equal to accrued compensation owing to the
Employee as of the date of termination (including,
without limitation, salary, pro rata
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bonus (if any and subject to the terms and conditions
of any applicable bonus or incentive compensation
plans), deferred compensation and accrued vacation
pay). In accordance with the Company's Option Plan,
the Employee shall be entitled to exercise all
exercisable stock options held by the Employee as of
the date of termination until the expiration of the
three-month period following such date of
termination.
(e) TERMINATION BY THE COMPANY FOR OTHER THAN CAUSE.
(1) At any time after the execution of
this Agreement, the Company may, without Cause, elect
to terminate this Agreement and the Employee's
employment hereunder.
(2) Compensation and Benefits. In the
event the Company elects to terminate this Agreement
pursuant to this Section 7(e), the Employee shall be
entitled to receive his monthly base salary for 24
months (the "Severance Period"), payable in
accordance with the Company's customary payroll
procedures, as severance. In addition, the Company
shall pay to the Employee an amount equal to accrued
compensation owing to the Employee as of the date of
termination (including, without limitation, salary,
pro rata bonus (if any and subject to the terms and
conditions of any applicable bonus or incentive
compensation plans), deferred compensation and
accrued vacation pay). Subject to the approval of
the Compensation Committee, the Company shall cause
all stock options held by the Employee to be
regranted under the Company's 1992 Plan so that such
options continue to vest in accordance with the terms
of the original grants during the Severance Period
and shall remain exercisable until three months
following the earlier of the date of final vesting of
any such option grant or the final date of the
Severance Period. The Company shall also pay to the
Employee an amount equal to (a) the amount of of the
monthly premium payment to continue coverage for the
Employee and the Employee's eligible dependents under
the Company's health insurance plan under COBRA,
multiplied by (b) 24 months. Further, the Employee
shall be credited with an additional 24 months of
service credit under the Company's Supplemental
Executive Retirement Plan.
(f) SURVIVING OBLIGATIONS FOLLOWING TERMINATION.
(1) In the event of termination of this
Agreement for any reason provided in this Section 6
herein or if Employee resigns prior to the expiration
of the term of this Agreement, all rights and
obligations of the Company and the Employee under
this Agreement shall cease immediately, except that
Employee's obligations under Sections 3, 4, 5 and 7
herein shall survive such
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termination, and except as otherwise provided in this
Section 6, the Employee shall thereafter have no
right to receive any compensation hereunder.
5. This Amendment shall be governed by and construed in accordance with
the laws of the State of Texas.
6. The Agreement, as amended by the First Amendment and this Amendment,
supersedes any and all other agreements, either oral or in writing, between
Company and the Employee with respect to the employment of the Employee by the
Company and contains all of the representations, covenants and agreements
between the Company and the Employee with respect to such employment. The
Agreement, as amended, may not be later modified except by a further writing
signed by the Company and the Employee, and no term of this Agreement may be
waived except by writing signed by the party waiving the benefit of such term.
7. Except as modified by this Amendment, all other terms of the Agreement
shall continue in full force and effect without modification.
IN WITNESS WHEREOF, the parties have executed this Third Amendment to
Employment Agreement in duplicate originals, effective as of November 11, 1996.
ALLWASTE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Vice President, General Counsel, Secretary and
Corporate Compliance Officer
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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