1
EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of January 13, 1998,
by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Employee") and Waste Connections, Inc., a
Delaware corporation (the "Company"), with reference to the following facts.
The Company desires to engage the services and employment of the Employee
for the period provided in this Agreement, and the Employee is willing to accept
employment by the Company for such period, on the terms and conditions set forth
below.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein, the Company and the Employee agree as follows:
1. Employment. The Company agrees to employ the Employee, and the
Employee agrees to accept employment with the Company, for the Term stated in
Section 3 hereof and on the other terms and conditions herein.
2. Position and Responsibilities. During the Term, the Employee shall
serve as Executive Vice President and Chief Financial Officer of the Company,
reporting directly to the Company's President, and perform such other duties and
responsibilities as the President or the Board of Directors (the "Board") of the
Company may reasonably assign to the Employee from time to time. The Employee
shall be based at the Company's corporate headquarters in Roseville, California.
The Employee shall devote such time and attention to his duties as are necessary
to the proper discharge of his responsibilities hereunder. The Employee agrees
to perform all duties consistent with (a) policies established from time to time
by the Company and (b) all applicable legal requirements. At the discretion of
the President and the Board, the Employee shall attend Board meetings, except
during executive sessions of the Board as determined by the Board, and shall
make presentations to the Board from time to time.
The Company recognizes and accepts that the Employee may, for a
period of time not to exceed 90 days (the "Transition Period"), engage in such
activities as are reasonably necessary to assist his previous employer in
transferring the Employee's responsibilities to his successor. The Employee
agrees to make every effort to minimize the effect of these transition
activities on the Company and to perform fully his obligations hereunder during
the Transition Period. The Employee agrees that either he or his previous
employer shall be responsible for all costs incurred by the Employee or his
previous employer in connection with the Employee's providing such transition
assistance, including, but not limited to, travel costs.
3. Term. The period of the Employee's employment under this Agreement
(the "Term") shall commence on March 1, 1998, or earlier by agreement between
the Employee and the Company, and shall continue through February 28, 2001,
unless terminated earlier as provided herein. At the end of the initial Term,
this Agreement shall be renewed automatically
1
2
for successive Terms of one year, unless either party shall have given the
other notice of termination hereof as provided herein.
4. Compensation, Benefits and Reimbursement of Expenses.
(a) Compensation. The Company shall compensate the Employee during
the Term of this Agreement as follows:
(1) Base Salary. The Employee shall be paid a base salary
("Base Salary") of not less than One Hundred Fifteen Thousand Dollars ($115,000)
per year in installments consistent with the Company's usual practices. On the
first anniversary of the Employee's employment by the Company, the Employee's
Base Salary shall be increased to One Hundred Thirty-Five Thousand Dollars
($135,000) per year. Thereafter, the Board shall review the Employee's Base
Salary on March 1 of each year or more frequently, at the times prescribed in
salary administration practices applied generally to management employees of the
Company.
(2) Performance Bonus. The Employee shall be entitled to an
annual cash bonus (the "Bonus") based on the Company's attainment of financial
objectives to be determined annually by the Board. The maximum annual Bonus will
equal thirty-five percent (35%) of the applicable year's ending Base Salary and
will be payable if the Board determines, in its sole and exclusive discretion,
that that year's financial objectives have been fully met. Notwithstanding the
foregoing, for calendar 1998, the Employee will be guaranteed a minimum Bonus of
twenty percent (20%) of the Base Salary paid to the Employee during that year,
and will be paid on a schedule agreed to by the Company and the Employee. The
Bonus with respect to 1999 and each year thereafter shall be paid in February of
the following year.
(3) Signing Bonus. The Employee shall be entitled to a cash
signing bonus in the amount of $69,166, payable no later than March 1, 1998.
(4) Grant of Options. On the first day of the initial Term,
the Company shall grant to the Employee, for no additional consideration, stock
options (the "Options") to purchase 200,000 shares of the Company's Common Stock
under the Company's Stock Option Plan. The Options shall have a term of 10 years
from the date of such grant. Options to purchase 100,000 of the 200,000 shares
of Common Stock shall be exercisable at a price of $2.80 per share and shall
vest and become exercisable with respect to 33,333 such shares on each of
October 1, 1998, and October 1, 1999, and with respect to 33,334 such shares on
October 1, 2000. Options to purchase 50,000 of the 200,000 shares shall be
exercisable at a price of $9.50 per share and shall vest and become exercisable
with respect to 16,667 such shares on October 1, 1998, with respect to 16,667
such shares on October 1, 1999, and with respect to 16,666 such shares on
October 1, 2000. Options to purchase 50,000 of the 200,000 shares shall be
exercisable at a price of $12.50 per share and shall vest and become exercisable
with respect to 16,667 such shares on October 1, 1998, with respect to 16,667
such shares on October 1, 1999, and with respect to 16,666 such shares on
October 1, 2000. The Options shall
2
3
be incentive stock options to the extent permitted under the Company's Stock
Option Plan, and the terms of the Options shall be described in more detail in
Stock Option Agreements to be entered into between the Employee and the Company.
If at any time while any of the Options are still outstanding the Company amends
its Stock Option Plan to provide for a less favorable vesting schedule for stock
options than that provided herein, any Options then outstanding shall thereupon
be converted to warrants entitling the Employee to purchase the number of shares
of Common Stock for which the Employee's then outstanding Options may be
exercised, on the same terms as provided under such Options.
(5) Contingent Option Grant. If (i) the Employee's previous
employer announces an acquisition before February 15, 1998, (ii) such
acquisition closes within 60 days after the commencement of the initial Term,
and (iii) the acquisition is one with respect to which, under the Employee's
employment agreement with his previous employer, the Employee would normally
have received additional compensation, but the Employee's previous employer does
not in this case compensate the Employee, the Company shall grant to the
Employee, for no additional consideration, within 30 days after it has been
conclusively determined that the Employee's previous employer will not pay such
additional compensation, stock options (the "Contingent Options") to purchase
30,000 shares of the Company's Common Stock under the Company's Stock Option
Plan. The Contingent Options shall have a term of 10 years from the date of such
grant, shall be exercisable at a price of $2.80 per share, and shall vest and
become exercisable with respect to 10,000 such shares on each of October 1,
1998, October 1, 1999, and October 1, 2000. The Contingent Options shall be
incentive stock options to the extent permitted under the Company's Stock Option
Plan, and the terms of the Contingent Options shall be described in more detail
in Stock Option Agreements to be entered into between the Employee and the
Company. If at any time while any of the Contingent Options are still
outstanding the Company amends its Stock Option Plan to provide for a less
favorable vesting schedule for stock options than that provided herein, any
Contingent Options then outstanding shall thereupon be converted to warrants
entitling the Employee to purchase the number of shares of Common Stock for
which the Employee's then outstanding Contingent Options may be exercised, on
the same terms as provided under such Contingent Options.
If the Employee's employment by the Company is terminated by the
Company without Cause (as defined in Section 7(a)) before all of the Options or
Contingent Options have vested, all of the outstanding Options and Contingent
Options shall become vested on such termination. If the Employee's employment by
the Company is terminated by the Company for Cause or by the Employee before all
of the Options or Contingent Options have vested, the Employee shall forfeit any
Options (but not any Contingent Options) that are unvested as of the termination
date.
(b) Other Benefits. During the Term, the Company shall provide the
Employee with a cellular telephone and will pay or reimburse the Employee's
monthly service fees and costs of calls attributable to Company business. During
the Term, the Employee shall be entitled to receive all other benefits of
employment generally available to other management
3
4
employees of the Company and those benefits for which management employees are
or shall become eligible, including, without limitation and to the extent made
available by the Company, medical, dental, disability and prescription coverage,
life insurance and tax-qualified retirement benefits. The Employee shall be
entitled to two (2) weeks of paid vacation in his first twelve months of
employment by the Company, three (3) weeks during each of the second through the
fifth twelve-month periods of employment, and four (4) weeks per twelve-month
period beginning with the sixth twelve-month period of employment.
(c) Reimbursement of Other Expenses. The Company agrees to pay or
reimburse the Employee for all reasonable travel and other expenses (including
mileage for business use of employee's personal automobile at the maximum rate
permitted under Internal Revenue Service regulations) incurred by the Employee
in connection with the performance of his duties under this Agreement on
presentation of proper expense statements or vouchers. All such supporting
information shall comply with all applicable Company policies relating to
reimbursement for travel and other expenses.
(d) Withholding. All compensation payable to the Employee
hereunder is subject to all withholding requirements under applicable law.
5. Confidentiality. During the Term, and at all times thereafter, the
Employee shall not, without the prior written consent of the Company, divulge to
any third party or use for his own benefit or the benefit of any third party or
for any purpose other than the exclusive benefit of the Company, any
confidential or proprietary business or technical information revealed, obtained
or developed in the course of his employment with the Company and which is
otherwise the property of the Company or any of its affiliated corporations,
including, but not limited to, trade secrets, customer lists, formulae and
processes of manufacture; provided, however, that nothing herein contained shall
restrict the Employee's ability to make such disclosures during the course of
his employment as may be necessary or appropriate to the effective and efficient
discharge of his duties to the Company.
6. Property. Both during the Term and thereafter, the Employee shall
not remove from the Company's offices or premises any Company documents,
records, notebooks, files, correspondence, reports, memoranda and similar
materials or property of any kind unless necessary in accordance with the duties
and responsibilities of his employment. In the event that any such material or
property is removed, it shall be returned to its proper file or place of
safekeeping as promptly as possible. The Employee shall not make, retain, remove
or distribute any copies, or divulge to any third person the nature or contents
of any of the foregoing or of any other oral or written information to which he
may have access, except as disclosure shall be necessary in the performance of
his assigned duties. On the termination of his employment with the Company, the
Employee shall leave with or return to the Company all originals and copies of
the foregoing then in his possession or subject to his control, whether prepared
by the Employee or by others.
4
5
7. Termination By Company.
(a) Termination for Cause. The employment of the Employee may be
terminated for Cause at any time by the Board; provided, however, that before
the Company may terminate the Employee's employment for Cause for any reason
that is susceptible to cure, the Company shall first send the Employee written
notice of its intention to terminate this Agreement for Cause, specifying in
such notice the reasons for such Cause and those conditions that, if satisfied
by the Employee, would cure the reasons for such Cause, and the Employee shall
have 60 days from receipt of such written notice to satisfy such conditions. If
such conditions are satisfied within such 60-day period, the Company shall so
advise the Employee in writing. If such conditions are not satisfied within such
60-day period, the Company may thereafter terminate this Agreement for Cause on
written Notice of Termination (as defined in Section 9(a)) delivered to the
Employee describing with specificity the grounds for termination. Immediately on
termination pursuant to this Section 7(a), the Company shall pay to the Employee
in a lump sum his then current Base Salary under Section 4(a)(1) on a prorated
basis to the Date of Termination (as defined in Section 9(b)). On termination
pursuant to this Section 7(a), the Employee shall forfeit (i) his Bonus under
Section 4(a)(2) for the year in which such termination occurs, and (ii) all
outstanding but unvested Options (but not Contingent Options) and other options
and rights relating to capital stock of the Company. For purposes of this
Agreement, Cause shall mean:
(1) a material breach of any of the terms of this Agreement
that is not immediately corrected following written notice of default specifying
such breach;
(2) a breach of any of the provisions of Section 12;
(3) repeated intoxication with alcohol or drugs while on
Company premises during its regular business hours to such a degree that, in the
reasonable judgment of the other managers of the Company, the Employee is
abusive or incapable of performing his duties and responsibilities under this
Agreement;
(4) conviction of a felony; or
(5) misappropriation of property belonging to the Company
and/or any of its affiliates.
(b) Termination Without Cause. The employment of the Employee may
be terminated without Cause at any time by the Board on delivery to the Employee
of a written Notice of Termination (as defined in Section 9(a)). On the Date of
Termination (as defined in Section 9(b)) pursuant to this Section 7(b), the
Company shall pay to the Employee in a lump sum an amount equal to the sum of
(i) all Base Salary payable under Section 4(a)(1) through the termination date,
(ii) a pro-rated portion of the maximum Bonus available to the Employee under
Section 4(a)(2) for the year in which the termination occurs, and (iii) an
amount equal to the
5
6
greater of (aa) the aggregate Total Compensation paid to the Employee by the
Company with respect to the twelve months preceding the termination date, or
(bb) the aggregate Remaining Compensation payable to the Employee by the Company
for the balance of the Term remaining under this Agreement. For purposes of this
section 7(b), the Employee's Total Compensation shall equal the sum of the Base
Salary, Bonus, and other benefits and expense reimbursements described in
Section 4(b) paid to the Employee by the Company. For purposes of this section
7(b), the Remaining Compensation for the balance of the Term shall equal the sum
of the Base Salary and Bonus payable to the Employee under the remaining Term of
this Agreement, assuming that the Employee would receive for the remaining Term
the same Base Salary and Bonus earned by the Employee with respect to the
previous year, unless otherwise specified in this Agreement. In addition, on
termination of the Employee under this Section 7(b), all of the Employee's
outstanding but unvested Options, Contingent Options and other options and
rights relating to capital stock of the Company shall immediately vest and
become exercisable. The term of any such options and rights shall be extended to
the third anniversary of the Employee's termination. The Employee acknowledges
that extending the term of any Options or Contingent Options pursuant to this
Section 7(b) or Section 7(c) or Section 7(d) could cause such Options or
Contingent Options to lose their tax-qualified status if they are incentive
stock options under the Code and agrees that the Company shall have no
obligation to compensate the Employee for any additional taxes he incurs as a
result.
(c) Termination on Disability. If during the Term the Employee
should fail to perform his duties hereunder on account of physical or mental
illness or other incapacity which the Board shall in good faith determine
renders the Employee incapable of performing his duties hereunder, and such
illness or other incapacity shall continue for a period of more than six (6)
consecutive months ("Disability"), the Company shall have the right, on written
Notice of Termination (as defined in Section 9(a)) delivered to the Employee to
terminate the Employee's employment under this Agreement. During the period that
the Employee shall have been incapacitated due to physical or mental illness,
the Employee shall continue to receive the full Base Salary provided for in
Section 4(a)(1) hereof at the rate then in effect until the Date of Termination
(as defined in Section 9(b)) pursuant to this Section 7(c). On the Date of
Termination pursuant to this Section 7(c), the Company shall pay to the Employee
in a lump sum an amount equal to (i) the Base Salary remaining payable to the
Employee under Section 4(a)(1) for the full remaining Term, plus (ii) a
pro-rated portion of the maximum Bonus available to the Employee under Section
4(a)(2) for the year in which the termination occurs. In addition, on such
termination, all of the Employee's outstanding but unvested Options, Contingent
Options and other options and rights relating to capital stock of the Company
shall immediately vest and become exercisable. The term of any such options and
rights shall be extended to the third anniversary of the Employee's termination.
(d) Termination on Death. If the Employee shall die during the
Term, the employment of the Employee shall thereupon terminate. On the Date of
Termination (as defined in Section 9(b)) pursuant to this Section 7(d), the
Company shall pay to the Employee's estate the payments and other benefits
applicable to termination without Cause set forth in Section 7(b)
6
7
hereof. In addition, on termination of the Employee under this Section 7(d), all
of the Employee's outstanding but unvested Options, Contingent Options and other
options and rights relating to capital stock of the Company shall immediately
vest and become exercisable. The term of any such options and rights shall be
extended to the third anniversary of the Employee's termination. The provisions
of this Section 7(d) shall not affect the entitlements of the Employee's heirs,
executors, administrators, legatees, beneficiaries or assigns under any employee
benefit plan, fund or program of the Company.
8. Termination By Employee. The Employee may terminate his employment
hereunder on written Notice of Termination delivered to the Company setting
forth the effective date of termination. If the Employee terminates his
employment hereunder, he shall be entitled to receive, and the Company agrees to
pay on the effective date of termination specified in the Notice of Termination,
his current Base Salary under Section 4(a)(1) hereof on a prorated basis to such
date of termination. On termination by the Employee, the Employee shall forfeit
(i) his Bonus under Section 4(a)(2) for the year in which such termination
occurs and (ii) all outstanding but unvested Options (but not any Contingent
Options) and other options and rights relating to capital stock of the Company.
9. Provisions Applicable to Termination of Employment.
(a) Notice of Termination. Any purported termination of Employee's
employment by the Company pursuant to Section 7 shall be communicated by Notice
of Termination to the Employee as provided herein, and shall state the specific
termination provisions in this Agreement relied on and set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment ("Notice of Termination"). If the Employee terminates
under Section 8, he shall give the Company a Notice of Termination.
(b) Date of Termination. For all purposes, "Date of Termination"
shall mean, for Disability, thirty (30) days after Notice of Termination is
given to the Employee (provided the Employee has not returned to duty on a
full-time basis during such 30-day period), or, if the Employee's employment is
terminated by the Company for any other reason or by the Employee, the date on
which a Notice of Termination is given.
(c) Benefits on Termination. On termination of this Agreement by
the Company pursuant to Section 7 or by the Employee pursuant to Section 8, all
profit-sharing, deferred compensation and other retirement benefits payable to
the Employee under benefit plans in which the Employee then participated shall
be paid to the Employee in accordance with the provisions of the respective
plans.
10. Change In Control.
7
8
(a) Payments on Change in Control. Notwithstanding any provision
in this Agreement to the contrary, unless the Employee elects in writing to
waive this provision, a Change in Control (as defined below) of the Company
shall be deemed a termination of the Employee without Cause, and the Employee
shall be entitled to receive and the Company agrees to pay to the Employee in a
lump sum the same amount determined under Section 7(b) that is payable to the
Employee on termination without Cause. In addition, on a Change of Control, all
of the Employee's outstanding but unvested Options, Contingent Options and other
options and rights relating to capital stock of the Company shall immediately
vest and become exercisable, the term of any such options and rights shall be
extended to the third anniversary of the Employee's termination.
After a Change in Control, if any previously outstanding Option,
Contingent Option or other option or right (the "Terminated Option") relating to
the Company's capital stock does not remain outstanding, the successor to the
Company or its then Parent (as defined below) shall either:
(i) Issue an option, warrant or right, as appropriate (the
"Successor Option"), to purchase common stock of such successor or Parent in an
amount such that on exercise of the Successor Option the Employee would receive
the same number of shares of the successor's/Parent's common stock as the
Employee would have received had the Employee exercised the Terminated Option
immediately prior to the transaction resulting in the Change in Control and
received shares of such successor/Parent in such transaction. The aggregate
exercise price for all of the shares covered by such Successor Option shall
equal the aggregate exercise price of the Terminated Option; or
(ii) Pay the Employee a bonus within ten (10) days after the
consummation of the Change in Control in an amount agreed to by the Employee and
the Company. Such amount shall be at least equivalent on an after-tax basis to
the net after-tax gain that the Employee would have realized if he had been
issued a Successor Option under clause (i) above and had immediately exercised
such Successor Option and sold the underlying stock, taking into account the
different tax rates that apply to such bonus and to such gain, and such amount
shall also reflect other differences to the Employee between receiving a bonus
under this clause (ii) and receiving a Successor Option under clause (i) above.
(b) Definitions. For the purposes of this Agreement, a Change in
Control shall be deemed to have occurred if (i) there shall be consummated (aa)
any reorganization, liquidation or consolidation of the Company, or any merger
or other business combination of the Company with any other corporation, other
than any such merger or other combination that would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty percent (50%) of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such transaction, (bb) any sale,
lease, exchange or other transfer (in one
8
9
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company, or if (ii) any "person" (as defined in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), shall become the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of fifty percent (50%) or more
of the Company's outstanding voting securities (except that for purposes of this
Section 10(b), "person" shall not include any person (or any person that
controls, is controlled by or is under common control with such person) who as
of the date of this Agreement owns ten percent (10%) or more of the total voting
power represented by the outstanding voting securities of the Company, or a
trustee or other fiduciary holding securities under any employee benefit plan of
the Company, or a corporation that is owned directly or indirectly by the
stockholders of the Company in substantially the same percentage as their
ownership of the Company) or if (iii) during any period of two consecutive
years, individuals who at the beginning of such period constituted the entire
Board shall cease for any reason to constitute at least one-half of the
membership thereof unless the election, or the nomination for election by the
Company's shareholders, of each new director was approved by a vote of at least
one-half of the directors then still in office who were directors at the
beginning of the period.
The term "Parent" means a corporation, partnership, trust, limited
liability company or other entity that is the ultimate "beneficial owner" (as
defined above) of fifty percent (50%) or more of the Company's outstanding
voting securities.
11. Gross Up Payments. If all or any portion of any payment or benefit
that the Employee is entitled to receive from the Company pursuant to this
Agreement (a "Payment") constitutes an "excess parachute payment" within the
meaning of Section 280G of the Code, and as such is subject to the excise tax
imposed by Section 4999 of the Code or to any similar Federal, state or local
tax or assessment (the "Excise Tax"), the Company or its successors or assigns
shall pay to the Employee an additional amount (the "Gross-Up Payment") with
respect to such Payment. The amount of the Gross-Up Payment shall be sufficient
that, after paying (a) any Excise Tax on the Payment, (b) any Federal, state or
local income or employment taxes and Excise Tax on the Gross-Up Payment, and (c)
any interest and penalties imposed in respect of the Excise Tax, the Employee
shall retain an amount equal to the full amount of the Payment. For the purpose
of determining the amount of any Gross-Up Payment, the Employee shall be deemed
to pay Federal income taxes at the highest marginal rate applicable in the
calendar year in which the Gross-Up Payment is made, and state and local income
taxes at the highest marginal rate applicable in the state and locality where
the Employee resides on the date the Gross-Up Payment is made, net of the
maximum reduction in Federal income taxes that could be obtained from deducting
such state and local taxes.
The Gross-Up Payment with respect to any Payment shall be paid to
the Employee within ten (10) days after the Internal Revenue Service or any
other taxing authority issues a notice stating that an Excise Tax is due with
respect to the Payment, unless the Company undertakes to challenge the taxing
authority on the applicability of such Excise Tax and indemnifies the Employee
for (a) any amounts ultimately determined to be payable, including the
9
10
Excise Tax and any related interest and penalties, (b) all expenses (including
attorneys' and experts' fees) reasonably incurred by the Employee in connection
with such challenge, as such expenses are incurred, and (c) all amounts that the
Employee is required to pay to the taxing authorities during the pendency of
such challenge (such amounts to be repaid by the Employee to the Company if they
are ultimately refunded to the Employee by the taxing authority).
12. Non-Competition and Non-Solicitation.
(a) In consideration of the provisions hereof, for the period
commencing on the date hereof and ending on the first anniversary of the
termination of this Agreement by the Company with Cause pursuant to Section 7(a)
or by the Employee pursuant to Section 8, the Employee will not, except as
specifically provided below, anywhere in any county in any state in which the
Company is engaged in business as of such termination date, directly or
indirectly, acting individually or as the owner, shareholder, partner or
management employee of any entity, (i) engage in the operation of a solid waste
collection, transporting or disposal business, transfer facility, recycling
facility, materials recovery facility or solid waste landfill; (ii) enter the
employ as a manager of, or render any personal services to or for the benefit
of, or assist in or facilitate the solicitation of customers for, or receive
remuneration in the form of management salary, commissions or otherwise from,
any business engaged in such activities in such counties; or (iii) receive or
purchase a financial interest in, make a loan to, or make a gift in support of,
any such business in any capacity, including without limitation, as a sole
proprietor, partner, shareholder, officer, director, principal agent or trustee;
provided, however, that the Employee may own, directly or indirectly, solely as
an investment, securities of any business traded on any national securities
exchange or quoted on any NASDAQ market, provided the Employee is not a
controlling person of, or a member of a group which controls, such business and
further provided that the Employee does not, in the aggregate, directly or
indirectly, own two percent (2%) or more of any class of securities of such
business.
(b) After termination of this Agreement by the Company with Cause
pursuant to Section 7(a) or by the Employee pursuant to Section 8, the Employee
shall not (i) solicit any residential or commercial customer of the Company to
whom the Company provides service pursuant to a franchise agreement with a
public entity in any county in any state in which the Company is engaged in
business as of such termination date, (ii) solicit any residential or commercial
customer of the Company to enter into a solid waste collection account
relationship with a competitor of the Company in any such county, (iii) solicit
any such public entity to enter into a franchise agreement with any such
competitor, (iv) solicit any officer, employee or contractor of the Company to
enter into an employment or contractor agreement with a competitor of the
Company or otherwise interfere in any such relationship, or (v) solicit on
behalf of a competitor of the Company any prospective customer of the Company
that the Employee called on or was involved in soliciting on behalf of the
Company during the Term, in each case until the second anniversary of the date
of such termination, unless otherwise permitted to do so by Section 12(a).
10
11
(c) If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 12 is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration or area of the term or provision, to delete specified words or phrases
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
13. Indemnification. As an employee and agent of the Company, the
Employee shall be fully indemnified by the Company to the fullest extent
permitted by applicable law in connection with his employment hereunder.
14. Survival of Provisions. The obligations of the Company under Section
13 of this Agreement, and of the Employee under Section 12 of this Agreement,
shall survive both the termination of the Employee's employment and this
Agreement.
15. Equity Investment by the Employee. On the first day of the initial
Term, the Company shall sell to the Employee, for $2.80 per share in cash, up to
50,000 shares of the Company's Common Stock, at the Employee's election, but
subject to any approvals of the Company's existing stockholders required under
the Company's existing agreements with such stockholders.
16. No Duty to Mitigate; No Offset. The Employee shall not be required
to mitigate damages or the amount of any payment contemplated by this Agreement,
nor shall any such payment be reduced by any earnings that the Employee may
receive from any other sources or offset against any other payments made to him
or required to be made to him pursuant to this Agreement.
17. Assignment; Binding Agreement. The Company may assign this Agreement
to any parent, subsidiary, affiliate or successor of the Company. This Agreement
is not assignable by the Employee and is binding on him and his executors and
other legal representatives. This Agreement shall bind the Company and its
successors and assigns and inure to the benefit of the Employee and his heirs,
executors, administrators, personal representatives, legatees or devisees. The
Company shall assign this Agreement to any entity that acquires its assets or
business.
18. Notice. Any written notice under this Agreement shall be personally
delivered to the other party or sent by certified or registered mail, return
receipt requested and postage prepaid, to such party at the address set forth in
the records of the Company or to such other address as either party may from
time to time specify by written notice.
19. Entire Agreement; Amendments. This Agreement contains the entire
agreement of the parties relating to the Employee's employment and supersedes
all oral or written prior
11
12
discussions, agreements and understandings of every nature between them. This
Agreement may not be changed except by an agreement in writing signed by the
Company and the Employee.
20. Waiver. The waiver of a breach of any provision of this Agreement
shall not operate or as be construed to be a waiver of any other provision or
subsequent breach of this Agreement.
21. Governing Law and Jurisdictional Agreement. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of California.
22. Severability. In case any one or more of the provisions contained in
this Agreement is, for any reason, held invalid in any respect, such invalidity
shall not affect the validity of any other provision of this Agreement, and such
provision shall be deemed modified to the extent necessary to make it
enforceable.
23. Enforcement. It is agreed that it is impossible to measure fully, in
money, the damage which will accrue to the Company in the event of a breach or
threatened breach of Sections 5, 6, or 12 of this Agreement, and, in any action
or proceeding to enforce the provisions of Sections 5, 6 or 12 hereof, the
Employee waives the claim or defense that the Company has an adequate remedy at
law and will not assert the claim or defense that such a remedy at law exists.
The Company is entitled to injunctive relief to enforce the provisions of such
sections as well as any and all other remedies available to it at law or in
equity without the posting of any bond. The Employee agrees that if the Employee
breaches any provision of Section 12, the Company may recover as partial damages
all profits realized by the Employee at any time prior to such recovery on the
exercise of any warrant, option or right to purchase the Company's Common Stock
and the subsequent sale of such stock, and may also cancel all outstanding such
warrants, options and rights.
24. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and both of which together shall constitute
one and the same instrument.
12
13
25. Due Authorization. The execution of this Agreement has been duly
authorized by the Company by all necessary corporate action.
IN WITNESS WHEREOF, the parties have executed and delivered this
Employment Agreement as of the day and year set forth above.
WASTE CONNECTIONS, INC., a Delaware
corporation
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
EMPLOYEE:
________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
13