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Exhibit 10.21
[Rangos, Sr.]
CONSULTING AND NON-COMPETE AGREEMENT
This Agreement is entered into this 30th day of June, 1995,
between USA Waste Services, Inc., a Delaware corporation (the "Company"), and
Xxxx X. Xxxxxx, Xx. ("Xxxxxx").
RECITALS
Rangos and certain members of his family are stockholders,
officers and directors of Xxxxxxxx Development Company, Inc., a Delaware
corporation ("Xxxxxxxx").
The company, Xxxxxxxx Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company (the "Subsidiary"),
and Xxxxxxxx have entered into an Agreement and Plan of Merger dated the 28th
day of November, 1994 (the "Merger Agreement"), pursuant to which the
Subsidiary will merge with and into Xxxxxxxx, with Xxxxxxxx remaining as the
surviving corporation and a wholly owned subsidiary of the Company (the
"Merger").
From and after the Effective Time (as defined in the Merger
Agreement), Rangos will terminate his employment with Xxxxxxxx, and the Company
desires to retain Rangos thereafter as a consultant with respect to the
business of the Company on the terms set forth in this Agreement.
Rangos is willing to provide certain consulting services to
the Company on the terms set forth in this Agreement.
The Company desires to secure the promise of Rangos not to
compete with the Company and its Affiliates (as defined below) in the waste
collection, management, transfer, recycling and disposal business on the terms
set forth in this Agreement.
Rangos is willing to refrain from such competition with the
Company and its Affiliates on the terms set forth in this Agreement.
In consideration of the foregoing and the respective
covenants and agreements set forth in this Agreement, the Company and Rangos
agree as follows:
SECTION 1 CONSULTATION.
Commencing at the Effective Time and continuing for a period
of five years thereafter, the Company will engage Rangos as consultant for
waste collection, management, transfer, recycling and disposal matters only.
The duties of Rangos will be as follows: to be available upon reasonable
advance notice to advise the Company on matters affecting its waste collection,
management, and disposal business; and to advise the Company of any and all
waste business acquisition opportunities as to which Rangos or any of his
Affiliates shall become aware.
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As used in this Agreement, (i) an "Affiliate" of Rangos shall mean and include
any partnership, joint venture, corporation, trust, or unincorporated
organization directly or indirectly controlling, controlled by, or under common
control with Rangos, and (ii) an "Affiliate" of the Company shall mean any
corporation, partnership, joint venture, trust or unincorporated organization
directly or indirectly controlling, controlled by, or under common control with
the Company.
SECTION 2 COVENANT NOT TO COMPETE.
(a) Rangos 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.
Rangos, therefore, agrees that at all times during the period commencing at the
Effective Time and continuing for a period of five years thereafter, Rangos
will not:
(1) within the United States of America or within any
country where the Company conducts business that is
material to the Company, as owner, principal, agent,
partner, employee, director, 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 (i) rubbish, garbage, paper, textile
wastes, chemical or hazardous wastes, liquid and
other waste collection, interim storage, transfer,
handling, recovery, processing, treatment, recycling,
marketing or disposal, (ii) 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, or (iii)
any other material business engaged in by the Company
or its Affiliates;
(2) be the owner of more than 1% of the outstanding
capital stock of any corporation whose securities are
listed on any national securities exchange or quoted
in any automated inter- dealer quotation system and
that is engaged in any of the businesses described in
paragraph above; or
(3) be an officer, director or employee of any
corporation (other than the Company or a subsidiary
of the Company), or a member or employee of any
partnership, or an owner, investor, stockholder
(except as permitted by Section 2(a)(2) above),
lender, agent, consultant, distributor, dealer,
contractor, broker or employee of any other business
which conducts a business described in paragraph
above.
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(b) Rangos agrees that during the term of this Agreement,
he will not directly or indirectly (i) induce any customers of the Company or
any of its Affiliates to patronize any similar business which competes with any
material business of the Company; (ii) canvass, solicit or accept any similar
business which competes with any material business of the Company or any of its
Affiliates; (iii) directly or indirectly request or advise any customers of the
Company or any of its Affiliates to withdraw, curtail or cancel such customer's
business with the Company; or (iv) directly or indirectly disclose to any
other person, firm or corporation the names or addresses of any of the
customers of the Company or any of its Affiliates. Rangos 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 goodwill of the Company, its management, or any of
its Affiliates.
(c) If the provisions of this Section 2 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 Rangos from such violations without prejudice to any other
remedies the Company may have at law or in equity. Further, in the event that
the provisions of this Section 2 should ever be deemed to exceed the time,
geographic or occupational limitations permitted by the applicable laws. The
provisions of this Section 2(c) shall survive the termination of this
Agreement. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available to it from such breach or threatened
breach, including the recovery of damages from Rangos.
SECTION 3 CONFIDENTIAL INFORMATION-INTELLECTUAL PROPERTY.
(a) Rangos recognizes and acknowledges that he has and
will continue to have access to various confidential or proprietary information
concerning the Company or any of its Affiliates of a special and unique value
which may include, without limitation, (i) books and records relating to
customers, operation, finance, accounting, sales, personnel and management,
(ii) policies and matters relating particularly to operations such as customer
lists, 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, know-how, financial data and the like (collectively, the "Protected
Information").
(b) Rangos agrees, therefore, that he will not at any
time during the term of this Agreement, knowingly make any independent use of,
or knowingly disclose to any other person or organization (except as expressly
authorized by the Company in writing), any of the Protected Information.
(c) In the event of a breach or threatened breach by
Rangos of the provisions of this Section 3, Rangos agrees that Company shall be
entitled to a temporary restraining order
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or a preliminary injunction (without the necessity of the Company posting any
bond in connection therewith) restraining Rangos from using or disclosing, in
whole or part, such Protected Information. Nothing herein shall be construed
as prohibiting the Company from pursuing any other remedies available to it
from such breach or threatened breach, including the recovery of damages from
Rangos.
SECTION 4 CONSULTING AND NON-COMPETITION PAYMENTS.
(a) Terms. In consideration for the agreement of Rangos
set forth n Sections 1 and 2 of this Agreement, and subject to the terms and
conditions of this Section 4, the Company shall pay, or cause to be paid, to
Rangos payments of $450,000 per annum (the "Annual Rate") to be paid in equal
monthly installments (the "Monthly Payments"), which Annual Rate shall be
increased for each year during the term of the Agreement, commencing one year
following the Effective Time, by ten percent of the Annual Rate during the year
then ended. The first Monthly Payment shall be made the first day of the month
following the Effective Time (the "Payment Date") and be equal to an amount
obtained by multiplying one-twelfth of the Annual Rate by a fraction, the
numerator of which shall be the number of days in the month following the date
of the Effective Time and the numerator of which shall be 30.
(b) Assignment. Subject to Section 4(c), Rangos'
obligations and rights pursuant to this Section 4 shall not be assigned or
transferred in any way, including without limitation by operation of law,
without the written consent of the Company.
(c) Disability. In the event because of physical or
mental illness or personal injury Rangos shall be unable to perform his duties
hereunder, the Company shall continue to pay to Rangos the payments provided
for pursuant to this Section 4.
SECTION 5 OTHER BENEFITS.
(a) During the term of this Agreement, upon the
presentment of an itemized accounting of such expenses, the Company shall
reimburse Rangos in an amount not to exceed $150,000.00 annually for expenses
incurred by him in (i) obtaining office space in the Pittsburgh, Pennsylvania
metropolitan area, (ii) obtaining secretarial services and (iii) obtaining
security services.
(b) Rangos is authorized to incur reasonable business
expenses in connection with providing consulting services pursuant to this
Agreement, including expenses for meals, hotel and air travel, telephone,
automobile and similar items. The Company shall promptly reimburse Rangos for
such expenses upon the presentment of an itemized accounting of such expenses.
(c) Rangos shall be entitled to participate in the
Company's group life, medical and dental insurance plans and any stock option
or stock ownership plans applicable to directors or consultants.
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SECTION 6 NOTICE.
(a) All notices called for under this Agreement must be
in writing and will be deemed given if:
(1) delivered personally;
(2) delivered by facsimile transmission and
receipt is acknowledged verbally or
electronically;
(3) telexed; or
(4) mailed by registered or certified mail
(return receipt requested), postage prepaid;
to the parties at the following addresses (or at such other address for a party
as is specified by like notice; provided that notices of a change of address
will be effective only upon receipt of the notice);
To the Company:
USA Waste Services, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx XxXxxxxx
To Xxxxxx:
One Trimont Lane, 2200A
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
SECTION 7 MISCELLANEOUS.
(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, and (ii) this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein (except that this subsection (ii) shall not prohibit any
modification allowed under Section 2 hereof). 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.
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(b) No provisions of this Agreement may be amended,
modified or waived unless such amendment, modification or waiver shall be
agreed to in writing and signed by Rangos and by a person duly authorized by
the Board of Directors of the Company.
(c) No right to or interest in any compensation or
reimbursement payable hereunder shall be assignable or divisible by Rangos;
provided, however, that this provision shall not preclude Rangos from
designating one or more beneficiaries to receive any amount that may be payable
after his death and shall not preclude his executor or administrator from
assigning any right hereunder to the person or persons entitled thereto.
(d) The headings of sections and subsections hereof are
included solely for convenience and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
(e) This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of Texas.
(f) This Agreement may not be assigned, partitioned,
subdivided, pledged, or hypothecated in whole or in part without the express
prior written consent of Rangos and the 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 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 the corporation to which such assets shall be
transferred.
(g) If any amounts which are required or determined to be
paid or payable or reimbursed or reimbursable to Rangos under this Agreement
(or 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 (4%) above the interest rate which is announced by Citibank,
N.A., New York, New York, 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 Rangos until such amounts and any
interest accrued thereon are finally 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.
(h) 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 to
pay Rangos' reasonable attorneys' fees (including expenses of investigation)
incurred by Rangos in connection with any such dispute or litigation provided
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that Rangos shall be the prevailing party. The provisions of this subparagraph
(h) shall survive the expiration or termination of this Agreement.
(i) The term of this Agreement shall commence on the date
hereof and continue until the fifth (5th) anniversary of the date hereof.
SECTION 8 CHANGE IN CONTROL.
(a) OPERATION OF SECTION 8. This Section 8 shall be
effective, but not operative, immediately upon execution of this Agreement by
the parties hereto and shall remain in effect during the term of this
Agreement, but shall not be operative unless and until there has been a Change
in Control, as defined in subparagraph (b) hereof. Upon such a Change in
Control, this Section 8 shall become operative immediately.
(b) DEFINITION. "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 50% 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 Section 13(d) and 14(d)
of the Securities Exchange Act of 1934, as
amended) other than by any person which
includes Rangos, 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
of the Company immediately before the
transaction shall cease to constitute a
majority of the Board of Directors of the
Company or any successor to the Company.
(c) RANGOS' RIGHTS UPON CHANGE IN CONTROL. I, during the
term of this Agreement, a Change in Control (as defined in subsection (b)
above) occurs, Rangos may, in his sole discretion, within twelve (12) months
after the date of the Change in Control, give notice to the Secretary of the
Company that he intends to elect to elect to exercise his rights under Section
8 (the "Notice of Intention"). The right to give such Notice of Intention to
elect to receive the payment provided for in subparagraph (d) of this Section 8
shall continue for twelve (12) months from the date of the Change in Control.
Within thirty (30) days after the Company's receipt of the Notice of Intention,
the Company shall provide written notice to Rangos setting forth the Company's
computation of the amount that would be payable pursuant to Section 8(d),
accompanied by the written opinion of the Company's independent certified
public accountants confirming the Company's computation. If Rangos takes
exception to the Company's computation of such amount, Rangos 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 Rangos' exceptions to the Company's computation, accompanied
by the
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written opinion of Rangos' tax advisor confirming the basis for such
exceptions. Exercise by Rangos of his rights pursuant to this Section 8 shall
only be made by giving further notice to the Secretary of the Company (the
"Notice of Exercise") within sixty (60) days after the Company provides the
computation of the amount payable as provided above.
(d) PAYMENT UPON CHANGE IN CONTROL.
(1) If Rangos gives the Notice of Exercise
described in Section 8(c) to the Company, the
Company shall pay Rangos a lump sum amount
equal to all payments that the Company would
be required to make to Rangos during the then
remaining term of this Agreement pursuant to
Sections 4 and 5 hereof. The Company shall,
within five (5) business days after the date
of the Notice of Exercise, deliver to Rangos
its cashier's check in the amount payable
pursuant to this Section 8(d)(1), and payment
of such amount shall terminate Rangos' rights
to receive any and all other payments, rights
or benefits arising pursuant to this
Agreement.
(2) 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 Rangos or his
beneficiaries, but have not been paid by the
Company at the time Rangos gives the Notice
of Exercise pursuant to this Section 8, and
(y) any indemnification payments that may
have accrued but not been paid or that may
thereafter become payable to Rangos 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 circumstance.s
(e) RELIEF FROM OBLIGATIONS. If Rangos gives the Notice
of Exercise described in Section 8(c) to the Company, Rangos shall in addition
to being entitled to receive the lump sum payment provided for in Section 8(d),
be relieved of his obligations under Sections 1 and 2 of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date set forth in the first paragraph of this Agreement.
USA Waste Services, Inc.
By: Xxxx X. XxXxxxxx
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Xxxx X. XxXxxxxx
Executive Vice President
Xxxx X. Xxxxxx, Xx.
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Xxxx X. Xxxxxx, Xx.
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