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EXHIBIT 10.40
EMPLOYMENT AGREEMENT
USA WASTE SERVICES, INC. (the "Company"), and CHARLES A. WILCOX (the
"Executive") hereby enter into this EMPLOYMENT AGREEMENT ("Agreement") dated as
of 2-3-98, as follows:
1. EMPLOYMENT.
The Company shall employ Executive, and Executive shall be employed by the
Company upon the terms and subject to the conditions set forth in this
Agreement.
2. TERM OF EMPLOYMENT.
The period of Executive's employment under this Agreement shall begin as of
January 1, 1997, and shall be for continuously renewing three (3) year terms,
unless Executive's employment is terminated in accordance with Section 5 below.
3. DUTIES AND RESPONSIBILITIES.
(a) Executive shall serve as Regional Vice President, and report to President
and Chief Operating Officer. In such capacity, Executive shall perform such
duties as may be assigned to Executive from time to time by the Board of
Directors of the Company, or the Chief Operating Officer of the Company, or
the Chief Executive Officer of the Company.
(b) Executive shall faithfully serve the Company, and/or its affiliated
corporations, devote Executive's full working time, attention and energies
to the business of the Company, and/or its affiliated corporations, and
perform the duties under this Agreement to the best of Executive's
abilities. Executive may make and manage his personal investments, provided
such investments in other activities do not violate, in any material
respect, the provisions of Section 8 of this Agreement.
(c) Executive shall (i) comply with all applicable laws, rules and regulations,
and all requirements of all applicable regulatory, self-regulatory, and
administrative bodies; (ii) comply with the Company's rules, procedures,
policies, requirements, and directions; and (iii) not engage in any other
business or employment without the written consent of the Company except as
otherwise specifically provided herein.
4. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Employment Term, the Company shall pay Executive a
base salary at the annual rate of three hundred ten thousand ($310,000)
dollars per year, or such higher rate as may be determined from time to
time by the Company ("Base Salary"). Such Base Salary shall be paid in
accordance with the Company's standard payroll practice for executives.
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(b) EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Executive for
the ordinary and necessary business expenses incurred by Executive in the
performance of the duties hereunder in accordance with the Company's
customary practices applicable to executives, provided that such expenses
are incurred and accounted for in accordance with the Company's policy.
(c) BENEFIT PLANS. Executive shall be eligible to participate in or receive
benefits under any pension plan, profit sharing plan, medical and dental
benefits plan, life insurance plan, short-term and long-term disability
plans, supplemental and/or incentive compensation plans, or any other
fringe benefit plan, generally made available by the Company to executives
working pursuant to this form of Agreement (hereinafter referred to as
"similarly situated executives."
(d) EMPLOYEE'S EXPENSES. All costs and expenses (including reasonable legal,
accounting and other advisory fees) incurred by the Executive to (i) defend
the validity of this Agreement, (ii) contest any determination by the
Company concerning the amounts payable (or reimbursable) by the Company to
the Executive under this Agreement, (iii) determine in any tax year of the
Executive, the tax consequences to the Executive of any amount payable (or
reimbursable) under Section 7(b) or 7(c) hereof, or (iv) prepare responses
to an Internal Revenue Service audit of, and to otherwise defend, his
personal income tax return for any year which is the subject of any such
audit, or an adverse determination, administrative proceedings or civil
litigation arising therefrom that is occasioned by or related to any audit
by the Internal Revenue Service of the Company's income tax returns, are,
upon written demand by the Executive, to be promptly advanced or reimbursed
to the Executive, or paid directly, on a current basis, by the Company or
its successors.
5. TERMINATION OF EMPLOYMENT.
Executive's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. Executive's employment hereunder shall terminate upon Executive's
death.
(b) TOTAL DISABILITY. The Company may terminate Executive's employment
hereunder upon Executive becoming "Totally Disabled". For purposes of this
Agreement, Executive shall be "Totally Disabled" if Executive is physically
or mentally incapacitated so as to render Executive incapable of
performing Executive's usual and customary duties under this Agreement.
Executive's receipt of disability benefits under the Company's long-term
disability plan or receipt of Social Security disability benefits shall be
deemed conclusive evidence of Total Disability for purpose of this
Agreement; provided, however, that in the absence of Executive's receipt of
such long-term disability benefits or Social Security benefits, the
Company's Board of Directors may, in its reasonable discretion (but based
upon appropriate medical evidence), determine that Executive is Totally
Disabled.
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(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate Executive's
employment hereunder for "Cause" at any time after providing written notice
to Executive.
(i) For purposes of this Agreement, the term "Cause" shall mean any of
the following: (A) conviction of a crime (including conviction on a
nolo contendere plea) involving a felony or, in the good faith
judgment of the Company's Board of Directors, fraud, dishonesty, or
moral turpitude; (B) deliberate and continual refusal to perform
employment duties reasonably requested by the Company or an affiliate
after thirty (30) days' written notice by certified mail of such
failure to perform, specifying that the failure constitutes cause
(other than as a result of vacation, sickness, illness or injury);
(C) fraud or embezzlement determined in accordance with the Company's
normal, internal investigative procedures consistently applied in
comparable circumstances; (D) gross misconduct or gross negligence in
connection with the business of the Company or an affiliate which has
substantial effect on the Company or the affiliate; or (E) breach of
any of the covenants set forth in Section 8 hereof.
(ii) An individual will be considered to have been terminated for Cause if
the Company determines that the individual engaged in an act
constituting Cause at any time prior to a payment date for an award,
regardless of whether the individual terminates employment
voluntarily or is terminated involuntarily, and regardless of
whether the individual's termination initially was considered to
have been for Cause.
(iii) Any determination of Cause under this Agreement shall be made by
resolution of the Company's Board of Directors adopted by the
affirmative vote of not less than a majority of the entire membership
of the Board of Directors at a meeting called and held for that
purpose and at which Executive is given an opportunity to be heard.
(d) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate employment
hereunder at any time after providing ninety (90) days' written notice to
the Company, or for good reason as described in Section 7 of this
Agreement.
(e) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
Executive's employment hereunder without Cause at any time after providing
written notice to Executive.
6. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
In the event that Executive's employment hereunder is terminated, Executive
shall be entitled to the following compensation and benefits upon such
termination:
(a) TERMINATION BY REASON OF DEATH. In the event that Executive's employment is
terminated by reason of Executive's death, the Company shall pay the
following amounts to Executive's beneficiary or estate:
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(i) Any accrued but unpaid Base Salary for services rendered to the date
of death, any accrued but unpaid expenses required to be reimbursed
under this Agreement; a pro-rata "bonus" or incentive compensation
payment to the extent payments are awarded to similarly situated
executives and paid at the same time as similarly situated executives
are paid; and any vacation accrued to the date of death.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c) hereof
as determined and paid in accordance with the terms of such plans,
policies and arrangements.
(iii) An amount equal to the Base Salary (at the rate in effect as of the
date of Executive's death) which would have been payable to Executive
if Executive had continued in employment until the end of the current
Employment Term (three [3] years). Such amount shall be paid in a
single lump sum cash payment within thirty (30) days after
Executive's death.
(iv) As of the date of termination by reason of Executive's death, stock
options awarded to Executive shall be fully vested. Executive's
estate or beneficiary shall have up to one (1) year from the date of
death to exercise all such options.
(b) TERMINATION BY REASON OF TOTAL DISABILITY. In the event that Executive's
employment is terminated by reason of Executive's Total Disability as
determined in accordance with Section 5(b), the Company shall pay the
following amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the date
of termination, any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to the date of
termination. Executive shall also be eligible for a bonus or
incentive compensation payment to the extent such awards are made to
similarly situated executives, pro-rated for the year in which
Executive is terminated and paid at the same time as similarly
situated executives are paid.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c) hereof
shall be determined and paid in accordance with the terms of such
plans, policies and arrangements.
(iii) The Base Salary (at the rate in effect as of the date of Executive's
Total Disability) which would have been payable to Executive if
Executive had continued in active employment until the end of the
current Employment Term (three [3] years). Payment shall be made at
the same time and in the same manner as such compensation would have
been paid if Executive had remained in active employment until the
end of such period.
(iv) As of the date of termination by reason of Executive's total
disability, Executive shall be fully vested in all stock option
awards. Executive shall have up to one (1)
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year from the date of termination by reason of total disability to
exercise all such options.
(c) TERMINATION FOR CAUSE. In the event that Executive's employment is
terminated by the Company for Cause pursuant to Section 5(c), the Company
shall pay the following amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the date
of termination, any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to the date of
termination.
(ii) Any benefits to which Executive may be entitled pursuant to the plans,
policies and arrangements referred to in Section 4(c) hereof shall be
determined and paid in accordance with the terms of such plans,
policies and arrangements.
(d) VOLUNTARY TERMINATION BY EXECUTIVE. In the event that Executive terminates
employment pursuant to Section 5(d), and other than for a resignation
tendered pursuant to Section 7 of this Agreement, the Company shall pay the
following amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the date
of termination, any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to the date of
termination.
(ii) Any benefits to which Executive may be entitled pursuant to the plans,
policies and arrangements referred to in Section 4(c) hereof shall be
determined and paid in accordance with the terms of such plans,
policies and arrangements.
(e) TERMINATION BY THE COMPANY WITHOUT CAUSE. In the event that Executive's
employment is terminated by the Company pursuant to Section 5(e) for
reasons other than death, Total Disability or Cause, the Company shall pay
the following amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the date
of termination, any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to the date of
termination.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(c) hereof
shall be determined and paid in accordance with the terms of such
plans, policies and arrangements.
(iii) An annual amount equal to 75 percent (75%) of the average of
Executive's "Total Annual Direct Compensation" for the two highest of
the three most recent calendar years prior to Executive's
termination. Such annual amount shall be paid during the three (3)
year period beginning on the date of Executive's termination and
shall be paid at the same time and in the same manner as Base Salary
would have been paid if Executive had remained in active employment
until the end of such period. For
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purposes of this Agreement, the term "Total Annual Direct
Compensation" means the total of the Base Salary and other cash
compensation payable to Executive attributable to a calendar year (A)
including any cash compensation which would have been payable for
such year but for Executive's election to defer payment of such
compensation and (B) excluding any amounts recognized as compensation
as a result of Executive's exercise of a stock option or receipt of a
stock award.
(iv) The Company completely at its expense will continue for Executive and
Executive's spouse and dependents, all health benefit plans, programs
or arrangements, whether group or individual, in which Executive was
entitled to participate at any time during the twelve-month period
prior to the date of termination, until the earliest to occur of (A)
three (3) years after the date of termination; (B) Executive's death
(provided that benefits payable to Executive's beneficiaries shall
not terminate upon Executive's death); or (C) with respect to any
particular plan, program or arrangement, the date Executive becomes
covered by a comparable benefit by a subsequent employer. In the
event that Executive's continued participation in any such plan,
program, or arrangement of the Company is prohibited, the Company
will arrange to provide Executive with benefits substantially similar
to those which Executive would have been entitled to receive under
such plan, program, or arrangement, for such period.
(v) Except to the extent prohibited by law, Executive will be 100% vested
in all benefits, awards, and grants accrued but unpaid as of the date
of termination under any pension plan, profit sharing plan,
supplemental and/or incentive compensation plans, and stock option
plans in which Executive was a participant as of the date of
termination. Executive shall have one (1) year from the date of
termination to exercise stock options. Executive shall also be
eligible for a bonus or incentive compensation payment, to the extent
payments are made to similarly situated executives, pro-rated for the
year in which the Executive is terminated, paid at the same time as
similarly situated executives are paid.
(f) NO OTHER BENEFITS OR COMPENSATION. Except as may be provided under this
Agreement, under the terms of any incentive compensation, employee benefit,
or fringe benefit plan applicable to Executive at the time of Executive's
termination or resignation of employment, Executive shall have no right to
receive any other compensation, or to participate in any other plan,
arrangement or benefit, with respect to future periods after such
termination or resignation.
(g) SUSPENSION OR TERMINATION OF BENEFITS AND COMPENSATION. In the event that
the Company, in its sole discretion determines that, without the Company's
express written consent, Executive has
(i) directly or indirectly engaged in, assisted or have any active
interest or involvement whether as an employee, agent, consultant,
creditor, advisor, officer, director, stockholder (excluding holding
of less than 1% of the stock of a public company),
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partner, proprietor, or any type of principal whatsoever, in any
person, firm, or business entity which is directly or indirectly
competitive with the Company or any of its affiliates, or
(ii) directly or indirectly, for or on behalf of any person, firm, or
business entity which is directly or indirectly competitive with the
Company or any of its affiliates (A) solicited or accepted from any
person or entity who is or was a client of the Company during the term
of Executive's employment hereunder or during any of the twelve
calendar months preceding or following the termination of Executive's
employment any business for services similar to those rendered by the
Company, (B) requested or advised any present or future customer of
the Company to withdraw, curtail or cancel its business dealings with
the Company, or (C) requested or advised any employee of the Company
to terminate his or her employment with the Company;
the Company shall have the right to suspend or terminate any or all
remaining benefits payable pursuant to Section 6 of this Agreement. Such
suspension or termination of benefits shall be in addition to and shall not
limit any and all other rights and remedies that the Company may have
against Executive.
7. RESIGNATION BY EXECUTIVE FOR GOOD REASON AND COMPENSATION PAYABLE FOLLOWING
CHANGE IN CONTROL.
(a) RESIGNATION FOR GOOD REASON FOLLOWING CHANGE IN CONTROL. In the event a
"Change in Control" occurs, Executive will be paid the compensation
described in this Section 7 if Executive resigns or is terminated (both a
"resignation" and "termination" being referred to as "termination" for the
purposes of this Section 7) from employment with the Company at any time
prior to the six (6) month anniversary of the date of the Change in Control
following the occurrence of any of the following events:
(i) without Executive's express written consent, the assignment to
Executive of any duties inconsistent with Executive's positions,
duties, responsibilities and status with the Company immediately
before a Change in Control, or a change in Executive's reporting,
responsibilities, titles or offices as in effect immediately before a
Change in Control, or any removal of Executive from, or any failure
to re-elect Executive to, any of such positions, except in connection
with the termination of Executive's employment as a result of death,
or by the Company for Disability or Cause, or by Executive other than
for the reasons described in this Section 7(a);
(ii) a reduction by the Company in Executive's Base Salary as in effect
immediately before a Change in Control plus all increases therein
subsequent thereto;
(iii) the failure of the Company substantially to maintain and to continue
Executive's participation in the Company's benefit plans as in effect
immediately before a Change in Control and with all improvements
therein subsequent thereto (other than
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those plans or improvements that have expired thereafter in
accordance with their original terms), or the taking of any action
which would materially reduce Executive's benefits under any of such
plans or deprive Executive of any material fringe benefit enjoyed by
Executive immediately before a Change in Control, unless such
reduction or termination is required by law;
(iv) the failure of the Company to provide Executive with an appropriate
adjustment to compensation such as a lump sum relocation bonus,
salary adjustment and/or housing allowance so that Executive can
purchase comparable primary housing if required to relocate (it being
the intention of this Section 7[a][iv] to keep the Executive "whole"
if required to relocate). In this regard, comparable housing shall be
determined by comparing factors such as location (taking into
account, by way of example, items such as the value of the
surrounding neighborhood, reputation of the public school district,
if applicable, security and proximity to Executive's place of work),
quality of construction, design, age, size of the housing and the
ratio of the monthly payments including principle, interest, taxes
and insurance to the Executive's take home pay, to housing most
recently owned by Executive prior to, or as of the effective date of
the change of control;
(v) the failure by the Company to pay Executive any portion of
Executive's current compensation, or any portion of Executive's
compensation deferred under any plan, agreement or arrangement of or
with the Company, within seven (7) days of the date such
compensation is due; or
(vi) the failure by the Company to obtain an assumption of, and agreement
to perform the obligations of the Company under this Agreement by any
successor to the Company.
(b) COMPENSATION PAYABLE. In the event that Executive terminates employment
pursuant to Section 7(a), the Company shall pay the following amounts to
Executive:
(i) Any accrued but unpaid Base Salary for services rendered to the date
of termination, any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to the date of
termination.
(ii) Any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4c hereof,
shall be determined and paid in accordance with the terms of such
plans, policies and arrangements.
(iii) An amount equal to $1.00 less than three (3) times Executive's "base
amount" within the full meaning of Section 280G of the Internal
Revenue Code. Such amount shall be paid to Executive in a single lump
sum cash payment within five (5) business days after the effective
date of Executive's termination.
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(iv) Executive will be 100% vested in all benefits, awards, and grants
(including stock options) accrued but unpaid as of the date of
termination under any non-qualified pension plan, supplemental and/or
incentive compensation or bonus plans, in which Executive was a
participant as of the date of termination. Executive shall also be
eligible for a bonus or incentive compensation payment (the "bonus
payment"), payable at 100% of the maximum bonus available to
Executive, pro-rated as of the effective date of the termination. The
bonus payment shall be payable within five (5) days after the
effective date of Employee's termination. Employee shall have until
the expiration date shown on the stock option award in which to
exercise the options which have vested pursuant to this section.
Except as may be provided under this Section 7 or under the terms of
any incentive compensation, employee benefit, or fringe benefit plan
applicable to Executive at the time of Executive's resignation from
employment, Executive shall have no right to receive any other
compensation, or to participate in any other plan, arrangement or
benefit, with respect to future periods after such resignation or
termination.
(c) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. In the event that any
portion of the benefits payable under this Agreement, and any other
payments and benefits under any other agreement with, or plan of the
Company to or for the benefit of the Executive (in aggregate, "Total
Payments") constitute an "excess parachute payment" within the meaning
of Section 280G of the Internal Revenue Code (the "Code"), then the
Company shall pay the Executive as promptly as practicable following
such determination an additional amount (the "Gross-up Payment")
calculated as described below to reimburse the Executive on an
after-tax basis for any excise tax imposed on such payments under
Section 4999 of the Code. The Gross-up Payment shall equal the amount,
if any, needed to ensure that the net parachute payments (including
the Gross-up Payment) actually received by the Executive after the
imposition of federal and state income, employment and excise taxes
(including any interest or penalties imposed by the Internal Revenue
Service), are equal to the amount that the Executive would have netted
after the imposition of federal and state income and employment taxes,
had the Total Payments not been subject to the taxes imposed by
Section 4999. For purposes of this calculation, it shall be assumed
that the Executive's tax rate will be the maximum federal rate to be
computed with regard to Section 1(g) of the Code.
In the event that the Executive and the Company are unable to agree as
to the amount of the Gross-up Payment, if any, the Company shall
select a law firm or accounting firm from among those regularly
consulted (during the twelve-month period immediately prior to a
Change-in-Control) by the Company regarding federal income tax matters
and such law firm or accounting firm shall determine the amount of
Gross-up Payment and such determination shall be final and binding
upon the Executive and the Company.
(d) CHANGE IN CONTROL. For purposes of this Agreement, "Change in Control"
means the occurrence of any of the following events:
(i) Any transfer to, assignment to, or any acquisition by any person,
corporation or other entity, or group thereof, of the beneficial
ownership, within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, of any securities of the
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Company, which transfer, assignment or acquisition results in
such person, corporation, entity, or group thereof, becoming the
beneficial owner, directly or indirectly, of securities of the
Company representing 25 percent (25%) or more of the combined
voting power of the Company's then outstanding securities; or
(ii) As a result of a tender offer, merger, consolidation, sale of
assets, or contested election, or any combination of such
transactions, the persons who were directors immediately before
the transaction shall cease to constitute a majority of the Board
of Directors of the Company or any successor to the Company.
8. RESTRICTIVE COVENANTS
(a) COMPETITIVE ACTIVITY. Executive covenants and agrees that at all times
during Executive's period of employment with the Company, and during the
period that payments are made to Executive pursuant to Section 6 of this
Agreement, Executive will not engage in, assist, or have any active
interest or involvement (whether as an employee, agent, consultant,
creditor, advisor, officer, director, stockholder (excluding holding of
less than 1% of the stock of a public company), partner, proprietor or any
type of principal whatsoever in any person, firm, or business entity which,
directly or indirectly, is engaged in the same business as that conducted
and carried on by the Company, without the Company's specific written
consent to do so. Executive further agrees that for a period of one (1)
year after the date payments made to Executive pursuant to Section 6 of
this Agreement cease, or for a period of two (2) years following the date
of termination, whichever is later, Executive will not, directly or
indirectly, within 75 miles of any operating location of any affiliate of
the Company, engage in, assist, or have any active interest or involvement,
whether as an employee, agent, consultant, creditor, advisor, officer,
director, stockholder (excluding holding of less that 1% of the stock of a
public company), partner, proprietor or any type of principal whatsoever in
any person, firm, or business entity which, directly or indirectly, is
engaged in the same business as that conducted and carried on by the
Company or any of its affiliated companies, without the Company's specific
written consent to do so.
(b) NON-SOLICITATION. Executive covenants and agrees that at all times during
Executive's period of employment with the Company, and for a period of one
(1) year after the date payments made to Executive pursuant to Section 6 of
this Agreement cease, or two (2) years after the date of termination of the
Executive's employment, whichever date is later, whether such termination
is voluntary or involuntary by wrongful discharge, or otherwise, Executive
will not directly or indirectly (i) induce any customers of the Company or
corporations affiliated with the Company to patronize any similar business
which competes with any material business of the Company; (ii) canvass,
solicit or accept any similar business from any customer of the Company or
corporations affiliated with the Company; (iii) directly or indirectly
request or advise any customers of the Company or corporations affiliated
with the Company to withdraw, curtail or cancel such customer's business
with the Company; or (iv) directly or indirectly disclose to any other
person, firm or corporation the names or addresses of any of the customers
of the Company or corporations affiliated with the Company.
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(c) NON-DISPARAGEMENT. Executive covenants and agrees that Executive shall not
engage in any pattern of conduct that involves the making or publishing of
written or oral statements or remarks (including, without limitation, the
repetition or distribution of derogatory rumors, allegations, negative
reports or comments) which are disparaging, deleterious or damaging to the
integrity, reputation or good will of the Company, its management, or of
management of corporations affiliated with the Company.
(d) PROTECTED INFORMATION. Executive recognizes and acknowledges that Executive
has had and will continue to have access to various confidential or
proprietary information concerning the Company and corporations affiliated
with the Company of a special and unique value which may include, without
limitation, (i) books and records relating to operation, finance,
accounting, sales, personnel and management, (ii) policies and matters
relating particularly to operations such as customer service requirements,
costs of providing service and equipment, operating costs and pricing
matters, and (iii) various trade or business secrets, including customer
lists, route sheets, business opportunities, marketing or business
diversification plans, business development and bidding techniques, methods
and processes, financial data and the like (collectively, the "Protected
Information"). Executive therefore covenants and agrees that Executive will
not at any time, either while employed by the Company or afterwards,
knowingly make any independent use of, or knowingly disclose to any other
person or organization (except as authorized by the Company) any of the
Protected Information.
9. ENFORCEMENT OF COVENANTS.
(a) TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. Executive agrees
that any breach by Executive of any of the covenants set forth in Section 8
hereof during Executive's employment by the Company, shall be grounds for
immediate dismissal of Executive and forfeiture of any accrued and unpaid
salary, bonus, commissions or other compensation of such Executive as
liquidated damages, which shall be in addition to and not exclusive of any
and all other rights and remedies the Company may have against Executive.
(b) RIGHT TO INJUNCTION. Executive acknowledges that a breach of the covenants
set forth in Section 8 hereof will cause irreparable damage to the Company
with respect to which the Company's remedy at law for damages will be
inadequate. Therefore, in the event of breach of anticipatory breach of the
covenants set forth in this section by Executive, Executive and the Company
agree that the Company shall be entitled to the following particular forms
of relief, in addition to remedies otherwise available to it at law or
equity; (i) injunctions, both preliminary and permanent, enjoining or
retraining such breach or anticipatory breach and Executive hereby consents
to the issuance thereof forthwith and without bond by any court of
competent jurisdiction; and (ii) recovery of all reasonable sums expended
and costs, including reasonable attorney's fees, incurred by the Company to
enforce the covenants set forth in this section.
(c) SEPARABILITY OF COVENANTS. The covenants contained in Section 8 hereof
constitute a series of separate covenants, one for each applicable State in
the United States and the District of
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Columbia, and one for each applicable foreign country. If in any judicial
proceeding, a court shall hold that any of the covenants set forth in
Section 8 exceed the time, geographic, or occupational limitations
permitted by applicable laws, Executive and the Company agree that such
provisions shall and are hereby reformed to the maximum time, geographic,
or occupational limitations permitted by such laws. Further, in the event a
court shall hold unenforceable any of the separate covenants deemed
included herein, then such unenforceable covenant or covenants shall be
deemed eliminated from the provisions of this Agreement for the purpose of
such proceeding to the extent necessary to permit the remaining separate
covenants to be enforced in such proceeding. Executive and the Company
further agree that the covenants in Section 8 shall each be construed as a
separate agreement independent of any other provisions of this Agreement,
and the existence of any claim or cause of action by Executive against the
Company whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of any of the
covenants of Section 8.
10. DISPUTES AND PAYMENT OF ATTORNEY'S FEES.
If at any time during the term of this Agreement or afterwards there should
arise any dispute as to the validity, interpretation or application of any term
or condition of this Agreement, the Company agrees, upon written demand by
Executive (and Executive shall be entitled upon application to any court of
competent jurisdiction, to the entry of a mandatory injunction, without the
necessity of posting any bond with respect thereto, compelling the Company) to
promptly provide sums sufficient to pay on a current basis (either directly or
by reimbursing Executive) Executive's costs and reasonable attorney's fees
(including expenses of investigation and disbursements for the fees and expenses
of experts, etc.) incurred by Executive in connection with any such dispute or
any litigation, (a) provided that Executive shall repay any such amounts paid or
advanced if Executive is not the prevailing party with respect to any dispute or
litigation arising under Sections 5c or 8 of this Agreement, or (b) regardless
of whether Executive is the prevailing parry in a dispute or in litigation
involving any other provision of this Agreement, provided that the court in
which such litigation is first initiated determines with respect to this
obligation, upon application of either party hereto, Executive did not initiate
frivolously such litigation. Under no circumstances shall Executive be obligated
to pay or reimburse the Company for any attorneys' fees, costs or expenses
incurred by the Company. The provisions of this Section 10 shall survive the
expiration or termination of this Agreement and of Executive's employment
hereunder.
11. WITHHOLDING OF TAXES.
The Company may withhold from any compensation and benefits payable under this
Agreement all applicable federal, state, local, or other taxes.
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12. NON-DISCLOSURE OF AGREEMENT TERMS.
Executive agrees that Executive will not disclose the terms of this Agreement to
any third party other than Executive's immediate family, attorney, accountants,
or other consultants or advisors or except as may be required by any
governmental authority.
13. SOURCE OF PAYMENTS.
All payments provided under this Agreement, other than payments made pursuant to
a plan which provides otherwise, shall be paid from the general funds of the
Company, and no special or separate fund shall be established, and no other
segregation of assets made, to assure payment. Executive shall have no right,
title or interest whatever in or to any investments which the Company may make
to aid the Company in meeting its obligations hereunder. To the extent that any
person acquires a right to receive payments from the Company hereunder, such
right shall be no greater than the right of an unsecured creditor of the
Company.
14. ASSIGNMENT.
Except as otherwise provided in this Agreement, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns. This Agreement shall not be
assignable by Executive, and shall be assignable by the Company only to any
financially solvent corporation or other entity resulting from the
reorganization, merger or consolidation of the Company with any other
corporation or entity or any corporation or entity to or with which the
Company's business or substantially all of its business or assets may be sold,
exchanged or transferred, and it must be so assigned by the Company to, and
accepted as binding upon it by, such other corporation or entity in connection
with any such reorganization, merger, consolidation, sale, exchange or transfer
(the provisions of this sentence also being applicable to any successive such
transaction).
15. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Executive and the Company or any of its
subsidiaries or affiliated entities relating to the terms of Executive's
employment by the Company. It may not be amended except by a written agreement
signed by both parties.
16. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Texas applicable to agreements made and to be performed in that
State, without regard to its conflict of laws provisions.
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17. NOTICES.
Any notice, consent, request or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by registered or certified mail, return receipt
requested, or by facsimile or by hand delivery, to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To the Company:
USA Waste Services, Inc.
1001 Fannin, Suite 4000
Houston, Texas 77002
Attention: Corporate Secretary
To Executive:
At the address for Executive set forth below.
18. MISCELLANEOUS.
(a) WAIVER. The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(b) SEPARABILITY. Subject to Section 9 hereof, if any term or provision of this
Agreement is declared illegal or unenforceable by any court of competent
jurisdiction and cannot be modified to be enforceable, such term or
provision shall immediately become null and void, leaving the remainder of
this Agreement in full force and effect.
(c) HEADINGS. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this Agreement.
(d) RULES OF CONSTRUCTION. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
(e) COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, and such
counterparts will together constitute but one Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
USA WASTE SERVICES, INC.
By: /s/ [ILLEGIBLE] Date: 2/3/98
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Name:
----------------------------
Title:
---------------------------
EXECUTIVE
/s/ CHARLES A. WILCOX Date: 2/3/98
- ---------------------------------- ----------------------
Address: 511 VALHALLA DR.
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SEWICKLEY, PA 15143
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