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EXHIBIT 10.17
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First 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 Xxxxxxx X. Xxxxxxx
(the "Employee").
WHEREAS, the Company and the Employee are parties to an Employment
Agreement dated February 11, 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 desire to 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. The following recitals are hereby added as a preface to the body of
the Agreement:
The following statements are true and correct:
As of the date of this Agreement, the Company,
through its wholly-owned subsidiaries, is engaged in the
business of providing industrial and environmental services.
The Employee is or will be employed by the Company in
a confidential relationship pursuant to which the Employee, in
the course of his employment with the Company, will have
access to and will become aware of and familiar with certain
business, technical and other confidential information
pertaining to the Company's specific manner of doing business
and its future plans with respect thereto, including, without
limitation, information relating to pricing, customers,
suppliers, methods, techniques, processes, products, services
and know-how of the Company (collectively, the "CONFIDENTIAL
INFORMATION"), which Confidential Information has been or will
be established by and maintained at great expense to the
Company and is proprietary to and constitutes the trade
secrets and valuable goodwill of the Company.
The Employee recognizes that the Company's business
is dependent on such Confidential Information and that
disclosure of any of the Company's Confidential Information by
the Employee would have a detrimental effect on the Company's
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business. The protection of its Confidential Information is
of critical importance to the Company.
The Company will sustain great loss and damage if,
during the term of this Agreement and for a period of two (2)
years immediately following termination of this Agreement for
any reason, the Employee should violate any provision of
Section 3 of this Agreement. The parties acknowledge that
monetary damages for any such loss would be extremely
difficult to measure.
2. 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 Vice President, General Counsel, Secretary and
Corporate Compliance Officer. The Company's President or
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.
3. Section 2 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 $145,000 per year,
payable in equal bi-weekly installments or on any other
periodic basis consistent with the Company's payroll
procedures, which amount may be increased from time to time.
(b) ADDITIONAL COMPENSATION. The Employee is
eligible to receive additional compensation from the Company
as described below:
(i) The Employee shall be eligible to
participate in the Company's incentive bonus plan,
deferred compensation plan and supplemental executive
retirement plan, as each may be in effect from time
to time.
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(ii) Subject to the rules and regulations
applicable thereto and to the extent that his
position, tenure, salary, age, health and other
qualifications make him eligible to so participate,
the Employee shall be entitled to participate in the
Company's employee benefit programs.
(iii) The Employee shall be entitled to
receive stock option grants as and when authorized by
the Compensation Committee of the Company's Board of
Directors.
(iv) The Employee shall be entitled to
receive no less than three (3) weeks of vacation time
per year.
(v) The Employee shall be entitled to
receive such other executive perquisites from the
Company as are customary, including, without
limitation, club membership dues and personal
financial and tax planning and tax preparation
services, together with reimbursement for all
expenses reasonably incurred in the performance of
his duties, subject to submission of appropriate
documentation in accordance with the Company's
expense reimbursement policy 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
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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 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 of the Company's Board of
Directors, 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
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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 6(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
6(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 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 6(c) and specifying the particulars thereof
in reasonable detail.
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(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 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; provided, however, that in the
event that severance benefits are triggered by a
Change in Control under any Executive Severance
Agreement between the Company and the Employee, the
compensation and benefits otherwise payable to the
Employee under this Section 6(e) shall be null and
void.
(2) Compensation and Benefits. In the
event the Company elects to terminate this Agreement
pursuant to this Section 6(e), the Employee shall be
entitled to receive his base monthly salary for 12
months (the "Severance Period"), payable in
accordance with the Company's customary payroll
procedures, as severance. In addition, the Company
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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 Limited Non-Qualified Stock
Option Plan (the "1992 Plan") so that such options
continue to vest 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 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) 12 months. Further,
the Employee shall be credited with an additional 12
months of service credit under the Company's
Supplemental Executive Retirement Plan (the "SERP").
(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 termination, and except as
otherwise provided in this Section 6, the Employee
shall thereafter have no right to receive any
compensation hereunder.
5. The following Section 13 shall be added to the Agreement as follows:
13. ASSIGNMENT; BINDING EFFECT.
The Employee understands that he has been selected
for employment by the Company on the basis of his personal
qualifications, experience and skills. The Employee,
therefore, agrees that he cannot assign his rights and
obligations hereunder or delegate his duties hereunder.
Subject to the preceding two sentences, this Agreement shall
be binding on and inure to the benefit of the parties hereto
and their respective heirs, successors and assigns. It is
further understood and agreed that the Company may be merged
or consolidated with another entity
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and that any such entity shall automatically succeed to the
rights, powers and responsibilities of the Company hereunder.
6. This Amendment shall be governed by and construed in accordance with
the laws of the State of Texas.
7. The Agreement, as amended by 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 hereby,
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.
8. 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 First Amendment to
Employment Agreement in duplicate originals, effective as of November 11, 1996.
ALLWASTE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President and Chief Executive Officer
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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