EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of March 22, 2005,
is entered into between WCA Management Company, L.P. (the "Company"), WCA Waste
Corporation (the "Guarantor") and Xxxxxxx Xxxxxxxxxx (the "Executive"), and is
effective as of January 1, 2005 (the "Effective Date").
RECITALS
A. The Company has previously determined that it is in the best interest
of the Company and its equity holders to retain the Executive and to induce the
continued employment of the Executive for the long term benefit of the Company.
B. The Company desires to continue the employment of the Executive on the
terms set forth below to provide services to the Company and its affiliates, and
the Executive is willing to continue such employment and to continue to provide
such services on the terms set forth in this Agreement.
C. The Guarantor has determined that it is in the best interests of the
Guarantor to facilitate such retention and continued employment of the Executive
by the Company by guaranteeing the Company's obligations under this Agreement.
D. In consideration of the foregoing and the mutual terms, conditions, and
covenants set forth herein, and for other good and valuable consideration, the
parties hereto do hereby agree as set forth herein.
AGREEMENT
1. Term of Employment. The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to remain in the employ of the Company, for a
three-year period commencing on the Effective Date of this Agreement and
continuing until the day before the third anniversary of the Effective Date,
plus any extensions made in accordance with the provisions of this Section 1
(the "Term"). On the first day of each month occurring after the Effective Date,
the initial Term (and any extended Term) shall automatically be extended for an
additional calendar month unless prior to any such first day of the affected
calendar month, the Company or Executive shall have given notice not to extend
the Term. The Company and Executive agree that any such notice by the Company
shall constitute "Good Reason" as defined in Section 2(d) for Executive to
terminate Executive's employment. This Agreement shall terminate on the earlier
of (a) the last day of the Term or (b) such earlier date as this Agreement is
terminated pursuant to Section 2. Nothing in this Section 1 shall limit the
right of the Company or Executive to terminate Executive's employment hereunder
subject to the terms and conditions of Sections 7, 10 and 11 and other
applicable provisions of this Agreement.
2. Termination of Employment. Executive's employment with the Company
shall terminate upon the earliest of:
(a) the death of the Executive;
(b) at any time after Executive has been receiving full or partial salary
payments under the Company's disability plans for a period of 18 consecutive
months by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 consecutive months, either the Company or
Executive sending the other party written notice that Executive is "permanently
disabled" as defined above in this Section 2(b); provided, however, that during
any period prior to such termination of this Agreement in which Executive is
receiving full or partial salary payments under the Company's disability
insurance policies, the obligation of the Company to pay Executive salary
pursuant to Section 4 shall cease;
(c) the Company's sending Executive written notice that Executive's
employment is terminated for "cause" which term shall mean (i) the willful
material breach by Executive of this Agreement, (other than any breach resulting
from Executive's incapacity due to physical or mental illness), which breach
continues for thirty (30) days after actual receipt of written notice from the
Company and which results in, or is reasonably likely to result in, demonstrable
material damage to the Company, (ii) Executive's conviction of or plea of guilty
to a felony or Executive's conviction of a crime involving moral turpitude,
(iii) Executive's engagement in the fraud of the Company or the misappropriation
or embezzlement of funds from the Company, (iv) or Executive's reckless
disregard or willful misconduct which misconduct, if ongoing, (as distinguished
from an isolated incident), continues for thirty (30) days after actual receipt
of written notice from the Company and which results in, or is reasonably likely
to result in, demonstrable and material damage to the Company;
(d) the Executive's sending the Company written notice that Executive's
employment is terminated for "Good Reason" which term shall mean the occurrence
(without the Executive's express written consent) of any one of the following
acts by the Company, or failures by the Company to act, unless, in the case of
any act or failure to act described below, such act or failure to act is
corrected within thirty (30) days after actual receipt of written notice from
Executive: (i) the Company's breach of a material term or condition of the
Agreement; (ii) except for any changes required by applicable law, the failure
by the Company to continue in effect any compensation plan in which the
Executive participates immediately prior to the date hereof which is material to
the Executive's total compensation, including but not limited to the Company's
annual incentive plan, long-term incentive plan, supplemental executive
retirement plan and equity incentive plan, as applicable, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to such plan; (iii) the Company's asking or requiring the
Executive to take (or not to take) any action which the Executive in good faith
reasonably believes could be materially misleading to the Company's employees,
investors, accountants or attorneys and/or any regulatory authority; or (iv)
notice by the Company to the Executive under Section 1 that the Term will not be
extended; provided, however, that the Executive's right to terminate the
Executive's employment for Good Reason shall not be affected by the Executive's
incapacity due to physical or mental illness.
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Notwithstanding any other provision of this Section 2(d) to the contrary, within
ninety (90) days (or such other period as the parties may agree to in writing)
following any date on which an act by the Company or failure to act by the
Company gives rise to the right of Executive to terminate employment by the
Company for Good Reason, Executive shall provide the Company written notice that
Executive's employment is terminated, and any failure to comply with the
requirements of this sentence shall be conclusively deemed to be a waiver by
Executive of the right to terminate his employment hereunder for Good Reason
that is based on that act or failure to act by the Company.
3. Position and Duties.
(a) The Executive's positions shall be those of Senior Vice President and
Chief Financial Officer, and in such capacity Executive shall perform the
customary duties and responsibilities of the positions, and such other services
and duties as shall be assigned to him by the executive management of the
Company in accordance with Company policy. Subject to the Company's actual
receipt of prior written consent of Executive, these positions, duties, and
responsibilities can be modified as required to suit the specific requirements
and needs of the Company, provided that any such modification shall result in
substantially similar, comparable or higher positions, duties and
responsibilities. Similarly, subject to the Company's actual receipt of prior
written consent of Executive, the Company may assign Executive part time or full
time to a subsidiary in which case the subsidiary shall be jointly and severally
responsible as, and shall be treated as, the Company under this Agreement for
the period of time the Executive performs services for the subsidiary.
Executive's place of employment will be located within the greater Houston,
Texas metropolitan area, but Executive will undertake appropriate business
travel as required by the Company.
(b) Executive agrees to conduct all business in accordance with the
Company's general policies/directives as they may exist at any given time.
Executive shall comply materially with all applicable laws and regulations of
the countries in which the Company and its affiliates operate.
(c) Executive agrees to devote his full time, attention, and efforts
during regular business hours, and at all such other times as may be requested
by the Company, consistent with industry practices, to the business affairs of
the Company during the Term of this Agreement and to perform his duties
faithfully and diligently to discharge the responsibilities assigned to the
Executive hereunder. The foregoing notwithstanding, the parties recognize and
agree that Executive may engage in passive personal investments and other
business, civic or charitable activities that do not conflict with the business
and affairs of the Company or interfere with Executive's performance of his
duties hereunder.
4. Salary. Except if Executive's employment is terminated pursuant to
Section 2(a), (b), (c) or (d) (in which case Section 7(a) applies) and except as
otherwise provided in Section 2(b), during the Term, the Company shall pay
Executive a base salary of $268,315 per year, payable bi-monthly ("Base
Salary"). The Base Salary will be increased each year on the anniversary
(beginning January 1, 2006) of the Employment Agreement by not less than the
increase during the immediately preceding year in the Consumer Price Index for
the Houston Standard Metropolitan Statistical Area.
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5. Annual/Long-Term Incentives. During the Term, Executive shall
participate in the Guarantor's annual incentive plan (i.e., the Management
Incentive Plan or any successor thereto) and shall have the opportunity to earn
an annual bonus for the applicable measurement period of up to eighty percent
(80%) of Executive's Base Salary based on performance measures and annual
incentive plan goals as shall be established by the Compensation Committee
pursuant to the terms of such plan. In addition, during the Term, Executive
shall participate, on comparable terms, in the Guarantor's long term incentive
plan (i.e., the Performance Unit Plan or any successor thereto) in which
similarly situated executives of the Company participate. Also, during the Term,
as soon as practicable following the Effective Date and the first day of each of
2006 and 2007, Executive shall receive grants of restricted stock under the 2004
WCA Waste Corporation Incentive Plan (or any successor thereto) in an amount
equal to the result obtained by dividing one hundred percent (100%) of
Executive's Base Salary for the relevant year by the fair market value of one
share of common stock of the Guarantor on the date of grant of the restricted
stock; provided, however, the parties expressly agree that for this purpose, the
fair market value of such share shall never be less than nine dollars and fifty
cents ($9.50) a share.
6. Benefits. Except if Executive's employment is terminated pursuant to
Section 2(a), (b), (c) or (d) (in which case Section 7(a) applies), during the
Term, Executive and, to the extent applicable, Executive's family, dependents
and beneficiaries, may participate in the benefit or similar plans, policies or
programs (including, without limitation, the Company's business and
entertainment expense reimbursement policies, car allowance policies, 401(k)
plans, disability plans, pension plans, health insurance plans and director and
officer liability insurance policies) provided to similarly-situated Executives
under the Company's standard employment practices as in effect from time to
time. Nothing herein shall be construed to require the Company to continue or
put into effect any plan, practice, policy, or program or any element thereof.
In addition, during the Term, Executive shall be entitled to three (3) weeks of
paid vacation days annually pursuant to applicable policies and procedures of
the Company as in effect from time to time.
7. Effects of Termination of Employment.
(a) Subject to the provisions of this Section 7, upon termination of
Executive's employment with the Company for any reason whatsoever, the Company
shall pay to Executive (or in case of Executive's death, to his estate), within
thirty (30) days of the effective date of such termination, all salary and
expense reimbursements due to Executive through the date of such termination,
and Executive shall be entitled to such benefits as are available pursuant to
the terms of any benefit or similar plans, policies or programs in which
Executive was participating at the time of such termination pursuant to Section
6 of this Agreement. In addition, upon termination of Executive's employment
with the Company for death or permanent disability, in lieu of any further
salary or bonus payments as severance to Executive for periods subsequent to
such termination and in lieu of any other severance otherwise payable to
Executive, the Company will pay to Executive (or to his estate, as applicable),
within thirty (30) days of such termination, a lump sum severance payment, in
cash equal to the Executive's Base Salary for the Remaining Term of the
Agreement as in effect immediately prior to such termination of Executive's
employment. Also, if the Company terminates the Executive's employment for any
reason other than those set forth in Sections 2(a), (b) or (c), or if Executive
terminates Executive's Employment under Section 2(d), the Company shall continue
throughout the full
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Term of this Agreement to pay Executive's salary pursuant to Section 4, to
continue coverage in any annual and long-term incentive plans pursuant to
Section 5 and to provide Executive's benefits pursuant to Section 6 (and, if the
Company pays Executive's salary and provides Executive's benefits for the full
Term of this Agreement, Executive shall be subject to the covenants contained in
Section 9 through the full term of this Agreement).
(b) Notwithstanding any termination of this Agreement or Executive's
employment hereunder, this Section 7 and Sections 10 and 11 of this Agreement,
and the rights and obligations created therein, shall survive without
limitation.
(c) Notwithstanding any provision of this Agreement, it is the intention
of the parties hereto that there shall be no duplication of benefits if the
circumstances of Executive's termination of employment would otherwise entitle
Executive to payments and benefits under this Section 7 and under Section 10.
Accordingly, in the event of such a termination, if a particular type of benefit
is payable under both Section 7 and Section 10, the Company shall in good faith
compare the two benefits and Executive shall be paid the greater of the two
benefits. Such payment shall be accepted by Executive in lieu of the lesser
benefit otherwise provided under this Agreement.
8. Tax Withholding. All payments to Executive under this Agreement shall
be subject to withholding or deduction of such amounts as may be required by
law.
9. Noncompetition and Confidentiality.
(a) The parties recognize that the employment of Executive with the
Company has been and will continue to be special, unique and of an extraordinary
character, and in connection with such employment Executive has and will
continue to acquire special skill and training. The parties also recognize that
the covenants of Executive contained in this Section 9 are an essential part of
Executive's engagement by the Company and that, but for the agreement of the
Executive to comply with such covenants, the Company would not have entered into
this Agreement. Executive accordingly agrees that, during the Term, (i)
Executive shall not act or serve, directly or indirectly, as a principal, agent,
independent contractor, consultant, director, officer, executive, employee or
advisor or in any other position or capacity with or for, or acquire a direct or
indirect ownership interest in or otherwise conduct (whether as stockholder,
partner, investor, joint venturer, or as owner of any other type of interest),
any Competing Business (defined below); provided, however, that this clause
shall not prohibit the Executive from being the owner of (A) up to 5% of any
class of outstanding securities of any entity if such class of securities is
publicly traded or (B) any other securities owned by Executive on the date of
this Agreement, and (ii) Executive shall not, in connection with or for the
benefit of any person or entity engaged in the non-hazardous solid waste
business, solicit, induce, divert or take away, any officer, employee or
consultant of the Company.
(b) From the date hereof, Executive shall hold in secrecy for the Company
all trade secrets and other confidential information relating to the business
and affairs of the Company that have come or may have come to his attention
during his employment with the Company, including information concerning costs,
profits, markets, sales, business development plans, lists of clients or
customers, lists of acquisition targets and other information about such
acquisition
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targets and other information of a similar nature (such categories of
information being referred to herein as "Confidential Information"). Executive
shall not use for his own benefit or disclose to any person any Confidential
Information other than in the ordinary course of the Company's business or in
response to a court order, unless such use or disclosure has the prior written
authorization of the Company. Executive shall deliver to the Company, upon
request, all correspondence, memoranda, notes, records, plans, customer lists,
product compositions and other documents and all copies thereof, whether in hard
copy form or electronically or magnetically stored, made, composed, or received
by the Executive, solely or jointly with others, that are in the Executive's
possession, custody or control and that are related in any manner to the past,
present or anticipated business of the Company.
(c) For the purposes of this Section 9, "Competing Business" shall mean an
individual, business, corporation, association, firm, undertaking, partnership,
joint venture, organization or other entity that operates non-hazardous solid
waste landfills, non-hazardous solid waste collection businesses or similar
facilities or businesses within a 50-mile radius of any of the landfills or
similar facilities of the Company, Guarantor or any affiliate thereof.
(d) Should any portion of this Section 9 be deemed unenforceable because
of the scope, duration or territory encompassed by the undertakings of the
Executive hereunder, and only in such event, then the Executive and the Company
consent and agree to such limitation on scope, duration or territory as may be
finally adjudicated as enforceable by a court of competent jurisdiction after
the exhaustion of all appeals.
(e) The covenants in this Section 9 shall be construed as an agreement
ancillary to the other provisions of this Agreement, and the existence of any
claim or cause of action of the Executive against the Company, whether
predicated on this Agreement or otherwise, other than a claim or cause of action
based on the Company's failure to pay Executive amounts payable to Executive
hereunder, shall not constitute a defense to the enforcement by the Company of
this covenant.
(f) It is expressly recognized and agreed that the covenants set forth in
this Section 9 are for the purpose of restricting the activities of the
Executive only to the extent necessary for the protection of the legitimate
business interests of the Company, and the Company and the Executive agree that
said covenants are reasonable for that purpose and that such covenants do not
and will not preclude Executive from engaging in activities sufficient for the
purpose of earning a living.
10. Additional Consideration.
(a) Change in Control. In the event of the occurrence of a "Change in
Control" (defined below), and, within twenty-four (24) months following such
Change in Control, Executive's employment shall be involuntarily terminated for
any reason other than for cause or Executive shall (i) suffer a significant
reduction in reporting level (as determined by Executive in good faith), (ii)
suffer a reduction in Base Salary and annual incentive compensation at target by
ten percent (10%) or more or (iii) be required to relocate from the regular
assigned work place by more than fifty (50) miles from Executive's regular
assigned work place, the Company shall pay to Executive, within thirty (30) days
after the event following such Change in Control that gives
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rise to the payment due hereunder, a lump sum payment, in cash, equal to three
(3) times the sum of (i) Executive's annual Base Salary as in effect immediately
prior to the Change in Control and (ii) Executive's Average Annual Bonus
(defined below). "Change in Control" shall mean the occurrence during the Term
of this Agreement, of an one of the following events:
(i) An acquisition of any common stock ("Common Stock"), par value
$.01 per share, of the Guarantor or other securities entitled to vote, or
convertible into or exercisable for securities entitled to vote, in the
election of directors (such Common Stock and other securities hereinafter
being referred to as the "Voting Securities") of the Guarantor by any
Person (as specified in Section 3(a)(9) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and used in Sections 13(d) and
14(d) thereof), including for purposes of this Section the Guarantor or
its Affiliates, immediately after which such Person has Beneficial
Ownership (as defined below) of fifty percent (50%) or more of the
combined voting power of the Guarantor's then outstanding Voting
Securities; provided, however, a Change in Control shall not be deemed to
have occurred by reason of an acquisition of fifty percent (50%) or more
of the Guarantor's Voting Securities by an employee benefit plan
maintained by the Guarantor or any of its Affiliates or by a Person in a
Non-Control Transaction (as defined below); or
(ii) The individuals who, as of the date of this Agreement are
members of the Board of Directors of the Guarantor (the "Incumbent
Board"), cease for any reason to constitute at least two/thirds (2/3) of
the members of the Board of Directors of the Guarantor; provided, however,
that an individual will be treated as a member of the Incumbent Board if
the members of the Board of Directors of the Guarantor prior to such
individual's nomination unanimously approve such individual's nomination
and election to the Board of Directors of the Guarantor and provided
further that no individual shall be considered a member of the Incumbent
Board if such individual initially assumed office as a result of either an
actual or threatened proxy contest or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the Board of Directors of the Guarantor (a "Proxy Contest"), including by
reason of any agreement intended to avoid or settle any Proxy Contest; or
(iii) The consummation of:
(A) A merger, consolidation or reorganization with or into
the Guarantor or in which securities of the Guarantor
are issued (a "Merger"), unless such Merger,
consolidation or reorganization occurs in connection
with a Non-Control Transaction;
(B) A complete liquidation or dissolution of the
Guarantor; or
(C) The sale or other disposition of all or substantially
all of the assets of the Guarantor to any Person (other
than a transfer to an employee benefit plan or Affiliate
of the Guarantor or under conditions that would
constitute a Non-Control Transaction with the
disposition of assets being regarded as a Merger for
this purpose).
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As used in the above definition of Change in Control, the following terms
have the following meanings:
(i) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
(ii) "Beneficial Ownership," "Beneficially Owned" and the like means
having, with respect to a security or group of securities, the power to
control or direct the voting or disposition of Voting Securities, as
determined by Rule 13d-3 under the Exchange Act.
(iii) "Non-Control Transaction" means a Merger whereby (A) the
individuals who were the president, chief executive officer and the chief
financial officer of the Guarantor hold such respective positions with,
and individuals who were members of the Incumbent Board immediately prior
to the execution of the agreement providing for the Merger, constitute at
least a majority of the members of the board of directors of, the
surviving corporation and (B) either (1) fifty percent (50%) or more of
the combined voting power of the then outstanding voting securities of the
surviving corporation is Beneficially Owned directly by the Beneficial
Owners of the Guarantor's Voting Securities prior to the Merger or (2) the
president, chief executive officer and/or chief financial officer of the
Company, as a result of such Merger, acquire (or their Affiliates acquire)
fifty percent (50%) or more of the combined voting power of the then
outstanding voting securities of the surviving corporation.
This definition of Change in Control is intended to comply with the
definition of change in control under Section 409A of the Internal Revenue
Code of 1986, as amended (the "Code"), as in effect from time to time and,
to the extent that the above definition does not so comply, such
definition shall be void and of no effect and, to the extent required to
ensure that this definition complies with the requirements of Section 409A
of the Code, the definition of such term set forth in regulations or other
regulatory guidance issued under Section 409A of the Code by the
appropriate governmental authority is hereby incorporated by reference
into and shall form part of this Agreement as fully as if set forth herein
verbatim and the Agreement shall be operated in accordance with the
definition prescribed in such regulations or other regulatory guidance.
"Average Annual Bonus" shall mean the average annual bonus earned by
the Executive pursuant to any annual bonus plan maintained by the Company
in which the Executive participated in respect of any of the three (3)
consecutive calendar years ending immediately prior to the calendar year
in which occurs the last event that gives Executive the right to payments
under this Section 10(a); provided, however, that if only one bonus is
earned by the Executive in the applicable three-year period, such bonus
shall be deemed to be the Average Annual Bonus.
(b) Gross-Up Payment. If any payment or distribution by the Company or any
of its affiliates or any acceleration of such payment or vesting of the stock
options or long-term incentives, with respect to or for the benefit of
Executive, whether paid or payable or distributed or distributable under this
Agreement or under any other agreement, policy, plan, program or arrangement, or
the lapse or termination of any restriction under any agreement, policy, plan,
program or arrangement (a "Payment"), would be subject to the excise tax imposed
by Section
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4999 of the Code by reason of being considered contingent on a change in
ownership or control of the Company, with the meaning of Section 280G of the
Code, or to any similar tax imposed by state or local law, or any interest or
penalties with respect to such tax (such tax or taxes, together with any
interest or penalties being hereafter collectively referred to as the "Excise
Tax"), then Executive shall be entitled to receive an additional payment or
payments (collectively, a "Gross-Up Payment"). The Gross-Up Payment will be in
an amount such that, after payment by Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any income
tax or Excise Tax imposed on the Gross-Up Payment, Executive retains an amount
equal to the Payment before any Excise Tax is imposed. Any Gross-Up Payment
shall be due and payable to the Executive thirty (30) days prior to the due date
of any Excise Tax.
(i) Scale-Back Agreement. Notwithstanding the foregoing, if no
Excise Tax would apply if the aggregate Payments were reduced by three
percent (3%), then the aggregate Payments shall be reduced by the amount
necessary to avoid application of the Excise Tax, in such manner as the
Executive shall direct, and no Gross-Up Payment will be made.
(ii) Determination of Parachute Payments or Gross-Up. Any
determination of the amount of Payments or Gross-Up required to be made
under this Agreement shall be made in writing by a certified public
accountant of the Executive's choosing, whose determination shall be
conclusive and binding upon the Executive and the Company for all
purposes. For this purpose, the accountant may make reasonable assumptions
and approximations concerning applicable taxes and may rely on reasonable,
good faith interpretations concerning the application of Sections 280G and
4999 of the Code. The Company and Executive shall promptly furnish to the
accountant such information and documents as the accountant may reasonably
request in order to make a determination hereunder. The Company shall bear
the fees of the accountant and all costs the accountant may reasonably
incur in connection with any calculations contemplated hereunder. The
accountant shall be required to provide a detailed determination to the
Company and the Executive within thirty (30) days after the date of
receipt of all relevant information.
(iii) Challenge by the IRS. If federal, state and local income or
other tax returns filed by Executive are consistent with the determination
of the accountant under paragraph 4 above, and the Internal Revenue
Service or any other taxing authority asserts a claim or notice of
deficiency (referred to in this Section as a "claim") against the
Executive that, if successful, would require the payment by the Executive
of an Excise Tax, the Company shall be obligated to make the Gross-Up
Payment set forth above, provided that the Executive (i) notifies the
Company within ten (10) business days of the claim; (ii) does not pay such
claim prior to the earlier of (1) the expiration of the thirty (30)
calendar-day period following the date on which he gives such notice to
the Company and (2) the date that any payment of amount with respect to
such claim is due. If the Company notifies Executive in writing prior to
the expiration of such period that it desires to contest such claim,
Executive will:
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(A) Provide the Company with any written records or
documents in his or other possession relating to such
claim reasonably requested by the Company;
(B) Take such action in connection with contesting such
claim as the Company shall reasonably request in writing
from time to time, including, without limitation,
accepting legal representation with respect to such
claim by an attorney competent in respect of the subject
matter and reasonably selected by the Company;
(C) Cooperate with the Company in good faith in order to
effectively contest such claim, which may include the
payment of an amount advanced by the Company and
assertion of claim for refund; and
(D) Permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company will bear and pay directly all costs
and expenses (including interest and penalties) incurred in connection
with such contest and will indemnify and hold harmless Executive, on an
after-tax basis, for and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result of such
contest and any such payments. If the Company directs Executive to pay the
tax claimed, or otherwise fails to contest the claim as described above,
the Company will immediately pay to Executive the amount of the deficiency
payment claimed by the IRS to be due, including, but not limited to, any
interest, penalty or Excise Tax due on such deficiency (such payments to
be collectively referred to as the "Deficiency Payment") and shall also
pay to the Executive a Gross-Up Payment in an amount necessary to pay the
income tax liability of the Executive on the Deficiency Payment and the
Gross-Up Payment.
(iv) Dispute Resolution. The Company and Executive agree that any
dispute regarding the interpretation or enforcement of this Agreement
shall be decided by confidential, final and binding arbitration rather
than by litigation in court, trial by jury or other forum. Executive and
Company agree that in any dispute resolution proceedings arising out of
this Agreement, the Company shall be responsible for all reasonable
attorney's fees and costs incurred by Executive, not to exceed $50,000 in
connection with the resolution of the dispute in addition to any other
relief granted.
11. No Mitigation; Limited Offset. The Company agrees that, if Executive's
employment with the Company terminates during the Term, Executive is not
required to seek other employment or to attempt in any way to reduce any amounts
payable to Executive by the Company pursuant to this Agreement. Further, the
amount of any payment or benefit provided for in this Agreement shall not be
reduced by any compensation earned by the Executive as the result of employment
by another employer, by retirement benefits, by offset against any amount
claimed to be owed by the Executive to the Company (unless such amount is
evidenced by a promissory note signed by the Executive), or otherwise.
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12. Remedies. With respect to each and every breach or violation or
threatened breach or violation by Employee of Section 9, the Company, in
addition to all other remedies available at law or in equity, including specific
performance of the provisions thereof, shall be entitled to enjoin the
commencement or continuance thereof and may, with notice to Employee, but
without the necessity of posting a bond or otherwise, apply to any court of
competent jurisdiction for entry of an immediate restraining order or
injunction. The Company may pursue any of the remedies described in this Section
12 concurrently or consecutively in any order as to any such breach or
violation, and the pursuit of one of such remedies at any time will not be
deemed an election of remedies or waiver of the right to pursue any of the other
of such remedies.
13. Severability. The provisions of this Agreement are severable, and any
judicial determination that one or more of such provisions, or any portion
thereof, is invalid or unenforceable shall not affect the validity or
enforceability of any other provisions, or portion thereof, but rather shall
cause this Agreement to first be construed in all respects as if such invalid or
unenforceable provisions, or portions thereof, were modified to terms which are
valid and enforceable; provided, however, that if necessary to render this
Agreement enforceable, it shall be construed as if such invalid or unenforceable
provisions, or portions thereof, were omitted.
14. Successors. This Agreement is personal to the Executive and shall not
be assignable by the Executive without the prior written consent of the Company.
This Agreement shall inure to the benefit of and be binding upon the Company and
its successors and assigns.
15. Governing Law. The validity, interpretation and performance of this
Agreement and all rights and obligations of the parties hereunder shall be
governed by and construed under the laws of the State of Texas.
16. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed, if to
Executive, to the address inserted below the Executive's signature on the final
page hereof and, if to the Company, to the address set forth below, or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon actual receipt:
To the Company:
WCA Management Company, L.P.
Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxx Xxxxx, Xx.
17. Amendment. This Agreement may not be amended or modified other than by
a written agreement executed by the parties hereto or their respective
successors, assigns or legal representatives.
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18. Miscellaneous. No waiver by either party hereto at any time of any
breach by the other party hereto of, or of any lack of compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. This Agreement supersedes any other
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof which have been made by either party,
including, without limitation, any employment memorandum, memorandum of
understanding, or severance arrangements. Captions and Section headings in this
Agreement are provided merely for convenience and shall not affect the
interpretation of any of the provisions herein.
19. Guarantee By WCA Waste Corporation. The Guarantor hereby guarantees
all of the obligations of the Company under this Agreement.
The parties have executed this Employment Agreement as of the date first
set forth above.
WCA MANAGEMENT COMPANY, L.P.
BY: WCA MANAGEMENT GENERAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
----------------------
Title: President
-----------------------------
Its: General Partner
WCA WASTE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
---------------------------
Title: President
----------------------------------
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxxxx
---------------------------
Title: SVP & CFO
----------------------------------
Home Address:
----------------------------
----------------------------
----------------------------
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