EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
ALLIED WASTE INDUSTRIES, INC., a Delaware corporation ("Company") and
XXXXXX X. XXXXXX ("Executive") enter into this Executive Employment Agreement
("Agreement") effective January 1, 2004 ("Effective Date"), to set forth the
terms and conditions of Executive's employment. This Agreement supersedes any
prior employment agreement(s) between the parties. The parties agree as follows:
1. CERTAIN DEFINITIONS AND UNDERSTANDINGS. As used in this Agreement, the
following terms have the meanings prescribed below:
Applicable Period is defined in Section 10.3.
Annual Incentive Compensation is defined in Section 4.2.
Base Salary is defined in Section 4.1.
Beneficial Owner is defined in Rule 13(d)-3 under the Exchange Act;
provided, however, and without limitation, that any individual, corporation,
partnership, group, association or other person or entity that has the right to
acquire any Voting Stock at any time in the future, whether such right is (a)
contingent or absolute, or (b) exercisable presently or at any time in the
future, pursuant to any agreement or understanding or upon the exercise or
conversion of rights, options or warrants, or otherwise, shall be the Beneficial
Owner of such Voting Stock.
Cash Termination Excise Tax is defined in Section 6.6(a).
Cash Termination Payment is defined in Section 6.6(a).
Cause is defined in Section 5.3.
Change in Control of the Company means one of the following: (a) the
Company merges or consolidates, or agrees to merge or to consolidate, with any
other corporation (other than a wholly-owned direct or indirect subsidiary of
the Company) and is not the surviving corporation (or survives as a subsidiary
of another corporation), (b) the Company sells, or agrees to sell, all or
substantially all of its assets to any other person or entity, (c) the Company
is dissolved, (d) any third person or entity (other than Apollo Advisors, L.P.,
The Blackstone Group L.P., or a trustee or committee of any qualified employee
benefit plan of the Company) together with its Affiliates shall become (by
tender offer or otherwise), directly or indirectly, the Beneficial Owner of at
least 30% of the Voting Stock of the Company, or (e) the individuals who
constitute the Board of Directors of the Company as of the Effective Date
("Incumbent Board") shall cease for any reason to constitute at least a majority
of the Board of Directors; provided, that any person becoming a director whose
election or nomination for election was approved by a majority of the members of
the Incumbent Board shall be considered, for the purposes of this Agreement, a
member of the Incumbent Board.
Change in Control Date is defined in Section 6.5.
Code means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated by the Internal Revenue Service thereunder.
Common Stock means the Company's common stock, par value $.01 per
share.
Company means Allied Waste Industries, Inc., a Delaware corporation.
Compensation Plans is defined in Section 4.6.
Confidential Information is defined in Section 7.2.
Continuing Obligations is defined in Section 3.
Date of Termination means the earliest to occur of (a) the date of
the Executive's death, or (b) the date specified in the Notice of Termination,
in accordance with Section 5.8.
Disability means an illness or other disability which prevents the
Executive from discharging his responsibilities under this Agreement for a
period of 180 consecutive calendar days, or an aggregate of 180 calendar days in
any calendar year, during the Term, all as determined in good faith by the Board
of Directors of the Company (or a committee thereof).
Effective Date means January 1, 2004.
Exchange Act means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Securities and Exchange
Commission thereunder.
Executive means Xxxxxx X. Xxxxxx.
Good Reason is defined in Section 5.5.
LTIP means the Long-Term Incentive Plan.
Notice of Termination is defined in Section 5.8.
Retirement is defined in Section 5.7.
Share Price has the same meaning as "Fair Market Value" as that term
is defined in the Company's 1991 Incentive Stock Plan, as amended.
Targeted Annual Incentive Compensation is defined in Section 4.2.
Term is defined in Section 3.
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Threshold Share Price means (a) in the case of the one (1) year
period following the Effective Date, a Share Price of $18 or more, or (b) in the
case of subsequent years, a Share Price which is at least fifteen percent (15%)
greater than the Threshold Share Price for the preceding one (1) year period.
Vacation Time is defined in Section 4.3.
Voting Stock means all outstanding shares of capital stock of the
Company entitled to vote generally in an election of directors; provided,
however, that if the Company has shares of Voting Stock entitled to more or less
than one (1) vote per share, each reference to a proportion of the issued and
outstanding shares of Voting Stock shall be deemed to refer to the proportion of
the aggregate votes entitled to be cast by the issued and outstanding shares of
Voting Stock.
Welfare Plans is defined in Section 4.7.
Without Cause is defined in Section 5.4.
In addition, throughout this Agreement, the parties have defined
certain words and intend for those definitions to apply whenever the parties
have used a defined word in this Agreement. One of the defined terms is
"Company" which means Allied Waste Industries, Inc. However, the parties expect
that some or all of the Company's obligations under this Agreement will be
fulfilled through its parent, subsidiary, related, or successor companies or
businesses (which will be called "Affiliates" in this Agreement). Accordingly,
Executive acknowledges that the discharge of any obligation of the Company under
this Agreement, which may be through the acts of one or more Affiliates,
discharges any such obligation of the Company. Moreover, the obligations
Executive assumes under this Agreement will be owed to the Company and to its
Affiliates. Accordingly, the parties expressly intend for the Affiliates to be
third-party beneficiaries of the promises made and obligations assumed by
Executive in this Agreement.
2. GENERAL DUTIES OF COMPANY AND EXECUTIVE.
2.1. The Company will employ the Executive as its Executive Vice
President and Chief Operating Officer. The Executive's authority, duties and
responsibilities shall be those assigned by the Company's Board of Directors (or
a committee thereof) and agreed to by the Executive; his duties as of the
Effective Date shall be as described in Exhibit A attached to this Agreement.
The Executive shall devote reasonable time and attention during normal business
hours to the affairs of the Company and use his best efforts to perform
faithfully and efficiently his duties and responsibilities. The Executive may
(a) serve on corporate, civic or charitable boards or committees, (b) deliver
lectures, fulfill speaking engagements or teach at educational institutions, and
(c) manage personal investments, so long as such activities do not significantly
interfere with the performance of the Executive's duties and responsibilities.
2.2. The Executive agrees and acknowledges that he owes a fiduciary
duty of loyalty, fidelity and allegiance to act at all times in the best
interests of the Company and to do no act and to make no statement, oral or
written, which would injure the Company's business, its interests or its
reputation. The Executive also agrees that he shall not knowingly become
involved in a conflict of interest with the Company and, upon discovery of any
such conflict, that he will inform the Company of the conflict and will not
allow the conflict to continue.
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2.3. The Executive agrees to comply at all times with all applicable
policies, rules and regulations of the Company, including, without limitation,
the Company's Code of Ethics and the Company's policies regarding trading in
Common Stock, as each is in effect from time to time.
3. TERM. The "Term" of this Agreement shall be a continuous period of two
(2) years (i.e., on any given date the Term shall be a period of two years from
that date), beginning on the Effective Date, unless this Agreement is terminated
earlier pursuant to Section 5 of this Agreement, in which case the Term shall
end on the Date of Termination. Neither the termination of this Agreement nor
the consequent end of the Term shall affect the Company's obligations under
Section 6 of this Agreement or the Executive's obligations under Sections 7
through 10 of this Agreement (or under Section 2.3 with respect to the Company's
policies regarding trading in Common Stock) (collectively, "Continuing
Obligations").
4. COMPENSATION AND BENEFITS.
4.1. Base Salary. As compensation for services to the Company during
the Term, the Company shall pay to the Executive until the Date of Termination a
base salary at the annual rate of Six Hundred Sixty-Six Thousand Dollars
($663,000.00) or such other rate as may be specified from time to time by the
Board of Directors (or a committee thereof) in its discretion ("Base Salary").
The Base Salary shall be payable in equal bi-weekly installments or in
accordance with the Company's established policy, subject only to such payroll
and withholding deductions as may be required by law and other deductions
applied generally to employees of the Company for insurance and other employee
benefit plans. For all purposes under this Agreement, the Executive's Base
Salary shall include any portion thereof which is deferred under any
nonqualified plan or arrangement.
4.2. Annual Incentive Compensation. In addition to Base Salary, the
Executive shall be awarded, for each fiscal year during the Term until the Date
of Termination, annual cash incentive compensation (either pursuant to an
incentive plan or program of the Company or otherwise) in an amount to be
determined by the Board of Directors (or a committee thereof) in its sole
discretion ("Annual Incentive Compensation"). "Targeted Annual Incentive
Compensation", earned upon the achievement of one hundred percent (100%) of the
annual target goals for the Executive, shall be one hundred percent (100%) of
the Executive's Base Salary, unless otherwise determined by the Board of
Directors (or a committee thereof) in its sole discretion. All such Annual
Incentive Compensation shall be payable at a time to be determined by the Board
of Directors (or a committee thereof) in its sole discretion. For all purposes
under this Agreement, the Executive's Annual Incentive Compensation shall
include any portion thereof which is deferred under any nonqualified plan or
arrangement.
4.3. Vacation Time. Commencing on the Effective Date and continuing
until the Date of Termination, for each full calendar year in which the
Executive is employed under this Agreement, the Executive shall be entitled to
four (4) weeks paid vacation ("Vacation Time"). For any partial calendar year
during which the Executive is employed under this Agreement, he will be entitled
to a prorated amount of Vacation Time, based on the number of weeks worked in
the calendar year pursuant to the Company's then current vacation policy.
Vacation Time must be
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taken during the calendar year in which it accrued and will be forfeited at the
end of the calendar year if not used.
4.4. Automobile Allowance. Commencing on the Effective Date and
continuing until the Date of Termination, the Executive shall receive an
automobile allowance of Six Hundred Dollars ($600.00) per month ("Automobile
Allowance"). The Board of Directors (or a committee thereof), in its discretion,
may increase the Automobile Allowance based upon relevant circumstances.
4.5. Club Membership Dues. Commencing on the Effective Date and
continuing until the Date of Termination, the Executive shall receive an amount
per month equal to the monthly membership dues (i.e., the regular membership
fee, and not incidental or ancillary charges such as food, beverages, rentals,
coaching, training, supplies, therapy, spa, etc.) which the Executive pays for
one club or organization of Executive's choice.
4.6. Incentive, Savings, Retirement and Stock Plans. The Executive
shall be entitled to participate in and be eligible to receive benefits under
all executive incentive, savings, retirement and stock (including any stock
option, restricted stock, restricted stock units, phantom stock and other stock
rights and interests, including derivative interests) plans and programs
currently maintained or hereinafter established by the Company for the benefit
of its executive officers and/or employees (collectively "Compensation Plans").
The Executive's participation in all such Compensation Plans shall be governed
by the terms and provisions of each such Compensation Plan.
4.7. Welfare Plans. The Executive shall be eligible to participate
in and shall receive all benefits under each welfare benefit plan of the Company
currently maintained or subsequently established by the Company for the benefit
of its employees. Such welfare benefit plans may include medical, dental,
vision, disability, group life, accidental death and travel accident insurance
plans and programs (collectively "Welfare Plans"). The Executive's participation
in the Welfare Plans shall be subject to the terms and conditions of each
Welfare Plan.
4.8. Reimbursement of Expenses. The Executive may from time to time
during the Term incur various business expenses customarily incurred by persons
holding positions of like responsibility, including, without limitation, travel,
entertainment and similar expenses incurred for the benefit of the Company.
Subject to the Company's policy regarding the reimbursement of such expenses as
in effect from time to time during the Term, which does not necessarily allow
reimbursement of all such expenses, and following the Company's receipt of
proper documentation for such expenses, the Company shall reimburse the
Executive for such expenses from time to time, at the Executive's request, and
the Executive shall account to the Company for all such expenses.
4.9. Indemnification and Insurance. At all times during the term of
this Agreement, and for such additional periods as are provided for in this
Agreement, the Executive shall be covered under the Company's directors' and
officers' liability insurance, if any, to the extent such coverage is
commercially feasible, and under a separate Indemnification Agreement with the
Company.
5. TERMINATION.
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5.1. Death. This Agreement shall terminate automatically upon the
death of the Executive.
5.2. Disability. The Company may terminate this Agreement, upon
written notice to the Executive delivered in accordance with Sections 5.8 and
11.1, upon the Disability of the Executive.
5.3. Cause. The Company may terminate this Agreement, upon written
notice to the Executive delivered in accordance with Sections 5.8 and 11.1, for
Cause. For purposes of this Agreement, "Cause" means (a) the conviction of the
Executive for a felony, (b) the Executive's willful refusal, without proper
legal cause, to perform his duties and responsibilities as contemplated in this
Agreement, or (c) the Executive's willfully engaging in activities which (1)
constitute a breach of any term of this Agreement, the Company's Code of Ethics,
the Company's policies regarding trading in Common Stock, reimbursement of
business expenses, or any other applicable policies, rules or regulations of the
Company or (2) result in a material injury to the business, condition (financial
or otherwise), results of operations, or prospects of the Company or its
Affiliates (as determined in good faith by the Board of Directors of the Company
or a committee thereof). For purposes of the definition of "Cause," no act or
failure to act shall be considered "willful" unless it is done, or omitted to be
done, in bad faith without reasonable belief that the action or omission was in
the best interests of the Company.
5.4. Without Cause. The Company may terminate this Agreement Without
Cause, upon written notice to the Executive delivered in accordance with
Sections 5.8 and 11.1. For purposes of this Agreement, the Executive will be
deemed to have been terminated "Without Cause" if the Executive is terminated by
the Company for any reason other than Cause, Disability or death.
5.5. Good Reason. The Executive may terminate this Agreement for
Good Reason, upon written notice to the Company delivered in accordance with
Sections 5.8 and 11.1. For purposes of this Agreement, "Good Reason" means (a)
the assignment to the Executive of any duties that are materially inconsistent
with the Executive's duties or responsibilities as contemplated in this
Agreement, (b) any other action by the Company which results in a material
diminishment in the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities (provided,
however, that a temporary diminishment, whether material or not, due to the
Executive's illness or injury will not constitute grounds for a termination for
Good Reason by the Executive), (c) any material breach by the Company of any of
the provisions of this Agreement, (d) requiring the Executive to relocate
permanently to any office or location, except in the Phoenix-Scottsdale
metropolitan area or any other location to which the majority of the Company's
executive officers are relocated, without his consent, (e) any material
reduction, or attempted material reduction, at any time during the Term, of the
Base Salary or of any of the compensation or benefits described in Article 4 of
this Agreement (provided, however, that any change in the targeted percentage
for purposes of determining the Executive's Annual Incentive Compensation, any
change in the Company's reimbursement policies, or any change in any
Compensation Plans or Welfare Plans, which affects a majority of the employees
covered by those policies or plans, shall not be considered "Good Reason").
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5.6. Without Good Reason. The Executive may terminate this Agreement
Without Good Reason, upon written notice to the Company delivered in accordance
with Sections 5.8 and 11.1. For purposes of this Agreement, the Executive will
be deemed to have terminated "Without Good Reason" if the Executive terminates
this Agreement for any reason other than Good Reason or due to the Executive's
death or Retirement.
5.7. Retirement. The Executive may terminate this Agreement upon
Retirement, upon written notice to the Company delivered in accordance with
Sections 5.8 and 11.1. For purposes of this Agreement, "Retirement" means the
Executive's bona fide retirement from the Company.
5.8. Notice of Termination. Any termination of this Agreement by the
Company for Cause, Without Cause or as a result of the Executive's Disability,
or by the Executive for Good Reason or Without Good Reason or upon Retirement
shall be communicated by a Notice of Termination to the other party. A "Notice
of Termination" means a written notice which (a) indicates the specific
termination provision in this Agreement relied upon and (b) if the termination
is by the Company for Cause or by the Executive for Good Reason, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated. The
Notice of Termination must specify the Date of Termination. In the case of a
termination by the Company for Cause or due to the Executive's Disability or by
the Executive for Good Reason or due to Retirement, the Date of Termination may
be as early as the date notice is given but no later than thirty (30) calendar
days after notice is given, unless otherwise agreed to in writing by both
parties. In the case of a termination by the Company Without Cause or by the
Executive Without Good Reason, the Date of Termination may be as early as
fourteen (14) calendar days after notice is given but no later than sixty (60)
calendar days after notice is given, unless otherwise agreed to by the parties
in writing. The Notice of Termination shall also conform with the provisions of
Section 11.1.
6. OBLIGATIONS OF COMPANY UPON TERMINATION.
6.1. Cause, Without Good Reason. If this Agreement is terminated
either by the Company for Cause or by the Executive Without Good Reason, the
Company shall pay to the Executive, in a lump sum cash payment within thirty
(30) days after the Date of Termination, the aggregate of (a) any unpaid portion
of the Executive's Base Salary (as in effect on the Date of Termination) owing
as of the Date of Termination, (b) any accrued but unpaid Vacation Time as of
the Date of Termination, and (c) in the case of compensation previously deferred
by the Executive, all amounts of such compensation previously deferred and not
yet paid by the Company (unless such payment is inconsistent with the terms of
either any payment election made by the Executive with respect to such deferred
compensation or the applicable plan). The Company also shall promptly pay or
reimburse to the Executive any costs and expenses (and moving and relocation
expenses, if otherwise agreed to by the Company in writing) paid or incurred by
the Executive which would have been payable under Section 4.8 of this Agreement
if the Executive's employment had not terminated.
All other obligations of the Company and rights of the
Executive hereunder shall terminate effective as of the Date of Termination;
provided, however, that the Executive's rights under any Compensation Plan or
Welfare Plan shall be governed by the terms and provisions of each such plan and
are not necessarily severed on the Date of Termination.
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6.2. Death or Disability. If this Agreement is terminated as a
result of the Executive's death or Disability:
(a) The Company shall pay to the Executive (or to his estate,
in the event the Executive is deceased) the following amounts:
(1) any unpaid portion of the Executive's Base Salary
(as in effect on the Date of Termination) through the Date of Termination,
any unpaid portion of the Annual Incentive Compensation previously awarded
to the Executive, and any accrued but unpaid Vacation Time as of the Date
of Termination, in a lump sum cash payment within thirty (30) days after
the Date of Termination;
(2) an amount equal to two (2) times the sum of the
Executive's Base Salary (as in effect on the Date of Termination) plus the
Executive's Target Annual Incentive Compensation for the fiscal year
during which the Date of Termination occurs, in bi-weekly installments
over a two (2) year period following the Executive's Date of Termination.
The Company shall, to the extent feasible, purchase insurance to cover all
or any part of the obligation contemplated in the foregoing sentence, and
the Executive agrees to submit to a physical examination and otherwise
cooperate with the Company to facilitate the procurement of such
insurance; and
(3) in the case of compensation previously deferred by
the Executive, all amounts of such compensation previously deferred and
not yet paid by the Company in a lump sum cash payment within thirty (30)
days after the Date of Termination (unless such payment is inconsistent
with either the terms of any payment election made by the Executive with
respect to such deferred compensation or the applicable plan).
(b) The Company shall, promptly upon submission by the
Executive (or his estate) of supporting documentation, pay or reimburse to the
Executive any costs and expenses (and moving and relocation expenses, if
otherwise agreed to by the Company in writing) paid or incurred by the Executive
which would have been payable under Section 4.8 of this Agreement if the
Executive's employment had not terminated.
(c) The Company shall continue providing medical, dental,
and/or vision coverage to the Executive and/or the Executive's spouse and
dependents, at least equal to that which would have been provided to him under
Section 4.7 if the Executive's employment had not terminated, if such coverage
continues to be available to the Company, until the earlier of (1) the date the
Executive becomes eligible for any comparable medical, dental, or vision
coverage provided by any other employer, (2) the date the Executive becomes
eligible for Medicare or any similar government-sponsored or provided health
care program (whether or not such coverage is equivalent to that provided by the
Company), or (3) the fifth anniversary of the Executive's Date of Termination.
Notwithstanding the foregoing, the medical, dental, and/or vision coverage
provided under this Section 6.2(c) shall cease immediately if the Executive
violates any of his Continuing Obligations.
(d) Whenever compensation is payable to the Executive under
this Agreement during a period in which he is partially or totally disabled, and
such Disability would
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(except for the provisions of this Agreement) entitle the Executive to
Disability income or salary continuation payments from the Company according to
the terms of any plan or program presently maintained or hereafter established
by the Company, the Disability income or salary continuation paid to the
Executive pursuant to any such plan or program shall be considered a portion of
(and not in addition to) the payment to be made to the Executive pursuant to
this Section 6.2. If disability income is payable directly to the Executive by
an insurance company under the terms of an insurance policy paid for by the
Company, the amounts paid to the Executive by such insurance company shall be
considered a portion of the payment (and not in addition to the payment) to be
made to the Executive pursuant to this Section 6.2.
(e) All other obligations of the Company and rights of the
Executive hereunder shall terminate effective as of the Date of Termination;
provided, however, that except as otherwise specifically modified by the terms
of this Agreement the Executive's rights under the Compensation Plans and
Welfare Plans shall be governed by the terms and provisions of those Plans and
are not necessarily severed on the Date of Termination.
(f) The Executive (or the Executive's estate, as the case may
be) shall continue to vest and, if applicable, continue to be permitted to
exercise, all of the rights and interests awarded to the Executive under the
Company's stock plans, as if the Executive were still employed by the Company,
for a period of three (3) years following the Date of Termination (or, if less,
for the remainder of the stated terms of the rights or interests).
(g) The Executive (or the Executive's estate, as the case may
be) shall continue to be covered under the Company's directors' and officers'
liability insurance, if any, to the extent such coverage is commercially
feasible, and under his separate Indemnification Agreement with the Company, as
if the Executive's employment had not terminated, for a period of ten (10) years
following his Date of Termination (or, in the case of the Indemnification
Agreement, for such longer term as may be provided for in the Indemnification
Agreement).
6.3. Good Reason; Without Cause. If this Agreement is terminated
either by the Executive for Good Reason or by the Company Without Cause (other
than in connection with a Change in Control as described in Section 6.5):
(a) The Company shall pay to the Executive the following
amounts:
(1) any unpaid portion of the Executive's Base Salary
(as in effect on the Date of Termination) through the Date of Termination,
any unpaid portion of the Annual Incentive Compensation previously awarded
to the Executive, and any accrued but unpaid Vacation Time as of the Date
of Termination, in a lump sum cash payment within thirty (30) days after
the Date of Termination;
(2) an amount equal to three (3) times the sum of the
Executive's Base Salary (as in effect on the Date of Termination) plus the
Executive's Targeted Annual Incentive Compensation for the fiscal year
during which the Date of Termination occurs, in bi-weekly installments
over a three (3) year period following the Date of Termination, provided
that such payments shall cease immediately if the Executive violates any
of his Continuing Obligations; and
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(3) in the case of compensation previously deferred by
the Executive, all amounts of such compensation previously deferred and
not yet paid by the Company in a lump sum cash payment within thirty (30)
days after the Date of Termination (unless such payment is inconsistent
with either the terms of any payment election made by the Executive with
respect to such deferred compensation or the applicable plan).
(b) The Company shall promptly pay or reimburse to the
Executive any costs and expenses (and moving and relocation expenses, if
otherwise agreed to by the Company in writing) paid or incurred by the Executive
which would have been payable under Section 4.8 of this Agreement if the
Executive's employment had not terminated.
(c) The Company shall continue providing medical, dental,
and/or vision coverage to the Executive and/or the Executive's spouse and
dependents, at least equal to that which would have been provided to the
Executive under Section 4.7 if the Executive's employment had not terminated,
until the earlier of (1) the date the Executive becomes eligible for any
comparable medical, dental, or vision coverage provided by any other employer,
(2) the date the Executive becomes eligible for Medicare or any similar
government-sponsored or provided health care program (whether or not such
coverage is equivalent to that provided by the Company), or (3) the fifth
anniversary of the Executive's Date of Termination; provided that such coverage
shall cease immediately if the Executive violates any of his Continuing
Obligations.
(d) The Executive (or the Executive's estate, as the case may
be) shall continue to vest and, if applicable, continue to be permitted to
exercise, all of the rights and interests awarded to the Executive under the
Company's stock plans, as if the Executive were still employed by the Company,
for a period of three (3) years following the Date of Termination (or, if less,
for the remainder of the stated terms of the rights and interests).
Notwithstanding any contrary provision of the LTIP, the Executive's Awards for
the Performance Cycles (as defined in the LTIP) in effect as of the Date of
Termination shall be prorated in the manner described in Section 8(a) of the
LTIP.
(e) The Executive shall continue to be covered under the
Company's directors' and officers' liability insurance, if any, to the extent
such coverage is commercially feasible, and under his separate Indemnification
Agreement with the Company, as if the Executive's employment had not terminated,
for a period of ten (10) years following his Date of Termination (or, in the
case of the Indemnification Agreement, for such longer term as may be provided
for in the Indemnification Agreement).
(f) All other obligations of the Company and rights of the
Executive hereunder shall terminate effective as of the Date of Termination;
provided, however, that except as otherwise specifically modified by the terms
of this Agreement the Executive's rights under the Compensation Plans and
Welfare Plans shall be governed by the terms and provisions of these Plans and
are not necessarily severed on the Date of Termination.
(g) Notwithstanding anything to the contrary, if this
Agreement is terminated either by the Executive for Good Reason or by the
Company Without Cause (other than in connection with a Change in Control as
described in Section 6.5) and the Date of Termination is within one (1) year of
the date on which the Executive would have satisfied the criteria for
eligibility for maximum retirement payments as specified in Section 6.4(d)(1)
below, the
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termination will be deemed to have been in contemplation of the Executive's
Retirement, and the rights and obligations of the parties shall be governed by
Section 6.4 rather than this Section 6.3.
(h) The Company shall (through an agency of Company's
choosing) provide outplacement services to the Executive for a period of one (1)
year following the Date of Termination, provided that the cost of such services
shall not exceed $50,000 (or such higher amount as may be approved by the Board
of Directors (or a committee thereof).
6.4 Retirement. If this Agreement is terminated by the Executive due
to Retirement:
(a) The Company shall pay to the Executive, in a lump sum cash
payment within thirty (30) days after the Date of Termination, the aggregate of
the following amounts: (1) any unpaid portion of the Executive's Base Salary (as
in effect on the Date of Termination) through the Date of Termination; (2) any
unpaid portion of the Annual Incentive Compensation previously awarded to the
Executive; (3) any accrued but unpaid Vacation Time as of the Date of
Termination; and (4) in the case of compensation previously deferred by the
Executive, all amounts of such compensation previously deferred and not yet paid
by the Company (unless such payment is inconsistent with either the terms of any
payment election made by the Executive with respect to such deferred
compensation or the applicable plan).
(b) The Company shall promptly pay or reimburse to the
Executive any costs and expenses (and moving and relocation expenses, if
otherwise agreed to by the Company in writing) paid or incurred by the Executive
which would have been payable under Section 4.8 of this Agreement if the
Executive's employment had not terminated.
(c) The Company shall continue providing medical, dental,
and/or vision coverage to the Executive and/or the Executive's family, at least
equal to that which would have been provided to the Executive under Section 4.7
if the Executive's employment had not terminated, until the earlier of (1) the
date the Executive becomes eligible for any comparable medical, dental, or
vision coverage provided by any other employer, or (2) the date the Executive
becomes eligible for Medicare or any similar government-sponsored or provided
health care program (whether or not such coverage is equivalent to that provided
by the Company), provided that such coverage shall cease immediately if the
Executive violates any of his Continuing Obligations. Following the date on
which the Executive becomes eligible for coverage under Medicare, the Executive
may, at his election, continue to be covered under the Company's health
coverage, if available, provided that the Executive pays all applicable premiums
charged by the Company or its third-party provider(s).
(d) The Company shall pay to the Executive, in equal bi-weekly
installments over a period of ten (10) years, beginning with the next bi-weekly
payroll period following the Date of Termination, full or partial retirement
payments, as provided below:
(1) If, as of the Date of Termination, the sum of the
Executive's age and years of service with the Company equal at least
sixty-three (63), the Executive is at least fifty-five (55) years old, and
the Executive has completed at least twenty (20) years of service with the
Company, the Executive is entitled to maximum retirement payments for each
year during the ten (10) year payment period equal to the product of sixty
percent
11
(60%) of the Executive's average Base Salary during the three (3)
consecutive full calendar years of employment immediately preceding the
Date of Termination (or, if less than three years, the average for the
actual number of whole calendar years during which the Executive was
employed by the Company). Notwithstanding the foregoing, if, as of the
Date of Termination, the sum of the Executive's age and years of service
with the Company equal at least sixty-three (63) and the Executive has
completed at least twenty (20) years of service with the Company, but the
Executive is younger than age fifty-five (55), the Executive shall be
entitled to deferred maximum retirement payments, in the amount and form
described in the preceding sentence, beginning with the next bi-weekly
payroll period following the attainment of age fifty-five (55). For
purposes of this Section 6.4(d), years of service include all whole (12
month) years of employment with the Company and with any entity acquired
by the Company, beginning with the Executive's initial date of employment
with the Company or the acquired entity.
(2) At the election of the Executive, the actuarial
equivalent of the Executive's retirement payments (determined by utilizing
reasonable actuarial assumptions) may be paid over a period longer than
ten (10) years.
(3) In the event of the Executive's death prior to the
payment of all of the retirement payments determined under this Section
6.4(d), the balance of the payments shall be made to the Executive's
surviving spouse, if any, or to any other beneficiary named by the
Executive in writing.
(4) Any remaining retirement payments shall immediately
cease in the event the Executive works for a competitor (as determined by
the Company in its sole discretion), becomes employed by any other
employer without the prior written consent of the Company, or violates any
of his Continuing Obligations. Notwithstanding the foregoing, with the
prior written consent of the Company, the Executive may be employed by an
entity which is not deemed by the Company to be in competition with the
Company in a capacity in which the economic value of his total
compensation is comparable to his total compensation while employed by the
Company, and receive retirement benefits which are reduced proportionately
by the compensation received by the Executive in the new position. Also
with the prior written consent of the Company, the Executive may be
employed by an entity which is not deemed by the Company to be in
competition with the Company, in a capacity in which his total
compensation is materially less than his total compensation while employed
by the Company, in which case there would be no reduction in retirement
benefits.
(e) The Executive (or the Executive's estate, as the case may
be) shall continue to vest and, if applicable, continue to be permitted to
exercise, all of the rights and interests awarded to the Executive under the
Company's stock plans, for a period of three (3) years following the Date of
Termination (or, if less, for the remainder of the stated terms of the rights
and interests).
(f) The Executive shall continue to be covered under the
Company's directors' and officers' liability insurance, if any, to the extent
such coverage is commercially feasible, and under his separate Indemnification
Agreement with the Company, as if the Executive's employment had not terminated,
for a period of ten (10) years following his Date of
12
Termination (or, in the case of the Indemnification Agreement, for such longer
term as may be provided for in the Indemnification Agreement).
(g) All other obligations of the Company and rights of the
Executive hereunder shall terminate effective as of the Date of Termination;
provided, however, that except as otherwise specifically modified by the terms
of this Agreement the Executive's rights under the Compensation Plans and
Welfare Plans shall be governed by the terms and provisions of these Plans and
are not necessarily severed on the Date of Termination. In addition, the
Executive shall continue to be eligible to make deferrals under the Company's
Executive Deferred Compensation Plan, and under the LTIP, in accordance with the
terms of those Plans.
(h) Except as otherwise provided in this Section 6.4(h), the
payments and benefits provided under this Section 6.4 shall be in lieu of any
payments to which the Executive may have otherwise been entitled under the terms
of Section 6.2, 6.3 or 6.5, and vice versa. In the event a Change in Control
occurs coincident with or following the commencement of the Executive's
retirement payments under this Section 6.4, the payment of any remaining
retirement payments to which the Executive is entitled under this Section 6.4
shall be accelerated and paid in a lump sum cash payment within a reasonable
period of time following the Change in Control. In the event the Executive
becomes eligible for payments under the terms of Section 6.5 following the date
on which the Executive becomes entitled to deferred maximum retirement payments
under this Section 6.4 but prior to the commencement of the retirement payments,
the Executive shall receive payments under the terms of Section 6.5 in lieu of
the deferred retirement payments or any other payments to which the Executive
may have otherwise been entitled under the terms of this Section 6.4.
6.5 Change in Control. If this Agreement is terminated either by the
Executive for Good Reason or by the Company Without Cause, and the termination
occurs within the one (1) year period preceding or the eighteen (18) month
period following the date on which the Change in Control occurs ("Change in
Control Date"):
(a) As reasonable compensation for services rendered by the
Executive to the Company prior to the Date of Termination, the Company shall pay
to the Executive, in a lump sum cash payment within thirty (30) days after the
later to occur of the Date of Termination or the Change in Control Date, the
aggregate of the following amounts:
(1) any unpaid portion of the Executive's Base Salary
(as in effect on the Date of Termination) through the Date of Termination,
any unpaid portion of the Annual Incentive Compensation previously awarded
to the Executive, and any accrued but unpaid Vacation Time as of the Date
of Termination;
(2) an amount equal to three (3) times the sum of the
Executive's Base Salary (as in effect on the Date of Termination) plus the
Executive's Targeted Annual Incentive Compensation for the fiscal year
during which the Date of Termination occurs; and
(3) in the case of compensation previously deferred by
the Executive, all amounts of such compensation previously deferred and
not yet paid by the Company (unless such payment is inconsistent with the
terms of either any payment
13
election made by the Executive with respect to such deferred compensation
or the applicable plan).
(b) The Company shall promptly pay or reimburse to the
Executive any costs and expenses (and moving and relocation expenses, if
otherwise agreed to by the Company in writing) paid or incurred by the Executive
which would have been payable under Section 4.8 of this Agreement if the
Executive's employment had not terminated.
(c) The Company shall continue providing medical, dental,
and/or vision coverage to the Executive and/or the Executive's family, at least
equal to that which would have been provided to the Executive under Section 4.7
if the Executive's employment had not terminated, until the earlier of (1) the
date the Executive becomes eligible for any comparable medical, dental, or
vision coverage provided by any other employer, or (2) the date the Executive
becomes eligible for Medicare or any similar government-sponsored or provided
health care program (whether or not such coverage is equivalent to that provided
by the Company).
(d) As reasonable compensation for services provided by the
Executive to the Company prior to the Date of Termination, the Company shall
(through an agency of Company's choosing) provide outplacement services to the
Executive for a period of one (1) year following the later of the Date of
Termination or the Change in Control Date, provided that the cost of such
services shall not exceed $50,000 (or such higher amount as may be approved by
the Board of Directors (or a committee thereof).
(e) The Executive shall fully and immediately vest in all of
the rights and interests awarded to the Executive under the Company's stock
plans.
(f) The Executive shall continue to be covered under the
Company's directors' and officers' liability insurance, if any, to the extent
such coverage is commercially feasible, and under his separate Indemnification
Agreement with the Company, as if the Executive's employment had not terminated,
for a period of ten (10) years following his Date of Termination (or, in the
case of the Indemnification Agreement, for such longer term as may be provided
for in the Indemnification Agreement).
(g) All other obligations of the Company and rights of the
Executive hereunder shall terminate effective as of the Date of Termination;
provided, however, that except as otherwise specifically modified by the terms
of this Agreement the Executive's rights under the Compensation Plans and
Welfare Plans shall be governed by the terms and provisions of these Plans and
are not necessarily severed on the Date of Termination.
(h) In the event the Change in Control Date occurs subsequent
to the Executive's Date of Termination, the payments and benefits provided under
this Section 6.5 shall be reduced by and to the extent of any payments and
benefits previously paid or provided to the Executive under Section 6.3, and in
no event shall the Executive or his family be entitled to any duplicate payments
or benefits.
6.6 Cash Termination Excise Tax Payments.
14
(a) In the event that (1) the closing stock price of the
Company on the date of the Change in Control equals or exceeds the Threshold
Share Price, and (2) it is determined that the payment made under (Section
6.4(h) or Section 6.5(a)(2) ("Cash Termination Payment"), would be subject to
the excise tax imposed by Section 4999 of the Internal Revenue Code (the "Code")
(such excise tax is hereinafter collectively referred to as the "Cash
Termination Excise Tax"), then the Executive shall be entitled to receive the
payment described in Section 6.6(b) below.
(b) The Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") such that the net amount retained by the
Executive, after deduction of any excise tax on the Cash Termination Payment and
any federal, state, and local income and employment taxes and excise tax upon
the Gross-Up Payment, shall be equal to the Cash Termination Payment. The
Gross-Up Payment, if any, shall be paid to the Executive, or, at the discretion
of the Company, to governmental authorities on the Executive's behalf, as soon
as practicable following the payment of the Executive's Cash Termination
Payment, but, in any event, not later than five (5) business days immediately
following the payment of the Executive's Cash Termination Payment.
(c) Subject to the provisions of Section 6.6(d), all
determinations required to be made under this Section 6.6, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by tax counsel appointed by the Company (the "Tax Counsel"). All fees and
expenses of the Tax Counsel shall be borne solely by the Company. As a result of
the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Tax Counsel hereunder, it is possible that
Gross-Up Payments, which will not have been made by the Company, should have
been made ("Underpayment"). In the event that it is ultimately determined in
accordance with the procedures set forth in Section 6.6(d) that the Executive is
required to make a payment of any excise tax, the Tax Counsel shall determine
the amount of the Underpayment that has occurred, and any such Underpayment
shall be promptly paid by the Company to or for the benefit of the Executive.
(d) The Executive shall notify the Company in writing of any
claims by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than 30 days after the Executive actually
receives notice in writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is requested to be paid.
The Executive shall not pay such claim prior to the expiration of the 30-day
period following the date on which he gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(1) give the Company any information reasonably
requested by the Company relating to such claim;
(2) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to
time, including, without
15
limitation, accepting legal representation with respect to such claim by
an attorney selected by the Company and reasonably acceptable to the
Executive;
(3) cooperate with the Company in good faith in order to
effectively contest such claim; and
(4) if the Company elects not to assume and control the
defense of such claim, permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any excise tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 6.6(d), the Company shall have the right, at its sole option, to
assume the defense of and control all proceedings in connection with such
contest, in which case it may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may either direct the Executive to pay the tax claimed
and xxx for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Executive, on an
interest-free basis, and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any excise tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further
provided, that any extension of the statute of limitations relating to payment
of taxes for the taxable year of the Executive with respect to which such
contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's right to assume the defense of and control
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder, and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(e) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 6.6(d), the Executive becomes
entitled to receive any refund with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of Section 6.6(d))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
Section 6.6(d), a determination is made that the Executive shall not be entitled
to any refund with respect to such claim, and the Company does not notify the
Executive in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid, and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
6.7. Payments Contingent on Executive's Release of Company. All of
the payments and benefits to which the Executive would otherwise be entitled
under Sections 6.2, 6.3, 6.4, 6.5, or 6.6 [except those payments to which the
Executive is entitled under Sections 6.2(a)(1)
16
and 6.2(a)(3), Sections 6.3(a)(1) and 6.3(a)(3), Section 6.4(a), and Sections
6.5(a)(1) and 6.5(a)(3)] shall be contingent on the Executive's delivery to the
Company of a signed release of all claims against the Company, in a form
specified by the Company.
7. EXECUTIVE'S CONFIDENTIALITY OBLIGATION.
7.1. The Executive hereby acknowledges, understands and agrees that
all Confidential Information is the exclusive and confidential property of the
Company and its Affiliates which shall at all times be regarded, treated and
protected as such in accordance with this Article 7. The Executive acknowledges
that all such Confidential Information is in the nature of a trade secret.
7.2. For purposes of this Agreement, "Confidential Information"
means information, that is used in the business of the Company or its Affiliates
and (a) is proprietary to, about or created by the Company or its Affiliates,
(b) gives the Company or its Affiliates some competitive business advantage or
the opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company or its Affiliates, (c) is designated
as Confidential Information by the Company or its Affiliates, is known by the
Executive to be considered confidential by the Company or its Affiliates, or
from all the relevant circumstances should reasonably be assumed by the
Executive to be confidential and proprietary to the Company or its Affiliates,
or (d) is not generally known by non-Company personnel. Such Confidential
Information includes, without limitation, the following types of information and
other information of a similar nature (whether or not reduced to writing or
designed as confidential):
(a) Internal personnel and financial information of the
Company or its Affiliates, information about vendors that is not generally known
but is known to the Company as a result of the Company's relationship with the
vendor (including vendor characteristics, services, prices, lists and
agreements), purchasing and internal cost information, internal service and
operational manuals, and the manner and methods of conducting the business of
the Company or its Affiliates;
(b) Marketing and development plans, price and cost data,
price and fee amounts, pricing and billing policies, quoting procedures,
marketing techniques, forecasts and forecast assumptions and volumes, and future
plans and potential strategies (including, without limitation, all information
relating to any acquisition prospect and the identity of any key contact within
the organization of any acquisition prospect) of the Company or its Affiliates
which have been or are being discussed;
(c) Names of customers and their representatives, contracts
(including their contents and parties), customer services, and the type,
quantity, specifications and content of products and services purchased, leased,
licensed or received by customers of the Company or its Affiliates;
(d) Confidential and proprietary information provided to the
Company or its Affiliates by any actual or potential customer, government agency
or other third party (including businesses, consultants and other entities and
individuals);
17
(e) Any non-public information about the Company's landfill
development plans, landfill capacity, and the status of the permitting process
with respect to any aspect of the Company's business; and
(f) Any non-public information about the existence or status
of any governmental investigation, charge, or lawsuit, the status or the
position of the Company regarding the value of any claim or charge (whether
filed by the government or a third party), the Company's interest in resolving
any such claim or charge; or any non-public information regarding the Company's
compliance with federal, state or local laws.
7.3. As a consequence of the Executive's acquisition or anticipated
acquisition of Confidential Information, the Executive shall occupy a position
of trust and confidence with respect to the affairs and business of the Company
and its Affiliates. In view of the foregoing, and of the consideration to be
provided to the Executive, the Executive agrees that it is reasonable and
necessary that the Executive make each of the following covenants:
(a) At any time during the Term and thereafter, the Executive
shall not disclose Confidential Information to any person or entity, either
inside or outside of the Company, other than as necessary in carrying out his
duties and responsibilities as set forth in Article 2, without first obtaining
the Company's prior written consent (unless such disclosure is compelled
pursuant to court orders or subpoena, and at which time the Executive shall give
notice of such proceedings to the Company).
(b) At any time during the Term and thereafter, the Executive
shall not use, copy or transfer Confidential Information other than as necessary
in carrying out his duties and responsibilities as set forth in Article 2,
without first obtaining the Company's prior written consent.
(c) On the Date of Termination, the Executive shall promptly
deliver to the Company (or its designee) all written materials, records and
documents made by the Executive or which came into his possession prior to or
during the Term concerning, the business or affairs of the Company or its
Affiliates, including, without limitation, all materials containing Confidential
Information.
7.4 The Executive acknowledges and agrees that the use of the term
"Company" in this Section 7 means both the Company and its Affiliates.
8. DISCLOSURE OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS, DISCOVERIES
AND INVENTIONS. Consistent with the Executive's fiduciary duties to the Company
and its Affiliates, the Executive agrees that during his employment by the
Company and/or its Affiliates, the Executive shall promptly disclose in writing
to the Company all information, ideas, concepts, improvements, discoveries and
inventions, which are conceived, developed, made or acquired by the Executive,
either individually or jointly with others, and which relate to the business,
products or services of the Company or its Affiliates, irrespective of whether
the Executive used the Company's or Affiliate's time or facilities and
irrespective of whether such information, idea, concept, improvement, discovery
or invention was conceived, developed, discovered or acquired by the Executive
on the job, at home, or elsewhere. This obligation extends to all types of
information, ideas and concepts, including, information, ideas and concepts
relating to new types of services,
18
corporate opportunities, acquisition prospects, the identity of key
representatives within acquisition prospect organizations, prospective names or
service marks for the Company's or Affiliate's business activities, and the
like.
9. OWNERSHIP OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS, DISCOVERIES
AND ALL ORIGINAL WORKS OF AUTHORSHIP.
9.1. All information, ideas, concepts, improvements, and discoveries
which are conceived, made, developed or acquired by the Executive or which are
disclosed or made known to the Executive, individually or in conjunction with
others, during the Executive's employment by the Company and/or its Affiliates
and which relate to the business, products or services of the Company or its
Affiliates (including, without limitation, all such information relating to
corporate opportunities, research, financial and sales data, pricing and trading
terms, evaluations, opinions, interpretations, acquisition prospects, the
identity of customers or their requirements, the identity of key contacts within
the customers' organizations or within the organization of acquisition
prospects, marketing and merchandising techniques, and prospective names and
service marks) are and shall be the sole and exclusive property of the Company.
Furthermore, all drawings, memoranda, notes, records, files, correspondence,
manuals, models, specifications, computer programs, maps and all other writings
or materials of any type embodying any of such information, ideas, concepts,
improvements, and discoveries are and shall be the sole and exclusive property
of the Company.
9.2. In particular, the Executive hereby specifically sells,
assigns, transfers and conveys to the Company all of his worldwide right, title
and interest in and to all such information, ideas, concepts, improvements, and
discoveries, and any United States or foreign applications therefor. The
Executive shall assist the Company and its nominee at all times and in all
manners, during the Term and thereafter, in the protection of such information,
ideas, concepts, improvements, or discoveries.
9.3. In the event the Executive individually, or jointly with
others, creates, during the Term, any original work of authorship fixed in any
tangible medium of expression which is the subject matter of copyright (such as
videotapes, written presentations on acquisitions, computer programs, drawings,
maps, architectural renditions, models, manuals, brochures or the like) relating
to the Company's or its Affiliate's business products or services, the Company
shall be deemed the author of such work if the work is prepared by the Executive
within the scope of his employment; or, if the work is not prepared by the
Executive within the scope of his employment but is specially ordered by the
Company or its Affiliates as a contribution to a collective work, as a part of a
motion picture or other audiovisual work, as a translation, as a supplementary
work, as a compilation or as an instructional text, then the work shall be
considered to be a work made for hire, and the Company shall be the author of
such work. If such work is neither prepared by the Executive within the scope of
his employment nor a work specially ordered and deemed to be a work made for
hire, then the Executive hereby agrees to sell, transfer, assign and convey, and
by these presents, does sell, transfer, assign and convey, to the Company all of
the Executive's worldwide right, title and interest in and to such work and all
rights of copyright therein. The Executive agrees to assist the Company and its
Affiliates, at all times, during the Term and thereafter, in the protection of
the Company's worldwide right, title and interest in and to such work and all
rights of copyright therein, which assistance shall include, but shall not be
limited to, the execution of all documents requested by the Company or its
nominee and the execution of all
19
lawful oaths and applications for registration of copyright in the United States
and foreign countries.
10. EXECUTIVE'S NON-COMPETITION AND NON-SOLICITATION OBLIGATIONS.
10.1. Non-Competition. During the Applicable Period, the Executive
shall not, acting alone or in conjunction with others, directly or indirectly,
engage, participate, invest, accept employment or render services as a
principal, director, officer, agent, employee, employer, consultant or in any
other individual or representative capacity in or with any business which
competes, directly or indirectly, with the Company's business in any of the
business territories in which the Company or any of its Affiliates is presently
or from time to time during the Term or at the Date of Termination conducting
business, or take any action inconsistent with the fiduciary relationship of an
employee to his employer; provided, however, that the beneficial ownership by
the Executive of up to 3% of the Voting Stock of any corporation subject to the
periodic reporting requirements of the Exchange Act shall not violate this
Section 10.1.
10.2. Non-Solicitation. During the Applicable Period, the Executive
agrees that he shall not, directly or indirectly, (a) induce, entice or solicit
any employee of the Company to leave his employment, (b) contact, communicate or
solicit any customer or acquisition prospect of the Company derived from any
customer list, customer lead, mail, printed matter or other information secured
from the Company or its present or past employees (other than in connection with
the performance of his services for the Company in accordance with Article 2 of
this Agreement), or (c) in any other manner use any customer lists or customer
leads, mail, telephone numbers, printed material or other information of the
Company relating thereto (other than in connection with the performance of his
services for the Company in accordance with Article 2 of this Agreement).
10.3 Applicable Period. For purposes of Sections 10.1 and 10.2
above, the term "Applicable Period" means the period of time beginning on the
Effective Date of this Agreement and ending on (a) the second (2nd) anniversary
of the Date of Termination if the termination is the result of the Executive's
Disability or death, (b) the third (3rd) anniversary of the Date of Termination
if the termination is (1) by the Company for Cause or by the Executive without
Good Reason, (2) other than in connection with a Change in Control, by the
Company Without Cause or by the Executive for Good Reason, or (3) by the
Executive upon Retirement, or (c) the Date of Termination if the termination is
in connection with a Change in Control and by the Company Without Cause or by
the Executive for Good Reason.
11. MISCELLANEOUS.
11.1. Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been given when delivered by hand or mailed by registered or certified mail,
return receipt requested, as follows (provided that notice of a change of
address shall be deemed given only when received):
If to the Company:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
20
Attn: Senior Vice-President and General Counsel
If to the Executive:
Xxxxxx X. Xxxxxx
------------------------
------------------------
or to such other names or addresses as the Company or the Executive, as the case
may be, shall designate by notice to the other party in the manner specified in
this Section 11.1.
11.2. Waiver of Breach. The waiver by any party of a breach of any
provision of this Agreement shall neither operate nor be construed as a waiver
of any subsequent breach by any party. No breach shall be deemed waived unless
the waiver is in a writing signed by the non-breaching party.
11.3. Assignment. This Agreement shall be binding upon and inure to
the benefit of the Company, its Affiliates, successors, legal representatives
and assigns, and upon the Executive, his heirs, executors, administrators, legal
representatives and assigns; provided, however, the Executive agrees that his
rights and obligations hereunder are personal to him and may not be assigned
without the express written consent of the Company.
11.4. Entire Agreement, No Oral Amendments. This Agreement, together
with any schedule or exhibit attached hereto and any document, policy, rule or
regulation referred to herein, replaces and merges all previous agreements and
discussions relating to the same or similar subject matter between the Executive
and the Company and constitutes the entire agreement between the Executive and
the Company with respect to the subject matter of this Agreement. This Agreement
may not be modified in any respect by any verbal statement, representation or
agreement made by any employee, officer, or representative of the Company or by
any written agreement unless signed by an officer of the Company who is
expressly authorized by the Company to execute such document.
11.5. Enforceability. If any provision of this Agreement or
application thereof to anyone or under any circumstances shall be determined to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application.
11.6. Jurisdiction, Venue. The laws of the State of Arizona shall
govern the interpretation, validity and effect of this Agreement without regard
to the place of execution or the place for performance thereof, and the Company
and the Executive agree that the courts situated in Maricopa County, Arizona
shall have personal jurisdiction over the Company and the Executive to hear all
disputes arising under this Agreement. This Agreement is to be at least
partially performed in Maricopa County, Arizona, and as such, the Company and
the Executive agree that venue shall be proper with the courts in Maricopa
County, Arizona to hear such disputes. In the event either party is not able to
effect service of process upon the other party with respect to such disputes,
the Company and the Executive expressly agree that the Secretary of State for
the State of Arizona shall be an agent of the Company and/or the Executive to
receive service of process on behalf of the Company and/or the Executive with
respect to such disputes.
21
11.7 Injunctive Relief. The Company and the Executive agree that a
breach of any term of this Agreement by the Executive would cause irreparable
damage to the Company and that, in the event of such breach, the Company shall
have, in addition to any and all remedies of law, the right to any injunction,
specific performance and other equitable relief to prevent or to redress the
violation of the Executive's obligations under this Agreement.
11.8 Withholding. All payments made pursuant to this Agreement shall
be net of payroll and withholding deductions as may be required by law and other
deductions that are either applied generally to employees of the Company for
insurance and other employee benefit plans or authorized by Executive.
22
Dated: February , 2004. ALLIED WASTE INDUSTRIES, INC.
By
-------------------------------------
Xxxxxx X. Xxx Xxxxxxx,
Chief Executive Officer
& Chairman of the Board of Directors
"Company"
Dated: February , 2004.
-------------------------------------
Xxxxxx X. Xxxxxx
"Executive"
23
EXHIBIT A
The Executive Vice President and Chief Operating Officer (COO) is accountable
for the operating results of the Company. He is responsible for establishing the
operating goals and plans of the business along with the standards and processes
which support the achievement of those goals. He is responsible for selecting,
directing and leading the line management of the Company. As a member of the
senior management team, he will have an active role in contributing to the
Company strategy and direction, and in providing advice and counsel to, and
coordination with, the Chief Executive Officer and other Executive Officers of
the Company. He will continue to devote his entire business skill, time and
efforts diligently to the affairs of the Company in accordance with the duties
assigned to him by the Company's Chief Executive Officer and Board, and will
perform all such duties, and otherwise conduct himself, in a manner reasonably
calculated in good faith by him to promote the best interests of the Company.
