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Exhibit 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
June , 1995, by and between USA WASTE SERVICES, INC., an Oklahoma corporation
(the "Company"), and XXXXXXXXX X. XXXXXX ("Employee").
R E C I T A L S:
The Company recognizes that the efforts of its officers and key
management employees have contributed and will continue to contribute to the
growth and success of the Company.
The Company believes that, in the Company's best interest, it is
essential that its officers and key management employees, including the
Employee, be retained and that the Company be in a position to rely on their
ongoing dedication and commitment to render services to the Company.
The Company wishes to take steps to assure that the Company will
continue to have the Employee's services available to the Company by entering
into an agreement with the Employee concerning his employment by the Company.
In consideration of the foregoing, the mutual provisions contained
herein, and for other good and valuable consideration, the parties agree with
each other as follows:
1. EMPLOYMENT
A. The Company hereby employs the Employee and the Employee
hereby accepts employment as the Company's Executive Vice President for
Landfill Development on the terms and conditions hereinafter set forth. The
Employee shall perform such duties, and have such powers, authority, functions
and responsibilities for the Company and corporations affiliated with the
Company as are commensurate with such position, and have such additional
duties, powers, authority, functions and responsibilities as may be assigned to
him by the Company's Chief Executive Officer and the Board of Directors (and
not a committee thereof) which are not (except with the Employee's consent)
inconsistent with or which interfere with or detract from those commensurate
with such position.
B. The Employee shall not, during the term of his employment
under this Agreement, be engaged in any other activities if such activities
interfere materially with the Employee's duties, authority and responsibilities
for the Company, except for those other activities as shall hereafter be
carried on with the Company's consent. Notwithstanding the foregoing, the
Employee shall be entitled to carry on the activities of making and managing
his personal investments provided such investments or other activities do not
violate in any material respect the terms of Sections 6, 7 or 8 hereof.
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2. TERM
A. Subject only to the provision of either Section 3(D) or
Section 4 hereof, the term of the Employee's employment under this Agreement
shall be for a continually renewing term of five (5) years without any further
action by either the Company or the Employee, it being the intention of the
parties that there shall be continuously a term of five (5) years duration of
the Employee's Employment under this Agreement until an event has occurred as
described in, or one of the parties shall have made an election pursuant to,
the provisions of either Section 3(D) or Section 4 of this Agreement; provided,
however, that if no such event has occurred or election has been made, such
term shall terminate on the date the Employee becomes age 65.
3. COMPENSATION
For all services rendered by the Employee while on active status under
this Agreement, the Company agrees to compensate the Employee for each
compensation year (January 1 through December 31) during the term hereof, as
follows:
A. Base Salary. A base salary shall be payable to the Employee
by the Company as a guaranteed annual amount under this Agreement equal
initially to $275,000.00 for each compensation year (as the same may be
adjusted as provided herein, the "Base Salary"), which shall be payable in the
intervals consistent with the Company's normal payroll schedules (but in no
event less than semi-monthly). The Base Salary shall be subject to being
increased (but not decreased or adjusted other than as provided in Section 4 of
this Agreement) in the sole discretion of the Compensation Committee of the
Board of Directors of the Company (hereinafter referred to as the "Compensation
Committee") but only in such form and to such extent as the Compensation
Committee may from time to time approve. The official action of the
Compensation Committee increasing the Base Salary payable to the Employee shall
modify the amount of Base Salary stated in this Section 3(A).
B. Other Compensation. The Employee shall be entitled to
participate in any incentive or supplemental compensation plan or arrangement
instituted by the Company and covering its principal executive officers and to
receive additional compensation from the Company in such form and to such
extent, if any, as the Compensation Committee may in its sole discretion from
time to time specify and determine with respect to the Company's principal
executive officers generally; provided, however, in the event the Employee
shall go on part-time status for any reason, the Employee shall nevertheless be
entitled to be paid pro rata incentive or supplemental compensation for the
fiscal year ending in the compensation year in which the Employee goes on
part-time status, for the number of calendar months during such fiscal year
that Employee shall have been on active status, at the same time, on the same
basis and to the same extent as any of the Company's principal executive
officers on active status are selected by the Compensation Committee to receive
any incentive or supplemental compensation award for such fiscal year. The
phrase "principal executive officer" as used in this Agreement shall mean the
chief executive officer of the Company and other senior corporate officers of
the Company
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who are from time to time designated as principal executive officers by the
Compensation Committee.
C. Tax Indemnity. Should any of the payments of Base Salary,
other incentive or supplemental compensation, benefits, allowances, awards,
payments, reimbursements or other perquisites (including the payments provided
for under this Section 3(C)), singly, in any combination or in the aggregate,
that are provided for hereunder to be paid to or for the benefit of the
Employee (including, without limitation, the payment provided for in Section
3(D) hereof) or under any other plan, agreement or arrangement between the
Employee and the Company, be determined or alleged to be subject to an excise
or similar purpose tax pursuant to Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), or any successor or other comparable federal,
state or local tax laws, the Company shall pay to the Employee such additional
compensation as is necessary (after taking into account all federal, state and
local income taxes payable by the Employee as a result of the receipt of such
additional compensation) to place the Employee in the same after tax position
(including federal, state and local taxes) he would have been in had no such
excise or similar purpose tax (or any interest or penalties thereon) been paid
or incurred. The Company hereby agrees to pay such additional compensation
within five (5) business days after the Employee notifies the Company that the
Employee intends to file a tax return which takes the position that such excise
or similar purpose tax is due and payable in reliance on a written opinion of
the Employee's tax counsel (such tax counsel to be chosen solely by the
Employee) that it is more likely than not that such excise tax is due and
payable. The costs of obtaining such tax counsel's opinion shall be borne by
the Company, and as long as such tax counsel was chosen by the Employee in good
faith, the conclusions reached in such opinion shall not be challenged or
disputed by the Company. If the Employee intends to make any payment with
respect to any such excise or similar purpose tax as a result of an adjustment
to the Employee's tax liability by any federal, state or local tax authority,
the Company will pay such additional compensation by delivering its cashier's
check payable in such amount to the Employee within five (5) business days
after the Employee notifies the Company of his intention to make such payment.
Without limiting the obligation of the Company hereunder, the Employee agrees,
in the event the Employee makes any payment pursuant to the preceding sentence,
to negotiate with the Company in good faith with respect to procedures
reasonably requested by the Company which would afford the Company the ability
to contest the imposition of such excise tax; provided, however, that the
Employee will not be required to afford the Company any right to contest the
applicability of any such excise tax to the extent that the Employee reasonably
determines (based upon the opinion of his tax counsel) that such contest is
inconsistent with the overall tax interests of the Employee.
D. (i) Change of Control - Operation of Section 3(D).
(a) This Section 3(D) shall be effective, but not
operative, immediately upon execution of this Agreement by
the parties hereto and shall remain in effect so long as the
Employee remains employed by the Company on active status and
for twelve (12) months after the Employee goes on part- time
status, but shall not be operative unless and until there has
been a Change in Control, as defined in
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subsection (i)(b) hereof. Upon such a Change in Control,
this Section 3(D) shall become operative immediately.
(b) "Change in Control" shall mean a change in
control of the Company that shall be deemed to have occurred
if and when, with or without the approval of the Board of
Directors of the Company incumbent prior to the occurrence,
(1) more than 25% of the Company's
outstanding securities entitled to vote in elections
of directors shall be acquired by any person (as such
term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) other
than by any person which includes the Employee; or
(2) as the result of a tender offer,
merger, consolidation, sale of assets or contested
election, or any combination of such transactions,
the persons who were directors immediately before the
transaction shall cease to constitute a majority of
the Board of Directors of the Company or of any
successor to the Company;
provided, however, that a business combination involving the
Company and another solid waste management company, which is
approved by a 75% majority of the Board of Directors of the
Company incumbent prior to the occurrence of such business
combination, notwithstanding that a principal shareholder or
shareholders of such other solid waste management company
acquires more than 25% of the Company's outstanding
securities entitled to vote in the election of directors in
connection with such business combination, shall not be
deemed to be a "Change in Control."
(ii) Employee's Rights Upon Change of Control. If, while
the Employee is employed on active status by the Company, or if within
twelve (12) months after the Employee has been placed on part-time
status pursuant to either Section 4(C)(i) or (ii) or Section 4(G), a
Change in Control (as defined in subsection (b) of Section 3(D)(i))
occurs and one or more of the following events occurs:
(a) The assignment to the Employee of duties,
responsibilities, or status inconsistent with his duties,
responsibilities, and status prior to the Change in Control
or a reduction or alteration in the nature or status of the
Employee's duties and responsibilities from those in effect
prior to the Change in Control;
(b) A reduction by the Company in the Employee's
Base Salary (as in effect prior to the Change in Control);
(c) The failure by the Company to continue in
effect the Company's insurance, disability, stock option
plan, or any other employee benefit plans,
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policies, practices, or arrangements in which the Employee
participates, or the failure of the Company to continue the
Employee's participation therein on substantially the same
basis, both in terms of the amount of benefits provided and
the level of the Employee's participation relative to other
participants, as existed prior to the Change in Control;
(d) The failure of the Company to obtain a
satisfactory agreement from the successor to the Company to
assume and agree to perform this Agreement;
(e) Any purported termination by the Company of
the Employee's employment other than pursuant to Section
4(A)(i) or 4(A)(ii),
the Employee may, in his sole discretion, within three (3) months after the
date of the Change of Control, give notice to the Secretary of the Company that
he intends to elect to exercise his rights under this Section 3(D) (the "Notice
of Intention"). The right to give such Notice of Intention to elect to receive
the payment provided for in subsection (iii) of this Section 3(D) shall
continue for three (3) months from the date of the Change of Control
irrespective of any action by the Company pursuant to Section 4(A)(iii) or
Section 4(G) within such three (3) month period. Within thirty (30) days after
the Company's receipt of the Notice of Intention, the Company shall provide
written notice to the Employee setting forth the Company's computation of the
amount that would be payable pursuant to subsection (iii) of this Section 3(D),
accompanied by the written opinion of the Company's independent certified
public accountants confirming the Company's computation. If the Employee takes
exception to the Company's computation of such amount, the Employee may (but
shall not be prejudiced in his right to later contest the amount actually paid
by failure to do so) give a further written notice to the Company setting forth
in reasonable detail the Employee's exceptions to the Company's computation,
accompanied by the written opinion of the Employee's tax advisor confirming the
basis for such exceptions. Exercise by the Employee of his rights pursuant to
this Section 3(D) shall only be made by giving further notice to the Secretary
of the Company (the "Notice of Exercise") within six (6) months from the date
of the Notice of Intention.
(iii) Payment upon Change of Control.
(a) If the Employee gives the Notice of Exercise
described in subsection (ii) of this Section 3(D) to the
Company, the Company shall pay the Employee a lump sum amount
equal to three (3) times the Employee's base amount (as
defined by Section 280(G) of the Code), less one dollar
($1.00). The Company shall, within five (5) business days
after the date of the Notice of Exercise, deliver to the
Employee its cashier's check in the amount payable pursuant
to this subsection (iii)(a) of Section 3(D), and payment of
such amount shall terminate the Employee's rights to receive
any and all other payments, rights or benefits pursuant to
Sections 3(A), 3(B), 4 and 5 of this Agreement, other than
any payments, rights or benefits arising (x) pursuant to
Section 3(C), subsection (iii) of Section 3(D), Section 3(E)
or Section 12 of this Agreement, or (y) from
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any other agreement, plan or policy which by its terms or by
operation of law provides for the continuation of such
payments, rights or benefits after the termination of the
Employee's relationship with the Company.
(b) Such lump sum payment shall be in addition to
and shall not be offset or reduced by (x) any other amounts
that have accrued or have otherwise become payable to the
Employee or his beneficiaries, but have not been paid by the
Company at the time the Employee gives Notice of Exercise
pursuant to this Section 3(D) including, but not limited to,
salary, severance pay, consulting fees, disability benefits,
termination benefits, retirement benefits, life and health
insurance benefits, or any other compensation or benefit
payment that is part of any valid previous, current, or
future contract, plan or agreement, written or oral, or (y)
any indemnification payments that may be or become payable to
the Employee pursuant to the provisions of the Company's
Certificate of Incorporation, By-laws, or similar policy,
plan, or agreement relating to the indemnification of
directors or officers of the Company under certain
circumstances.
E. Employee's Expenses. All costs and expenses
(including reasonable legal, accounting and other advisory fees)
incurred by the Employee to (w) defend the validity of this Agreement
(x) contest any determinations by the Company concerning the amounts
payable (or reimbursable) by the Company to the Employee under this
Agreement, (y) determine in any tax year of the Employee the tax
consequences to the Employee of any amounts payable (or reimbursable)
under Section 3(C) or (D) hereof, or (z) prepare responses to an
Internal Revenue Service audit of, and to otherwise defend, his
personal income tax return for any year which is the subject of any
such audit, or an adverse determination, administrative proceedings or
civil litigation arising therefrom that is occasioned by or related to
an audit by the Internal Revenue Service of the Company's income tax
returns, are, upon written demand by the Employee, to be promptly
advanced or reimbursed to the Employee or paid directly, on a current
basis, by the Company or its successors.
4. TERMINATION, PART-TIME STATUS, REVISED COMPENSATION, DEATH, AND
DISABILITY
A. Termination. The employment of the Employee under this
Agreement, while the Employee is on active status, may be terminated at any
time by the Company, acting through its Board of Directors (and not a committee
thereof),
(i) only for cause in the event of (x) the Employee's
final conviction of a felony crime involving moral turpitude, or (y)
the Employee's deliberate and intentional continuing refusal to
substantially perform his duties and obligations under this Agreement
(except by reason of incapacity due to illness or accident) if he (a)
shall have either failed to remedy such alleged breach within
forty-five (45) days from his receipt of written
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notice from the Secretary of the Company demanding that he remedy such
alleged breach, or (b) shall have failed to take reasonable steps in
good faith to that end during such forty-five (45) day period,
provided that there shall have been delivered to the Employee a
further notice after the end of such forty-five (45) day period
asserting that the Board of Directors has determined that the Employee
was guilty of conduct set forth in this clause (y), that the Employee
has failed to take reasonable steps in good faith to remedy such
alleged breach, and specifying the particulars thereof in detail, and
provided further that the Employee thereafter shall have received a
certified copy of a resolution of the Board of Directors of the
Company adopted by the affirmative vote of not less than three-fourths
of the entire membership of the Board of Directors at a meeting called
and held for that purpose and at which the Employee was given an
opportunity to be heard, finding that the Employee was guilty of
conduct set forth in this clause (y), that the Employee has failed to
take reasonable steps in good faith to remedy such alleged breach, and
specifying the particulars thereof in detail,
(ii) upon a determination that the Employee has engaged in
willful fraud or defalcation involving material funds or other assets
of the Company, or
(iii) for any reason in its sole discretion upon written
notice to the Employee effective (subject to the provisions of Section
4(D) (iii) hereof) on the date that is five (5) years after the date
on which such notice is received by the Employee.
B. Termination Payment For Cause. In the event of termination
of the Employee's employment under this Agreement by the Company under either
Section 4(A)(i) or (ii), the Employee shall only be entitled to receive the
monthly installment of his Base Salary being paid at the time of such
termination, and, if applicable, other compensation, due hereunder, computed on
a pro rata basis, up to the effective date of such termination.
C. (i) Part-time Status-Election by Company. In the event
the Company shall give Employee notice of termination of the
Employee's employment under this Agreement pursuant to Section
4(A)(iii), the Employee shall, subject to the provisions of Section
4(D)(iii) and (vii), be placed on part-time employment status for a
period of five (5) years after the date on which such notice is
received by the Employee.
(ii) Termination - Election by Employee. Employee shall
have the right at any time during his employment on active status, by
giving written notice to the Secretary of the Company, to terminate
the Employee's employment under this Agreement effective ninety (90)
days after the date on which such notice is given by the Employee. In
the event the Employee shall make such election under this Section
4(C)(ii), the Employee shall, in addition to all other reimbursements,
payments or other allowances required to be paid under this Agreement
or under any other plan, agreement or policy which survives the
termination of this Agreement, be entitled to be paid, in addition to
the Base Salary payable during such ninety (90) day period after the
giving of such notice, a lump sum payment payable by delivery of the
Company's cashier's check within five (5) business
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days after the end of such ninety (90) day period, in an amount equal
to three (3) monthly installments of the Base Salary (less required
tax withholding) in effect pursuant to Section 3(A) hereof at the time
the Employee makes such election under this Section 4(C)(ii).
Thereupon, this Agreement shall terminate and Employee shall have no
further rights under or be entitled to any other benefits of this
Agreement, provided that the provisions of Sections 3(C) and (E), 6,
7, 8 and 12 shall survive such termination.
(iii) Consulting Agreement - Election by Employee. In lieu
of the right provided under Section 4(C)(ii), the Employee shall have
the right at any time prior to June , 1997, by giving written notice
to the Company, to terminate the Employee's employment under this
Agreement effective thirty (30) days after the date on which such
notice is given by the Employee and to require the Company to enter
into with the Employee a consulting and non-compete agreement
commencing on the effective date of the termination of this Agreement.
Such consulting and non-compete agreement shall be in substantially
the form attached as Exhibit 1(a) to the Rangos Family Master
Agreement dated as of November 28, 1994, among the Company, Xxxx X.
Xxxxx, Xxxxxx X. Xxxxxxxxx, Xx., Xxxx X. Xxxxxx, Xx., Xxxx X. Xxxxxx,
Xx., and Xxxxxxxxx X. Xxxxxx and providing for an initial Annual rate
(as defined herein) equal to the Base salary hereunder at the time
notice is given pursuant to Section 4(c)(iii); provided, however, that
such consulting and non-compete agreement shall terminate on June ,
2000. In the event the Employee shall make such election under this
Section 4(C)(iii), the Employee shall be paid his Base Salary during
the thirty (30) day period after the giving of such notice and shall
not be entitled to any payments under Section 4(C)(ii). This
Agreement shall terminate on the foregoing effective date and Employee
shall have no further rights under or be entitled to any other
benefits of this Agreement, provided that the provisions of Sections
3(C) and (E), 6, 7, 8 and 12 shall survive such termination.
D. Employee's Rights on Part-time Status. During the period
that the Employee is on part-time status,
(i) The Company shall pay Employee a revised, guaranteed
minimum annual Base Salary from the date the Employee goes on
part-time status for a period of five (5) years in an amount equal to
seventy-five percent (75%) of the average of the total annual direct
compensation paid to the Employee by the Company (whether under this
Agreement, a predecessor agreement or otherwise) for the two (2)
highest of the three (3) compensation years immediately preceding the
compensation year in which the notice specified in Section 4(A)(iii)
or Section 4(G) of this Agreement is given. As used in this
Agreement, the phrase "total annual direct compensation" shall mean
the sum of the gross amount of Base Salary (as from time to time
adjusted) paid to the Employee during a compensation year and all
other forms of direct compensation for a compensation year (including,
but not limited to, incentive or supplemental compensation awards made
to the Employee for the fiscal year ending in each of such
compensation year), whether or not paid to the Employee during a
compensation year, (x) including any amounts paid by the Employee into
any savings, deferred compensation or similar Company sponsored plan
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or arrangement, and (y) excluding any amounts that must be recognized
as compensation in any such compensation year as a result of the
Employee's exercise of a stock option or receipt of an award or unit
of the Company's (or any successor's) stock;
(ii) The revised, guaranteed minimum annual Base Salary
payable by the Company to the Employee pursuant to this Section 4(D)
shall be increased (but not decreased) annually on the first
anniversary of the date of the Employee's going on part-time status
and each anniversary thereafter, on a compound basis, by the same
percentage increase (if any) in the Consumer Price Index for All Urban
Consumer's - All Items Index, for Dallas, Texas (or any substantially
similar index published for the same area) as published by the U.S.
Department of Labor, Bureau of Labor Statistics for the twelve (12)
month period immediately preceding the first anniversary of the date
of the Employee's going on part-time status and on each yearly
anniversary thereafter;
(iii) (1) The Employee shall continue to participate
(at not less than his highest levels of participation or
coverage during the last twelve (12) months the Employee was
on active status) in all of the Company's pension, group
life, medical, dental, accidental death or disability
insurance, thrift, savings, deferred compensation, stock
option, unit or award plans, vacation plans, automobile
allowances and all other Company benefit plans, fringe
benefits, allowances and accommodations of employment on
active status that are afforded to the principal executive
officers of the Company,
(2) With respect to any stock option, unit or
award plan of the Company as referred to in this Section
4(D)(iii), the Employee's right to continue participation at
and consistent with his highest levels of participation
during the last twelve (12) months the Employee was on active
status, (x) is intended to include (but only to the extent
consistent with the Company's treatment of its principal
executive officers) the Employee receiving renewal and/or
replacement grants of or awards for options or units on or
with respect to the Company's common stock (for not less than
the same number of shares or units, at the fair market value
prevailing at the time, and otherwise on terms and conditions
no more or less favorable than such grants or awards are made
to the Company's principal executive officers who are then on
active employment status) consistent with the Company's stock
option plan as then existing, not more than thirty (30) days
after the date any of the previous options or units are
cancelled, vest or expire (or would have expired but for
their exercise by the Employee), and (y) solely for the
purposes of any stock options, units or awards outstanding at
the time the Employee goes on part-time status or for any
renewal or replacement grants or awards, the Employee's
status as an "employee" or, thereafter, the Employee's status
as an "affiliate" of the Company (or of any successor
thereto) shall continue to the last date of expiration,
cancellation, vesting or exercise, as the case may be, of any
and all of such outstanding stock options, units or awards or
renewal or replacement grants or awards, and
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(3) If the Company is merged into or consolidated
with another corporation under circumstances where the
Company is not the surviving corporation, or if the Company's
voting common stock is no longer publicly traded on a
national securities exchange, or if the Company sells or
disposes of substantially all its assets to another
corporation, then any such renewal and/or replacement grants
of or awards for options or units pursuant to subparagraph
(x) of Section 4(D)(iii)(2) shall be made in or for the
shares of such stock or other securities as the holders of
shares of the Company's voting common stock received pursuant
to the terms of the merger, consolidation or sale, and
(4) If any of the Company's pension; group life,
medical, dental, accidental death, or disability insurance;
deferred compensation; thrift, savings, stock option, unit or
award plans; or any other Company benefit plans, fringe
benefits, allowances or accommodations of employment that
were available to the Employee at any time during the last
twelve (12) months the Employee was on active status shall
not continue to be maintained by the Company (or by any
successor thereto) or are otherwise not made available to the
Employee, the Company (or any successor thereto) shall
provide for or make available to the Employee substantially
similar economic benefits (and tax benefits attendant
thereto) through such alternative means and upon such terms
as shall be reasonably satisfactory to the Employee, provided
that nothing in this clause (4) shall obligate the Company to
provide for or make any such substantially similar
alternative benefits available to the Employee if the Company
(or any successor thereto) does not have such benefits
available either directly or indirectly (whether or not
granted) for its principal executive officers.
(iv) The Employee shall otherwise be entitled to all other
principal executive officer perquisites, allowances and benefits on
the same terms and conditions as such are from time to time made
available generally to the other principal executive officers of the
Company (or any successor thereto) but in no event less than the
highest level of the perquisites, allowances and benefits that were
available to the Employee during the last twelve (12) months of his
employment on active status;
(v) The Employee shall otherwise continue to receive all
the rights and benefits of this Agreement including, without
limitation, those rights and benefits (not inconsistent with this
Section 4(D)) that are set forth in Sections 3(C), 3(E), 5, 9 and 12
hereof;
(vi) The Employee shall not be prevented from accepting
other employment while on part-time status or engaging in (and
devoting substantially all of his time to) other business activities
that are not in conflict in any material respect with the limitations
set forth in Section 6 hereof;
(vii) This Agreement and Employee's continuing employment on
part-time status may be terminated at any time by the Company (x)
pursuant to the provisions of Section
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4(A)(ii), or (y) acting through its Board of Directors (and not a
committee thereof) only if the Employee knowingly violates in any
material respect the provisions of Sections 6, 7 and 8, respectively,
as found by final judgment of a court of competent jurisdiction;
(viii) While on part-time status and except as otherwise
required herein, the Employee shall not be required to perform any
regular duties for the Company (except to provide such services
consistent with the Employee's educational background, experience and
prior positions with the Company, as may be acceptable to the
Employee) or to seek or accept additional employment with any other
person or firm (although the Employee shall be free to do so so long
as accepting such additional employment or engaging in other business
activity is not in conflict in any material respect with the
limitations set forth in Section 6 of this Agreement). If the
Employee, at his discretion, shall accept any such additional
employment or engage in any such other business activity consistent in
all material respects with Section 6 of this Agreement, there shall be
no offset, reduction or effect upon any rights, benefits or payments
to which the Employee is entitled pursuant to this Agreement.
Furthermore, the Employee shall have no obligation to account for,
remit, rebate or pay over to the Company any compensation or other
amounts earned or derived in connection with such additional
employment or business activity consistent in all material respects
with Section 6 of this Agreement; and
(ix) The Employee shall, however, make himself generally
available for special projects or to consult with the Company and its
employees at such times and at such places as may be reasonably
requested by the Company and which shall be reasonably satisfactory to
the Employee and consistent with the Employee's regular duties and
responsibilities in the course of his then new occupation or other
employment, if any.
E. After the termination of the Employee's employment on
part-time status, the former Employee shall remain an "affiliate" of the
Company for the period described in Section 4(D)(iii)(2) hereof and during such
time shall continue to be available to consult with the Company and its
employees at such time and at such places as may be reasonably convenient and
acceptable to the former Employee and in such manner as may be consistent with
the former Employee's educational background, experience and prior positions
with the Company and with his regular duties and responsibilities in the course
of his then new occupation or other employment, if any.
F. Death. In the event of the Employee's death during the term
of his employment hereunder, the Company shall pay to the Employee's surviving
spouse or to the executor or administrator of the Employee's estate (if his
spouse shall not survive him) an amount equal to the installments of his Base
Salary then payable pursuant to Sections 3(A) or 4(D), as the case may be, for
the month in which he dies, and for the greater of (i) the balance of the term
remaining under this Agreement, or (ii) two (2) years.
G. Disability. The Employee shall be covered by the Company's
disability benefit plan as such plan may from time to time exist. The Company
may eliminate or change the terms
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and conditions of said plan at its discretion with no liability to the Employee
other than the liability, if any, under such plan which may have accrued up to
the elimination or change of such plan. In the event because of physical or
mental illness or personal injury while the Employee is on active status or
part-time status, the Employee shall become permanently unable or disabled such
that he is unable to perform, and in all reasonable medical likelihood, going
to continue indefinitely to be unable to perform his normal duties in his
regular manner, as determined by independent, competent medical authority, and
(i) if such disability determination occurs while the
Employee is on active status, the Company may elect (but shall not be
obligated) to terminate the Employee's employment under this Agreement
on a date which is not less than five (5) years after the date on
which written notice of such termination is received by the Employee
in which event the Employee shall be placed on part-time status, and
the Company shall pay to the Employee the Base Salary payable pursuant
to Section 4(D)(i) for a period not less than five (5) years
thereafter; or
(ii) if such disability determination occurs while the
Employee is on part-time status pursuant to Section 4(C)(i) or (ii),
the Company shall continue to pay to the Employee the amount of his
Base Salary then payable for the greater of (x) the balance of the
period remaining under the term of this Agreement, or (y) for two (2)
years;
reduced, in any case however, by the amount of any payments made to such
Employee under the coverage then afforded to the Employee by the Company's
disability benefit plan in effect at the time such disability determination is
made. The Employee shall, during such disability and until the effective date
of the termination of this Agreement and of payments hereunder by the Company
to the Employee, continue to enjoy all other applicable benefits of employment
that would otherwise pertain to continued employment on part-time status
pursuant to this Agreement.
H. Return of Property. Upon termination of the Employee's
employment under this Agreement, however brought about, the Employee (or his
representatives) shall promptly deliver and return to the Company all the
Company's property including, but not limited to, credit cards, manuals,
customer lists, financial data, letters, notes, notebooks, reports and copies
of any of the above, and any Protected Information (as defined in Section 7)
which is in the possession or under the control of the Employee except such
property as may be necessary for the former Employee to continue his duties, if
any, as an "affiliate" which the Company may expressly direct the former
Employee to keep in his possession; and upon the termination of his status as
an "affiliate", the former Employee shall promptly deliver and return all such
property to the Company.
5. OTHER EMPLOYEE RIGHTS
A. The Employee shall be entitled to (i) participate in the
Company's pension, group life, medical, dental, accidental death, or disability
insurance, thrift, savings, deferred compensation, incentive compensation,
stock option, unit or award plans, vacation plans,
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automobile allowances and all other Company benefit plans, fringe benefits,
allowances and accommodations of employment (including, but only as approved
from time to time by the Chief Executive Officer of the Company, club
memberships and dues, business and professional societies, etc.),
accommodations and allowances as are from time to time generally available or
applicable to the Company's principal executive officers and (ii) annual
vacations in accordance with the vacation policy established by the Company for
the Company's principal executive officers during which time his applicable
compensation shall be paid in full.
B. The Employee is authorized (to the same extent and in the
same manner as the Company's other principal executive officers are authorized)
to incur reasonable business expenses while on active or part-time status as an
employee of the Company, including expenses for meals, entertainment, hotel and
air travel, telephone, automobile, dues, club expenses, fees, and similar items
(and shall be entitled to incur such reasonable business expenses, determined
commensurate with the extent of his consultation hereunder, while an
"affiliate" of the Company). The Company shall either pay directly or promptly
reimburse the Employee for such expenses upon the presentment by the Employee
from time to time of an itemized accounting (as reasonably required by the
Company's policies) of such expenditures for which reimbursement is sought.
C. The Employee shall, while on active status, be provided by
the Company with office space, furnishings and facilities, reserved parking,
secretarial and administrative assistance, supplies and equipment commensurate
with the size and quality of that which is provided from time to time to the
Company's principal executive officers.
6. COVENANT NOT TO COMPETE
A. The Employee recognizes that in each of the highly
competitive businesses in which the Company is engaged, personal contact is of
primary importance in securing new customers and in retaining the accounts and
goodwill of present customers and protecting the business of the Company. The
Employee, therefore, agrees that at all times during the term of his employment
hereunder and for a period of two (2) years after the termination of his
employment hereunder, howsoever brought about, he will not, within 100 miles of
(i) the principal place of business of the Company,
(ii) the principal place of business of any corporation or
other entity owned, controlled by (or otherwise affiliated with) the
Company by which he may also be employed or served by him as an
officer or director, or
(iii) any other geographic location in which the Employee
has specifically represented the interests of the Company or such
other affiliated entity, in any of the businesses described in
subsections (a) through (d) below during the twelve (12) months prior
to the termination of this Agreement,
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as principal, agent, partner, employee, consultant, distributor, dealer,
contractor, broker or trustee or through the agency of any corporation,
partnership, association or agent or agency, engage directly or indirectly, in
any business of (a) rubbish, garbage, paper, textile wastes, chemical or
hazardous wastes, liquid or other waste collection, interim storage, transfer,
recovery, processing, recycling, marketing or disposal, (b) engineering or
design, construction, or operation of any plant, facility or other structure
having as its primary purpose the mass burning of solid or liquid waste with or
without any intended efforts to recover from such wastes, energy, steam, ash,
fly ash or other constituents of the waste stream, regardless of whether such
constituents have any value, (c) manufacturing, selling, leasing or
distributing machinery, equipment or products used or produced in connection
with the activities described in subsections (a) or (b) above, or (d) any other
material business engaged in by the Company, and shall not be the owner of more
than 1% of the outstanding capital stock of any corporation (other than the
Company), or an officer, director or employee of any corporation (other than
the Company or a corporation affiliated with the Company), or a member or
employee of any partnership, or an owner, investor, lender, agent, consultant,
distributor, dealer, contractor, broker or employee of any other business which
conducts a business described in subsections (a), (b), (c) and (d) above,
within the territory described above.
B. The Employee agrees that during the term of his employment
under this Agreement and for a period of two (2) years after the termination of
the Employee's employment under this Agreement, he will not directly or
indirectly (i) induce any customers of the Company or corporations affiliated
with the Company to patronize any similar business that 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) request or advise any customers of the Company or corporations
affiliated with the Company to withdraw, curtail, or cancel such customer's
business with the Company; (iv) disclose to any other person, firm, or
corporation the names or addresses of any of the customers of the Company or
corporations affiliated with the Company; or (v) individually or through any
person, firm, association, or corporation with which he is now or may hereafter
become associated, cause, solicit, entice, or induce any present or future
employee of the Company or any corporation affiliated with the Company to leave
the employ of the Company or such other corporation to accept employment with
or compensation from the Employee or any such person, firm, association, or
corporation without the prior written consent of the Company. The Employee
further agrees that he 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.
C. If the provisions of this Section 6 are violated, in whole or
in part, the Company shall be entitled, upon application to any court of proper
jurisdiction, to a temporary restraining order or preliminary injunction
(without the necessity of posting any bond with respect thereto) to restrain
and enjoin the Employee from such violation without prejudice to any other
remedies the Company may have at law or in equity. Further, in the event that
the provisions of this
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Section 6 should ever be deemed to exceed the time, geographic or occupational
limitations permitted by the applicable laws, the Employee and the Company
agree that such provisions shall be and are hereby reformed to the maximum
time, geographic or occupational limitations permitted by the applicable laws.
The provisions of this Section 6 shall survive the termination of the
Employee's employment or expiration or termination of this Agreement.
7. CONFIDENTIAL INFORMATION - INTELLECTUAL PROPERTY
A. The Employee recognizes and acknowledges that he 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").
B. The Employee agrees, therefore, that he 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.
C. In the event of a breach or threatened breach by the Employee
of the provisions of this Section 7, the Employee agrees that Company shall be
entitled to a temporary restraining order or a preliminary injunction (without
the necessity of the Company posting any bond in connection therewith)
restraining the Employee from using or disclosing, in whole or in part, such
Protected Information. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from the Employee.
D. The Employee shall disclose promptly to the Company any and
all conceptions and ideas for inventions, improvements, and valuable
discoveries, whether patentable or not, which are conceived or made by the
Employee solely or jointly with another during the period of employment on
active status or within one (1) year thereafter and which pertain primarily to
the material business activities of the Company and the Employee hereby assigns
and agrees to assign all his interests therein to the Company or to its
nominee; whenever requested to do so by the Company, the Employee shall execute
any and all applications, assignments or other instruments which the Company
shall deem necessary to apply for and obtain Letters of Patent of the United
States or any foreign country or to otherwise protect the Company's interest
therein. These obligations shall continue beyond the termination of employment
with respect to inventions, improvements, and valuable discoveries, whether
patentable or not, conceived, made or acquired by the Employee during the
period of employment or within one (1) year thereafter,
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and shall be binding upon the Employee's assigns, executors, administrators and
other legal representatives.
8. EMPLOYEE CONDUCT
A. The Employee represents and agrees with the Company that he
will make no disbursement or other payment of any kind or character out of the
compensation paid or expenses reimbursed to him pursuant hereto or with any
other fund, which contravene, in any material respect, any policy of the
Company or, in any material respect, any applicable statute or rule, regulation
or order of any jurisdiction, foreign or domestic. The Employee further agrees
to indemnify and save harmless the Company from any liabilities, obligations,
claims, penalties, fines or losses resulting from any unauthorized or unlawful
acts of the Employee which contravene in any material respect any policy of the
Company or any statute, rule, regulation or order of any jurisdiction, foreign
or domestic, applicable to the Employee or the Company. The provisions of this
Section 8 shall survive the dissolution or termination of the Employee's
employment under this Agreement.
B. The Employee acknowledges that he has been furnished with a
current copy of the policy and procedures manual of the Company, that he has
read and understands such policies and procedures set forth in such manual,
that he understands such policies and procedures (and will read and become
familiar with any revisions or supplements to this manual) are applicable to
the Employee in the performance of his duties and job performance for the
Company, and that he agrees to observe in all material respects the Company's
policies and procedures in the conduct by the Employee of his employment duties
for the Company.
C. The Employee agrees to disclose honestly and fully all
information and documentation in his possession concerning all transactions or
events relating to or affecting the Company or any entity owned, controlled (or
otherwise affiliated) by the Company, as and to the extent such information or
documentation is requested by the Company or the authorized representatives
thereof; provided that if the Employee indicates to the Company that the
information or documentation requested is privileged, confidential or
personally sensitive, appropriate steps will be taken to attempt to protect
such privilege, confidentiality or privacy to the extent possible consistent
with the ethical or legal obligations applicable to the Company, but neither
such assertions by the Employee nor the undertakings attempted by the Company
with respect thereto shall qualify the unconditional disclosure obligation of
the Employee set forth above.
9. GENERAL PROVISIONS
A. In case any one or more of the provisions of this Agreement
shall, for any reason, be held or found by final judgment of a court of
competent jurisdiction to be invalid, illegal or unenforceable in any respect
(i) such invalidity, illegality or unenforceability shall not affect any other
provisions of this Agreement, (ii) this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein
(except that this subsection
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(ii) shall not prohibit any modification allowed under Section 6 hereof), and
(iii) if the effect of a holding or finding that any such provision is either
invalid, illegal or unenforceable is to modify to the Employee's detriment,
reduce or eliminate any compensation, reimbursement, payment, allowance or
other benefit to the Employee intended by the Company and Employee in entering
into this Agreement, the Company shall promptly negotiate and enter into an
agreement with the Employee containing alternative provisions (reasonably
acceptable to the Employee), that will restore to the Employee (to the extent
lawfully permissible) substantially the same economic, substantive and income
tax benefits the Employee would have enjoyed had any such provision of this
Agreement been upheld as legal, valid and enforceable. Failure to insist upon
strict compliance with any provision of this Agreement shall not be deemed a
waiver of such provision or of any other provision of this Agreement.
B. The Employee acknowledges receipt of a copy of this Agreement
(together with any attachments hereto), which has been executed in duplicate
and agrees that, with respect to the subject matter hereof, it is the entire
Agreement with the Company. Any other oral or any written representations,
understandings or agreements with the Company or any of its officers or
representatives covering the same subject matter which are in conflict with
this Agreement are hereby merged into and superseded by the provisions of this
Agreement.
C. The Company shall have no right of set-off or counter-claim
in respect of any debt or other obligation of the Employee to the Company
against any payment or other obligation of the Company to the Employee provided
for in this Agreement or pursuant to any other plan, agreement or policy.
D. No provision of this Agreement may be amended, modified or
waived unless such amendment, modification or waiver shall be agreed to in
writing and signed by the Employee and by a person duly authorized by the
Compensation Committee.
E. No right to or interest in any compensation or reimbursement
payable hereunder shall be assignable or divisible by the Employee; provided,
however, that this provision shall not preclude the Employee from designating
one or more beneficiaries to receive any amount that may be payable after his
death and shall preclude his executor or administrator from assigning any right
hereunder to the person or person entitled thereto.
F. The headings of Sections and subsection hereof are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
G. (i) Company consents with respect to any action, suit or
other legal proceeding pertaining directly to this Agreement or to the
interpretation of or enforcement of any of the Employee's rights
hereunder, to service of process in the State of Texas and appoints CT
Corporation System, 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 or such
other agent within Houston, Texas as shall be designated by Company in
a written notice to Employee, as its agent, in such state for such
purpose. Company irrevocably (i) agrees
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that any such suit, action or legal proceeding may be brought in the
courts of such state or the courts of the United States for such
state, (ii) consents to the jurisdiction of each such court in any
such suit, action or legal proceeding and (iii) waives any objection
it may have to laying of venue of any such suit, action or legal
proceeding in any of such courts.
(ii) This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of Texas.
H. This Agreement may not be assigned, partitioned, subdivided,
pledged, or hypothecated in whole or in part without the express prior written
consent of the Employee and Company. This Agreement shall not be terminated
either by the voluntary or involuntary dissolution or the winding up of the
affairs of the Company, or by any merger or consolidation wherein the Company
is not the surviving corporation, or by any transfer of all or substantially
all of the Company's assets on a consolidated basis. In the event of any such
merger, consolidation or transfer of assets, the provisions of this Agreement
shall be binding upon and shall inure to the benefit of the surviving
corporation or to the corporation to which such assets shall be transferred.
I. If any amounts which are required or determined to be paid or
payable or reimbursed or reimbursable to the Employee under this Agreement (or
under any other plan, agreement, policy or arrangement with the Company) are
not so paid promptly at the times provided herein or therein, such amounts
shall accrue interest compounded daily at the annual percentage rate which is
three percentage points (3%) above the interest rate which is announced by The
First National Bank of Boston, Boston, Massachusetts, from time to time, as its
Base Rate (or prime lending rate), from the date such amounts were required or
determined to have been paid or payable or reimbursed or reimbursable to the
Employee until such amounts and any interest accrued thereon are finally and
fully paid, provided, however, that in no event shall the amount of interest
contracted for, charged or received hereunder exceed the maximum non-usurious
amount of interest allowed by applicable law.
J. The Company agrees with the Employee that, except to the
extent required by law, it will not make or publish, without the express prior
written consent of the Employee, any written or oral statement concerning the
terms of the Employee's employment relationship with the Company and will not,
if the Employee goes on part-time status for any reason or xxxxxx his
employment with the Company, make or publish any written or oral statement
concerning the Employee including, without limitation, his work-related
performance or the reasons or basis for the Employee going on part-time status
or otherwise severing his employment relationship with the Company.
10. TERMINATION OF PRIOR AGREEMENTS
This Agreement shall terminate and supersede any and all prior written
or oral agreements or understandings existing between the Company and the
Employee with respect to employment
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or compensation, and the Company and the Employee hereby mutually release and
discharge each other from any further obligation, liability or responsibility
under any of the foregoing.
11. NOTICES
Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given when delivered in
person or when deposited in the U.S. mail, registered or certified, postage
prepaid, and mailed to the respective addresses set forth herein.
12. DISPUTES; PAYMENT OF ATTORNEYS' FEES
If at any time during the term of this Agreement or afterwards there
should arise any dispute as to the validity, interpretation or application of
any term or condition of this Agreement, the Company agrees, upon written
demand by Employee (and Employee shall be entitled, upon application to any
court of competent jurisdiction, to the entry of a mandatory injunction,
without the necessity of posting any bond with respect thereto, compelling the
Company) to promptly provide sums sufficient to pay on a current basis (either
directly or by reimbursing the Employee) the Employee's costs and reasonable
attorney's fees (including expenses of investigation and disbursements for the
fees and expenses of experts, etc.) incurred by the Employee in connection with
any such dispute or any litigation, (x) provided that the Employee shall repay
any such amounts paid or advanced if the Employee is not the prevailing party
with respect to any dispute or litigation arising under Sections 6, 7 or 8, or
(y) regardless of whether the Employee is the prevailing party in a dispute or
in litigation involving any other provision of this Agreement, provided that
the court in which such litigation is first initiated determines with respect
to this obligation, upon application of either party hereto, the Employee did
not initiate frivolously such litigation. Under no circumstances shall the
Employee be obligated to pay or reimburse the Company for any attorneys' fees,
costs of expenses incurred by the Company. The provisions of this Section 12
shall survive the expiration or termination of this Agreement and of the
Employee's employment hereunder.
IN WITNESS WHEREOF, the parties have executed and delivered this
Amended and Restated Agreement as of the day and year indicated above.
Xxxx X. Xxxxxx, Xx.
----------------------------------
(Employee's Signature)
Employee's Permanent Address:
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USA WASTE SERVICES, INC.
By: Xxxx X. XxXxxxxx
-----------------------------------
Name: Xxxx X. XxXxxxxx
---------------------------------
Title: Executive Vice President
--------------------------------
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
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